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EXHIBIT 10.47
XXXXXXXXXX HEALTHCARE CORPORATION
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of July 17, 1996, between Xxxxxxxxxx Healthcare
Corporation, a California corporation (the "Company"), and Xxxxxx X. Xxxxxx
(the "Executive").
In consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be legally bound
hereby, the parties agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive and
the Executive hereby agrees to serve the Company, on the terms and conditions
set forth herein. In addition, the Executive and the Company hereby agree that
subject to and effective as of the closing of the proposed merger transaction
among the Company, Champion Healthcare Corporation, a Delaware corporation
("Champion"), and PC Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("PC Merger Sub"), whereby Champion will become
a wholly owned subsidiary of the Company (the "Merger"), this Agreement shall
supersede that certain letter agreement regarding employment (the "Prior
Agreement") between the Company and the Executive, dated as of April 15, 1986,
and the Prior Agreement shall thereupon automatically terminate without further
obligation by either Executive or the Company.
2. TERM OF EMPLOYMENT; DUTIES. From the period commencing on the date
hereof and ending immediately prior to the Effective Time (as defined in the
Agreement and Plan of Merger by and among the Company, Champion and PC Merger
Sub dated as of April 12, 1996, as amended May 29, 1996, and as such agreement
may be amended from time to time (the "Merger Agreement")), the employment of
the Executive shall be governed by the terms and conditions set forth in the
Prior Agreement. The term of this Agreement (the "Term"), and Executive's
employment with the Company hereunder, shall commence at the Effective Time
and, unless earlier terminated in accordance with the terms hereof, shall
continue until the third anniversary of the Effective Time (such initial term
of the Agreement referred to as the "Initial Term"); provided, however, that
the Term shall automatically be renewed for one additional period of two years
at the end of the Initial Term, unless either the Company or the Executive
provides at least one year's notice to the other of its intention not to renew
the Term; and provided, further, that if the Merger Agreement is terminated in
accordance with its terms prior to the Effective Time or if the Merger is
abandoned or otherwise does not close, (x) this Agreement shall automatically
terminate without further obligation by either party hereto, (y) the terms and
conditions set forth in this Agreement shall
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not apply and (z) the employment of the Executive shall continue to be
governed by the terms and conditions set forth in the Prior Agreement.
During the Term, the Executive shall be employed as the Senior Vice
President, Secretary and General Counsel of the Company, reporting to the
President of the Company, serving at the will of the Board of Directors of the
Company (the "Board") with the traditional duties, responsibilities and
authority of such office in companies similar in size to the Company. The
Executive agrees that he shall perform his duties hereunder faithfully and to
the best of his abilities and in furtherance of the business of the Company and
its subsidiaries and shall devote substantially all of his business time,
energy and attention to the business of the Company and its subsidiaries.
3. COMPENSATION AND RELATED MATTERS
(a) BASE SALARY. During the Term, the Company shall pay to the
Executive an annual base salary (the "Base Salary") at an initial rate of
$240,000 per year, payable in accordance with the Company's normal payroll
practices or as the Company and Executive may otherwise agree. The Base Salary
shall be reviewed by the Company annually and shall be subject to discretionary
increase by the Company from time to time, but shall not be decreased from the
rate in effect at any time and from time to time during the Term.
(b) ANNUAL PERFORMANCE BONUS. Executive shall be entitled to
participate in the Xxxxxxxxxx Healthcare Corporation Executive Officer
Performance Bonus Plan or any similar or successor annual bonus plan of the
Company (the "Performance Bonus Plan") and to receive an annual performance
bonus upon the achievement of one or more annual performance goals (the
"Performance Goals") in accordance with the terms of the Performance Bonus
Plan; provided, that Executive's annual target bonus under the Performance
Bonus Plan (the "Annual Target Bonus") shall not be less than 60% of the Base
Salary in effect at the time the Performance Goals for such plan year are
established.
(c) LONG-TERM INCENTIVE. The Executive shall be eligible to
participate in any long-term incentive compensation and/or stock option plans
maintained from time to time by the Company. In addition, pursuant to prior
action of the Stock Option Committee of the Board, Executive has previously
been granted an option (the "Value Option") to purchase 160,933 shares of
Company common stock, no stated par value (the "Common Stock"), at an exercise
price of $.01 per share with a term of 10 years from the date of grant. The
Value Option will be fully vested on grant and will become fully exercisable at
the Effective Time; provided, that the Value Option will not become exercisable
in whole or in part in the event the Merger Agreement is
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terminated in accordance with its terms prior to the Effective Time or if the
Merger is abandoned or otherwise does not close; and provided, further, that
the Value Option shall be subject to the terms of the Xxxxxxxxxx Healthcare
Corporation 1996 Stock Incentive Plan and the stock option agreement to be
entered into in connection with the grant of the Value Option.
(d) BENEFITS, PERQUISITES AND EXPENSES. During the Term, the
Executive shall be eligible to participate in employee benefit and fringe
benefit plans and programs generally available to the executive officers of the
Company and such additional benefits as the Board may from time to time
provide. In addition, Executive shall be entitled to receive the personal
benefits described on Exhibit A hereto. Executive shall be entitled to
reimbursement for business expenses, including travel and entertainment;
provided, that such reimbursement shall be limited to reasonable and necessary
expenses incurred by Executive in connection with the performance of duties on
behalf of the Company subject to: (i) timely submission of a properly executed
Company expense report form accompanied by appropriate supporting
documentation, and (ii) compliance with Company policies and procedures
governing business expense reimbursement and reporting based upon principles
and guidelines established by the Audit Committee of the Board, including
periodic audits by the Internal Audit Department of the Company and/or the
Audit Committee of the Board; and provided, further, that subject to pre-
approval of such expenses by the President of the Company, the Company shall
reimburse Executive for reasonable expenses incurred by Executive's spouse when
traveling with Executive on Company business.
(e) RETIREMENT BENEFITS. The Executive shall be entitled to
participate in the Xxxxxxxxxx Healthcare Corporation Supplemental Executive
Retirement Plan or any similar or successor plan (the "SERP") and in any tax-
qualified and any other supplemental pension plans generally available to the
executive officers of the Company. The Company shall not take any action,
whether by amendment of the SERP or otherwise, to adversely affect Executive's
accrued benefits and other rights under the SERP as of the Effective Time.
4. TERMINATION OF EXECUTIVE. Prior to the expiration of the Term and
subject to the payment of any amounts required under Section 5, the Executive's
employment with the Company may be terminated (a) by the Company for Cause (as
defined herein) or without Cause, (b) by the Executive for or without Good
Reason (as defined herein), (c) by reason of the Executive's death or
Disability (as defined herein) or (d) by the mutual written consent of the
parties hereto. For purposes of this Agreement:
(i) "Cause" means (A) acts of embezzlement, theft and fraud
established by a preponderance of the evidence; (B) actions
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which have had or will likely have a material adverse financial effect on the
Company as a whole for an extended period of time, where appropriate evidence
exists that such actions are directly attributable to the (I) gross management
negligence or repeated ineptitude of the Executive and/or (II) deliberate
refusal of the Executive to follow the instructions or directions of the Board;
(C) conviction of or a plea of guilty or nolo contendere to a felony; (D)
violation of the noncompete or confidentiality provisions of this Agreement,
provided, that no such violation will be deemed to have occurred if, within 30
days following receipt by Executive of a notice from the Board identifying the
violation, the Executive (I) cures the violation and (II) establishes that the
violation was unintentional and not reasonably likely to result in harm to the
Company, in each case to the reasonable satisfaction of the Board; (E) material
incapacitation or repeated absence from work due to reckless and self-abusive
behavior or conduct, such as alcoholism and drug abuse, which renders Executive
incapable of performing his duties; provided, that physical or mental
disability due to injury or disease shall not be grounds for termination for
Cause; (F) gross insubordination or persistent refusal to follow instructions;
or (G) inability to perform the duties of the Executive's office or consistent
failure to perform in accordance with reasonable expectations due to
incompetence, or repeated and unexcused absence from work having a material
adverse effect on the Company.
For purposes of this Agreement, the Board shall have 60 days to terminate
the Executive for Cause following the date on which the Board discovers the
existence of a specific set of facts that, in the aggregate, then constitute
Cause, after which period no Cause with respect to such specific set of facts
shall be deemed to exist; provided, that the repetition or reoccurrence of the
same or a similar set of facts shall constitute a separate ground for
termination for Cause.
(ii) "Disability" means the Executive's absence from the full-time
performance of his duties with the Company for one hundred eighty (180) days or
more within any period of 12 consecutive months as a result of the Executive's
incapacity due to mental or physical illness; provided, that during any period
prior to the termination of Executive's employment by reason of Disability in
which Executive is absent from the full-time performance of his duties with the
Company due to Disability, the Company shall continue to pay Executive his Base
Salary at the rate in effect at the commencement of such period of Disability;
(iii) "Good Reason" means, without the Executive's express written
consent, the occurrence of any of the following events:
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(A) a reduction by the Company in the Executive's Base Salary
or Annual Target Bonus in effect from time to time; (B) a material reduction in
the aggregate level of participation in and/or compensation and benefit
opportunities under all other compensation and employee benefit plans in which
Executive is entitled to participate from time to time; provided, however, that
changes affecting the participation in or benefits under such plans (other than
the Performance Bonus Plan, the SERP and the benefits described in Exhibit A)
with respect to similarly situated executives of the Company shall not
constitute Good Reason hereunder; (C) a reduction in the Executive's titles
with the Company; (D) notification by the Company of its intention not to renew
this Agreement pursuant to the provisions of Section 2; or (E) the termination
of the Executive's employment by the Executive for any reason within 12 months
following a Change in Control (as defined herein).
(iv) "Change in Control" means the occurrence of any one of the
following events:
(A) any "person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) becomes an Acquiring Person
(as such term is defined in the Company's Shareholder Protection Rights
Agreement to be adopted at the Effective Time) or any person that is not bound
by the Shareholder Agreement of the Company to be entered into in connection
with the Merger (the "Shareholder Agreement") becomes the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the undiluted total
voting power of the Company's then outstanding securities eligible to vote for
the election of members of the Board (the "Company Voting Securities");
provided, however, that no event described in the immediately preceding clause
shall be deemed to constitute a Change in Control by virtue of any of the
following: (I) an acquisition of Company Voting Securities by the Company
and/or one or more direct or indirect majority-owned subsidiaries of the
Company; (II) an acquisition of Company Voting Securities by any employee
benefit plan sponsored or maintained by the Company or any corporation
controlled by the Company; (III) an acquisition by any underwriter temporarily
holding securities pursuant to an offering of such securities; or (IV) any
acquisition by the Executive or any "group" (as such term is defined in Rule
3d-5 under the Exchange Act) of persons including the Executive; or
(B) individuals who, at the beginning of any period of
twenty-four (24) consecutive months, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof;
provided, however, that any person becoming a director subsequent to the
beginning of such twenty-four (24) month
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period, whose election, or nomination for election, by the Company's
shareholders was approved by either (i) the Board consistent with the terms of
the Shareholder Agreement, during the period the Shareholder Agreement is in
effect, or (ii) a vote of at least 75% of the directors comprising the
Incumbent Board (either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a nominee for
director, without objection to such nomination) shall be, for purposes of this
paragraph (B), considered as though such person were a member of the Incumbent
Board; provided, further, that no individual initially elected or nominated as
a director of the Company as a result of an actual or threatened election
contest with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than
the Board shall be deemed to be a member of the Incumbent Board; or
(C) there is consummated a merger or consolidation of the
Company or a subsidiary thereof with or into any other corporation other than a
merger or consolidation which would result in the holders of the voting
securities of the Company outstanding immediately prior thereto holding
securities which, in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company,
represent immediately after such merger or consolidation at least 60% of the
combined voting power of the then outstanding voting securities of either the
Company or the other entity which survives such merger or consolidation or any
parent of such other entity; or
(D) the stockholders of the Company approve (i) a plan of
complete liquidation or dissolution of the Company or (ii) an agreement for the
sale or disposition by the Company of all or substantially all the Company's
assets.
5. PAYMENTS UPON TERMINATION OF EXECUTIVE.
(a) If the employment of the Executive shall be terminated other
than by reason of death or Disability (i) by the Company (other than for Cause)
or (ii) by the Executive for Good Reason, then the Company shall pay or provide
to the Executive (or the Executive's beneficiary or estate):
(1) within thirty (30) days following the date of such
termination of employment ("Termination Date"), a lump-sum cash amount equal to
the sum of (i) the Executive's unpaid Base Salary through the Termination Date;
(ii) any accrued but unpaid annual bonus under the Performance Bonus Plan in
respect of the annual bonus period preceding the bonus period in which the
Termination Date occurs; (iii) any unpaid reimbursable business expenses
properly incurred through the Termination Date; and (iv) a bonus payment equal
to the
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Executive's Annual Target Bonus in the year of termination, multiplied by a
fraction the numerator of which is the number of months in the bonus year of
termination in which the Executive has worked at least one day and the
denominator of which is 12;
(2) within thirty (30) days following the Termination Date, a
lump-sum cash amount equal to the greater of (A) the Executive's then Base
Salary payable over the remainder of the Term plus a bonus equal to the
Executive's Annual Target Bonus in the year of termination multiplied by a
fraction the numerator of which is the number of complete months remaining in
the Term and the denominator of which is 12, or (B) 2.0 times the sum of: (i)
the Executive's annual rate of Base Salary as of the Termination Date plus (ii)
the Annual Target Bonus for the year in which the Termination Date occurs (in
each such case, Executive's Base Salary and Annual Target Bonus being
determined without taking into account any reductions thereto constituting Good
Reason); provided, however, that the Executive shall not be entitled to any
severance benefits from the Company or under any Company severance plan, policy
or arrangement other than as specified in this Agreement;
(3) for a period terminating on the earlier of (A) the
commencement of the provision of substantially equivalent benefits by a new
employer or (B) the later of (I) the last day of the Term, or (II) twenty-four
(24) months following the Termination Date, the Company shall continue to keep
in full force and effect (or otherwise provide) all policies of medical,
accident, disability and life insurance with respect to the Executive and his
dependents with substantially the same level of coverage, upon substantially
the same terms and otherwise substantially to the same extent as such policies
shall have been in effect immediately prior to the Termination Date, and, as
applicable, the Company and the Executive shall share the costs of the
continuation of such insurance coverage in the same proportion as such costs
were shared immediately prior to the date of termination;
(4) for purposes of determining final average compensation
(or making any similar calculation) and years of service (for purposes of
eligibility, vesting and benefit accrual) under any tax-qualified or
supplemental defined benefit retirement plan (including without limitation the
SERP), Executive shall be deemed to have remained employed by the Company
hereunder until the end of the Term and to have received his then current Base
Salary and Annual Target Bonus through the end of the Term; provided, that to
the extent such benefits cannot be accrued under and paid from any tax-
qualified pension plan, such benefits shall be accrued under and paid from the
SERP or other supplemental plan.
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(5) all options to purchase Common Stock held by the
Executive shall immediately become fully vested and exercisable and shall
remain exercisable until the earlier of (A) the date that is 24 months
following the Termination Date and (B) the expiration of the stated term of
such options; provided, that the Value Option shall remain exercisable until
expiration of its stated term; and
(b) If the employment of the Executive shall be terminated (i) by
reason of the Executive's death or Disability, (ii) by the Company for Cause,
(iii) by the Executive without Good Reason, or (iv) by the mutual written
consent of the parties hereto (each a "Nonqualifying Termination"), then the
Company shall pay to the Executive (or the Executive's beneficiary or estate)
within thirty (30) days following the Termination Date a lump-sum cash amount
equal to the sum of the Executive's unpaid Base Salary through the Termination
Date plus any bonus payments which have been earned or become payable, to the
extent not theretofore paid, plus any unpaid reimbursable business expenses
properly incurred through the Termination Date. In addition, Executive (or the
Executive's beneficiary or estate) shall have no less than ninety days
following the termination of his employment pursuant to a Nonqualifying
Termination to exercise any outstanding options to the extent vested and
exercisable as of the Termination Date; provided, that the Value Option shall
remain exercisable until the expiration of its stated term.
6. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Notwithstanding anything in this Agreement to the contrary, in
the event that any payment or distribution by the Company, by any affiliate of
the Company or by any person whose actions result in a change in control of the
Company (to the extent the Company approves of the arrangements pursuant to
which the payment by such person is made to the Executive) to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Section 6) (a "Payment") would be subject to the excise tax imposed by Section
4999 of the Code, or any interest or penalties are incurred by the Executive
with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that, after payment by the Executive of
all taxes (including any interest or penalties imposed with respect to such
taxes) including, without limitation, any income and employment taxes and
Excise Tax, imposed upon the Gross-Up Payment but before deduction for any
federal, state or local income or other tax upon the Payments, the Executive
will retain a net amount equal to the sum of (i) the
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Payments and (ii) an amount equal to the product of any deductions (or portions
thereof) disallowed because of the inclusion of the Gross-Up Payment in the
Executive's adjusted gross income for federal income tax purposes and the
highest applicable marginal rate of federal income taxation for the calendar
year in which the Gross-Up Payment is to be made. For purposes of determining
the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay
applicable federal income taxes at the highest applicable marginal rates of
federal income taxation (including surcharges) for the calendar year in which
the Gross-Up Payment is to be made, (2) pay applicable state and local income
taxes at the highest applicable marginal rate of taxation (including
surcharges) for the calendar year in which the Gross-Up Payment is to be made,
net of the maximum reduction in federal income taxes which could be obtained
from deduction of such state and local taxes and (3) have otherwise allowable
deductions for federal income tax purposes at least equal to those disallowed
because of the inclusion of the Gross-Up Payment in the Executive's adjusted
gross income.
(b) Subject to the provisions of Section 6(a), all determinations
required to be made under this Section 6, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by the public
accounting firm that is retained by the Company as of the date immediately
prior to the change in control (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within
fifteen (15) business days of the receipt of notice from the Company or the
Executive that there has been a Payment, or such earlier time as is requested
by the Company (collectively, the "Determination"). In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the change in control, the Executive may appoint another
nationally recognized public accounting firm reasonably acceptable to the
Company to make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All reasonable
fees and expenses of the Accounting Firm shall be borne solely by the Company
and, subject to applicable law and obligations to the Company's stockholders,
the Company shall enter into any agreement reasonably requested by the
Accounting Firm that is generally recognized as standard in connection with the
performance of the services hereunder. The Gross-Up Payment under this Section
6 with respect to any Payment shall be made no later than thirty (30) days
following the date of such Payment. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall furnish the Executive with a
written opinion to such effect, and to the effect that failure to report the
Excise Tax, if any, on the Executive's applicable federal income tax return
should not result in the imposition of a negligence or similar penalty. The
Determination by
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the Accounting Firm shall be binding upon the Company and the Executive. As a
result of uncertainty in the application of Section 4999 of the Code at the
time of the Determination, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment") or
Gross-Up Payments are made by the Company which should not have been made
("Overpayment"), consistent with the calculations required to be made
hereunder. In the event that the Executive thereafter is required to make
payment of any additional Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) shall be promptly paid by the Company to or for the benefit of the
Executive. In the event the amount of the Gross-Up Payment exceeds the amount
necessary to reimburse the Executive for his Excise Tax, the Accounting Firm
shall determine the amount of the Overpayment that has been made and any such
Overpayment (together with interest at the rate provided in Section 1274(b)(2)
of the Code) shall be promptly paid by the Executive to or for the benefit of
the Company. The Executive shall cooperate, to the extent his reasonable
expenses in connection therewith are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
7. WITHHOLDING TAXES. The Company shall have the right to withhold from
any and all payments due to the Executive (or his beneficiary or estate)
hereunder all taxes which, by applicable federal, state, local or other law,
the Company is required to withhold therefrom.
8. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement is personal in nature and none of the parties
hereto shall, without the consent of the other, assign, or transfer this
Agreement or any rights or obligations hereunder; provided, that in the event
of the merger, consolidation, transfer or sale of substantially all of the
assets of the Company with or to any other individual or entity, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to the
benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties and obligations of the Company hereunder, and
all references herein to the "Company" shall refer to such successor.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amounts remain payable to the Executive
hereunder, all such amounts, unless otherwise
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provided herein, shall be paid in accordance with the terms of this Agreement
to such person or persons appointed in writing by the Executive to receive such
amounts or, if no person is so appointed, to the Executive's estate.
9. RESOLUTION OF DISPUTES; LEGAL FEES; NO MITIGATION.
(a). Except as provided in Sections 10 and 11, all disputes
hereunder shall be settled by final, binding arbitration, conducted before a
panel of three (3) arbitrators in California in accordance with the rules of
the American Arbitration Association then in effect. Judgment on the
arbitration award may be entered in any court having jurisdiction. The Company
shall bear the expenses of such arbitration.
(b) If any contest or dispute shall arise under this Agreement
involving termination of the Executive's employment with the Company or
involving the failure or refusal of the Company to perform fully in accordance
with the terms hereof, the Company shall advance and reimburse the Executive,
on a current basis, all legal fees and expenses, if any, incurred by the
Executive in connection with such contest or dispute; provided, that the
Executive agrees to return any advanced or reimbursed expenses to the extent
the arbitrators (or the court, in the case of a dispute described in Section 10
or 11) determine that the Company has prevailed as to the material issues
raised in determination of the dispute.
(c) The Company's obligation to make any payments provided for in
this Agreement to the Executive and otherwise to perform its obligations
hereunder shall not be affected by any setoff, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek
other employment or take other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement, and
such amounts shall not be reduced whether or not the Executive obtains other
employment.
10. NONCOMPETITION.
(a) DISCLOSURE. The Executive has disclosed to the Board, in
writing, all healthcare-related interests, investments, or business activities,
whether as proprietor, stockholder, partner, co-venturer, director, officer,
employee, independent contractor, agent, consultant, or in any other capacity
or manner whatsoever. The Executive shall notify the Board, in writing, of any
changes in or additions to such interests, activities or investments permitted
in accordance with the terms of this Agreement, within 15 days of such change
or addition.
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(b) PROHIBITED ACTIVITY. Without the written consent of a
majority of the Independent Directors, the Executive may not engage in any of
the following actions during the period that is (A) prior to the Executive's
termination of employment with the Company, (B) within two years following the
termination of his employment with the Company during the Initial Term if such
termination is by the Company for Cause or by the Executive other than for Good
Reason and (C) within one year following his termination of employment during
the Term but after the Initial Term if such termination is by the Company for
Cause or by the Executive other than Good Reason.
(i) own, either directly or indirectly, any interest in any
business that competes with the "Primary Business" in which the Company or any
subsidiary or affiliate is engaged, within a radius of 30 miles from any site,
facility, or location which is owned, managed or operated by or affiliated with
the Company or any of its subsidiaries and affiliates, including physician
practices of any kind. For purposes of this Agreement, "Primary Business"
shall mean the delivery of integrated healthcare services in markets where the
Company or its subsidiaries own hospitals and/or skilled nursing facilities
("SNFs") with the hospital serving as the hub of the local delivery system in
conjunction with its physician medical staff. In addition to inpatient acute
care, psychiatric care, and skilled nursing care, these services can include
(A) individual physician practices and/or physician-based organizations such as
primary care and specialty clinics, physician-hospital organizations ("PMOs")
or medical service organizations ("MSOs"), or physician medical groups and (B)
ambulatory programs such as home health care, ambulatory surgery, psychiatric
services, occupational and sports medicine centers, psychiatric after-care and
day care programs, and other diagnostic, rehabilitative and treatment services.
Some of these services, sites and facilities may be located in satellite areas
for the purpose of extending the hub hospital's geographic service area and to
serve as access points and/or referral sources for either the local delivery
system or the hub hospital's geographic service area and to serve as access
points and/or referral sources for either the local delivery system or the hub
hospital. The Board may modify, from time to time, the definition of Primary
Business to include any additional business or service activity in which the
Company may engage during the Term or to exclude any business or service in
which the Company ceases to engage. The definition of "Primary Business" may
also be modified to include any business or service into which, as of the
Termination Date, the Company definitively intends to expand, regardless of
whether such expansion actually occurs after the Executive's termination. For
purposes of the preceding sentence, the date on which a modification of the
definition of "Primary Business" shall be effective shall be the date on which
the Executive is provided written notice of such modification (the "Notice
Date");
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provided, however, that no such modification as to which notice is provided on
or after the Termination Date shall be effective against the Executive; and
provided, further, that no such modification shall be effective with respect to
any interests, investments or business activities engaged in by Executive prior
to the Notice Date of such modification and properly disclosed prior to such
Notice Date pursuant to Section 10(a);
(ii) participate or serve, either directly or indirectly,
whether as a proprietor, stockholder, partner, co-venturer, director, officer,
employee, independent contractor, agent, consultant, or in any other capacity
or manner whatsoever in any business or service activity that competes with the
Primary Business;
(iii) directly or indirectly, solicit or recruit any
individual employed by the Company, its subsidiaries or affiliates for the
purpose of being employed by him or by any competitor of the Company on whose
behalf he is acting as an agent, representative or employee, or convey any
confidential information or trade secrets regarding other employees of the
Company, its subsidiaries or affiliates to any other person; or
(iv) directly or indirectly, influence or attempt to
influence customers of the Company or any of its subsidiaries or affiliates to
direct their business to any competitor of the Company;
PROVIDED, HOWEVER,, that neither (i) the "beneficial ownership" by Executive,
either individually or as a member of a "group," as such terms are used in Rule
13d under the Exchange Act, as a passive investment, of not more than five
percent (5%) of the voting stock of any publicly held corporation, nor (ii) the
beneficial ownership by Executive of any interest described in the first
sentence of Section 10(a) and properly and timely disclosed in accordance with
the terms therewith, shall alone constitute a violation of this Agreement.
In the event that the Executive engages in the conduct proscribed by
this Section 10, the Executive agrees to repay any lump-sum severance amount
received pursuant to Section 5 of this Agreement, and all outstanding stock
options held by the Executive shall expire as of the date of the Executive's
commencement of such proscribed conduct. It is further expressly agreed that
the Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate in violation of this
Agreement and that the Company would by reason of such competition be entitled
to preliminary or injunctive relief in a court of appropriate jurisdiction, and
Executive further consents and stipulates to the entry of such preliminary or
injunctive relief in such a court prohibiting Executive from competing with the
Company or any subsidiary or affiliate of the Company in violation of this
Agreement
14
upon an appropriate finding by such court that Executive has violated this
Section 10.
(c) UNENFORCEABLE PROVISIONS. It is the desire and the intent of
the parties that the provisions of this Section 10 shall be enforceable to the
fullest extent permissible under applicable law and public policy.
Accordingly, if this Section 10 or any portion thereof shall be adjudicated to
be invalid or unenforceable whether because of the duration and scope of the
covenants set forth herein or otherwise, the length and scope of the
restrictions set forth in this Section 10 shall be reduced to the extent
necessary so that this covenant may be enforced to the fullest extent possible
under applicable law.
11. CONFIDENTIAL INFORMATION. The Executive acknowledges that in his
employment hereunder, and during prior periods of employment with the Company
and/or its subsidiaries, he has occupied and will continue to occupy a position
of trust and confidence. The Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, until the
expiration of the applicable periods described in Section 10(b) or until such
information shall have become public other than by the Executive's unauthorized
disclosure, disclose to others or use, whether directly or indirectly, any
Confidential Information regarding the Company, its subsidiaries and
affiliates. "Confidential Information" shall mean information about the
Company, its subsidiaries and affiliates, and their respective clients and
customers that is not publicly disclosed by the Company or otherwise generally
available to members of the public seeking such information and that was
learned by the Executive in the course of his employment by the Company, its
subsidiaries and affiliates, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information and client and customer
lists and all papers, resumes, and records (including computer records) of the
documents containing such Confidential Information. The Executive acknowledges
that such Confidential Information is specialized, unique in nature and of
great value to the Company, its subsidiaries and affiliates, and that such
information gives the Company, its subsidiaries and affiliates a competitive
advantage. The Executive agrees to deliver or return to the Company, at the
Company's request at any time or upon termination or expiration of his
employment or as soon thereafter as possible, all documents, computer tapes and
disks, records, lists, data, drawings, prints, notes and written information
(and all copies thereof) furnished by the Company, its subsidiaries or
affiliates or prepared by the Executive during the term of his employment by
the Company, its subsidiaries and affiliates.
In the event that the Executive engages in any conduct proscribed by
this Section 11, the Executive agrees to repay any lump-sum severance amount
received pursuant to Section 5 of this Agreement,
15
and all outstanding stock options held by the Executive shall expire as of the
date of the Executive's commencement of such proscribed conduct. It is further
expressly agreed that the Company will or would suffer irreparable injury if
Executive were to disclose or threaten to disclose Confidential Information
regarding the Company or any subsidiary or affiliate in violation of this
Agreement or otherwise fail to comply with the provisions of this Section 11,
and that the Company would, by reason of such disclosure or threatened
disclosure or other failure to comply, be entitled to preliminary or permanent
injunctive relief in a court of appropriate jurisdiction, and Executive further
consents and stipulates to the entry of such preliminary or permanent
injunctive relief in such a court prohibiting Executive from disclosing
Confidential Information in violation of this Agreement or otherwise requiring
Executive to comply with the provisions of this Section 11 upon an appropriate
finding by such court that Executive has violated this Section 11.
12. NOTICE. For the purposes of this Agreement, any notices, demands
and all other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given upon (a) transmitter's
confirmation of a receipt of a facsimile transmission, (b) confirmed delivery
by a standard overnight carrier or (c) the expiration of five business days
after the day when mailed by certified or registered mail, postage prepaid,
addressed as follows (or at such other address as the parties hereto shall
specify by like notice):
If to Executive: Xxxxxx X. Xxxxxx
00 Xxxxxxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
If to Company: Xxxxxxxxxx Healthcare Corporation
000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopy No. (000) 000-0000
Attention: Chief Executive Officer
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
16
13. AMENDMENT, WAIVER. No provisions of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is agreed
to in a written document signed by the Executive and such officer of the
Company, as may be specifically designated by the Board. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement.
14. ENTIRE AGREEMENT. This Agreement and Exhibit A hereto set forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein and supersede all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto.
15. GOVERNING LAW; VENUE; VALIDITY. The interpretation, construction
and performance of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of California
without regard to the principle of conflicts of laws and, at the election of
the Executive, the venue of any dispute arising under this Agreement shall be
California. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which other provisions shall remain in full force
and effect.
16. HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
17. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any statute or
public policy, only the portions of this Agreement that violate such statute or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall modify
the stricken terms as narrowly as possible to give as much effect as possible
to the intentions of the parties under this Agreement.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
XXXXXXXXXX HEALTHCARE CORPORATION
By: \s\ X.X. MESSENGER
-------------------------------
Name: X.X. Messenger
Title: Chief Executive Officer
\s\ XXXXXX X. XXXXXX
-------------------------------
Xxxxxx X. Xxxxxx
18
EXHIBIT A
During the Term of the Agreement, the Company shall provide the Executive
with the following benefits:
1. LIFE INSURANCE. The Company shall maintain for Executive's benefit
life insurance coverage with a face amount equal to three (3) times the amount
of Executive's Base Salary as in effect from time to time; PROVIDED, HOWEVER,
that if the Company shall be unable to obtain the full amount of such life
insurance coverage at a reasonable cost, the Company may alternatively provide
Executive with a lump-sum death benefit, payable within ninety (90) days
following the date of Executive's death, in such amount as will, when added to
any life insurance coverage actually obtained by the Company, provide
Executive's beneficiary(ies) with a net amount, after payment of any Federal
and state income taxes, equal to the net, after-tax amount such
beneficiary(ies) would have received had the Company obtained the full amount
of life insurance coverage provided for above. Executive shall have the right
to name and to change from time to time the beneficiary(ies) under such life
insurance coverage (and death benefit, if any). Such life insurance coverage
(and death benefit, if any) shall be in addition to any death benefits which
may be payable under any accidental death and dismemberment plan, any separate
business travel accident coverage, or any pension plan in which the Executive
may participate, and such coverage shall also be in addition to any life
insurance which Executive himself purchases.
2. RELOCATION ASSISTANCE. The Company shall reimburse Executive for the
reasonable costs he incurs in relocating from Los Angeles, California to
Houston, Texas in accordance with that certain letter dated May 29, 1996 from
Xxxxxxx X. Xxxxxx, President of Champion Healthcare Corporation, the terms of
which are incorporated herein as if they were set forth in full herein.
3. POST-TERMINATION RELOCATION. In the event that, during the 24 month
period following the Effective Date, Executive's employment is terminated (i)
by Executive for any reason or (ii) by the Company without Cause, the Company
shall reimburse Executive for reasonable relocation expenses incurred by
Executive (to the extent not otherwise reimbursed by any subsequent employer)
during the 12 month period following such termination in connection with his
subsequent relocation anywhere in the continental United States.
4. VACATIONS AND HOLIDAYS. Executive shall accrue paid vacation at the
rate of four (4) weeks per year. It is agreed that as of the Effective Time,
Executive shall have accrued 50 days of paid vacation with the Company, which
days shall be carried over until used by Executive or paid for by the Company.
Paid holidays shall be similarly calculated at Executive's rate of Base Salary
in accordance with standard Company practices.
19
FIRST AMENDMENT TO XXXXXXXXXX HEALTHCARE CORPORATION
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO XXXXXXXXXX HEALTHCARE CORPORATION EMPLOYMENT AGREEMENT,
dated as of July 17, 1996, between Xxxxxxxxxx Healthcare Corporation, a
California corporation (the "Company") and Xxxxxx X. Xxxxxx (the "Executive")
RECITALS:
WHEREAS, the Company and the Executive entered into that certain
Xxxxxxxxxx Healthcare Corporation Employment Agreement dated as of July 17,
1996, (the "Employment Agreement"), and
WHEREAS, the parties desire to amend the Employment Agreement to correct
certain terms and conditions to conform to the agreements reached between the
parties
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each party, the parties
intending to be legally bound hereby agree as follows:
1. Paragraph 4(i)(G) is hereby deleted in its entirety, and in place
thereof is substituted the following:
"(G) inability to perform the duties of the Executive's office or
consistent failure to perform in accordance with reasonable expectations due to
incompetence, or repeated and unexcused absence from work having a material
adverse effect on the Company."
2. Paragraphs 4(iii)(E), and 4(iii)(G) are deleted in their entirety and
Paragraph (4(iii)(F) is renamed "(E)", such that the portion of paragraph 4
commencing with Section E shall read as follows:
"or (E) the termination of the Executive's employment by the Executive for
any reason within 12 months following a Change in Control (as defined herein.)"
3. Sections 5 and 6 of Exhibit A of the Employment Agreement are deleted
in their entirety, and Exhibit A to the Employment Agreement shall read as set
forth on Exhibit A attached hereto and made a part hereof to the same extent as
if it were set forth in full herein.
4. All other terms and conditions shall remain in full force and effect.
20
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Xxxxxxxxxx Healthcare Corporation Employment Agreement as of the date and year
first written above.
XXXXXXXXXX HEALTHCARE CORPORATION
By: \s\ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
\s\ XXXXXX X. XXXXXX
-------------------------------------
Xxxxxx X. Xxxxxx
