EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
AGREEMENT,
dated
effective as of January 1, 2000, is by and between Meridian Occupational
Healthcare Associates, Inc., a Delaware business corporation (“Employer”), and
E. Xxxxxx Xxxxx (“Employee”).
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1.
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EMPLOYMENT.
Employer hereby employs Employee and Employee hereby accepts employment
with Employer upon the terms and conditions set forth in this
Agreement.
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2.
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TERM.
The term of this Agreement shall commence as of the date hereof,
and shall
continue for a period of two (2) years (the “Term”) unless sooner
terminated pursuant to Paragraph 6 hereof. This Agreement shall be
automatically renewed for one (1) year periods unless at least one
hundred
eighty (180) days before the second and all subsequent anniversary
dates
of this Agreement either party gives notice in writing to the other
of its
election not to extend the Term.
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3.
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DUTIES.
Employee shall serve as Vice President of Sales and Marketing. Employee
agrees to devote his/her entire working time, energy and skills,
and to
the best of his/her ability, carry out the duties and responsibilities,
commensurate with the foregoing title, reasonably requested of him/her.
Notwithstanding the foregoing, Employee shall be permitted to continue
non-competitive outside business activities such as service on charitable
boards, corporate boards and volunteer activities, approved by the
Board
of Directors, its Compensation Committee or an authorized officer.
The
employee's services shall be based in Nashville, Tennessee, although
reasonable business travel may be
required.
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4.
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COMPENSATION
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(a) Annual
Salary.
Employee
shall receive a salary of One Hundred Twelve Thousand ($112,000) per year
(“Annual Salary”), payable in regular installments at such time and in such
manner as other executive employees of Employer, but no more frequently than
bi-weekly. The Annual Salary will be reviewed by Employer for potential upward
adjustment at least once annually. Compensation adjustments will be based on
the
results of a performance appraisal due annually. Any determination to increase
Employee’s Annual Salary shall be in the sole discretion of the Board, its
Compensation Committee, or an authorized officer. Downward adjustment of Annual
Salary may entitle Employee to terminate for Good Reason to the extent provided,
and with the consequences described, in Section 6.
(b) Bonuses.
Employer
may pay bonuses to Employee from time to time during the term of this Agreement.
Not less than once each year, the
Board
of Directors, its Compensation Committee or an authorized officer will review
whether to pay Employee a bonus based upon his or her performance during the
applicable year, as well as Employer’s financial performance and condition.
Payment of any such bonuses shall be in the sole and absolute discretion of
the
Board of Directors, its Compensation Committee or an authorized officer;
provided that it is intended that Employee shall participate in any bonus pool
maintained by Employer for executive employees.
(c) Commissions.
No
commissions will be paid to Employee with respect to any contracts entered
into
by Employer, any affiliate of Employer, or otherwise.
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5.
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FRINGE
BENEFITS
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(a) General.
During
the term hereof, Employee shall receive fringe benefits including health,
life
and disability insurance, pension or retirement plan participation, to the
extent provided to executive officers of Employer generally.
(b) Vacation.
Employee
shall be entitled to receive paid time off for vacation and/or sick days in
an
annual amount not less than the greater of four weeks per year or the amount
provided for Employee under Employer's PTO policy as of the effective date
of
this Agreement. Employee shall, in his or her reasonable discretion with the
reasonable approval of the Board, its Compensation Committee, or an authorized
officer, and subject to the general policies and practices of Employer,
determine the time and intervals of such vacation. Notwithstanding the first
sentence of this paragraph, any paid vacation that has been accrued but not
used
as of December 31 of any year shall be deducted from the maximum amount that
may
accrue during the following year, so that at no time will any Employee have
accrued more than the maximum amount set forth in the first sentence of this
paragraph, unless such continued accrual is approved by the Board, its
Compensation Committee, or an authorized officer.
(c) Reimbursement
for Reasonable Business Expenses.
Employer
shall, within its general policies and practices (including without limitation
the requirement of reasonable documentation), reimburse Employee for reasonable
business expenses incurred by him or her in connection with the performance
of
her duties pursuant to this Agreement, including, but not limited to, travel
expenses and other reasonable business expenses.
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6.
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TERMINATION
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(a) Death.
If
Employee shall die during the Term, this Agreement shall terminate, except
that
Employee’s legal representatives shall be entitled to receive the Annual Salary
and any accrued but unused vacation pay to the last day of the month in which
Employee’s death occurs.
(b) Disability.
If
Employee shall suffer permanent or long term disability during the Term, this
Agreement shall terminate, except that Employee shall be entitled to receive
the
Annual Salary and any accrued but unused vacation pay to the earlier of (a)
the
last day of the month in which Employee first becomes eligible for reimbursement
under any long term disability insurance policy then maintained by the Employer
for the benefit of Employee (the "Insurance Policy"), or (b) 180 days following
the occurrence of such permanent or long term disability. Permanent or long
term
disability shall be defined in the same manner as under the Insurance Policy,
if
any, or, if no Insurance Policy exists, shall mean such disability as shall
prevent Employee from performing his or her duties hereunder for a period in
excess of 90 days.
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(c) Other
Early Termination.
Notwithstanding any other provision herein to the contrary, Employer may
terminate Employee’s employment hereunder with cause or without cause by written
notice to Employee at any time specifying the date of termination. If Employer
terminates Employee without cause or if Employee terminates his or her
employment hereunder with Good Reason as defined below, Employee shall be
entitled to receive and Employer shall be obligated to pay, as severance: (i)
an
amount equal to twelve (12) months of Employee’s then current Annual Salary
payable in monthly installments; (ii) continuation at Employer’s expense for
twelve (12) months of group health insurance. Employee’s employment by Employer
shall be deemed to have been terminated for cause if terminated for any of
the
following reasons, each of which shall be “cause” for termination of Employee’s
employment: (i) Employee’s willful failure to comply with this Agreement or
perform his or her duties hereunder in any material respect, provided that
Employee shall have been given ten days' written notice of such failure and
an
opportunity to cure; or (ii) Employee’s commission of a material act of
dishonesty related to performance of his or her duties or to Employer's affairs,
or an act of fraud, embezzlement or any crime classed as a felony under
applicable law. Employee will be deemed to have terminated his or her employment
hereunder with Good Reason if he or she terminates his or her employment within
thirty (30) days after: (i) a diminution in Employee’s Annual Salary of more
than five percent (5%); (ii) Employee’s relocation by Employer to a place of
work more than thirty (30) miles from Employee’s previous place of work, or
(iii) a material diminution, without Employee's consent, in Employee's title
or
responsibilities as compared to those described in Section 3.
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7.
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RESTRICTIVE
COVENANTS
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(a) Confidentiality.
Employee
agrees to keep secret and retain in the strictest confidence, all confidential
matters of Employer, including, without limitation, trade secrets, “know-how”,
provider lists, customer lists, pricing policies, utilization review and quality
management protocols, operational methods and other business affairs and plans
of Employer and its affiliates and subsidiaries, and not to disclose such
information to anyone outside of the Employer, except in the course of
performing his or her duties hereunder or with Employer’s express written
consent. Upon termination of employment with Employer, or at any time the
Employer may so request, Employee agrees to deliver promptly to the Employer
all
memoranda, notes, records, manuals, and other documents (and all copies hereof)
relating to the Employer’s business and all property associated therewith, which
Employee may then possess or have under his or her control.
(b) Non-Competition.
Employee
agrees that during the Term, and for a period of six (6) months after
termination or expiration of the Term for any reason, Employee shall not serve
as proprietor, partner, employee, stockholder, principal, agent, consultant,
director, or officer, or in any other capacity participate, engage or have
a
financial or other interest in, any business which is a Direct Competitor of
Employer. The term “Direct Competitor” as used herein shall mean any person or
entity which is engaged in, or is about to become engaged in, the development
or
operation of an entity or business similar to Employer, or which provides
services similar to those offered by Employer in any state in which Employer
or
any of its subsidiaries or affiliates conducts business activities or plans
to
conduct business activities as described above during the Term or at the time
of
the termination thereof. This paragraph shall not preclude Employee from
accepting employment or otherwise establishing a consulting or financial
relationship with a health maintenance organization, insurance company or other
third party payer of health benefits so long as Employee is not involved in
the
management, development, or operation of occupational health or primary care
facilities or programs, or other lines of business in which Employer is engaged
at the time of termination of Employee’s employment hereunder. For purposes of
this Paragraph, the ownership of an interest constituting not more than one
percent (1%) of the outstanding debt or equity in a corporation whose shares
are
traded in a recognized stock exchange or traded in an over-the-counter market,
even though the corporation may be a Direct Competitor, shall not be deemed
financial interest or participation in a Direct Competitor.
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(c) Non-Solicitation.
Employee
agrees that for a period of one (1) year beginning on the date of termination
of
Employee’s employment with Employer, for any reason, he or she shall not
directly or indirectly, either individually or as an employee, agent, partner,
shareholder, consultant or in any other capacity: (i) solicit or attempt to
solicit or influence any employee of Employer or employee or physician
independent contractor of any affiliate or subsidiary of Employer, or successor
or assign thereof, to perform any services whatsoever for any business which
is
a Direct Competitor; or (ii) call upon any person or entities having business
relationships with Employer or any of Employer’s affiliates or subsidiaries, or
any successor or assign thereof, with a view to inducing such person or entities
to cease doing business with Employer, its affiliates or subsidiaries, or any
successor or assign thereof.
(d) Remedies.
If
the
Employee commits a breach, or threatens to commit a breach, of any of the
provisions of this Paragraph 7, Employer’s rights and remedies shall include,
but are not limited to, the following:
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(i)
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the
right and remedy to have the provisions of this Agreement specifically
enforced by any court of competent jurisdiction, it being acknowledged
that any such breach or threatened breach shall cause irreparable
injury
to the Employer, and that money damages shall not provide an adequate
remedy to Employer; and
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(ii)
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the
right and remedy to require Employee to account for any and pay
over to
Employer all compensation, profits, monies, accruals, or other
benefits
derived or received by him or her as a result of any transactions
constituting a breach of any of the provisions of this Paragraph
7, and
the Employee hereby agrees to account for and pay over such amounts
to
Employer.
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Each
of the rights and remedies enumerated above shall be independent
of the
other and shall be severally enforceable, and all such rights and
remedies
shall be in addition to, and not in lieu of, any other rights and
remedies
available to Employer under law or in
equity.
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(e) Construction.
If
any of
the covenants contained in this Paragraph 7, or any part thereof, hereafter
is
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions. If any of the covenants contained in
this Paragraph 7, or any part thereof, is held to be unenforceable because
of
the duration of such provision or the areas covered thereby, the parties agree
that the court making such determination shall have the power to reduce the
duration and/or the area of such provision, and, in its reduced form, said
provision shall then be enforceable.
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8.
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WAIVER.
The failure of either party to insist, in any one or more instances,
upon
the performance of the terms or conditions of this Agreement shall
not be
construed as a waiver or relinquishment of any right granted hereunder
or
of the future performance of any such term, covenant, or
condition.
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9.
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INDEMNIFICATION.
Employer
hereby indemnifies and holds harmless Employee from any and all liability,
loss, damage, claim or expense of any kind incurred by Employee,
including
costs and reasonable attorney’s fees, arising from or related to
Employee’s good faith performance of his or her duties hereunder. The
indemnifications of this Paragraph 9 shall survive the termination
of this
Agreement.
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10.
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NOTICES.
All
notices, requests, demands and other communications hereunder shall
be in
writing and shall be delivered personally, or by overnight delivery
services, or sent by registered or certified mail, return receipt
requested, first-class postage prepaid and properly addressed as
follows:
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If
to Employer:
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Meridian
Occupational Healthcare Associates, Inc.
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00
Xxxxxx Xxxxx Xxxxxxxxx - Xxxxx 000
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Xxxxxxxxx,
XX 00000
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Attn:
Human Resources Director
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If
to Employee:
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__________________________________
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__________________________________
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__________________________________
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11.
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AMENDMENT.
This Agreement may be amended only by an agreement in writing signed
by
the Employer and Employee.
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12.
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GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with
the laws
of the State of Delaware.
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13.
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ASSIGNMENT;
SUCCESSORS AND ASSIGNS.
The
rights and obligations of Employee may not be delegated or assigned
except
as specifically set forth in this Agreement, and except for normal
and
customary delegations of responsibilities to subordinate officers
or
employees of Employer. This Agreement shall be binding upon and
inure to
the benefit of and shall be enforceable by employer and its respective
successors and assigns, and employee, his or her heirs, beneficiaries
and
legal representatives.
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14.
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ENTIRE
AGREEMENT.
This
Agreement contains the entire Agreement of the parties with respect
to
Employee’s employment by Employer and this Agreement supersedes any prior
Agreements between them, whether oral or
written.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement effective as of January 1,
2000.
MERIDIAN
OCCUPATIONAL HEALTHCARE ASSOCIATES, INC.
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By:
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/s/
Xxxxxxx Xxxxxxx
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Date:
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1-21-2000
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Employee:
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E.
Xxxxxx Xxxxx
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(print)
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/s/
E. Xxxxxx
Xxxxx
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(signature)
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