EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective as of
August 1, 2003, by and between United Surgical Partners International, Inc., a
Delaware corporation ("USPI"), and Xxxx X. Xxxxxx ("Employee"), with reference
to the following facts:
RECITALS
A. USPI desires to employ Employee in the capacities and on the
terms and conditions hereinafter set forth and Employee is willing to serve in
such capacities and on such terms and conditions.
B. This Agreement shall replace any and all existing employment
agreements and arrangements between USPI and Employee as of the date hereof.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, USPI and Employee mutually agree as follows:
AGREEMENT
1. EMPLOYMENT. USPI hereby employs Employee as Senior Vice
President and Chief Financial Officer of USPI.
2. DUTIES. Employee shall devote substantially all of his working
time, energies and skills to USPI's business. Employee shall report to the Chief
Executive Officer of USPI (the "CEO") and shall have such duties,
responsibilities and authority as may be assigned to Employee by the CEO.
Employee agrees to serve USPI diligently and to the best of his ability.
3. COMPENSATION.
(a) BASE SALARY. USPI shall pay Employee a Base Salary
("Base Salary") at a rate of $250,000 per year. In addition, the Board of
Directors of USPI (the "Board") shall consider granting increases in such salary
based on Employee's performance and the growth and/or profitability of USPI, but
it shall have no obligation to grant any such increases in compensation. Base
Salary shall be payable in equal semi-monthly installments on the 15th day and
the last working date of the month, or at such other times and in such
installments as may be agreed upon between USPI and Employee. All payments shall
be subject to the deduction of payroll taxes and similar assessments as required
by law.
(b) PERFORMANCE BONUSES. In addition to the Base Salary,
Employee shall be eligible to receive bonus compensation of up to 75% of the
Base Salary based on such performance goals and criteria as the Board shall,
from time to time, determine.
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4. EXPENSES AND BENEFITS. USPI agrees to provide Employee with
the following benefits:
(a) EXPENSE REIMBURSEMENTS. Employee is authorized to
incur reasonable expenses in connection with the business of USPI, including
expenses for entertainment, travel and similar matters. USPI will reimburse
Employee for such expenses upon presentation by Employee of such documentation
as USPI shall from time to time require.
(b) OFFICE SERVICES. USPI will provide Employee with an
administrative assistant of his choice and reasonable office space and services.
(c) INSURANCE. Major medical health insurance and
disability insurance as currently in place (as the same may be modified from
time to time by USPI for its senior executives).
(d) EMPLOYEE BENEFIT PLANS. Participation in any other
employee benefit plans now existing or hereafter adopted by USPI for its
employees.
(e) OTHER. Such items and benefits as USPI shall, from
time to time, consider necessary or appropriate to assist Employee in the
performance of his duties.
(f) VACATIONS. Employee shall be entitled (in addition to
the usual public holidays) to a paid vacation of an aggregate of three weeks in
each calendar year.
5. TERM; SEVERANCE. The term of this Agreement shall be for a
period of two years from the date hereof; provided, however, that either party
may terminate this Agreement at any time upon at least 90 days prior written
notice. In the event of such termination by USPI, Employee shall be entitled to
severance pay equal to his annual Base Salary at the time of termination, plus a
bonus equal to the Company's good faith estimate of what Employee's bonus would
have been for the year in which the termination occurred, as determined by the
Company in its sole and absolute discretion based on all information available
at such time. Such severance pay shall be payable in monthly installments over a
period of 12 months following termination, and USPI shall continue the benefits
set forth in Sections 4(c) and (d) for the period during which such severance
payments are to be made. In addition, this Agreement shall terminate as provided
for in Section 7 or upon the death of Employee, and no severance pay shall be
due in the event of such a termination.
6. DISABILITY. In the event that Employee becomes Permanently
Disabled (as hereinafter defined) during the term of this Agreement, Employee
shall continue in the employ of USPI but his compensation hereunder shall be
reduced to three-fourths of the Base Salary then in effect as set forth in
Section 3(a), commencing upon the determination of Employee's Permanent
Disability and continuing thereafter until the first to occur of (i) 12 months
or (ii) the death of Employee; and during such period of time, Employee shall
not be entitled to payment of expenses or benefits specified in Section 4
(except for reimbursement of expenses incurred by Employee prior to becoming
Permanently Disabled), except that USPI shall continue to provide Employee with
the insurance benefits specified in Section 4(c). The obligation of USPI for
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continuation of three-fourths of Employee's Base Salary shall be net of payments
to Employee from the disability insurance referred to in Section 4(c).
For purposes of this Agreement, the terms "Permanent Disability" or
"Permanently Disabled" shall mean three months of substantially continuous
disability. Disability shall be deemed "substantially continuous" if, as a
practical matter, Employee, by reason of his mental or physical health, is
unable to sustain reasonably long periods of substantial performance of his
duties. Frequent long illnesses, though different from the preceding illness and
though separated by relatively short periods of performance, shall be deemed to
be "substantially continuous." Disability shall be determined in good faith by
the Board, whose decision shall be final and binding upon Employee. Employee
hereby consents to medical examinations by such physicians and medical
consultants as USPI shall, from time to time, require.
7. TERMINATION BY USPI FOR CAUSE. USPI shall have the right to
terminate Employee's employment under this Agreement for "Cause" by an
affirmative vote to so terminate by not less than 75% of the members of the
Board, in which event no compensation shall be paid or other benefits furnished
to Employee after termination for Cause. Termination for Cause shall be
effective immediately upon notice sent or given to Employee. For purposes of
this Agreement, the term "Cause" shall mean and be strictly limited to: (a)
indictment for a crime constituting a felony under state or federal law; (b)
conviction of a crime constituting a misdemeanor and involving an act of moral
turpitude, including without limitation fraud, embezzlement and use of illegal
drugs; (c) commission of any material act of dishonesty against USPI; or (d)
willful and material breach of this Agreement by Employee.
8. NON-COMPETITION. Employee recognizes and understands that in
performing the responsibilities of his employment, he will occupy a position of
fiduciary trust and confidence, pursuant to which he will develop and acquire
experience and knowledge with respect to USPI's business. It is the expressed
intent and agreement of Employee and USPI that such knowledge and experience
shall be used exclusively in the furtherance of the interests of USPI and not in
any manner that would be detrimental to USPI's interests. Employee further
understands and agrees that USPI conducts its business within a specialized
market segment throughout the United States and in portions of Europe, and that
it would be detrimental to the interests of USPI if Employee used the knowledge
and experience which he currently possesses or which he acquires pursuant to
this employment hereunder for the purpose of directly or indirectly competing
with USPI, or for the purpose of aiding other persons or entities in so
competing with USPI. Employee therefore agrees that so long as he is employed by
USPI and for an additional period equal to one year following termination,
unless Employee first secures the written consent of USPI, Employee will not
directly or indirectly invest, engage or participate in or become employed by
any entity in direct or indirect competition with USPI's business, which shall
include the ownership and/or operation of outpatient surgical centers and
surgical specialty hospitals in the United States and the ownership and/or
operation of hospitals in the countries in Europe in which USPI owns or operates
hospitals as of the date of termination. These non-competition provisions shall
not be construed to prohibit Employee from being employed in the health care
industry during the applicable period, but rather to permit him to be so
employed so long as such employment does not involve Employee's direct or
indirect
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participation in a business which is the same or similar to USPI's business (as
defined above). In the event that the provisions of this Section 8 should ever
be deemed to exceed the time or geographic limitations permitted by applicable
laws, then such provisions shall be reformed to the maximum time or geographic
limitations permitted by applicable law.
9. STOCK OPTIONS. In the event that (a) USPI elects to terminate
this Agreement pursuant to Section 5, (b) Employee's employment is terminated
for any reason by a successor to USPI within one year after a "Change of Control
Event" (as defined below) or (c) USPI breaches this Agreement by termination of
Employee without the notice required under Section 5 or without Cause under
Section 7, then in each such event, all USPI stock options held by Employee
shall thereupon automatically be amended so as to (i) cause to vest, immediately
prior to the date of such Change in Control Event or such termination of
employment, all then unvested stock options, and (ii) provide Employee 90 days
to exercise such options (or such greater period as may be provided by the terms
of such options). For purposes of the foregoing, the term "Change of Control
Event" shall mean (A) a consolidation or merger of USPI with or into any other
corporation (other than a merger which will result in the voting capital stock
of USPI outstanding immediately before the effective date of such consolidation
or merger being converted into more than 50% of the voting capital stock of the
surviving entity outstanding immediately after such consolidation or merger),
(B) a sale of all or substantially all of the properties and assets of the
Company as an entirety in a single transaction or in a series or related
transactions to any other "person" or (C) the acquisition of "beneficial
ownership" by any "person" or "group" (other than Welsh, Carson, Xxxxxxxx &
Xxxxx VII, L.P. or its affiliates) of voting stock of the Company representing
more than 50% of the voting power of all outstanding shares of such voting
stock, whether by way of merger of consolidation or otherwise. As used herein,
(x) the terms "person" and "group" shall have the meanings set forth in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), whether or not applicable, (y) the term "beneficial owner" shall have the
meaning set forth in Rules 13d-3 and 13d-5 under the Exchange Act, whether or
not applicable, except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time or upon
the occurrence of certain events, and (z) any "person" or "group" will be deemed
to beneficially own any voting stock so long as such person or group
beneficially owns, directly or indirectly, in the aggregate a majority of the
voting stock of a registered holder of such voting stock.
10. GENERAL PROVISIONS.
(a) NOTICES. All notices required or permitted by this
Agreement shall be in writing and may be delivered in person or sent by regular,
registered or certified mail or United States Postal Service Express Mail, with
postage prepaid, or by other courier service, or by facsimile transmission, and
shall be deemed sufficiently given if served in the manner specified in this
Section 10(a). The addresses and facsimile numbers set forth below shall be the
parties addressed and facsimile numbers for purposes for purposes of delivery or
mailing of notices:
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If to USPI: c/o United Surgical Partners International, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Chief Executive Officer
Fax No.: (000) 000-0000
If to Employee: Xxxx Xxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
The parties may change addresses and facsimile numbers noted above through
written notice in compliance with this Section 10(a). Any notice sent by
registered or certified mail, return receipt requested, shall be deemed given
when actually received by the addressee, as shown on the receipt card which must
be signed by a representative of the addressee. If sent by regular mail, the
notice shall be deemed given after the notice is addressed, mailed with postage
prepaid and when actually received by the addressee. Notices delivered by United
States Express Mail or other courier service shall be deemed given when actually
received by the addressee as shown by the signature of an authorized
representative of the addressee on the log or other documentation maintained by
the United States Postal Service or courier to show proof of delivery. If any
notice is transmitted by facsimile transmission or similar means, the notice
shall be deemed served or delivered upon telephone confirmation of receipt of
the transmission.
(b) CHOICE OF LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, excluding
principles of conflict of laws.
(c) INTEGRATION; MODIFICATION AND WAIVER. This Agreement
constitutes the entire understanding of the parties hereto relating to the
subject matter hereof, supersedes any and all other agreements, whether oral or
in writing, between the parties hereto and their affiliates with respect to the
employment of Employee from and after the date hereof, and contains all
covenants and agreements between the parties hereto relating to such employment
in any manner whatsoever; provided, however, that except as expressly provided
herein, this Agreement shall not affect any stock option agreements, indemnity
agreements or agreements relating to Employee's purchase or ownership of USPI
securities to which Employee is now or hereafter a party, that arose prior to
the date of this Agreement. This Agreement shall not be amended, modified or
revised in any respect, except by a writing signed by USPI and Employee. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision, whether or not similar, and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
(d) SEVERABILITY. If any provision of this Agreement
shall be determined by a court or governmental agency of competent jurisdiction
to be invalid, illegal or
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unenforceable, such invalidity, illegality or unenforceability shall not affect
the remainder of this Agreement, which shall remain in full force and effect and
be enforced in accordance with its remaining enforceable terms.
(e) ASSIGNMENT. Because of the personal nature of the
services to be rendered hereunder, the obligations of Employee under this
Agreement may not be delegated or assigned in whole or in part without the prior
written consent of USPI (which consent may be withheld in its sole discretion).
However, subject to the foregoing limitation, this Agreement shall be binding
upon, and shall insure to the benefit of, the parties hereto and their
respective heirs, devisees, executors, administrators, trustees, legal
representatives, successors, transferees and assigns.
(f) ATTORNEYS' FEES. In any action or proceeding at law
or in equity, including but not limited to arbitration, brought to enforce or
construe any provisions or rights under this Agreement, the unsuccessful party
or parties to such litigation or arbitration, as determined by the appropriate
court or arbitrator pursuant to a final judgment or decree, shall pay the
successful party or parties all costs, expenses and reasonable attorneys' fees
incurred by such successful party or parties (including but not limited to such
costs, expenses and fees in connection with any appeals) and, if such successful
party or parties shall recover judgment in any such action or proceeding, such
costs, expenses and attorneys' fees shall be included as part of such judgment.
(g) SURVIVAL OF CERTAIN PROVISIONS. The provisions of
Sections 4(a) (as to expenses incurred prior to termination), 5, 8 and 9 shall
survive the expiration or other termination of this Agreement.
(h) HEADINGS AND CAPTIONS. Headings and captions are
included in this Agreement for purposes of convenience only and are not a part
of this Agreement.
(i) MISCELLANEOUS. Any term used in the plural shall
refer to all members of the relevant class and any term used in the singular
shall refer to any one or more of the members of the relevant class. References
in this Agreement to articles, sections, paragraphs and exhibits are to
articles, sections, paragraphs and exhibits to this Agreement. The terms
"herein," "hereof," "hereto," "hereunder" and other terms similar to such terms
refer to this Agreement as a whole and not merely to the specific article,
section, paragraph or clause where such terms may appear.
(j) COUNTERPARTS AND FACSIMILE SIGNATURES. Separate
copies of this Agreement may be signed by the parties hereto, with the same
effect as though all of the parties had signed one copy of this Agreement.
Signatures transmitted by facsimile shall be accepted as original signatures.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Employment Agreement as of the date first written above.
USPI: UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
EMPLOYEE: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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