Exhibit 10.6
EMPLOYMENT AGREEMENT
This Agreement made effective as of December 1, 2000 by and between
AMERICAN HOMEPATIENT, INC., a Delaware corporation (the "Company"), and XXXXXX
X. XXXXXXX III (the "Executive").
In consideration of the mutual covenants contained in this Agreement, the
parties hereby agree as follows:
SECTION I
EMPLOYMENT
Executive is currently employed by the Company. The Company desires to
continue to employ the Executive and the Executive agrees to continue to be
employed by the Company upon the terms and conditions provided in the Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment (as such term is defined herein below),
the Executive agrees to serve as President and Chief Executive Officer of the
Company and to be responsible for the typical management responsibilities
expected of an officer holding such positions and such other responsibilities as
may be assigned to Executive from time to time by the Board of Directors of the
Company.
SECTION III
TERMS AND DUTIES
A. Period of Employment.
The period of Executive's employment under this Agreement will commence as
of December 1, 2000, and shall continue through November 30, 2003 ("Initial
Term"), subject to extension or termination as provided in this Agreement
("Period of Employment").Upon expiration of the Initial Term, the Period of
Employment shall automatically extend for additional one (1) year periods,
unless either party gives written notice at least thirty (30) days in advance of
the expiration of the then current period of employment of such party's intent
not to extend the Period of Employment.
B. Duties.
During the Period of Employment, the Executive shall devote substantially
all of his business time, attention and skill to the business and affairs of the
Company and its subsidiaries. The Executive will perform faithfully the duties
which may be assigned to him from time to time by the Board of Directors of the
Company.
SECTION IV
COMPENSATION
For all services rendered by the Executive in any capacity during the
Period of Employment, the Executive shall be compensated as follows:
A. The Company shall pay the Executive an annual base salary ("Base
Salary") as follows:
Four hundred twenty thousand dollars ($420,000.00). The Base Salary shall
be payable according to the customary payroll practices of the Company, but in
no event less frequently than once each month. The Base Salary shall be reviewed
annually and shall be subject to increase according to the Policies and
practices adopted by the Company from time to time.
B. Annual Incentive Award.
The Company will pay annual incentive compensation awards to the Executive
as may be granted by the Board of Directors or the Compensation Committee under
any executive bonus or incentive plan in effect from time to time (the "Annual
Incentive Award").
Beginning for the 2000 fiscal year and continuing thereafter, the Annual
Incentive Award shall be equal to one hundred percent (100%) of Executive's then
current annual Base Salary, contingent upon performance of stipulated goals of
the Company established jointly by the Board of Directors and Executive.
SECTION V
BUSINESS
The Company acknowledges and agrees that Executive shall perform his
duties and obligations in various geographic locations including the San
Francisco, California and Nashville, Tennessee area and the Company will
reimburse the Executive for all reasonable travel, accommodations and other
expenses incurred by the Executive in connection with the performance of his
duties and obligations under this Agreement wherever they may arise, including
those reasonable travel expenses of Executive's immediate family on an
occasional basis . In addition, the Company will reimburse Executive for
reasonable allocable expenses related to his office location in San Francisco,
California as well reimbursement for personal medical insurance.
SECTION VI
DISABILITY
A. In the event of disability of the Executive during the Period of
Employment, the Company will continue to pay the Executive according to the
compensation provisions of this Agreement during the period of his disability,
until such time as Executive's long term disability insurance benefits are
available. However, in the event the Executive is disabled for a continuous
period of six (6) months after the Executive first becomes disabled, the Company
may terminate the employment of the Executive. In this case, normal compensation
will cease except for earned but unpaid Base Salary and Incentive Compensation
Awards which would be payable on a
prorated basis for the year in which the disability occurred. In the event of
such termination, all unvested stock options held by Executive shall be deemed
fully vested on the date of such termination.
B. During the period the Executive is receiving payments of either
regular compensation or disability insurance described in this Agreement and as
long as he is physically and mentally able to do so, the Executive will furnish
information and assistance to the Company and from time to time will make
himself available to the Company to undertake assignments consistent with his
prior position with the Company and his physical and mental health. If the
Company fails to make a payment or provide a benefit required as part of the
Agreement, the Executive's obligation to fulfill information and assistance will
end.
C. The term "disability" will have the same meaning as under any
disability insurance provided pursuant to this Agreement or otherwise.
SECTION VII
DEATH
In the event of the death of the Executive during the Period of
Employment, the Company's obligation to make payments under this Agreement shall
cease as of the date of death, except for earned but unpaid Base Salary and
Annual Incentive Award which will be paid on a prorated basis for that year.
SECTION VIII
EFFECT OF TERMINATION OF EMPLOYMENT
A. If the Executive's employment terminates due to either a Without
Cause Termination or a Constructive Discharge (as defined later in this
Agreement), the Company will pay the Executive in a lump sum upon such
Termination or Constructive Discharge an amount equal to the sum of (i) three
hundred percent (300%) of his Base Salary as in effect at the time of such
termination, plus (ii) three hundred percent (300%) of the greater of the Annual
Incentive Award Executive received for performance during the Company's
immediately preceding fiscal year, or the current Annual Incentive Award target
in effect at the time of such termination. Earned but unpaid Base Salary will
also be paid in a lump sum at such time. If the Executive's employment
terminates due to either a Without Cause Termination or a Constructive Discharge
or pursuant to Section XI, all stock options ("Options") granted to the
Executive under the Company's 1991 Nonqualified Stock Option Plan, the Company's
1995 Nonqualified Stock Option Plan for Directors or any other stock option
program or plan (each and collectively, the "Plan") shall be deemed vested, and
the Company shall cause the Options to remain exercisable for the remainder of
their stated term, subject to the ten (10) year term limit set forth in the
governing Plan.
B. If the Executive's employment terminates due to a Termination for
Cause, earned but unpaid Base Salary will be paid on a pro-rated basis for the
year in which the termination occurs. No other payments will be made by the
Company.
C. Upon termination of the Executive's employment, the Period of
Employment will cease as of the date of the termination.
D. For this Agreement, the following terms have the following meanings:
1. "Termination for Cause" means termination of the Executive's
employment by the Company's Board of Directors, acting in good faith, by written
notice to the Executive specifying the event(s) relied upon for such
termination, due to the Executive's serious misconduct with respect to his
duties under this Agreement, which has resulted or is likely to result in
material economic damage to the Company, including but not limited to a
conviction for a felony or perpetration of a common law fraud; provided,
however, except in the case of a conviction for a felony or a perpetration of a
common law fraud, that Company must provide such notice thirty (30) days prior
to termination and provide Executive with the opportunity to cure such damage or
likely damage, to the Company's reasonable satisfaction, with thirty (30) days
of such notice.
2. "Constructive Discharge" means termination of the Executive's
employment by the Executive due to a failure of the Company to fulfill its
obligations under this Agreement in any material respect including any reduction
of the Executive's Base Salary or other compensation other than reductions
applicable to all employees of the Company, or other material change by the
Company in the functions, duties or responsibilities of the position which would
reduce the ranking or level, responsibility, importance or scope of the
position. The Executive will provide the Company a written notice which
describes the circumstances being relied on for the termination with respect to
the Agreement within thirty (30) days after the event giving rise to the notice.
The Company will have thirty (30) days to remedy the situation prior to the
termination for Constructive Discharge.
3. "Without Cause Termination" means termination of the Executive's
employment by the Company other than due to death, disability, Termination for
Cause or failure of Company to renew this Agreement under Section IIIA.
E. Stock Option Repurchase.
If the Executive's employment terminates due to either a Without Cause
Termination or a Constructive Discharge or pursuant to Section XI, Executive may
require the Company to repurchase any Options for an amount equal to the
difference between the fair market value of a share of the Company's common
stock on the date of termination and the per share exercise price set forth in
the Options, times the number of shares (whether vested or nonvested) granted to
the Executive under the Options.
SECTION IX
OTHER DUTIES OF THE EXECUTIVE DURING
AND AFTER THE PERIOD OF EMPLOYMENT
A. The Executive will, with reasonable notice during or after the
Period of Employment, furnish information as may be in his possession and
cooperate with the Company as may reasonably be requested in connection with any
claims or legal actions in which the Company is or may become a party.
B. The Executive recognizes and acknowledges that all information
pertaining to the affairs, business, clients, customers or other relationships
of the Company, as hereinafter defined,
is confidential and is a unique and valuable asset of the Company. Access to and
knowledge of this information are essential to the performance of the
Executive's duties under this Agreement. The Executive will not during the
Period of Employment or after except to the extent reasonably necessary in
performance of the duties under this Agreement, give to any person, firm,
association, corporation or governmental agency any information concerning the
affairs, business, clients, customers or other relationships of the Company
except as required by law. The Executive will not make use of this type of
information for his own purposes or for the benefit of any person or
organization other than the Company. The Executive will also use his best
efforts to prevent the disclosure of this information by others. All records,
memoranda, etc. relating to the business of the Company whether made by the
Executive or otherwise coming into his possession are confidential and will
remain the property of the Company.
C. During the Period of Employment and for a twelve (12) month period
thereafter, the Executive will not use his status with the Company to obtain
loans, goods or services from another organization on terms that would not be
available to him in the absence of his relationship to the Company. Unless
Executive is terminated due to a Without Cause Termination or a Constructive
Discharge, then during the Period of Employment and for a twelve (12) month
period following termination of the Period of Employment: the Executive will not
make any statements or perform any acts intended to advance the interest of any
existing or prospective competitors of the Company in any way that will injure
the interest of the Company; the Executive without prior express written
approval by the Board of Directors of the Company will not directly or
indirectly own or hold any proprietary interest in or be employed by or receive
compensation from any party engaged in the same or any similar business in the
same geographic areas the Company does business; and the Executive without
express prior written approval from the Board of Directors, will not solicit any
members of the then current clients of the Company or discuss with any employee
of the Company information or operation of any business intended to compete with
the Company. For the purposes of the Agreement, proprietary interest means legal
or equitable ownership, whether through stock holdings or otherwise, of a debt
or equity interest (including options, warrants, rights and convertible
interests) in a business firm or entity, or ownership of more than 5% of any
class of equity interest in a publicly-held company. The Executive acknowledges
that the covenants contained herein are reasonable as to geographic and temporal
scope. For a twelve (12) month period after termination of the Period of
Employment for any reason, the Executive will not directly or indirectly hire
any employee of the Company or solicit or encourage any such employee to leave
the employ of the Company.
D. The Executive acknowledges that his breach or threatened or
attempted breach of any provision of Section IX would cause irreparable harm to
the Company not compensable in monetary damages and that the Company shall be
entitled, in addition to all other applicable remedies, to a temporary and
permanent injunction and a decree for specific performance of the terms of
Section IX without being required to prove damages or furnish any bond or other
security.
E. The Executive shall not be bound by the provisions of Section IX in
the event of the default by the Company in its obligations under this Agreement
which are to be performed upon or after termination of this Agreement.
SECTION X
INDEMNIFICATION, LITIGATION
The Company will indemnify the Executive to the fullest extent permitted
by the laws of the state of incorporation in effect at that time, or certificate
of incorporation and bylaws of the Company whichever affords the greater
protection to the Executive. The Executive will be entitled to any insurance
proceeds related to any award, or any fees or expenses incurred by Executive in
connection with any action, suit or proceeding brought by a third party to which
he may be made a party by reason of being a director or an officer of the
Company.
SECTION XI
CHANGE IN CONTROL
A. Effect of Change in Control.
In the event there is a Change in Control (as defined below) and
within the twelve (12) month period following such event Executive is
terminated, or elects to resign upon written notice to the Company, the Company
shall pay to the Executive the amounts described in (1), (2), and (3) below.
1. The Company shall pay to the Executive in a lump sum upon such
termination or resignation an amount equal to 150% of the sum of his Base Salary
plus an amount equal to the greater of the Annual Incentive Award Executive
received for performance during the Company's immediately preceding fiscal year
or the current Annual Incentive Award target in effect at the time of such
termination or resignation. The benefits and perquisites described in this
Agreement as in effect at the date of resignation or termination of employment
including expenses of Executive's office will also be continued for twenty four
(24) months from the effective date of termination or resignation pursuant to a
Change of Control, and life insurance then in effect will be provided for
lifetime and long term disability insurance coverage for twenty four (24)
months. The Company shall also continue to pay for Executive's health insurance
premiums, consistent with past practice, for twenty four (24) months from the
effective date of termination or resignation pursuant to a Change of Control;
provided, however, that such obligation shall terminate upon Executive obtaining
other employment to the extent such insurance is provided by Executive's new
employer. Company matching payments for corporate retirement plans will become
fully vested.
2. The Company shall pay to Executive upon such termination or
resignation, as a retention bonus for services actually rendered on and after
the date of the Change in Control, a lump sum payment equal to 50% of the sum of
his Base Salary and the greater of the most recent Annual Incentive Award paid
or earned by Executive or the current Annual Incentive Award target in effect at
the time of such termination or resignation.
3. The Company shall pay to Executive upon such termination
or resignation, in exchange for Executive agreeing not to solicit any of the
then current customers or employees of the Company for a period of twelve (12)
months following his termination of employment, a lump sum payment equal to 100%
of the sum of his Base Salary and the greater
of the most recent Annual Incentive Award paid or earned by Executive or the
current Annual Incentive Award target in effect at the time of such termination
or resignation.
B. "Change in Control" shall be deemed to have occurred if (i) a tender
offer shall be made and consummated for the ownership of more than 50% of the
outstanding voting securities of the Company, (ii) the Company shall be merged
or consolidated with another corporation and as a result of such merger or
consolidation less than 75% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the former
shareholders of the Company, as the same shall have existed immediately prior to
such merger or consolidation, (iii) the Company shall sell all or substantially
all of its assets to another corporation which is not a wholly-owned subsidiary,
or (iv) a person, within the meaning of Section 3(a)(9) or of Section 13 (d)(3)
(as in effect on the date hereof) of the Securities and Exchange Act of 1934
("Exchange Act")), shall acquire more than 35% of the outstanding Voting
securities of the Company (whether directly, indirectly beneficially or of
record).
For purposes hereof, ownership of voting securities shall take into
account and shall include ownership as determined by applying the provisions of
Rule 13d-3(d)(1 )(i) (as in effect on the date hereof) pursuant to the Exchange
Act.
C. Excise Tax Indemnification.
If the Internal Revenue Service asserts, or if Executive or the
Management Company is advised in writing by a "Big Five" accounting firm, that
any payment in the nature of compensation to, or for the benefit of, Executive
from the Management Company (or any successor in interest) constitutes an
"excess parachute payment" under section 280G of the Internal Revenue Code,
whether paid pursuant to this Agreement or any other agreement, and including
property transfers pursuant to securities and other employee benefits that vest
upon a change in the ownership of effective control of the Management Company
(collectively, the "Excess Parachute Payments") the Management Company shall pay
to Executive, on demand, a cash sum sufficient (on a grossed-up basis) to
indemnify Executive and hold him harmless from the following (the "Tax Indemnity
Payment"):
(i) The amount of excise tax under section 4999 of the Internal
Revenue Code on the entire amount of the Excess Parachute Payments and all Tax
Indemnity Payments to Executive pursuant to this subsection C:
(ii) The amount of all estimated local, state, and federal income
taxes on all Tax Indemnity Payments to Executive pursuant to this subsection C
(determined in each case at the highest marginal tax rate);
(iii) The amount of any fines, penalties, or interest that have been
or potentially will be, assessed in respect of any excise or income tax
described in the preceding clauses (a) or (b); so the amounts of Excess
Parachute Payments received by Executive will not be diminished by an excise tax
imposed under section 4999 of the Internal Revenue Code or by any local, state,
or federal income tax payable in respect of the Tax Indemnity Payments received
by Executive pursuant to this subsection C.
SECTION XII
WITHHOLDING TAXES
The Company may directly or indirectly withhold from any payments under
this Agreement all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation.
SECTION XIII
EFFECTIVE PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company and
the Executive with respect to the subject matter and supersedes any prior
employment or severance agreements between the Company and its affiliates, and
the Executive.
SECTION XIV
CONSOLIDATION, MERGER OR SALE OF ASSETS
Nothing in this Agreement shall preclude the Company from consolidating or
merging into or with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations and
undertakings of the Company hereunder. Upon such a Consolidation, Merger or Sale
of Assets, the term "the Company" as used will mean the other corporation and
this Agreement shall continue in full force and effect. This Section XIV is not
intended to modify or limit the rights of the Executive hereunder, including
without limitation, the rights of Executive under Section XI.
SECTION XV
MODIFICATION
This Agreement may not be modified or amended except in writing signed by
the parties. No term or condition of this Agreement will be deemed to have been
waived except in writing by the party charged with waiver. A waiver shall
operate only as to the specific term or condition waived and will not constitute
a waiver for the future or act on anything other than that which is specifically
waived.
SECTION XVI
GOVERNING LAW; ARBITRATION
This Agreement has been executed and delivered in the State of Tennessee
and its validity, interpretation, performance and enforcement shall be governed
by the laws of that state.
Any dispute among the parties hereto shall be settled by arbitration in
Nashville, Tennessee, in accordance with the rules then obtaining of the
American Arbitration Association and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
SECTION XVII
NOTICES
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been made when delivered or mailed
first-class postage prepaid by registered mail, return receipt requested, or
when delivered if by hand, overnight delivery service or confirmed facsimile
transmission, to the following:
(a) If to the Company, at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Board of Directors, or at such other address as may have been
furnished to the Executive by the Company in writing; or
(b) If to the Executive, at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000
or such other address as may have been furnished to the Company by the Executive
in writing.
SECTION XVIII
BINDING AGREEMENT
This Agreement shall be binding on the parties' successors, heirs and
assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
AMERICAN HOMEPATIENT, INC.
/s/ Xxxxxxx X'Xxxx
------------------------------
By: Xxxxxxx X'Xxxx
Title: Chief Financial Officer
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx III
------------------------------
Xxxxxx X. Xxxxxxx III
