Exhibit 10.3
EMPLOYMENT AGREEMENT
This Agreement, made as of February 10, 2005 by and between Emergency
Medical Services L.P., a Delaware limited partnership (the "Company"), and
Xxxxxx X. Xxxx (the "Executive").
RECITALS
WHEREAS, the Company has agreed to purchase all of the issued and
outstanding shares of common stock of (i) EmCare Holdings Inc., a Delaware
corporation and (ii) American Medical Response, Inc., a Delaware corporation;
WHEREAS, Emergency Medical Services Corporation ("EMSC", the general
partner of the Company) has entered into that certain (i) Stock Purchase
Agreement, dated as of December 6, 2004 by and among Xxxxxxx International,
Inc., Xxxxxxx Medical Holdings, Inc. and EMSC (the "AMR Purchase Agreement") and
(ii) Stock Purchase Agreement, dated as of December 6, 2004 by and among Xxxxxxx
International, Inc., Xxxxxxx Medical Holdings, Inc. and EMSC (the "EmCare
Purchase Agreement" and together with the AMR Purchase Agreement, the "Stock
Purchase Agreements");
WHEREAS, Executive is employed by AMR (as defined below), which will
become a subsidiary of the Company on the Effective Date;
WHEREAS, Executive is employed by AMR, and will continue to be employed by
the Company in a confidential relationship during which Executive has and will
become familiar with and aware of information as to the specific manner of doing
business, strategic plans for future business, and the identity of customers of
the Company and its subsidiaries, affiliates and managed entities, all of which
will be established and maintained at great expense to the Company, all of which
information is a trade secret and constitutes the valuable goodwill of the
Company;
WHEREAS, Executive recognizes that the Company and its subsidiaries are
engaged in the business of medical transportation services, medical triage and
physician practice management services as related to hospital emergency
department and hospitalist outsourcing;
WHEREAS, Executive recognizes that the Company and its subsidiaries and
managed entities depend upon a number of trade secrets (including secret
techniques, methods and data) in the course of providing services to their
clients and that the protection of these trade secrets is of critical importance
to the Company and its subsidiaries; and
WHEREAS, the Company and its subsidiaries will sustain great loss and
damage if Executive should violate the provisions of this Agreement,
particularly with respect to confidential information and restrictions on
competition and that monetary damages for such losses would be extremely
difficult to measure.
NOW THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, effective as of the
time of the Effective Date, it is hereby agreed as follows:
1. Definitions:
Whenever used in this Agreement, the following terms shall have the
meanings set forth below, and when the meaning is intended, the initial letter
of the word is capitalized:
A. "Agreement" means this employment agreement, as amended from time
to time.
B. "AMR" means American Medical Response, Inc., a Delaware
corporation and, on the Effective Date, a wholly owned subsidiary of the
Company.
C. "Base Salary" means the salary of record paid to the Executive as
annual salary, as further indicated in paragraph (A) of Article 4.
D. "Board" means the board of directors of the Company's general
partner unless the Company (or its successor) is then a corporation, in which
event it means the Company's board of directors.
E. "Change in Control" means, during the Term, the sale of all or
substantially all of the assets of the Company.
F. "Company" means Emergency Medical Services L.P., a limited
partnership formed under the laws of Delaware and, except where the context
requires otherwise, including all affiliates and Subsidiaries of the Company,
and any successor thereto.
G. "Effective Date" means the Closing Date as defined in the Stock
Purchase Agreements.
H. "EmCare" means EmCare Holdings Inc., a Delaware corporation and,
on the Effective Date, a wholly owned subsidiary of the Company.
I. "Executive" means Xxxxxx X. Xxxx.
J. "15% Internal Rate of Return" means an Investor Return, in cash
or cash equivalent, at least equal to an amount determined by increasing the
amount of the initial investment, and all subsequent direct or indirect
investments by Onex, by the total compounded annual rate of return of 15%,
taking into account for these purposes the exercise of all options to purchase
Partnership Units outstanding under the Plan or otherwise (including, without
limitation, options, other equity awards or interests held by affiliates of Onex
and their respective employees), which are then exercisable or become
exercisable as a result of the realization of the 15% Internal Rate of Return.
Whether the 15% Internal Rate of Return has been realized shall be determined by
the Board whose decision shall be final and binding on the Executive. For the
avoidance of doubt, a 15% Internal Rate of Return shall be deemed realized only
if the Investor Return includes both the amount of the investments and the
required return on the investments.
K. "Investor Return" means the sum of all cash amounts actually
received by Onex, on a cumulative basis through the date of determination, in
the form of cash dividends, other distributions or sale proceeds in connection
with (a) a disposition of all or any part of its Partnership Units calculated
based on the actual net proceeds received from the disposition of such
Partnership Units, (b) a disposition of all or substantially all of the assets
of the Company
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or a Subsidiary or (c) a recapitalization of the Company or any Subsidiary. Such
calculation shall take into account any transaction costs and fees and shall
exclude any management, consulting or other similar fees received by Onex or its
affiliates.
L. "IPO/Recap" means an initial public offering of the equity of the
Company (an "IPO") or a recapitalization of the Company.
M. "Liquidity Event" means (i) the sale of all, or substantially
all, of the Company's consolidated assets, including, without limitation, a sale
of all or substantially all of the assets of the Company or any of its
Subsidiaries whose assets constitute all or substantially all of the Company's
consolidated assets in any single transaction or series of related transactions
or (ii) any merger or consolidation of the Company with or into another entity
unless, after giving effect to such merger or consolidation, the holders of the
Company's Partnership Units (on a fully-diluted basis) immediately prior to the
merger or consolidation, own voting securities (on a fully-diluted basis) of the
surviving or resulting entity representing a majority of the outstanding voting
power to elect directors of the surviving or resulting corporation (or the
general partner of a surviving partnership) in the same proportions that they
held their Partnership Units prior to such merger.
N. "Onex" means Onex Partners LP.
O. "Partnership Units" means units representing limited partnership
interests in the Company.
P. "Subsidiary" means any corporation that is a subsidiary of the
Company including, but not limited to EmCare and AMR.
2. Employment.
A. From the Effective Date, EMSC shall continue to employ the
Executive as Chief Financial Officer of the Company, and, at the Company's
request, as Chief Financial Officer of one or more Subsidiaries, and the
Executive shall serve in such capacity, performing such duties as are consistent
with the position, along with such other duties and responsibilities assigned to
the Executive by the Chief Executive Officer ("CEO") of EMSC. The Executive
shall devote his best efforts to the performance of his duties under this
Agreement and shall perform them faithfully, diligently, competently and in a
manner consistent with the policies of the Company as determined from time to
time by the CEO or President of the Company.
B. The Executive shall report to the CEO on all matters pertaining
to his duties hereunder.
C. The Executive shall not engage in other business activities
outside the scope of this Agreement, without the express approval of the CEO.
D. The Executive shall not serve as an officer or director (or the
equivalent position) of any entity other than the Company or its affiliates or
managed entities, and shall not receive fees or other remuneration for work
performed outside the scope of his employment without prior written consent of
the CEO.
3. Term of Employment. This Agreement will be effective and binding
immediately upon its execution, but, anything in this Agreement to the contrary
notwithstanding, this
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Agreement shall not be operative until the Effective Date. The Executive's
employment under this Agreement shall commence on the Effective Date, shall
continue for a period of three years, and shall be renewed for additional one
year periods thereafter (each a "Renewal Term") unless either party informs the
other in writing within 90 days of this Agreement's expiration that it does not
wish to renew the Agreement, or unless sooner terminated as provided in this
Agreement.
4. Compensation.
A. As full compensation for all services rendered by the Executive
pursuant to this Agreement, the Company shall pay, or shall cause a Subsidiary
to pay, to the Executive a salary of $350,000 per year ("Base Salary"), less
applicable withholdings. The Base Salary shall be payable twice monthly on the
15th business day and last business day of each month. Executive's compensation
shall be reviewed by the Board annually during the Company's normal review
period, beginning in the year following the first anniversary of the Effective
Date.
B. The Executive will be eligible to participate in a short-term
incentive plan. For fiscal years commencing September 1, 2004 and thereafter,
the Executive's target bonus under such plan will be 50% of Base Salary
(pro-rated for a partial fiscal year, including the first fiscal year in the
term). The Executive's right to receive any bonus under such plan shall be
determined based upon performance targets for each year fixed by the Board or a
duly authorized committee thereof; provided, that in the case of the partial
fiscal year beginning on the Effective Date the Executive's right to receive any
bonus under such plan shall be based on the achievement of the budget/business
plan of EmCare and AMR for the fiscal year beginning August 31, 2004 approved by
the board of directors of Xxxxxxx International, Inc.
C. The Executive has agreed to co-invest in the Company on the
Effective Date, by purchasing the same securities purchased by the initial
equity investors at the per Partnership Unit price paid by the initial equity
investors, in the amount of $200,000. Concurrently with this co-investment by
the Executive, and pursuant to an equity option plan (the "Plan") the Company
will adopt, the Company will grant to the Executive options to purchase one
percent (1%) of the Partnership Units outstanding on the Effective Date (the
"Xxxx Options"). For the avoidance of doubt, if the agreed-upon co-investment is
not made on the Effective Date, then the Company shall have no obligation to
grant the Xxxx Options.
The Xxxx Options, if granted, will contain the following terms and
will otherwise be subject to the terms and provisions of the Plan:
1. Exercise Price. The exercise price will be the per
Partnership Unit purchase price paid by the initial equity investors in
the Company.
2. Vesting and Exercisability.
a. 50% of the Xxxx Options will become vested and
exercisable 25% on each of the first four anniversaries of the Effective
Date without further condition.
b. 50% of the Xxxx Options will become vested and
exercisable 25% on each of the first four anniversaries of the Effective
Date; provided, that exercisability is subject to the further condition
that Onex has realized a 15% Internal Rate of Return.
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c. Notwithstanding the provisions of clause (b), upon
the occurrence of a Liquidity Event in which Onex realizes a 15% Internal
Rate of Return, all of the Xxxx Options shall become fully vested and
exercisable on the occurrence of the Liquidity Event, and the Xxxx Options
shall terminate and be of no further force or effect if they are not
exercised in connection with the Liquidity Event. For the purposes of this
clause (c) only, the 15% Internal Rate of Return shall be determined based
on (i) cash received by Onex at any time and/or (ii) the fair market value
of assets received by Onex at any time (as such fair market value is
determined by the Board). Any assets received by the Executive in the
Liquidity Event shall be subject to the same restrictions (such as lock-up
provisions) to which the assets received by Onex are subject.
d. On the fourth anniversary of the Effective Date, if
the Xxxx Options referred to in clause (b) have not terminated pursuant to
clause (c) and have vested but are not exercisable because Onex has not
realized a 15% Internal Rate of Return, then such Xxxx Options shall also
become exercisable if:
(i) the Company has met the Cumulative Cash Flow Test, as such
term will be defined in the Plan, or
(ii) if (x) the Company's common stock is publicly traded and
listed on a national securities exchange and (y) Onex would
have realized a 15% Internal Rate of Return if it had sold its
remaining common stock interest in the Company at a per share
price equal to the weighted average sale price of the Company
common stock (as quoted by such national securities exchange)
for any 30 consecutive trading days.
3. Term. For the avoidance of doubt, options that have vested
according to paragraph 4.C.2.b (by acceleration or otherwise) upon the
occurrence of a Liquidity Event but are not exercisable because Onex has
not realized a 15% Internal Rate of Return shall terminate on the
occurrence of the Liquidity Event, and be of no further force or effect.
The occurrence of an IPO/Recap shall not affect the vesting of the Xxxx
Options.
5. Fringe Benefits; Expenses.
A. The Executive shall be entitled to welfare benefit coverages
(such as medical insurance, dental insurance, short- and long-term disability
insurance and group term life insurance) in accordance with employee benefit
plans and policies maintained by the Company for the benefit of similarly
situated executives of the Company. Without limiting the foregoing, the
Executive shall be entitled to term life insurance that, in conjunction with
coverage under the group life insurance programs provided to the Executive,
provides coverage in an amount equal to three times the Executive's Base Salary.
B. The Executive shall be entitled to participate in any and all
equity plans of the Company on a basis equal to other similarly situated
executives of the Company.
C. The Company shall reimburse, or shall cause a Subsidiary to
reimburse, the Executive for all reasonable and necessary expenses incurred by
him in connection with the performance of services hereunder, in accordance with
the Company's policies and procedures applicable to similarly situated
executives of the Company.
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D. The Executive shall be entitled to such vacation time per
calendar year as is applicable to similarly situated executives of the Company,
but in no event less than three weeks per calendar year; the use of which
vacation time shall be subject to prior approval by the CEO.
E. The Company shall obtain and maintain directors and officers
liability insurance policies covering Executive's actions hereunder on the same
terms as similarly situated executives of the Company.
F. The Company shall, or shall cause a Subsidiary to, (i) provide
the Executive with a monthly allowance of $1,200 for expenses incurred by the
Executive for the leasing of an automobile and (ii) reimburse the Executive for
expenses incurred by the Executive in connection with the related operating and
insurance expenses for such automobile, provided that the Executive provides an
itemized written account and receipts acceptable to the Company.
6. Disability or Death.
A. If, as the result of any physical or mental disability, the
Executive shall have failed or is unable to perform his duties for a period of
90 consecutive days, the Company may, by notice to the Executive subsequent
thereto, terminate this Agreement as of the date of the notice without any
further payment or the furnishing of any benefit by the Company under this
Agreement, unless otherwise required by applicable law.
B. The term of the Executive's employment under this Agreement shall
terminate upon his death without any further payment or the furnishing of any
benefit by the Company under this Agreement (other than accrued and unpaid Base
Salary and expenses and benefits which have accrued pursuant to any plan or by
law).
7. Termination.
A. The Company shall have the right to terminate this Agreement
immediately for cause in the event of the occurrence of any of the following:
1. Fraud, theft, gross misconduct or gross negligence on the
part of the Executive, including, without limitation, conduct of a
felonious or criminal nature, conduct involving moral turpitude,
embezzlement, misappropriation of assets or substantial neglect of duties;
2. Alcohol or drug abuse that impairs the Executive's ability
to properly perform his duties;
3. Violation of the Company's Corporate Compliance Policy; or
4. A material breach of the Agreement by the Executive which
has not been cured within 30 days of receipt by Executive of written
notice of the breach.
B. Either party may terminate this Agreement without cause by
providing the other party with 90 days prior written notice of termination. If
termination is by Executive, the Company may waive notice, in whole or in part,
upon immediate payment to the Executive of the Executive's Base Salary for such
portion of the 90-day notice period as is waived by the
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Company. Upon such termination, the Company may elect, in its sole and absolute
discretion, to pay the Executive his Base Salary in effect at the time of such
termination for a period of up to 24 months following such termination as
consideration for Executive's agreement set forth in paragraph 9.A.
C. Executive may terminate this Agreement in the event of a material
breach of the Agreement by the Company which has not been cured within 30 days
of receipt by the Company of written notice of the breach.
D. The Executive may terminate employment with the Company and any
Subsidiary with the right to severance compensation as provided in paragraph
8.B. upon the occurrence of a Change in Control followed by one or more of the
following events:
1. Failure to elect or reelect or otherwise to maintain the
Executive in the office or position, or a substantially equivalent office
or position, of or with the Company which the Executive held immediately
prior to the Change in Control;
2. (a) A significant adverse change in the nature or scope of
the authorities, powers, functions, responsibilities or duties attached to
the position with the Company which the Executive held immediately prior
to the Change in Control, (b) a reduction in the aggregate of the
Executive's Base Salary received from the Company or the value of the
Executive's incentive pay opportunity from the Company or its
Subsidiaries, or (c) the termination of the Executive's rights to employee
benefits or a reduction in the scope or value thereof to a level that is
substantially lower in the aggregate from the level in effect at the time
of the Change in Control, any of which is not remedied by the Company with
10 calendar days after receipt by the Company of written notice from the
Executive of such change, reduction, or termination, as the case may be;
or
3. The liquidation, dissolution, merger, consolidation or
reorganization of the Company or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise)
to which all or substantially all of its business and/or assets have been
transferred (by operation of law or otherwise) assumed all duties and
obligations of the Company.
8. Salary/Benefit Continuation.
A. Upon termination of this Agreement by the Company for cause or in
the event of the Executive's termination of this Agreement without cause,
Executive shall be entitled to receive all salary earned under this Agreement up
to the date of termination.
B. Upon termination of this Agreement by the Company without cause
or in the event of the Executive's termination of this Agreement in accordance
with paragraph 7.C , the Executive shall be entitled to receive the following:
1. All salary earned under this Agreement up to the date of
termination; and
2. Base compensation at the rate payable on the date
immediately prior to termination for an additional period of 24 months
(or, in any Renewal Term, for
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the number of months remaining in the Renewal Term or, in Purchaser's sole
and absolute discretion, for a longer period, up to a maximum of 24
months); and
3. For a period of 24 months following the date of termination
(or, in any Renewal Term, for the number of months remaining in the
Renewal Term or, in Purchaser's sole and absolute discretion, for a longer
period, up to a maximum of 24 months), the Company shall continue to pay
for the cost of Executive's participation in the Company's group medical
and dental insurance plans and group term life insurance (but excluding
the life insurance referred to in the last sentence of paragraph 5.A) at
the same rate as applicable to Executive immediately prior to termination,
provided that Executive is entitled to continue such participation under
applicable state and federal law and under the terms of the Company's
employment benefit plans in effect at the time (including provisions in
the Company's medical and dental plans related to coordination with other
insurance, as applicable); and
4. If the performance targets for the year are met, a prorata
portion (equal to a fraction, of which the numerator is the number of full
months of Executive's employment in the year and the denominator is 12),
of the bonus payable to Executive pursuant to paragraph 4.B., payable at
such time as the Company pays annual incentive bonuses for the year to
executives of the Company.
C. Upon termination of this Agreement by Executive in accordance
with paragraph 7.D, the Executive shall be entitled to receive the compensation
set forth in paragraphs 8.B.1, 8.B.2 and 8.B. 3.
D. As a condition to receipt of the items set forth in paragraph
8.B.2, 8.B.3 and 8.B.4, as applicable, Executive shall execute promptly upon
termination a Settlement and Release Agreement, pursuant to which Executive
shall release the Company from any and all claims and demands which Executive
may possess against the Company.
9. Restrictive Covenants.
A. Executive agrees that during the term of this Agreement, and for
24 months thereafter, Executive will not in any manner, without the prior
written consent of the Company, directly or indirectly: (1) disclose or divulge
to any person, entity, firm, company or employer, or use for Executive's own
benefit or the benefit of any other person, entity, firm, company or employer
directly or indirectly in competition with the Company, any knowledge,
information, business methods, techniques or data of the Company; (2) solicit,
divert, take away or interfere with any of the customers, accounts, trade,
business patronage, employees or contractual arrangements of the Company; (3)
compete with the Company or enter into any contractual arrangements for the
provision of medical transportation services, medical triage, or physician
coverage or management services with any governmental authority, provider or
hospital with which Executive has come into contact while an employee of the
Company; or (4) either individually or in partnership, or jointly in conjunction
with any other person, entity or organization, as principal, agent, consultant,
lender, contractor, employer, employee, investor, shareholder, or in any other
manner, directly or indirectly, advise, manage, carry on, establish, control,
engage in, invest in, offer financial assistance or services to, or permit his
name to be used by any business that competes with the then-existing business of
the Company, provided that the Executive shall be entitled, for investment
purposes, to purchase and trade shares of a public company which are listed and
posted for trading on a recognized stock exchange and the business of which
public company may be in competition with the business of the Company,
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provided that the Executive shall not directly or indirectly own more than five
percent (5%) of the issued share capital of the public company, or participate
in its management or operation, or in any advisory capacity within the time
limits set out herein. Solely for the purposes of this paragraph 9, the term
"Company" shall mean the Company, its subsidiaries, its affiliates, their
subsidiaries and companies for whom such entities provide services.
B. Executive further agrees that for a period of 24 months following
termination of employment, however caused, he will not solicit for hire or
rehire, or take away, or cause to be hired, or taken away, employee(s) of the
Company.
C. It is the intention of the parties to restrict the activities of
Executive in a manner which reasonably protects the legitimate business
interests of the Company. In the event this paragraph 9 is deemed overly broad
or unenforceable by a court of competent jurisdiction, it is the intent of the
parties that this paragraph be enforced to the fullest extent allowed under
applicable law, and be reformulated by such court to the extent necessary to so
enforce it.
D. Executive agrees that the damages and remedies at law for any
breach under this paragraph would be inadequate and that, in addition, in the
event of a breach under this paragraph, the Company may apply to a court of
competent jurisdiction and be entitled to an injunction by such court to prevent
a breach or further breach thereof on the part of the Executive. Such injunction
shall be in addition to damages or other relief afforded under this Agreement.
E. The Executive acknowledges that the agreements provided in this
Section 9 were an inducement to the Company to enter into this Agreement and
that the remedy at law for breach of his covenants under this Section 9 will be
inadequate. Accordingly, in the event of any breach or threatened breach by the
Executive of any provision of this Section 9, the Company shall be entitled, in
addition to all other remedies, to an injunction restraining any breach by
Executive.
10. Miscellaneous.
A. This Agreement shall become operative automatically on the
Effective Date and, as of the Effective Date, shall constitute the entire
agreement between the parties with respect to the employment and appointment of
the Executive and any and all previous agreements, written or oral, express or
implied, between the parties or on their behalf, relating to the employment and
appointment of the Executive by the Company or any Subsidiary, are terminated
and cancelled effective on the Effective Date and each of the parties releases
and forever discharges the other of and from all manner of actions, causes of
action, claims and demands whatsoever, under or in respect of any previous
agreement, including without limitation, the Agreement, dated as of May 1, 2004,
between AMR and the Executive which is hereby terminated and cancelled effective
on the Effective Date. If the Effective Date does not occur on or before March
31, 2005, this Agreement shall become null and void and of no further force and
effect.
B. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to agreements made and
performed in Delaware, and shall be construed without regard to any presumption
or other rule requiring construction against the party causing the Agreement to
be drafted.
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C. This Agreement cannot be modified, amended, or terminated orally.
Amendments may be made to this Agreement at any time if mutually agreed upon in
writing.
D. Any amendment, notice, or other communication under this
Agreement shall be in writing and shall be considered given when received and
shall be delivered personally or mailed by certified mail, return receipt
requested, to the parties at their respective addresses set forth below (or at
such other address as a party may specify by notice to the other):
If to Company: Emergency Medical Services L.P.
x/x Xxxx Xxxxxxxxxx Xxxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xx Xxxxx, President
Facsimile: (000) 000-0000
If to Executive: Last known address on file with the Company
E. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
F. Each of the parties irrevocably submits to the exclusive
jurisdiction of any court of the State of Delaware and consents that any action,
suit, or proceeding relating to or arising out of this Agreement and the
transactions contemplated hereby may be brought in such court.
G. The invalidity or unenforceability of any term or provision of
this Agreement shall not affect the validity or enforceability of the remaining
terms or provisions of this Agreement which shall remain in full force and
effect and any such invalid or unenforceable term or provision shall be given
full effect as far as possible. If any term or provision of this Agreement is
invalid or unenforceable in one jurisdiction, it shall not affect the validity
or enforceability of that term or provision in any other jurisdiction.
H. This Agreement is not assignable by either party except that it
shall inure to the benefit of and be binding upon any successor to the Company
by merger or consolidation or the acquisition of all or substantially all of the
Company's assets, provided such successor assumes all of the obligations of the
Company, and shall inure to the benefit of the heirs and legal representatives
of the Executive.
I. The parties acknowledge that none of the benefits granted to
either party hereunder are conditioned on any requirement that either party make
referrals to, be in a position to make or influence referrals to, or otherwise
generate business for the other.
J. If the Executive is made a party to any action, suit, proceeding
or any other claim whatsoever, by reason of the fact that the Executive is or
was a director, officer, employee or agent of the Company and one or more
Subsidiaries, or is or was serving at the request of Company and one or more
Subsidiaries, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, whether or not the basis
of such claim is the Executive's alleged action in an official capacity while in
service as a director, officer, employee or agent of the Company and one or more
Subsidiaries the Executive shall be
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indemnified and held harmless by the Company and one or more Subsidiaries to the
fullest extent legally permitted or authorized by the Company's and such
Subsidiaries' certificate of incorporation or bylaws or resolutions of the Board
against all expenses, liability and loss, including, without limitation, legal
fees, fines or penalties and amounts paid or to be paid in settlement, all as
reasonably incurred by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even after the Executive has
ceased to be a director, officer, employee or agent of the Company or such
Subsidiaries, and shall inure to the benefit of the Executive's heirs, executors
and administrators.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, in multiple counterparts, each of which shall be deemed an original,
effective the day and year first above written.
Emergency Medical Services L.P.
By: Emergency Medical Services
Corporation, its general partner
By: /s/ Xxxxxx X. Xx Xxxxx
---------------------------------
Name: Xxxxxx X. Xx Xxxxx
Title: President
Date of Execution: February 9, 2005
/s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx
Date of Execution: February 2, 2005
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ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption, dated as of February 10, 2005,
between Emergency Medical Services Corporation, a Delaware corporation ("EMSC")
and Emergency Medical Services L.P., a Delaware limited partnership ("EMS").
Reference is made to (i) the Employment Agreement, dated as of
February 10, 2005, between EMS and Xxx X. Xxxxxx (the "XXXXXX AGREEMENT"); (ii)
the Employment Agreement, dated as of February 10, 2005, between EMS and Xxxxxx
X. Xxxx ( the "XXXX AGREEMENT"); and (iii) the Employment Agreement dated as of
February 10, 2005, between EMS and Xxxx Xxxxxxxxx (together with the Xxxxxx
Agreement and the Xxxx Agreement, the "EMPLOYMENT AGREEMENTS").
EMS wishes to assign to EMSC, and EMSC wishes to accept and assume
from EMS, EMS's rights and obligations and Employment Agreements.
NOW THEREFORE, intending to be legally bound, the parties hereby
agree as follows:
EMS hereby assigns, transfers, grants and otherwise conveys to EMSC,
and EMSC hereby accepts and assumes from EMS, all of the rights and obligations
under the Employment Agreements.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption to be executed and delivered as of the date first written above.
EMERGENCY MEDICAL SERVICES CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: CFO
EMERGENCY MEDICAL SERVICES L.P.
By: Emergency Medical Services Corporation,
its general partner
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: CFO
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