PRIVILEGED AND CONFIDENTIAL
(18 Months Severance)
Type A
AMERICAN MEDSERVE CORPORATION
000 XXXXXX XXXX.
SUITE 200
NAPERVILLE, ILLINOIS 60563
(000) 000-0000
August 7, 1997
Mr. X. Xxxxxxx Xxxxxxx
American Medserve Corporation
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Dear Xxxx:
American Medserve Corporation (the "Company") considers you to be a valued
employee. In recognition of the value of your continued services to the Company
and its shareholders, the Company proposes the following agreement (the
"Agreement") to provide you with certain severance payments and benefits if your
employment terminates following a "Change of Control" that occurs on or prior to
August 31, 1998 (as defined below).
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS
Whenever used in this Agreement, the following capitalized terms shall have
the meanings set forth in this Section, certain other capitalized terms being
defined elsewhere in this Agreement.
(a) "Annualized Compensation" means your highest annualized Compensation
within one year of the date on which your employment terminates.
(b) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 promulgated under the Exchange Act.
(c) "Board of Directors" means the Board of Directors of the Company.
(d) "Change of Control" of the Company means and includes either of the
following which occurs on or prior to August 31, 1998:
(i) Any Person or "group" (as that term is defined in Section 13(d)
of the Exchange Act and the rules and regulations promulgated
thereunder) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company, or of any entity
resulting from a merger or consolidation involving the Company,
representing more than 50% of the combined voting power of the
then outstanding securities of the Company or such entity.
(ii) Any Person or "group" (as that term is defined in Section 13(d)
of the Exchange Act and the rules and regulations promulgated
thereunder) acquires all or substantially all of the assets of
the Company.
(e) "Company" means American Medserve Corporation, a Delaware corporation,
and any successor as provided in Article V.
(f) "Compensation" means and includes all of your base wages and/or salary
paid to you by the Company and/or any of its subsidiaries as
consideration for your services that are includible in your gross
income for federal income tax purposes, plus 50% of your target bonus
(even if not yet paid or payable) under the Company's 1997 bonus plan
and any amounts excludable from your gross income for federal income
tax purposes pursuant to Section 125 or Section 401(k) of the Internal
Revenue Code of 1986, as amended.
(g) "Constructive Termination Event" means any of the following events,
which shall not have been remedied by the Company within 15 days
following written notice from you to the Company of the occurrence of
such event:
(i) The Company or any of its subsidiaries reduces your base salary
or rate of Compensation as in effect immediately prior to the
Change of Control, or otherwise fails to provide to you
compensation and benefit plans, arrangements, policies and
procedures which, taken as a whole, are no less favorable to you
(including on an after-tax basis) than those, taken as a whole,
provided by the Company or any of its subsidiaries to you
immediately prior to the Change of Control.
(ii) Without your express written consent, the Company or any of its
subsidiaries significantly reduces your job authority and
responsibility.
(iii) Without your express written consent, the Company or any of its
subsidiaries requires you to change the location of your job or
office, so that you will be based at a location more than 35
miles from the location of your job or office immediately prior
to the Change of Control.
(iv) A successor company fails or refuses to assume the Company's
obligations under this Agreement, as required by Article V.
(v) The Company or any successor company breaches any of the
material provisions of this Agreement.
(h) "ERISA" means the Employee Retirement Income Security Act of 1974 as
amended.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(j) "Just Cause" means the termination of your employment as a result of
fraud, misappropriation of or intentional material damage to the
property or business of the Company (including its subsidiaries), or
commission of a felony.
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(k) "Person" shall have the meaning ascribed to such term in Section 3 of
the Exchange Act and the rules and regulations promulgated thereunder.
(l) "Severance Payment" means the payment of severance compensation as
provided in Article II.
ARTICLE II.
SEVERANCE PAYMENT
2.1. RIGHT TO SEVERANCE PAYMENT
You shall be entitled to receive a Severance Payment from the Company in
the amount provided in Section 2.2 if (i) there has been a Change of Control,
(ii) you are an active employee (or on sick leave, military leave or any other
employer-approved leave of absence) at the time of the Change of Control, and
(iii) within 548 calendar days from and including the date of the Change of
Control, your employment is involuntarily terminated for any reason (other than
for Just Cause or your death or retirement after age 65) or you voluntarily
terminate your employment following the occurrence of a Constructive Termination
Event.
2.2. AMOUNT OF SEVERANCE PAYMENT
(a) If you become entitled to a Severance Payment within 183 calendar days
following the Change in Control, you shall receive a lump-sum payment
equal to 1.5 times one year's Annualized Compensation. If you become
entitled to a Severance Payment after 183 calendar days following the
Change in Control, your Severance Payment shall be an amount equal to
(a) 1.5 times one year's Annualized Compensation less (b) 1.5 times
one year's Annualized Compensation times a fraction having a numerator
equal to the number of calendar days that have elapsed since the six-
month anniversary of the Change of Control and a denominator equal to
365 calendar days.
(b) The Severance Payment otherwise calculated under this Section 2.2
shall be reduced by the amount of cash severance-type benefits to
which you may be entitled pursuant to any other severance plan,
employment or other agreement, or policy or program of the Company or
any of its subsidiaries; PROVIDED, that if the amount of cash
severance benefits payable under such other severance plan, employment
or other agreement, policy or program is greater then the amount
payable pursuant to this Agreement, you will be entitled to receive
the amounts payable under such other plan, employment or other
agreement, policy or program. Without limiting other payments which
would not constitute "cash severance-type benefits" hereunder, any
cash settlement of stock options, accelerated vesting of stock options
and retirement, pension and other similar benefits shall not
constitute "cash severance-type benefits" for purposes of this
Section 2.2(b).
2.3. VESTING OF OPTIONS
Any unvested stock options for the purchase of Company stock which you are
holding on the date on which you become entitled to a Severance Payment shall
immediately become fully vested.
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2.4. NO DUTY OF MITIGATION
The Company acknowledges that it would be very difficult and generally
impracticable to determine your ability to, or extent to which you may, mitigate
any damages or injuries you may incur by reason of the Change of Control. The
Company has taken this into account in entering into this Agreement and,
accordingly, the Company acknowledges and agrees that you shall have no duty to
mitigate any such damages and that you shall be entitled to receive your entire
Severance Payment regardless of any income which you may receive from other
sources following your termination after any Change in Control.
2.5. TIME OF SEVERANCE PAYMENT
The Severance Payment to which you are entitled shall be paid to you, in
cash and in full, not later than 10 calendar days after the termination of your
employment. If you should die before all amounts payable to you have been paid,
such unpaid amounts shall be paid to your beneficiary under this Agreement or,
if you have not designated such a beneficiary in writing to the Company, to the
personal representative(s) of your estate.
2.6. LIFE AND HEALTH INSURANCE COVERAGE
If you are entitled to receive a Severance Payment under Section 2.1, you
will also be entitled to receive the following additional benefits:
(a) Life insurance coverage for you having a face amount at least equal to
the greater of (i) the amount, if any, in effect for you on the date
of the Change of Control, or (ii) the amount, if any, in effect for
you on the date of termination of your service, such coverage to be
provided under the same plan or plans under which you were covered
immediately prior to the termination of your employment or
substantially similar plan(s) established by the Company or any of its
subsidiaries thereafter. Such life insurance coverage shall be paid
for by the Company to the same extent as if you were still employed by
the Company and you will be required to make such payments as you
would be required to make if you were still employed by the Company.
This coverage will continue following the date of termination of your
employment until the date which is 548 calendar days after the Change
in Control.
(b) Health insurance coverage (including any dental coverage) for you and
your dependents under the same plan or plans under which you were
covered immediately prior to the termination of your employment or
substantially similar plan(s) established by the Company or any of its
subsidiaries thereafter. Such health insurance coverage shall be paid
for by the Company to the same extent as if you were still employed by
the Company, and you will be required to make such payments as you
would be required to make if you were still employed by the Company.
This coverage will continue following the date of termination of your
employment until the date which is 548 calendar days after the Change
in Control.
(c) The benefits for medical coverage under the provisions of
Section 2.6(b) shall end as of the date you become covered under any
other group health plan not maintained by the Company or any of its
subsidiaries which provides equal or greater benefits than such
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plan and which does not exclude any pre-existing condition that you
or your dependents may have a that time.
2.7. WITHHOLDING OF TAXES
The Company may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes required by applicable law to be withheld by
the Company.
2.8. BENEFITS UNDER OTHER PLANS
The benefits that you may be entitled to receive pursuant to Section 2.6
are not intended to be duplicative of any similar benefits to which you may be
entitled from the Company or any of its subsidiaries under any other severance
plan, agreement, policy or program maintained by the Company or any of its
subsidiaries. Accordingly, the benefits to which you are entitled under
Section 2.6 shall be reduced to take account of any other similar benefits to
which you are entitled from the Company or any of its subsidiaries; PROVIDED,
HOWEVER, that if the amount of benefits to which you are entitled under such
other severance plan, agreement, policy or program is greater than the benefits
to which you are entitled under Section 2.6, you will be entitled to receive the
full amount of the benefits to which you are entitled under such other plan,
agreement, policy or program.
ARTICLE III.
CONFIDENTIALITY AND NON-COMPETITION
3.1. CONFIDENTIALITY
You acknowledge that all Confidential Information is the exclusive
property of the Company (for purposes of this Article III, "Company" shall
include all of its subsidiaries) and agree to hold all Confidential
Information in trust for the benefit of the Company or any third party as
described below. You further agree not to use in any manner, during your
employment and at all times thereafter so long as it remains confidential,
for your benefit or for the benefit of any other individual or entity, or
divulge or convey to any other individual or entity, any Confidential
Information without the prior written permission of the Company's Chief
Executive Officer (the "CEO"), unless (a) it is pursuant to your job duties
while you are employed by the Company or (b) you are required to do so by
legal process; provided that, before making such disclosure, you will advise
the CEO and will cooperate fully in any legal action the Company may elect to
take in order to attempt to prevent such disclosure. "Confidential
Information" shall be defined as all information, knowledge or data relating
to the Company, including, but not limited to, trade secrets; financial
information; technological and engineering data; business applications and
techniques; research and development activities; preferences and identities
of clients, customers, vendors, suppliers and prospective clients, customers,
vendors and suppliers; current, prospective and ongoing business strategies,
plans and techniques; computer and other programs, software, devices,
methods, techniques, processes and inventions; compilations and other
materials developed by or on behalf of the Company (whether in written,
graphic, audiovisual, electronic or other media, including computer
software), which has been or may be subject to reasonable efforts to maintain
its confidentiality, which is not generally known to the public or by
competitors of the Company, and which derives its value from remaining
undisclosed. Confidential Information also includes information in the above
categories of any client, customer, supplier, vendor or other third party
doing business with the Company, which has been or will be disclosed to the
Company. Confidential Information does not include any information that is
in the public domain or otherwise is or becomes publicly available (other
than as a result of a wrongful act by you or any owner, agent or employee of
the Company).
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3.2. Non-Competition
You agree that, during your employment by the Company and for a period of
18 months following the termination of your employment for any reason, you will
not, directly or indirectly, by any means or device whatsoever, for yourself, or
on behalf of or in conjunction with any person, partnership, corporation,
limited liability company or other entity whatsoever, do any one or more of the
following:
(a) Solicit, induce, entice, hire or employ, or attempt to solicit,
induce, entice, hire or employ any employee of the Company, so as to
cause or attempt to cause such employee to leave the employ of the
Company and/or to accept employment with a business which is
competitive with the Company.
(b) Own, operate, manage, consult for, be affiliated with, be employed by,
or render services to, any person, partnership, corporation or other
entity whatsoever, which is competitive with the Company, or otherwise
compete with the Company, in any geographic areas in the United States
where the Company engages in business as of the date of your
termination; or
(c) Call on, contact, solicit or otherwise seek to deal or deal with any
actual or known potential client, customer, vendor or supplier of the
Company which was an actual or known potential client, customer,
vendor or supplier of the Company during your employment or as of the
date of your termination, whichever may be applicable, for the purpose
of interfering with, disrupting or competing with the business of the
Company.
3.3. ENFORCEMENT
(a) You acknowledge that any breach of this Article III would cause
irreparable harm to the Company, and that money damages would be an
inadequate remedy for any such breach. In the event you breach or
threaten to breach any provision of this Article III, the Company or
its successors or assigns, in addition to other rights and remedies
existing in its or their favor, may apply to any court of competent
jurisdiction for specific performance, injunctive and/or other
equitable relief in order to enforce or prevent any violation of this
Article III.
(b) Notwithstanding the requirements of Section 3.3(a), any and all rights
which you may have under this Agreement, including your rights with
respect to the Severance Payment and benefits under Article II, shall
terminate and any payments or other benefits which you are receiving
from the Company shall automatically cease and otherwise be forfeited
in the event you violate any provision of this Article III.
3.4. REVISION
If, at the time of enforcement of this Article III, a court holds that
the restrictions stated herein are unreasonable because they are overly
broad, under the circumstances then existing, as to time, geographic area
and/or scope of conduct and therefore are unenforceable, the parties agree
that such court shall revise this Article III by substituting the maximum
time period, geographic area and/or scope of conduct deemed reasonable and
enforceable under such circumstances.
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ARTICLE IV.
OTHER RIGHTS AND BENEFITS NOT AFFECTED
4.1. OTHER BENEFITS
This Agreement does not provide a pension for you nor shall any payment
hereunder be characterized as deferred compensation. Except as set forth in
Sections 2.2(b) and 2.8, neither the provisions of this Agreement nor the
Severance Payment provided for hereunder shall reduce any amounts otherwise
payable, or in any way diminish your rights as an employee, whether existing now
or hereafter, under any benefit, incentive, retirement, stock option, stock
bonus or stock purchase plan or any employment agreement or other plan or
arrangement not related to severance.
4.2. EMPLOYMENT STATUS
This Agreement does not constitute a contract of employment or impose on
you any obligation to remain in the employ of the Company, nor does it impose on
the Company or any of its subsidiaries any obligation to retain you in your
present or any other position. Nothing in this Agreement shall in any way
require the Company or any of its subsidiaries to provide you with any severance
benefits prior to a Chance of Control, nor shall this Agreement ever be
construed in any way as establishing any policies or requirements of the Company
or any of its subsidiaries for the termination of your employment or the payment
of severance benefits to you if your employment terminates prior to a Change in
Control, nor shall anything in this Agreement in any way affect the right of the
Company or any of its subsidiaries in its absolute discretion to change prior to
a Change of Control one or more benefit plans.
ARTICLE V.
SUCCESSOR TO COMPANY
The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Company, expressly and
unconditionally to assume and agree to perform the Company's obligations
under this Agreement. In such event, the term "Company," as used in this
Agreement, shall mean the Company as herein before defined and any successor
or assignee to the business or assets which by reason hereof becomes bound by
the terms and provisions of this Agreement.
ARTICLE VI.
LEGAL FEES AND EXPENSES
The Company shall pay as they become due all legal fees, costs of
litigation and other expenses incurred in good faith by you as a result of
the Company's refusal or failure to make the Severance Payment to which you
become entitled under this Agreement, as a result of the Company's contesting
the validity, enforceability or interpretation of this Agreement or of your
right to benefits hereunder. You shall be conclusively presumed to have
acted in good faith unless a court makes a final determination not otherwise
subject to appeal to the contrary.
ARTICLE VII.
ARBITRATION
You shall have the right and option (but not the obligation) to elect
(in lieu of litigation) to have any dispute or controversy arising under or
in connection with this Agreement settled by arbitration,
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conducted before a panel of three arbitrators sitting in a location selected
by you within 50 miles from the location of your job with the Company or any
of its subsidiaries, in accordance with the rules of the American Arbitration
Association ("AAA") then in effect. The arbitrator will be selected by mutual
agreement or from a list submitted by AAA in accordance with AAA rules. All
expenses of such arbitration, including the fees and expenses of your
counsel, shall be borne, and paid as incurred, by the Company; provided,
however, that if, in the opinion of the arbitrator, any claim by you was
unreasonable, the arbitrator may assess, as part of his/her award, all or any
part of the arbitration expenses related to such unreasonable claim against
you. Judgment may be entered on the award of the arbitrator in any court
having jurisdiction. Pending the arbitrator's decision as to issuance of an
award, the Company shall pay the Severance Payment and benefits to you
pursuant to Article II, provided you offer suitable security for repayment in
the event that the award, or any part thereof, is not in you favor, such as a
bond, letter of credit or escrow arrangement.
ARTICLE VIII.
MISCELLANEOUS
8.1. APPLICABLE LAW
To the extent not preempted by the laws of the United States and in the
interest of interpreting this Agreement in a uniform manner with other similar
agreements being entered into by the Company with other of its and its
subsidiaries' employees regardless of the jurisdiction in which you are employed
or any other factor, the laws of the State of Illinois shall be the controlling
law in all matters relating to this Agreement, regardless of the choice-of-law
rules of the State of Illinois or any other jurisdiction.
8.2. CONSTRUCTION
No term or provision of this Agreement shall be construed so as to require
the commission of any act contrary to law, and wherever there is any conflict
between any provision of this Agreement and any present or future statute, law,
ordinance, or regulation contrary to which the parties have no legal right to
contract, the latter shall prevail, but in such event the affected provision of
this Agreement shall be curtailed and limited only to the extent necessary to
bring such provision within the requirements of the law.
8.3. SEVERABILITY
If a provision of this Agreement shall be held illegal or invalid, the
illegality or invalidity shall not affect the remaining parts of this
Agreement and this Agreement shall be construed and enforced as if the
illegal or invalid provision had not been included.
8.4. HEADINGS
The Section headings in this Agreement are inserted only as a matter of
convenience, and in no way define, limit, or extend or interpret the scope of
this Agreement or of any particular Section.
8.5. NOTICE OF TERMINATION
Following a Change in Control, any purported termination of your employment
by the Company or any of its subsidiaries (not involving a Constructive
Termination Event) shall be communicated by a written notice of termination from
the Company to you, which notice shall indicate the specific
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termination provision in this Agreement, if any, relied upon and which sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of your employment under any provision so indicated.
The failure to provide such notice shall create a rebuttable presumption that
you are entitled to a Severance Payment and the other benefits provided by
this Agreement.
8.6. ASSIGNABILITY
Neither this Agreement nor any right or interest therein shall be
assignable or transferable (whether by pledge, grant of a security interest,
or otherwise) by you, your beneficiaries or legal representatives, except by
will or by the laws of descent and distribution. This Agreement shall be
binding upon and shall inure to the benefit of the Company, its successors
and assigns, and you and shall be enforceable by them and your legal personal
representatives.
8.7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Company and
you regarding the subject matter hereof.
8.8. TERM
If a Change of Control has not occurred prior to September 1, 1998, this
Agreement shall expire and be of not further force and effect on such date;
provided that the Board of Directors of the Company may, at any time prior to
the expiration hereof, extend the term of this Agreement for a term of up to
two years, including changing the date set forth in the second line of the
definition of "Change of Control," without any further action on your part.
If a Change of Control occurs prior to September 1, 1998, this Agreement
shall continue in full force and effect, and shall not terminate or expire
until the expiration of 548 calendar days from and including the date of the
Change of Control, at which time this Agreement shall terminate except if you
become entitled to the Severance Payment and benefits hereunder prior to such
time. If you become so entitled to a Severance Payment and benefits
hereunder, this Agreement shall continue and be effective until you (or the
person(s) specified in Section 2.5) shall have received in full the Severance
Payment and other benefits to which you are entitled under this Agreement, at
which time this Agreement shall terminate for all purposes.
8.9. AMENDMENT
Except as set forth in Section 8.8, no provision of this Agreement may
be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by you and the Company. No
waiver by the Company or you at any time or any breach by the other party of,
or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or any prior or subsequent
time.
8.10. NOTICES
For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, addressed to the respective addresses last given
by each
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party to the other, provided that all notices to the Company shall be
directed to the attention of the Board of Directors with a copy to the
Secretary of the Company. All notices and communications shall be deemed to
have been received on the date of delivery thereof or on the third business
day after the mailing thereof, except that notice of change of address shall
be effective only upon actual receipt. No objection to the method of
delivery may be made if the written notice or other communication is actually
received.
8.11. ADMINISTRATION
The Company has entered into agreements similar to this Agreement
herein with other employees of the Company or its subsidiaries. These
agreements, taken together, constitute a welfare benefit plan within the
meaning of Section 3(1) of ERISA. The Administrator of such plan, within the
meaning of Section 3(16) of ERISA, and the Named Fiduciary thereof, within
the meaning of Section 402 of ERISA, is the Company.
* * * * *
If this Agreement is acceptable to you, please sign the enclosed copy
of this Agreement in the space provided below and return it to me IMMEDIATELY.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ X. Xxxxxxx Xxxxxxx
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X. Xxxxxxx Xxxxxxx
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