EXHIBIT 10.33
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of May 1,
1996, by and between PRIME MEDICAL SERVICES, INC., a Delaware Corporation (the
"Company"), and XXXXXX XXXXXXX, M.D., X.X., a resident of North Carolina (the
"Executive").
RECITALS
The Company is engaged in the business of (i) developing new lithotripsy
clinics, (ii) owning and operating lithotripsy clinics, and (iii) serving as
general partner and management agent for operational lithotripsy clinics
throughout the United States. The Executive is experienced in, and knowledgeable
concerning, certain aspects of the business of the Company. The Executive has
heretofore been employed by a predecessor to the Company, and the Company and
the Executive desire to continue the employment of the Executive as the
President of the Company on the terms set forth in this Agreement.
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements provided for herein, the parties agree as follows:
1. Employment and Duties. The Company hereby employs the Executive during
the term of this Agreement, and the Executive hereby accepts such employment, as
the President and Chief Executive Officer of the Company. During the term of
this Agreement, the Executive shall provide to the Company the services
consistent with that of the President and Chief Executive Officer of the Company
as set forth in the By-Laws of the Company, and as determined by the Board of
Directors of the Company. Notwithstanding the foregoing, without the prior
consent of the Executive, his duties hereunder may not be (i) expanded or
modified substantially from those set forth in this Section or (ii) modified or
expanded in any way that would require him to relocate his residence from a
reasonable automobile commuting distance from Fayetteville, North Carolina or
make it impractical for him to continue to reside there or cause him to reside
away from there for extended periods of time, unless the Executive and the
Chairman of the Board of Directors of the Company mutually agree otherwise.
2. Duration and Termination.
a. Duration. The initial term of this Agreement shall begin on the date
hereof and end on April 30, 1998, unless this Agreement is sooner terminated
pursuant to Section 2.b. hereof or the term is extended pursuant to this Section
2.a. Unless the Company provides written notice to the Executive on or before
October 31, 1997, or on or before October 31 of each year thereafter, that it
does not desire to extend the term of this Agreement, the term of this Agreement
shall be extended automatically for an additional one-year period. References in
this Agreement to the "term" of this Agreement mean the initial term and any
extensions thereof as provided pursuant to this Section 2.a.
b. Termination. This Agreement may be terminated during its term as
follows:
(i) Upon Death or Disability. This Agreement shall terminate automatically
upon the death or disability of the Executive. For purposes of this Agreement,
"disability" means the Executive's inability to substantially perform the
services set forth in Section 2 hereto as a result of his physical incapacity or
mental incompetence, or both, provided such inability has continued for a period
of not less than six consecutive months or for shorter periods aggregating six
consecutive months during any consecutive twelve-month period, and which in
either case must be evidenced by a written certification furnished to the
Company and to the Executive by a physician selected by agreement of the Company
and the Executive.
(ii) By the Executive. The Executive may terminate this Agreement at any
time during its term by providing sixty days' prior written notice to the Board
of Directors of the Company of such termination.
(iii) By Written Agreement of Parties. This Agreement may be terminated at
any time by the mutual written agreement of the Company and the Executive.
(iv) By the Company "for Cause". The Company may terminate this Agreement
at any time during its term "for cause" by providing sixty days' prior written
notice to the Executive, which notice must specifically describe the conduct of
the Executive providing the Company with cause to terminate this Agreement. For
purposes of this Agreement, "for cause" means (i) the conviction of the
Executive of a felony which renders him unable to provide to the Company the
services set forth in Section 2 hereto; (ii) the commission by the Executive of
an act of fraud, misappropriation of funds or embezzlement in connection with
his employment hereunder; (iii) the intentional failure of the Executive to
perform his duties hereunder; or (iv) the breach by the Executive of any
material provision of the Agreement that is not remedied within thirty days
after the Company provides written notice thereof to the Executive.
(v) By the Company Other Than "for Cause". The Company may terminate this
Agreement at any time during its term for any reason other than "for cause" (as
defined in Section 2(b)(iv) above) by providing sixty days prior written notice
to the Executive; provided that if the Company terminates the Agreement pursuant
to this Section 2(b)(v), the Company shall continue to pay compensation to the
Executive for the remainder of the term at the highest annual rate of cash
salary in effect under Section 3 hereof at any time during the term of this
Agreement. Such annual payments shall be made in equal monthly installments,
each payable in arrears to the Executive by the tenth day of each month for the
remainder of the term of the Agreement. In the event of a termination pursuant
to this Section 2(b)(v), any NonCompetition Agreement between the Company and
the Executive shall continue in all respects, except that the territory covered
by any NonCompetition Agreement shall be limited to the markets serviced by the
Company and Lithotripters at the time of termination.
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3. Annual Compensation. Commencing on the date hereof and continuing during
the term of this Agreement, the Company shall pay to the Executive compensation
at the rate of $325,000 per annum, payable in twelve equal monthly installments
of $27,083.33, each payable in arrears to the Executive by the tenth of each
month. The rate of annual compensation provided for herein shall be subject to
review and increase in accordance with the normal salary review policies and
procedures of the Company applicable to its executive officers, but nothing in
this sentence shall be interpreted as requiring the Company to increase
compensation of the Executive in any year. In no event shall the annual salary
payable hereunder be less than $325,000.
4. Bonus Arrangement. In addition to annual compensation provided for in
Section 3 hereof, the Company may award to the Executive performance bonuses
based upon the performance of the Company and the Executive, as determined from
time to time by the Board of Directors of the Company, but nothing hteherin
shall be interpreted as obligating the Company to pay a bonus to the Executive
in any year, and the decision to pay or not to pay a bonus for any year shall be
discretionary with the Company.
5. Executive Benefits. Effective as of the date of this Agreement, the
Executive shall be entitled to participate in benefit programs of the Company
that generally are made available to its executive officers, as in effect from
time to time, including without limitation medical insurance, life insurance,
disability income plan, retirement benefits pursuant to a formal plan or
otherwise, and vacation policies (four week minimum). Benefits payable by the
Company shall include, without limitation, the following:
(i) Continuation of Executive Club Membership (including monthly dues);
(ii) All expenses associated with the provision, maintenance and use of a
cellular car phone;
(iii) Payment of professional legal and medical magazine and journal
subscriptions;
(iv) Continuation of existing airline travel clubs (e.g. U.S. Air Club,
Delta Crown Room, Admiral Club, etc.) and benefits;
(v) Payment of medical malpractice premiums;
(vi) Payment of medical licenses and medical and DEA registrations;
(vii) Payment for membership and dues in professional medical associations
and societies, including, without limitation, ALS, AUA, AMA, Carolina
Urological, North Carolina Urological, North Carolina Medical Society, American
College of Surgeons, and Southeastern Section of AUA, and payment of all costs
associated with attending any meetings of the above; and
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(viii) Payment of all costs of registration and attendance to any
continuing medical education meetings, subject to prior approval of attendance
at any such meetings by the Chairman of the Board of Directors of the Company.
6. Reimbursement of Expenses. The Company shall reimburse the Executive, in
accordance with the general policies and practices of the Company as in effect
from time to time, for out-of-pocket expenses incurred by the Executive in the
performance of his duties hereunder.
7. Notices. Any notice required or permitted to be given under the terms of
this Agreement shall be in writing and either hand delivered, sent by facsimile
transmission or sent by nationally-recognized air courier, as follows:
If to the Company:
Prime Medical Services, Inc.
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxx xx Xxxxx Xxx., Xxx. X-000, Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
If to the Executive:
Xxxxxx Xxxxxxx, M.D., X.X.
Xxxxxx Xxxxxxx, M.D.
0000 Xxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
or to such other address as either party may furnish to the other in accordance
with this Section 8. Any such notice shall be deemed to have been given as of
the date hand delivered or sent by facsimile or one day after it is deposited
for delivery with a nationally-recognized air courier (properly addressed and
with charges prepaid).
8. Assignment. This Agreement is personal to each of the parties hereto,
and neither party may assign nor delegate any of his or its rights or
obligations hereunder without first obtaining the written consent of the other
party.
9. Burden and Benefit. This Agreement shall be binding upon and shall inure
to the benefit of the Company and the Executive and their respective permitted
successors and assigns. As used herein, the term "successors" shall be deemed to
refer with equal force and effect to any corporate or other successor of the
Company which shall acquire, directly or indirectly, by merger, consolidation,
purchase or otherwise all or subsequently all of the assets or capital stock of
the Company.
10. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between the Company and the Executive with respect to the
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employment of the Executive by the Company. This Agreement supersedes all
prior undertakings and agreements, written or oral, as may have existed prior to
the date hereof between the Company and the Executive with respect to the
employment of the Executive by the Company.
11. Amendment; Waiver. No change or modification of this Agreement shall be
valid or binding unless in writing and signed by the party intended to be bound.
No waiver of any provision of this Agreement shall be valid unless in writing
and signed by the party against whom the waiver is sought to be enforced. A
valid waiver of any provision of this Agreement shall be limited to the instance
recited in such writing and, unless otherwise expressly stated, shall not be
effective as a continuing waiver or repeal of such provision.
12. Severability. In the event that any provision of this Agreement shall
be deemed to be invalid or unenforceable for any reason whatsoever, it is agreed
that such invalidity or unenforceability shall not affect any other provision of
this Agreement; the remaining terms, covenants, restrictions or provisions in
this Agreement shall remain in full force and effect; and any court of competent
jurisdictions may so modify the objectionable provision as to make it valid,
reasonable and enforceable.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina applicable to contracts
made and to be wholly performed within the State.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
COMPANY:
PRIME MEDICAL SERVICES, INC.
a Delaware corporation
By: ____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
EXECUTIVE:
____________________________(SEAL)
XXXXXX XXXXXXX, M.D., X.X.
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