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Exhibit 10.16
AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT (this "Amendment"), dated as of March 25, 1998, to
the Employment Agreement dated as of October 1, 1996 (the "Employment
Agreement"), by and between FPA Medical Management, Inc., a Delaware corporation
(the "Company"), and Xxxxxx Xxxx ("Employee").
WHEREAS, the Company and Employee have previously entered into
the Employment Agreement;
WHEREAS, it is mutually in the best interests of the Company
and Employee to modify and amend the Employment Agreement in the manner stated
herein.
NOW, THEREFORE, in order to effect the foregoing, in consider-
ation of the premises and the respective covenants and agreements of the parties
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows (capitalized terms used but not defined herein having the
meanings ascribed to such terms in the Employment Agreement):
1. Employment Duties.
Section 1(a) of the Employment Agreement is hereby amended to
read in its entirety as follows:
"(a) Capacity. The Company shall employ Employee, and Employee
shall serve as an Executive Vice President of the Company, on the terms and
subject to the conditions set forth in the Agreement and the Amendment to
Employment Agreement, dated as of March 25, 1998, by and between the parties
hereto."
Section 1(b) of the Employment Agreement is hereby amended to
read in its entirety as follows:
"(b) Scope and Duties. Employee shall perform such duties as
are consistent with the position of an executive vice president and shall
perform such additional duties and accept election or appointment to such
additional offices or positions of the Company or its subsidiaries as may be
specified by the Chief Executive Officer of the Company or his designee. The
duties of Employee shall be performed primarily in San Diego, California, except
for such travel in the ordinary
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course of the business of the Company as may from time to time be reasonably
required. Employee's principal place of business shall be at the offices of the
Company in San Diego, California."
2. Special Termination Rights.
Notwithstanding the provisions of Section 4 of the Employment
Agreement, effective as of the date hereof and continuing during the period
ending on September 25, 1999, in the event Employee's employment is terminated
for any reason (including for Cause) by the Company or Employee, the following
provisions shall apply:
(a) So long as Employee has executed and delivered and
not revoked the Release (as defined below),
Employee's termination shall be deemed to be a
termination for other than Cause and Employee shall
be entitled to receive the Severance Benefits
consistent with the terms of Section 4(a)(ii) of the
Employment Agreement (including without limitation
the acceleration of the vesting of all Employee's
stock options pursuant to Section 4(a)(ii)(B)).
(b) The Company and Employee acknowledge and agree that
the aggregate amount to be paid to Employee over the
36 month period pursuant to Section 4(a)(ii)(A) of
the Employment Agreement shall be $2,587,500. The
Company and Employee acknowledge and agree that the
benefit due to Employee pursuant to Section
4(a)(ii)(B) relating to Section 3(c)(v) of the
Employment Agreement shall be paid in equal monthly
payments.
(c) Effective as of the date of Employee's termination of
employment (the "Employment Termination Date"),
Employee hereby resigns his position as Executive
Vice President and as a director of each of the
direct or indirect subsidiaries, as applicable.
Except as provided in paragraph (c) below, effective
as of the Employment Termination Date, the Employment
Agreement shall be terminated and the Company and
Employee shall have no further rights or obligations
under the Employment Agreement. Employee shall
execute and deliver such further instruments and do
such further acts as may be reasonably necessary
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to effect the resignation of his positions pursuant
to this Section 2.
(d) Notwithstanding paragraph (c) above and other
provisions of this Amendment, except as modified
herein, the provisions of Sections 4(a), 4(d), 4(e),
4(f), 4(g), 4(h), 4(i), 4(j), 5 and 6 of the
Employment Agreement shall survive the termination of
the Employment Agreement (the "Surviving
Provisions").
(e) Employee and the Company agree to execute and deliver
to each other a release, substantially in the form
attached as Exhibit A hereto (the "Release"), within
two (2) days of the Employment Termination Date.
(f) If a Change of Control occurs within six (6) months
after the Employment Termination Date, Employee shall
be entitled to receive, in lieu of the payments and
benefits described in paragraphs (a) and (b) above,
the Severance Package consistent with the terms of
Section 4(a)(iii) of the Employment Agreement and
shall have the right to receive the Gross-Up Payments
described in Section 4(a)(iii)(E). Employee and the
Company acknowledge and agree that the amount
payable to Employee as part of the Severance Package
shall be determined utilizing the amounts set forth
in paragraph (b) above.
(g) Employee shall be entitled to exercise all of his
employee stock options during the eight months
following the Employment Termination Date during
which Employee serves as a consultant to the Company
pursuant to Section 3 below and for one (1) month
thereafter, consistent with the terms of the
Company's stock option plans.
(h) So long as Employee has executed and delivered and
not revoked the Release, the Company shall retain
Employee as a consultant pursuant to Section 3 below
for a period of eight (8) months following the
Employment Termination Date. Employee shall be
entitled to receive, as payment for the consulting
services provided pursuant to Section 3 below and the
execution
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and delivery of the Release, a cash lump sum, in an
amount equal to $1,000,000 (the "Payment").
(i) The Payment shall be made by wire transfer in the name
of Xxxxxx Xxxx to the account designated by Employee in
writing to the Company no later then ten (10) days
following the Employment Termination Date, provided
that Employee has delivered the Release within two (2)
days of the Employment Termination Date and has not
exercised his right to revoke the Release pursuant to
Section 2 thereof. Employee acknowledges and agrees
that, in the event that he revokes the Release pursuant
to Section 2 thereof, he shall have no rights pursuant
to this Amendment (including, the receipt of the
Payment).
3. Retention as a Consultant.
(a) If Employee's employment is terminated on or before
September 25, 1999, the Company agrees to retain Employee as a consultant to the
Company for a period of eight (8) months (the "Consulting Period") following the
Employment Termination Date.
(b) During the Consulting Period, in consideration of
the payments to be made to Employee pursuant to Section 2 above and the mutual
covenants contained herein, Employee shall render such consulting services to
the Company and its affiliates as Employee and the Company agree upon from time
to time that are reasonably related to the transition of duties from Employee to
his successor (including, without limitation, attendance at Company meetings on
not less than a monthly basis); it being understood, however, that, subject to
Section 4 below, the obligation of Employee to render such services shall not
preclude his undertaking full-time employment for another employer.
(c) Employee shall perform his duties hereunder at such
locations as are acceptable to him and the Company and consistent with the
nature of the services or by telephone consultation.
4. Non-Competition.
In consideration of the payments to be made to Employee
pursuant to Section 2 above and the mutual covenants contained herein, Employee
agrees not to
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compete with the Company pursuant to the terms set forth in Section 4(e) of the
Employment Agreement; provided that the "Non-Competition Period" set forth in
Section 4(e) of the Employment Agreement for purposes of this Agreement shall
begin on the Employment Termination Date and continue for so long as Employee is
receiving payments pursuant to Section 2 hereof.
5. Nondisparagement and Litigation Support.
(a) Neither the Company nor Employee will make any
derogatory or negative statements about the other party that may adversely
affect the current or potential business relationships of the other. The Company
agrees that Employee will have the right to reasonably approve the content of
any press release containing specific reference to Employee.
(b) Employee agrees to make himself and his records
available to the Company for consultation, testimony and related matters in
connection with any claim, action, proceeding or investigation instituted by or
against the Company before any court or other tribunal, in any manner as may be
reasonably requested by the Company.
6. Successor; Binding Agreement.
(a) The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company and each entity
that, directly or indirectly, becomes a parent corporation of the Company, by
agreement in form and substance satisfactory to Employee, to expressly assume
and agree to perform this Amendment in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place.
(b) This Amendment and all rights of Employee hereunder
shall inure to the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any amounts would still be
payable or benefits would still be provided to him and/or his family hereunder
if he had continued to live, all such amounts and benefits, unless otherwise
provided herein, shall be paid or provided in accordance with the terms of this
Amendment to Employee's devisees, legatees, or other designees or, if there be
no such designee, to Employee's estate.
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7. Withholding.
All amounts payable hereunder shall be subject to such
withholding taxes as may be required by law.
8. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
9. No Further Amendment.
Except as otherwise modified or amended herein, all terms and
conditions of the Employment Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the Company and Employee have caused this
Amendment to be executed as of the day and year first above written.
FPA MEDICAL MANAGEMENT, INC.
/s/ XXXXXXX XXXXXXXX
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By: Xxxxxxx Xxxxxxxx
Its: President and Chief Executive Officer
XXXXXX XXXX
/s/ XXXXXX XXXX
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EXHIBIT A
FORM OF RELEASE
RELEASE (this "Release"), dated as of ________ __, 199_, among
FPA Medical Management, Inc., a Delaware corporation (the "Company") and Xxxxxx
Xxxx ("Lash").
WHEREAS, the Company and Lash have previously entered into
that certain Employment Agreement, dated as of October 1, 1996 (the "Employment
Agreement"), as amended pursuant to that certain Amendment to the Employment
Agreement (the "Amendment"), dated as of March __, 1998; and
WHEREAS, pursuant to the Amendment, the Company and Lash
agreed, upon the occurrence of certain circumstances, to enter into this
Release.
NOW, THEREFORE, in order to effect the foregoing, in
consideration of the premises and the respective covenants and agreements of the
parties herein contained, and intending to be legally bound, the parties hereto
agree as follows:
1. Releases.
(a) In furtherance of the provisions of the Amendment,
Lash hereby knowingly and voluntarily, fully and
finally releases, acquits and forever discharges as
of the date hereof and as of the Employment
Termination Date (as defined in the Amendment), the
Company and its affiliates, and their past and
present officers, directors, shareholders, partners,
trustees, beneficiaries, managers, employees,
attorneys, agents, successors or assigns (the
"Company Released Parties") from any and all claims,
charges, complaints, liens, demands, causes of
action, obligations, damages and liabilities, known
or unknown, suspected or unsuspected, that he had,
has, or may claim to have against the Company
Released Parties arising out of or relating in any
way to Lash's relationship with the Company as an
employee, officer, director or representative or the
termination thereof, or the termination of the
Employment Agreement (including without limitation
the federal Age Discrimination in Employment Act or
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equivalent state law). Notwithstanding the generality
of the foregoing, nothing contained herein shall
release the Company or in any way impair Lash's
rights to indemnification from the Company arising
from or relating in any way to Lash's service as an
employee, officer or director as provided by law or
under the Company's bylaws, or under any applicable
indemnification agreement or insurance policy to
which the Company is a party, including, but not
limited to, Lash's rights to reimbursement, coverage
or indemnification in connection with any current or
future litigation matter arising from or relating in
any way to Lash's services as an employee, officer,
director or representative of the Company; nor shall
the foregoing release the Company from any claim
relating to the breach by the Company of its
obligations set forth in the Employment Agreement
(including the provisions of the Amendment) or the
right to receive any payments or benefits to which
Employee is entitled pursuant to any Company employee
benefit plan.
(b) As a material inducement to enter into this Release,
the Company likewise hereby knowingly and
voluntarily, fully and finally releases, acquits,
and forever discharges as of the date hereof and the
Employment Termination Date, Lash and his agents,
employees, successors, heirs, beneficiaries or
assigns (the "Lash Released Parties") from any and
all claims, charges, complaints, liens, demands,
causes of action, obligations, damages and
liabilities, known or unknown, suspected or
unsuspected, that it had, has, or may claim to have
against Lash Released Parties arising out of or
relating in any way to Lash's relationship with the
Company as an employee, officer, director or
representative, whether or not previously asserted
before any state or federal court or before any
state, federal or regulatory agency or governmental
entity. Notwithstanding the generality of the
foregoing, nothing contained herein shall release
Lash from any claim relating to the breach by Lash
of any confidentiality agreements with the Company
or any of its affiliates or the obligations set
forth in the Employment Agreement and the Amendment.
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(c) Each of the Company and Lash acknowledges that such
party has been advised by legal counsel regarding, is
familiar with and expressly waives all rights
afforded by Section 1542 of the Civil Code of the
State of California ("Section 1542"), or any statute
of similar effect in any other jurisdiction in which
any action might be brought, with respect to the
claims described in paragraphs (a) and (b) of this
Section 1. Section 1542 states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release, each of the Company and Lash
understands and agrees that this Release is intended to include all claims, if
any, described in paragraphs (a) (in the case of Lash) and (b) (in the case of
the Company) above, which either party may have and which neither party now
knows or suspects to exist in such party's favor against the Company Released
Parties (in the case of Lash) or Lash Released Parties (in the case of the
Company) and this Release extinguishes those claims.
2. Lash Right to Revoke.
Lash acknowledges that the Company has advised him to consult
with an attorney of his choosing prior to signing this Release and that he has
been given at least twenty-one (21) days during which to consider the provisions
of this Release. Lash further acknowledges that he has been advised by the
Company that he has the right to revoke this Release for a period of seven (7)
days after the execution of this Release and that this Release shall not become
effective or enforceable until such seven (7) day revocation period has expired.
Lash acknowledges and agrees that, if he wishes to revoke this Release, he must
do so in writing, signed by Lash and received by the Company at its headquarters
no later than 5:00 p.m. Pacific Standard Time on the seventh (7th) day after the
execution of this Release. Lash acknowledges and agrees that, in the event that
he revokes this Release, he shall have no right to receive any payment pursuant
to the Employment Agreement and the Amendment. Lash understands and agrees that
the Company is under no obligation to offer such
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payment and that he is under no obligation to consent to the release set forth
in paragraph 1(a) of this Release. Lash represents that he has read this
Release and understands its terms and that he enters into this Release freely,
voluntarily, and without coercion.
This Release shall be deemed a part of the Amendment and
accordingly shall be construed under the laws of the State of California and
may be executed in counterparts.
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IN WITNESS WHEREOF, each of the parties has executed this
Release as of the date set forth below.
FPA MEDICAL MANAGEMENT, INC.
-----------------------------
By:
Its:
--------------------------------
Xxxxxx Xxxx
Date:
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