EMPLOYMENT AGREEMENT
EXHIBIT 10.21
This Employment Agreement (this “Agreement”) is made effective as of April 29, 2015 (the “Effective Date”), by and between DaVita HealthCare Partners Inc. (“Parent”) and one of its controlled affiliates (“Employer,” and collectively with Parent, “DaVita”) and Xxxxxxx Xxxxxxxxx (“Teammate”).
In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Employment and Duties. Teammate has served as Chief Operating Officer - Kidney Care (“COO-Kidney Care”) since March 6, 2014, and Employee hereby continues to employ Teammate in such capacity. Teammate accepts such employment on the terms and conditions set forth in this Agreement. Teammate shall perform the duties of COOKidney Care or any additional or different duties or jobs as the Employer deems appropriate. Initially, Teammate shall work out of Denver, Colorado, although the location is subject to change to suit business needs. Teammate agrees to devote substantially all of his time, energy, and ability to the business of Employer on a full-time basis and shall not engage in any other business activities during the term of this Agreement, including but not limited to providing consulting services to any investment firm, such as a hedge fund, provided however, Teammate may pursue normal charitable activities so long as such activities do not require a substantial amount of time and do not interfere with his ability to perform his duties. Teammate agrees that he shall not serve on the board of directors of any not-for-profit or for-profit company without the express written approval of the Chief Executive Officer or the Board of Directors. Teammate shall at all times observe and abide by the Employer's policies and procedures as in effect from time to time.
Section 2. Compensation. In consideration of the services to be performed by Teammate hereunder, Teammate shall receive the following compensation and benefits:
2.1 Base Salary. Employer shall pay Teammate a base salary of $550,000 per annum, less standard withholdings and authorized deductions. Effective April 22, 2015, Teammate's base salary will increase to $600,000 per annum, less standard withholdings and authorized deductions. Teammate shall be paid consistent with Employer's payroll schedule. The base salary will be reviewed from time to time. Employer, in its sole discretion, may increase the base salary as a result of any such review. Employer may not reduce Teammate's base salary unless the Teammate authorizes it in writing or the Employer is reducing the base salary of other similarly-situated executives by a similar percentage.
Benefits. Teammate and/or his family, as the case may be, shall be eligible for participation in and shall receive all benefits under Employer's health and welfare benefit plans (including, without limitation, medical, prescription, dental, disability, and life insurance) under the same terms and conditions applicable to most executives at similar levels of compensation and responsibility.
2.2 | Performance Bonus. |
(a) Teammate shall be eligible to receive an annual bonus under the short-term incentive program approved by the Parent's Board of Directors and applicable to the company's executive officers exposed to the requirements of Section l62(m) of the Internal Revenue Code (the “Short-Term Incentive Program”, or “STI Program”). Under the STI Program, the actual annual bonus amount payable to you for any one year (the “Bonus”) is primarily contingent on the level of the Company's achievement on the performance metrics specified in the Short-Term Incentive Program for that year. For fiscal year 2014, the Bonus payable to you under the STI Program will be in an amount between zero and $1,100,000. For fiscal year 2015, the Bonus payable to you under the STI Program will be in an amount between zero and $1,200,000.
(b) For senior executives subject to the STI Program, the amounts of annual Bonuses earned are objectively and formulaicly driven, further subject to negative discretion (i.e., further downward adjustment) in the sole discretion of the Board of Directors or the Compensation Committee of the Board of Directors.
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(c) Teammate must be employed by DaVita on the date any Bonus is paid to be eligible to receive such Bonus and, if Teammate is not employed by DaVita on the date any Bonus is paid for any reason whatsoever, Teammate shall not be entitled to receive such Bonus.
2.3 Vacation. Teammate shall have vacation, subject to the approval of his direct supervisor.
2.4 Management Share Ownership Policy. Teammate shall review and understand the terms of the Management Share Ownership Policy with respect to all equity based awards.
2.5 Return of Compensation or other Property Received in Connection with Director, Officer, Shareholder or Similar Position. All fees, compensation, other remuneration, dividends, distributions, or other property or financial benefit received by Teammate in connection with Teammate's position as a director, officer, member, shareholder, partner or any other similar position of any controlled or uncontrolled direct or indirect subsidiary or affiliate of Employer, or other contractual obligor to Employer or any of its subsidiaries or affiliates the obligations of which constitute revenue to Employer or any of its subsidiaries or affiliates and of which Teammate beneficially owns or has the right to acquire, directly or indirectly, 10% or more of the equity interests or has the power to vote 10% or more of the voting interests, shall belong to Employer and shall be immediately remitted to Employer. Notwithstanding the foregoing, this provision shall not apply to any amounts payable to, earned by, received by or otherwise due to Teammate as employment compensation from Employer or any of its subsidiaries or affiliates, or any dividends or other distributions received by Teammate in Teammate's capacity as a stockholder of Employer's ultimate parent company.
2.6 Indemnification. Employer agrees to indemnify Teammate against and in respect of any and all claims, actions, or demands, to the extent permitted by the Parent's By laws and applicable law.
2.7 Reimbursement. Employer also agrees to reimburse Teammate in accordance with Employer's reimbursement policies for travel and entertainment expenses, as well as other business-related expenses, incurred in the performance of his duties hereunder.
2.8 Changes to Benefit Plans. Employer reserves the right to modify, suspend, or discontinue any and all of its health and welfare benefit plans, practices, policies, and programs at any time without recourse by Teammate so long as such action is taken generally with respect to all other similarly-situated peer executives and does not single out Teammate.
2.9 Possible Recoupment of Certain Compensation. Notwithstanding any other provision in this Agreement to the contrary, Teammate shall be subject to the written policies of the Board of Directors applicable to executives of the Employer, including without limitation any Board policy relating to recoupment or “claw back” of compensation, as they exist from time to time during the Teammate's employment by the Employer and thereafter.
Section 3. Provisions Relating to Termination of Employment.
3.1 Employment Is At-Will. Teammate's employment with Employer is “at will” and is terminable by Employer or by Teammate at any time and for any reason or no reason, subject to the notice requirements set forth below.
3.2 Termination for Material Cause. Employer may terminate Teammate's employment without advanced notice for Material Cause (as defined below). Upon termination for Material Cause, Teammate shall (i) be entitled to receive the Base Salary and benefits as set forth in Section 2.1 and Section 2.2, respectively, through the effective date of such termination and (ii) not be entitled to receive any other compensation, benefits, or payments of any kind, except as otherwise required by law or by the terms of any benefit or retirement plan or other arrangement that would, by its terms, apply.
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3.3 Other Termination. Employer may terminate the employment of Teammate for any reason or for no reason at any time upon at least thirty (30) days' advance written notice. If Employer terminates the employment of Teammate for reasons other than for death, Material Cause, or Disability, and contingent upon Teammate's execution of the Employer's standard Severance and General Release Agreement within twenty-eight days of the termination of Teammate's employment, Teammate shall be entitled to the benefits set forth in the DaVita HealthCare Partners Inc. Severance Plan, pursuant to the terms and conditions of that plan as they exist at the time of the termination of Teammate's employment. For purposes of this provision, a Teammate's employment has been terminated when Teammate is no longer providing services for Employer after a specific date or the level of bona fide services that Teammate would perform (as an Teammate or independent contractor) after a specific date would permanently decrease to no more than 20% of the average level of bona fide services performed over the immediately preceding thirty-six month period (or the full period of service if Teammate was employed for less than thirty-six months).
3.4. Voluntary Resignation. Teammate may resign from Employer at any time upon at least ninety (90) days' advance written notice. If Teammate resigns from Employer, Teammate shall (i) be entitled to receive the base salary and benefits as set forth in Section 2.1 and Section 2.2, respectively, through the effective date of such termination and (ii) not be entitled to receive any other compensation, benefits, or payments of any kind, except as otherwise required by law or by the terms of any benefit or retirement plan or other arrangement that would, by its terms, apply. In the event Teammate resigns from Employer at any time, Employer shall have the right to make such resignation effective as of any date before the expiration of the required notice period.
3.5 Good Cause Resignation. If Teammate resigns for Good Cause, as defined below, and contingent upon Employee's execution of the Employer's standard Severance and General Release Agreement within twenty-eight days of the termination of Teammate's employment, Teammate shall (i) be entitled to receive the base salary and benefits as set forth in Section 2.1 and Section 2.2, respectively, through the effective date of such resignation, (ii) shall continue to receive his salary for the twelve-month period following the termination of his employment (the “Resignation Severance Period”), subject to Employer's payroll practices and procedures, (iii) if Teammate's employment is terminated after April in a given year, receive a lump-sum payment equal to the Bonus paid in the year prior to the termination of Teammate's employment, pro-rated for the number of months served in the year Teammate's employment is terminated, to be paid on or around the time Employer normally pays performance bonuses to other senior executives so long as he has complied with the terms of the Noncompetition, Nonsolicitation, and Confidentiality Agreement, which Teammate is executing at the same time as this Agreement, and (iv) not be entitled to receive any other compensation, benefits, or payments of any kind, except as otherwise required by law or by the terms of any benefit or retirement plan or other arrangement that would, by its terms, apply. If Teammate resigns within sixty (60) days following a Good Cause Event after a Change of Control (as those terms are defined below), Teammate shall receive the severance benefits set forth above except that the Resignation Severance Period shall increase from twelve months to two years. Any severance shall be subject to the terms and conditions of the DaVita HealthCare Partners Inc. Severance Plan. Any severance shall also be subject to the cooperation and compliance with other agreement provisions set forth in Sections 3.3, set forth above, and which are fully incorporated herein by reference.
3.6 Disability. Upon thirty (30) days' advance notice (which notice may be given before the completion of the periods described herein), Employer may terminate Teammate's employment for Disability (as defined below).
3.7 Definitions. For the purposes of this Agreement, the following terms shall have the meanings indicated:
(a) “Change of Control” shall mean (i) any transaction or series of transactions in which any person or group (within the meaning of Rule 13d-5 under the Exchange Act and Sections 13(d) and 14(d) of the Exchange Act) becomes the direct or indirect "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), by way of a stock issuance, tender offer, merger, consolidation, other business combination or otherwise, of greater than 50% of the total voting power (on a fully diluted basis as if all convertible securities had been converted and all warrants and options had been exercised) entitled to vote in the election of directors of Employer (including
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any transaction in which Employer becomes a wholly-owned or majority-owned subsidiary of another corporation), (ii) any merger or consolidation or reorganization in which Employer does not survive, (iii) any merger or consolidation in which Employer survives, but the shares of Employer's Common Stock outstanding immediately prior to such merger or consolidation represent 40% or less of the voting power of Employer after such merger or consolidation, and (iv) any transaction in which more than 40% of Employer's assets are sold. However, despite the occurrence of any of the above-described events, a Change of Control will not have occurred if Xxxx Xxxxx remains the Chief Executive Officer or Executive Chair of Employer for at least one (1) year after the Change of Control or becomes the Chief Executive Officer or Executive Chair of the surviving company with which Employer merged or consolidated and remains in that position for at least one (1) year after the Change of Control.
(b) “Disability” shall mean the inability, for a period of six (6) months, to adequately perform Teammate's regular duties, with or without reasonable accommodation, due to a physical or mental illness, condition, or disability.
(c) “Good Cause” shall mean the occurrence of the following events without Teammate's express written consent: (i) Employer materially diminishes the scope of Employee's duties and responsibilities; or (ii) Employer materially reduces Teammate's base compensation. Notwithstanding the above, the occurrence of any such condition shall not constitute Good Cause unless the Teammate provides notice to Employer of the existence of such condition not later than 90 days after the initial existence of such condition, and Employer shall have failed to remedy such condition within 30 days after receipt of such notice.
(d) | “Material Cause” shall mean any of the following: (i) conviction |
of a felony or plea of no contest to a felony; (ii) any act of fraud or dishonesty in connection with the performance of his duties; (iii) repeated failure or refusal by Teammate to follow policies or directives reasonably established by the Chief Executive Officer of Employer or his/her designee that goes uncorrected for a period of ten (10) consecutive days after written notice has been provided to Teammate; (iv) a material breach of this Agreement and/or the Noncompetition, Nonsolicitation and Confidentiality Agreement; (v) any gross or willful misconduct or gross negligence by Teammate in the performance of his duties; (vi) egregious conduct by Teammate that brings Employer or any of its subsidiaries or affiliates into public disgrace or disrepute; (vii) an act of unlawful discrimination, including sexual harassment; (viii) a violation of the duty of loyalty or of any fiduciary duty; or (ix) exclusion or notice of exclusion of Teammate from participating in any federal health care program.
3.8 Notice of Termination. Any purported termination of Teammate's employment by Employer or by Teammate shall be communicated by a written Notice of Termination to the other party hereto in accordance with Section 3 hereof. A “Notice of Termination” shall mean a written notice that indicates the specific termination provision in this Agreement.
3.9 Effect of Termination. Upon termination, this Agreement shall be of no further force and effect and neither party shall have any further right or obligation hereunder; provided, however, that no termination shall modify or affect the rights and obligations of the parties that have accrued prior to termination; and provided further, that the rights and obligations of the parties under Section 3 and Section 4 shall survive termination of this Agreement.
3.10 Notwithstanding any provision herein to the contrary, in the event that any payment to be made to Teammate hereunder (whether pursuant to this Section 3 or any other Section) as a result of Teammate's termination of employment is determined to constitute “deferred compensation” subject to Section 409A of the Internal Revenue Code, and Teammate is a “Key Teammate” under the DaVita Inc. Key Teammate Policy for 409A Arrangements at the time of Teammate's termination of employment, all such deferred compensation payments payable during the first six (6) months following Teammate's termination of employment shall be delayed and paid in a lump sum during the seventh calendar month following the calendar month during which Teammate's termination of employment occurs.
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Section 4: Noncompetition, Nonsolicitation and Confidentiality. Teammate, contemporaneously herewith, shall enter into a Noncompetition, Nonsolicitation and Confidentiality Agreement, the terms of which are incorporated herein and made a part hereof as though set forth in this Agreement.
Section 5. Miscellaneous.
5.1 Entire Agreement; Amendment. This Agreement represents the entire understanding of the parties hereto with respect to the employment of Teammate and supersedes all prior agreements with respect thereto. This Agreement may not be altered or amended except in writing executed by both parties hereto.
5.2 Assignment: Benefit. This Agreement is personal and may not be assigned by Teammate. This Agreement may be assigned by Employer and shall inure to the benefit of and be binding upon the successors and assigns of Employer.
5.3. Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Colorado, without regard to the principles of conflicts of laws. Both parties agree that any action relating to this Agreement shall be brought in a state or federal court of competent jurisdiction located in the State of Colorado and both parties agree to exclusive venue in the State of Colorado.
5.4 Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by United States registered mail, return receipt requested, postage prepaid, addressed to Employer at its principal office and to Teammate at Teammate's principal residence as shown in Employer's personnel records, provided that all notices to Employer shall be directed to the attention of the Chief Executive Officer, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.
5.5 Construction. Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party on the basis that the party was the drafter. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect.
5.6 Execution. 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. Photographic or facsimile copies of such signed counterparts may be used in lieu of the originals for any purpose.
5.7 Legal Counsel. Teammate and Employer recognize that this is a legally binding contract and acknowledge and agree that they have had the opportunity to consult with legal counsel of their choice.
5.8 Waiver. The waiver by any party of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any other or subsequent breach of such or any provision.
5.9 Invalidity of Provision. In the event that any provision of this Agreement is determined to be illegal, invalid, or void for any reason, the remaining provisions hereof shall continue in full force and effect.
5.10 Approval by DaVita HealthCare Partners Inc. as to Form. The parties acknowledge and agree that this Agreement shall take effect and be legally binding upon the parties only upon full execution hereof by the parties and upon approval by DaVita HealthCare Partners Inc. as to the form of hereof.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of the date and year first written above.
DAVITA HEALTHCARE PARTNERS INC. | |
By: | /s/ Xxxxxx Xxxxxxxxx |
Xxxxxx Xxxxxxxxx | |
XXXXXXX XXXXXXXXX | |
By: | /s/ Xxxxxxx Xxxxxxxxx |
Xxxxxxx Xxxxxxxxx | |
Approved by DaVita HealthCare Partners Inc. as to Form:
By: | /s/ Xxxxxxx Xxxxxxxx |
Xxxxxxx Xxxxxxxx | |
Assistant General Counsel - Labor and Employment | |
