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EXHIBIT 10.15
SEVERANCE AGREEMENT
This Severance Agreement (this "Agreement"), dated as of
November 1, 1996, is between Xxxxxx X. Xxxxxxxx, XX (the "Employee") and
EmCare Holdings Inc., a Delaware corporation (the "Employer").
RECITALS
WHEREAS, the Employer desires to provide a severance
arrangement for the Employee under certain circumstances, and the Employee
desires to accept such arrangement, upon the terms and conditions set forth in
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and
the terms and conditions of this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound by this Agreement, the Employee and the
Employer agree as follows:
X. XXXXXXXXX PAYMENT
SECTION 1.1 SEVERANCE PAYMENT. The Employer shall pay to
the Employee $190,000 (the "Severance Payment") if a Change in Control occurs
and the Employee's employment with the Employer terminates because: (a) the
Employer terminates the Employee without Cause within 180 days after such
Change in Control, or (b) the Employee tenders his resignation for Good Reason
within 180 days after such Change in Control, which resignation takes effect 30
days after the Employee tenders it. The Employer shall make any such Severance
Payment within 30 days after the termination of the Employee's employment with
the Employer.
SECTION 1.2 TERM. This Agreement shall apply only to the
first Change in Control that occurs after the date of this Agreement. If the
Employee's employment with the Employer does not terminate as specified in
Section 1.1 after such first Change in Control, this Agreement shall terminate.
SECTION 1.3 NO DUTY TO MITIGATE. The Severance Payment
shall be in addition to any other amounts owed to the Employee at the time of
the termination of the Employee's employment. Under no circumstances shall the
Severance Payment be subject to any duty to mitigate or offset.
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SECTION 1.4 CONTINUATION OF CERTAIN BENEFITS. If the
termination of the Employee's employment with the Employer requires the
Employer to make the Severance Payment, then the Employer shall continue to
provide the Employee with all disability, health, and life insurance benefits
that the Employer provided to the Employee at the time of such termination on
the same terms as provided at that time until the earlier of: (a) the first
anniversary of such termination, or (b) the date when the Employee becomes
re-employed with another employer on a full- time basis. If the Employer is
unable to provide certain of these benefits to the Employee because he no
longer has the status of an employee, the Employer shall provide the Employee
with substantially similar benefits and make any adjustment necessary to cause
the after-tax value to the Employee of such similar benefits to be
substantially equivalent to the after-tax value to the Employee of the benefits
that the Employer cannot provide.
II. DEFINITIONS
SECTION 2.1 CHANGE IN CONTROL. The term "Change in Control"
shall mean: (a) any merger, consolidation, reorganization, or recapitalization
of the Company, or any similar transaction involving the Company, in which the
stockholders of the Company immediately before the merger, consolidation,
reorganization, recapitalization, or similar transaction, fail to own
securities in the surviving or new entity that represent more than 50% of the
voting power of the equity holders of such entity immediately after the merger,
consolidation, reorganization, recapitalization, or similar transaction, (b)
any person or group, as determined in accordance with Rule 13d-3 under the
Securities and Exchange Act of 1934, as in effect from time to time,
beneficially owning securities of the Company that represent more than 50% of
the voting power of the security holders of the Company as determined under
Rule 13d-3, other than any such ownership by an employee benefit plan sponsored
or maintained by the Company or any of its subsidiaries or affiliates, or any
trusts related to any such employee benefit plan, (c) any sale of all or
substantially all of the aggregate assets of the Company and its subsidiaries,
(d) any election of an individual as a director of the Company who the Board of
Directors of the Company or a committee of such Board of Directors did not
nominate, (e) any filing of a voluntary petition by the Company under the
federal bankruptcy laws or any filing of an involuntary petition against the
Company under such laws, which involuntary petition is not dismissed within 30
days after it was filed, or (f) any adoption of a plan of dissolution or
liquidation of the Company. For purposes of a Change in Control, voting power
shall mean the power to vote in the election of an entity's directors or
similar functionaries. If an entity's equity security holders vote in classes
in such elections, however, voting power shall be determined based upon the
voting power within any class of equity securities entitled to elect one-half
or more of such entity's directors or similar functionaries.
SECTION 2.2 CAUSE. The term "Cause" shall mean: (a) any
chronic alcoholism or drug addiction by the Employee as evidenced by a specific
event, (b) any conviction of the Employee of a felony involving moral
turpitude, (c) any dishonest act by the Employee from which the Employee
personally profits at the expense of the Employer, or (d) any intentional
misconduct of the Employee in his service to the Employer.
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SECTION 2.3 GOOD REASON. The term "Good Reason" shall mean:
(a) any dimmunition of the Employee's authority, duties, or responsibilities,
or any assignment to the Employee of duties and responsibilities inconsistent
with his position as the Chief Financial Officer of the Employer, (b) any
failure to elect the Employee to the office of Chief Financial Officer of the
Employer, (c) any decrease in the Employee's annual salary, or (d) any
relocation of the Employer's chief executive offices outside the metropolitan
area of Dallas and Fort Worth, Texas, including the areas within a radius of 50
miles of each of those cities.
III. GENERAL
SECTION 3.1 AMENDMENT. No amendment or modification of
any of the provisions of this Agreement shall be effective unless in a writing
signed by the Employee and the Employer.
SECTION 3.2 COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
agreement, but all of which shall constitute one and the same agreement.
SECTION 3.3 ENTIRE AGREEMENT. This Agreement constitutes
the entire agreement and understanding between the Employee and the Employer
and supersedes all prior agreements and understandings, both written and oral,
with respect to the subject matter of this Agreement.
SECTION 3.4 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND INTERPRETED ACCORDING TO, AND GOVERNED BY, THE LAWS OF THE STATE
OF TEXAS, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER THE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW OF THE STATE OF TEXAS.
SECTION 3.5 HEADINGS. Article and section headings are
used in this Agreement only as a matter of convenience, are not a part of this
Agreement, and shall not have any effect upon the construction or
interpretation of this Agreement.
SECTION 3.6 NO ASSIGNMENT. Neither the Employee nor the
Employer may assign its rights or delegate its duties under this Agreement
without the written consent of the other person.
SECTION 3.7 PERFORMANCE ON BUSINESS DAYS. If any event or
the expiration of any period provided for in this Agreement is scheduled to
occur or expire on a day that is not a Business Day, such event shall occur or
such period shall expire on the next succeeding day that is a Business Day.
The term "Business Day" shall mean a day that is not a Sunday, Saturday, or
holiday when banks in the State of Texas are required or permitted to be
closed.
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SECTION 3.8 SEVERABILITY. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability (but shall be construed and given effect to the extent
possible) without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 3.9 SUCCESSORS. This Agreement shall be binding
upon and enure to the benefit of the Employee and his legal representatives and
permitted assigns and the Employer and its successors and permitted assigns.
The Employer shall cause any successor to it or to substantially all of its
assets to assume the Employer's obligations under this Agreement.
SECTION 3.10 WAIVER. No provision of this Agreement shall
be considered waived unless such waiver is in a writing signed by the party to
this Agreement that benefits from the enforcement of such provision. No waiver
of any provision of this Agreement, however, shall be deemed a waiver of a
subsequent breach of such provision (or right arising under such provision) or
a waiver of a similar provision. In addition, a waiver of any breach or a
failure to enforce any term or condition of this Agreement shall not in any way
affect, limit, or waive a party's rights under this Agreement at any time to
enforce strict compliance thereafter with every term and condition of this
Agreement.
IN WITNESS WHEREOF, the Employee and the Employer have each
executed and delivered this Agreement as of the date first written above.
/s/ XXXXXX X. XXXXXXXX, XX
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XXXXXX X. XXXXXXXX, XX
EMCARE HOLDINGS INC.
By: /s/ XXXXXXX X. XXXXXX, III
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Name: Xxxxxxx X. Xxxxxx, III
Title: President
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