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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of June 1, 1996, by and
between RENAL CARE GROUP, INC., a Delaware corporation (the "Company"), and
XXXXXXX XXXXX, M.D., Ph.D. (hereinafter "Employee").
WITNESSETH:
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, on the terms and conditions contained herein;
and
WHEREAS, in serving as an employee of the Company, Employee has and
will participate in the use and development of confidential proprietary
information about the Company, its customers and suppliers, and the methods
used by the Company and its employees in competition with other companies, as
to which the Company desires to protect fully its rights; and
WHEREAS, the Company wishes to enter into an agreement with Employee
whereby Employee shall agree not to compete with the Company in any current or
future business activity conducted or entered into by the Company and to hold
certain information obtained by and through Employee's employment in
confidence.
NOW, THEREFORE, in consideration of the compensation payable to
Employee by the Company pursuant to this Agreement, and the mutual promises,
covenants, representations and warranties contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do agree as
follows:
1. Employment.
Effective on May 1, 1996, the Company hereby employs
Employee, and Employee hereby agrees to accept employment with the Company,
upon the terms and conditions hereinafter set forth.
2. Term.
This Agreement shall begin on May 1, 1996 (the "Effective
Date"), and shall continue for an initial period of thirty-six (36) months (the
"Initial Period"), subject to earlier termination by employee or the Company as
hereinafter provided. This Agreement shall renew for additional terms of twelve
(12) months each, subject to earlier termination as hereinafter provided, on
the same terms and conditions (subject to mutually agreeable modifications, if
any).
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3. Compensation and Benefits.
(a) Base Compensation: The Company shall pay Employee an
annual salary of Two Hundred Thousand Dollars ($200,000), as may be adjusted as
provided herein (the "Base Compensation"), payable according to the pay periods
of the Company as may be in effect from time to time. Such payments shall be
prorated for periods less than a full pay period. The Base Compensation shall
be subject to withholding for federal, state and local payroll and all other
taxes or withholdings applicable to Employee. Any increases of the Base
Compensation shall be at the discretion of the Company, provided that any
decreases to the then current Base Compensation shall require the consent of
Employee.
(b) Benefits: During the term of this Agreement, Employee
shall also be entitled to participate in the insurance and other fringe
benefits made available generally to similar employees of the Company, as such
benefits may be determined from time to time by the Company, provided that
Employee shall have at least four (4) weeks of paid vacation time.
(c) Bonuses: In addition to the Base Compensation payable to
Employee pursuant to Section 3(a) above, from time to time Employee may be
entitled to an annual bonus as determined in the sole discretion of the
Company.
(d) Expenses: The Company shall reimburse Employee for any
and all expenses reasonably incurred by employee incident to the performance of
the duties imposed upon Employee hereunder.
4. Duties, Extent of Services:
Employee is engaged as Executive Vice President and Chief
Medical Officer and shall perform such duties and responsibilities as are
typically incident thereto, and shall perform in a faithful and competent
manner such additional duties as may be reasonably assigned from time to time
by the Company. Such duties shall be performed on a full-time basis for the
Company at the Company's offices in Nashville, Tennessee. Employee may be
required, from time to time, to perform his duties temporarily hereunder at
such other place or places as the Company shall reasonably require, provided
that such period does not exceed thirty (30) consecutive days without
Employee's consent and that during any such period Employee is able to return
to Nashville, Tennessee at the Company's expense for weekends.
Employee shall devote all of Employee's business time, attention,
knowledge, and skill solely to the business and interest of the Company, and
the Company shall be entitled to all the benefits, profits, and other issues
arising from, or incident to, all work, services, and advice of Employee.
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5. Termination.
This Agreement may be terminated by the parties in the
manners specified below:
(a) Termination without Cause. Either the Company or the
employee may terminate Employee's employment under this Agreement at any time
for any reason upon thirty (30) day's prior written notice to the other party.
(b) Termination for Cause
The Company may terminate this Agreement on written
notice at any time for "cause". For purposes of this Agreement, "cause" shall
mean: (i) Employee is convicted of, pleads guilty to, or confesses to a felony
or any crime involving any act of dishonesty, fraud, misappropriation,
embezzlement or moral turpitude, in which event the Company may terminate this
Agreement immediately, (ii) the misconduct or gross negligence by Employee in
connection with the performance of Employee's duties hereunder, (iii) the
engaging by Employee in any fraudulent, disloyal or unprofessional conduct
which results in an injury to the Company, its affiliates or any of its or
their centers, monetarily or otherwise, (iv) Employee breaches any provision of
Section 6 of this Agreement, or (v) the failure by Employee to otherwise
substantially perform his duties with the Company (other than any such failure
resulting from the disability of Employee under Section 5(c)(i)) or the breach
of any provision of this Agreement other than Section 6. In the event of any
termination for cause pursuant to the provisions of (ii), (iii), (iv) or (v) of
this subsection, the Company shall give Employee written notice prior to such
termination detailing the specific acts, actions, failures, or events upon
which the forecast termination is based, and Employee shall have fifteen (15)
days after such written notice to cease such actions or otherwise correct any
such failure or breach. If Employee does not cease such action or otherwise
correct such failure or breach within such fifteen day time period, or having
once received such written notice and ceased such actions or corrected such
failure or breach, Employee at any time thereafter again so acts, fails or
breaches, the Company may terminate this Agreement immediately.
(c) Involuntary Termination.
The employment of Employee hereunder shall be
automatically terminated by the death or disability of Employee as outlined
below.
(i) Disability. The Company may terminate this
Agreement at the time Employee shall have been Disabled for a continuous period
of six (6) months during any continuous twelve month period. For purposes of
this Paragraph 5(c)(i), the term "Disabled" shall mean Employee's inability to
perform the essential functions of his duties, with or without reasonable
accommodation. During Employee's six month period of Disability or such longer
wait period as may be provided for in any policy of disability that may be
maintained by the Company for the benefit of Employee, the Company agrees to
continue to pay Employee's Base
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Compensation (less regular withholdings for payroll or other taxes and other
required or proper items, and less any payments from all disability plans
provided by the Company). In the event of a termination of Employee on account
of Disability, however, the Company shall be obligated to pay only Employee's
Base Compensation that has been earned through the effective date of
termination (less regular withholdings for payroll or other taxes and other
required or proper times, and less any payments from all disability plans
provided by the Company).
(ii) Death. In the event Employee shall die
during the term of this Agreement, this Agreement shall terminate and
Employee's estate shall receive the remainder of the Base Compensation set
forth in Section 3(a) hereof accrued to the last day of the month in which
death occurs.
(d) Post-Termination Compensation. Except as provided in
Section 5(c) above, upon termination of this Agreement, the Company shall be
relieved of all of its obligations hereunder notwithstanding any period of time
remaining under the initial or any renewal term, subject to the following:
(i) Termination without Cause. In the event
that the Company terminates Employee's employment hereunder without Cause
under Section 5(a) above, then Employee may be offered in writing within
five days after the effective date of such termination and shall have
accepted in writing within five (5) days, as Employee's sole and exclusive
remedy, an opportunity to receive the Base Compensation (as then in
effect) for a period of twelve (12) months after the termination date and,
if he accepts such severance within five days, the Employee's post
employment non-compte obligation under Section 6(a) will then be
effective. In the event that Employee terminates his or her employment
under Section 5(a) above, the Company's obligation to pay Employee's Base
Compensation shall terminate and the Employee's post employment
non-compete obligation under Section 6(a) shall not apply.
(ii) Termination for Cause. In the event that
the Company terminates Employee's employment hereunder with Cause under Section
5(b) above, then Employee shall, after the effective date of such termination,
receive the Base Compensation (as then in effect) for a period of one (1) month
after the termination date.
(iii) Termination following Change in Control.
If within twelve (12) months following a Change in Control (as defined
below), either (A) the Company terminates the employment of Employee
hereunder without Cause under Section 5(a) above or (B) Employee resigns
from a declined reassignment of a job that is not reasonably equivalent in
responsibility or compensation or that is not in the same geographic area,
then, in lieu of any other compensation that may be specified herein,
Employee shall continue to receive the Base Compensation (as then in
effect) for a period of thirty-six (36) months from the date of
termination payable in the same manner as it was being paid as of the date
of termination, provided, however, that the salary payment provided for
hereunder may at the option of the Company be paid in a single lump-sum
payment, to be paid not later than thirty (30) days after
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termination. In the event such payment obligation arises, no compensation
received from other employment (or otherwise) shall reduce the obligation to
make the payment(s) described in this paragraph. Employee, at his sole option,
may decline to accept such termination pay when it is initially offered and
thereby avoid the post employment non-compete described in Section 6(a).
(e) Change in Control. "Change in Control" means a change in
control of the Company of a nature that would be required to be reported
(assuming such event has not been "previously reported") in response to Item
1(a) of a Current Report on Form 8-K pursuant to Section 13 of 15(d) of the
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, a
Change in Control shall also be deemed to have occurred at such time as:
(i) any "person" within the meaning of Section
14(d) of the Exchange Act, other than the Company; a subsidiary, or any employee
benefit plan(s) sponsored by the Company or any Subsidiary, is or has become the
"beneficial owner," as defined in rule 13d-3 under the Exchange Act, directly or
indirectly, of 25% or more of the combined voting power of the outstanding
securities of the Company ordinarily having the right to vote at the election of
directors, or
(ii) individuals who constitute the Board
immediately prior to any meeting of stockholders (the "Incumbent Board") have
ceased for any reason to constitute at least a majority thereof, provided that
any person becoming a director whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least three-quarters (3/4)
of the directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director without objection to such nomination) shall be, for
purposes of this Agreement, considered as though such person were a member of
the Incumbent Board; or
(iii) upon approval by the Company's stockholders
of a reorganization, merger, share exchange or consolidation, other than one
with respect to which those persons who were the beneficial owners, immediately
prior to such reorganization, merger, share exchange or consolidation, or
outstanding securities of the Company ordinarily having the right to vote in the
election of directors own, immediately after such transaction, more than 75% of
the outstanding securities of the resulting corporation ordinarily having the
right to vote in the election of directors; or
(iv) upon approval by the Company's stockholders
of a complete liquidation and dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the Company other than
to a Subsidiary.
Notwithstanding the occurrence of any of the foregoing, the Board may
determine, if it deems it to be in the best interest of the Company and
consistent with a good faith interpretation of this Agreement, that an event or
events otherwise constituting a Change in Control shall not be so considered.
Such determination shall only be effective (A) if it is made by the Board prior
to
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the occurrence of an event that otherwise would be or probably will lead to
a Change in Control or after such event if made by the Board a majority of
which is composed of directors who were members of the Board immediately prior
to the event that otherwise would be or probably will lead to a Change in
Control and 75% or more of such directors vote in favor of such determination,
and (B) if it is made with respect to all executive officers of the Company.
Upon such determination, such event or events shall not be deemed to be a
Change in Control for any purposes hereunder.
6. Nondisclosure, Confidentiality; Competition.
(a) Employee agrees that, during the term of this Agreement
and of Employee's employment by the Company, and for a period twelve (12)
months after the termination of Employee's employment with the Company,
Employee will not in any manner, directly or indirectly, by himself or in
conjunction with any other person, (i) conduct any of the activities or perform
any of the responsibilities or duties that Employee provided the Company during
his employment by the Company for any business entity that is competitive with
the business of the Company or its affiliates or (ii) establish or own any
financial, beneficial or other interest in (other than an interest consisting
of less than one percent (1%) of a class of publicly traded security), make any
loan to or for the benefit of, or render any managerial, marketing or other
business advice, to any entity that is then conducting activities that are
competitive with those of the business of the Company or its affiliates, in
either case within a geographic territory defined as the greater of (i) a
seventy-five (75) mile radius of any renal dialysis center, unit or facility
owned or operated by the Company or an affiliate of the Company (an "RCG
Center"), or (ii) the geographic area, as narrowly construed as is practicable,
from which the Company received patients at each of the RCG Centers. For
purposes of this Section, the "business of the Company or its affiliates" shall
mean owning or operating a renal dialysis center, unit or facility, and
providing practice management services to nephrologists. However, any
Vanderbilt Medical Center owned dialysis operation is excluded from this
non-compete. Further, this Section is subject to Section 5(d) which specifies
that for the post employment non-compete described above to be effective,
Employee must have accepted the severance so described in Section 5d(i) or
(iii).
(b) Employee further agrees that, for a period of three (3)
years after the termination of Employee's employment with the Company, Employee
will keep confidential and not directly divulge, or allow through a lack of
reasonable care to be divulged to anyone, or use or otherwise appropriate for
Employee's own benefit or for the benefit of others, any knowledge or
information of a confidential nature with respect to the Company's and its
affiliates' current business, the Company itself, or any of its affiliates,
including all trade secrets, pricing information, marketing information or
technical information (hereinafter referred to as the "Confidential Data"),
except for (i) a disclosure that is required by law; or (ii) information that
has been made generally available to the public by the act of one who has the
right to disclose such information; or (iii) information that has become part
of the public domain through no fault of the Employee; and (iv) was known to
the Employee prior to May 1, 1996. Employee hereby
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acknowledges and agrees that the prohibitions against disclosure of Confidential
Data recited herein are in addition to, and not in lieu of, any rights or
remedies which the Company may have available pursuant to the laws of any
jurisdiction or at common law to prevent the disclosure of confidential
information, and the enforcement by the Company of its rights and remedies
pursuant hereto shall not be construed as a waiver of any other rights or
available remedies which the Company may possess in law or equity. Employee
acknowledges that the Company has taken reasonable and appropriate steps to
ensure the confidentiality and non-disclosure of all such Confidential Data.
For purposes of this Section the Company's and its affiliates' "current
business" shall mean owning or opening a renal dialysis center, unit or
facility.
(c) Employee further agrees that, for a period of three (3)
years after the termination of Employee's employment with the Company, Employee
will not, for his own benefit or the benefit of others, solicit any person or
entity that has or has had, or disrupt or attempt to disrupt, any relationship,
contractual or otherwise, with the Company or an affiliate of the Company
(including any patient, payor, physician, provider, managed care organization
or supplier) at any time during Employee's employment with the Company, for the
purpose of assisting, or creating such a relationship for, any business entity
that is competitive with the Company or an affiliate of the Company. For
purposes of this Section, a business entity is competitive with the Company or
an affiliate of the Company if it provides or offers any renal dialysis service
that is provided by the Company or an affiliate of the Company.
(d) Employee further agrees that, for a period of three (3)
years after the termination of Employee's employment with the Company, Employee
shall not induce, nor attempt to induce, any employee of the Company, or any of
its affiliates, to terminate such employee's association with the Company or
any of its affiliates.
(e) These post-employment covenants are considered by the
parties hereto to be fair, reasonable and integral for the protection of the
Company. The parties mutually agree that if a violation of any of these
covenants occurs, such violation or any threatened violation will cause
irreparable injury to the Company and the remedy at law for any such violation
or threatened violation will be inadequate. The parties acknowledge that these
covenants will survive, and remain in effect and enforceable after, termination
of this Agreement.
(f) Employee agrees to indemnify and hold harmless the
Company from and against any and all claims, causes of action, damages and/or
any other losses suffered or incurred by the Company as a result of any breach
or purported breach by Employee of any agreement applicable to Employee which
existed prior to the time of the entering into of this Agreement. Such
obligations of Employee to indemnify and hold the Company harmless shall
include any and all costs of defense of any such claim or threatened claim,
including reasonable attorneys' fees.
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7. Severability.
The parties hereto hereby expressly agree and contract that
it is not the intention of either party to violate any public policy, or any
statutory or common law, and that if any paragraph, sentence, clause or
combination of the same of this Agreement shall be in violation of the laws of
any state where applicable, such paragraph, sentence, clause or the combination
of the same shall be void in the jurisdictions where it is unlawful, and the
remainder thereof shall remain binding on the parties hereto. It is the
intention of the parties to make the covenants of this Agreement binding only
to the extent that they may be lawfully done under existing applicable laws. In
the event that any part of any term or covenant of this Agreement is determined
by a court of law or equity to be overly broad or otherwise unenforceable, the
parties hereto agree that such court shall be empowered to substitute, and it
is the intent of the parties hereto that such court substitute, a reasonably
judicially enforceable term or limitation in the place of such unenforceable
term or covenant, and that as so modified this Agreement shall be fully
enforceable.
8. Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior understandings or agreements, and any
changes or additions hereto must be in writing and signed by both parties.
9. Assignment.
(a) The rights and benefits of Employee under this Agreement,
other than accrued and unpaid amounts due under Section 3(a) hereof, are
personal to Employee and shall not be assignable.
(b) This Agreement may not be assigned by the Company except
to an affiliate of the Company, provided that such affiliate assumes the
Company's obligations under this Agreement; provided, further, that if the
Company shall merge or effect a consolidation or share exchange with or into,
or sell or otherwise transfer substantially all its assets to, another business
entity, the Company may assign its rights hereunder to that business entity
without the consent of the Employee provided that it causes such business
entity to assume the Company's obligations under this Agreement.
10. Notice.
The references to the notice periods of certain "days"
contained in this Agreement shall mean calendar days. Any notice provided for
in this Agreement shall be delivered to Employee at the most recent address of
employee listed in the Company's then current employment records. Notice to the
Company shall be delivered to the following address: c/o Renal Care Group,
Inc., 0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000,
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Attention: President.
11. Waiver.
The waiver by any party to this Agreement of a breach of any of the
provisions contained herein shall not operate or be construed as a waiver of
any subsequent breach.
12. Disputes and Governing Law.
The Company and employee agree that any dispute arising in connection
with, or relating to, this Agreement or the termination of this Agreement, to
the maximum extent allowed by applicable law, shall be subject to resolution
through informal methods and, failing such efforts, through arbitration. Either
party may notify the other party of the existence of a dispute by written
notice to the address indicated above in Section 10. The parties shall
thereafter attempt in good faith to resolve their differences within thirty
(30) days after the receipt of such notice. If the dispute cannot be resolved
within such 30-day period, either party may file a written demand for
arbitration with the other party. The arbitration shall proceed in accordance
with the terms of the Federal Arbitration Act and the rules and procedures of
the American Arbitration Association. A single arbitrator shall be appointed
through the American Arbitration Association's procedures to resolve the
dispute.
The parties agree that in the event arbitration is necessary, the laws
of the State of Tennessee and any applicable federal law shall apply. The place
of the arbitration shall be Nashville, Tennessee.
The award of the arbitrator shall be binding and conclusive upon the
parties. Either party shall have the right to have the award made the judgement
of a court of competent jurisdiction in the State of Tennessee.
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IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement on the day and year first above written.
COMPANY:
RENAL CARE GROUP, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
President
[Corporate Seal]
EMPLOYEE:
(Seal)
Xxxxxxx Xxxxx, M.D., Ph.D.
