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EXHIBIT 10.10
FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") dated as of
______________, 199__ by and between _______________________________, an
___________________ (the "Practice"), and _________________________, a licensed
surgeon (the "Surgeon").
W I T N E S S E T H:
WHEREAS, the Practice desires to employ the Surgeon and to be assured
of his services as such on the terms and conditions hereinafter set forth; and
WHEREAS, the Surgeon is willing to accept such employment on such terms
and conditions.
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00), the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the Practice and
the Surgeon hereby agree as follows:
1. EMPLOYMENT.
(a) The Practice hereby employs the Surgeon to provide medical
services to the general public at the facility or facilities operated by the
Practice (the "Center"), as listed on Exhibit A attached hereto and incorporated
herein by reference, in accordance with the methods, procedures and processes
from time to time set forth by the Practice, to the extent permitted by
applicable law.
(b) The Surgeon shall faithfully and diligently discharge his
duties hereunder and shall devote his full business time, attention, skill, and
effort exclusively to the business and affairs of the Practice, subject to
vacations and to periods of illness. During the term of this Agreement (except
for stock or investments held by the Surgeon as of the date hereof), the Surgeon
shall not, directly or indirectly, as a partner, member, stockholder (beneficial
owner of five percent (5%) of stock), consultant, agent, joint venturer, lender,
individual proprietor, officer, director, employee or in any capacity
whatsoever, alone or in association with others, own, manage, operate, control
or participate in the ownership, management, operation or control of, or work
for or permit the use of Surgeon's name by, or be connected with in any manner
with, or contract to be provided services from any business, organization or
person in competition with the Practice or any of its affiliated organizations,
without the prior written consent of the Practice.
2. TERM OF EMPLOYMENT. Unless sooner terminated as provided in
Section 4 hereof, the Surgeon's employment shall be for an initial term of five
(5) years commencing on the date the Securities and Exchange Commission declares
effective BII's registration statement on Form S-1, as amended, for the sale of
BII's common stock in an initial public offering (the "IPO") and
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ending on the fifth (5th) anniversary thereof (the "Initial Term"). Upon
expiration of the Initial Term, this Agreement shall renew automatically
thereafter for additional one year terms, unless and until terminated as
provided in Section 4 hereof.
3. COMPENSATION.
(a) As compensation for services hereunder, the Practice shall
pay to the Surgeon a percentage as determined by the Practice of the amount of
Net Cash of the Center remaining after payment in full each month of (i) the
monthly Service Fee as defined in that certain Service Agreement, by and between
the Practice and BII, dated as of even date herewith (the "Service Agreement"),
and (ii) all expenses of the Center, including, without limitation, all Center
Expenses (as defined in the Service Agreement) and all malpractice insurance
premiums. As used herein, the term "Net Cash" shall mean all cash resulting from
the fees and charges for each month earned and collected by and on behalf of the
Center as a result of professional medical services personally furnished to
patients by the Surgeons and those under the Surgeons' supervision and other
fees and income generated, less any adjustments for refunds and other activities
that do not generate a collectible fee.
4. TERMINATION.
(a) Notwithstanding the provisions of Section 2 hereof, either
the Practice or the Surgeon may terminate the Surgeon's employment without cause
at any time after the expiration of the Initial Term by giving ninety (90) days
prior written notice to the other party to such effect. Practice may terminate
Surgeon's employment for "cause" (as defined in Section 4(b) below) and the
Surgeon may terminate employment pursuant to Section 4(c) below. Notice of
termination pursuant to Sections 4(b) or 4(c) shall indicate the basis for
termination. Upon termination of this Agreement for any reason, the Surgeon
shall purchase tail insurance coverage for a period of three (3) years at the
Surgeon's expense.
(b) For purposes of this Agreement, termination may be for
"cause" in the event of the occurrence of any of the following:
(i) The death of the Surgeon;
(ii) The physical or mental incapacity of the
Surgeon. The Surgeon shall be deemed to be physically or
mentally incapacitated for purposes of this paragraph if by
reason of any physical or mental incapacity the Surgeon has
been unable or it is deemed that the Surgeon will be unable
for a period of at least ninety (90) days to perform the
Surgeon's duties and responsibilities hereunder in a
reasonably satisfactory manner. In the event of any
disagreement between the Surgeon and the Practice about
whether the Surgeon is physically or mentally incapacitated
such as to permit the Practice to terminate the Surgeon's
employment pursuant to this paragraph, the question of such
incapacity shall be submitted to an impartial and reputable
physician selected by mutual agreement of the Surgeon and
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the Practice or, failing such agreement, selected by two
physicians (one of which shall be selected by the Practice and
the other by the Surgeon). The determination of the question
of such incapacity by such physician shall be final and
binding on the Surgeon and the Practice for purposes of this
Agreement. The Practice shall pay the reasonable fees and
expenses of such physician; or
(iii) Any of (A) the commission by the Surgeon of
willful misconduct which causes material harm to the Practice,
(B) the conviction of the Surgeon for the commission or
perpetration by the Surgeon of any felony or any act of fraud,
or (C) habitual absenteeism, chronic alcoholism, or drug
addiction; provided, however, that if any such habitual
absenteeism, chronic alcoholism, or drug addiction may
reasonably be cured, the Surgeon shall have a reasonable time,
not exceeding thirty (30) days, to cure such matter after
receiving notice thereof from the Practice.
(c) For purposes of this Agreement, the Surgeon may terminate
this Agreement in the event the Practice has committed a material breach of this
Agreement; provided, however, that if such matter may reasonably be cured, the
Practice shall have a reasonable time, not exceeding ninety (90) days, to cure
such matter after receiving notice thereof from the Surgeon.
5. PARTIAL RESTRAINT ON POST-TERMINATION COMPETITION.
(a) Practice expects to invest considerable time, effort, and
capital in enhancing the value and desirability of the skills of the Surgeon.
Both this investment and the Surgeon's individual compensation reflect the
Practice's expectation of receiving a considerable return from the exclusive use
of the Surgeon's services and know-how in the future, free from any danger that
Practice's competitors may attempt to induce the Surgeon to leave Practice and
wrongfully gain the benefit of Practice's investment. The partial restraint set
forth in subsection (b) of this Section 5 hereof does not, and cannot, provide
complete protection for Practice's investment, development efforts, and
proprietary information, but Practice believes that in combination with the
other provisions of this Agreement, it is the most fair and reasonable measure
permitted under applicable law to protect Practice's interests, giving due
regard to both the Surgeon's interests and the interests of Practice.
(b) Practice requires its surgeons to accept and observe the
following partial restraint on post-termination competition, which Surgeon
agrees to honor:
FOR A PERIOD OF TWO YEARS FOLLOWING THE TERMINATION OF YOUR
EMPLOYMENT, YOU MAY NOT (I) ENGAGE IN ANY NEWSPAPER, PRINT,
RADIO, TELEVISION OR ELECTRONIC ADVERTISING FOR YOUR SURGICAL
SERVICES IN THE BROADCAST COVERAGE AREA OF TELEVISION STATIONS
IN THE MARKET AREA WHERE THE CENTER COVERED BY THIS AGREEMENT
IS LOCATED, WITHOUT PRACTICE'S PRIOR WRITTEN CONSENT, (II)
ACTIVELY
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SOLICIT OR DIRECTLY MARKET YOUR SURGICAL SERVICES (OR THOSE OF ANY
OTHER PRACTICE WITH WHICH YOU ARE AFFILIATED OR EMPLOYED) TO
ANYONE WHO WAS YOUR PATIENT (OR A PATIENT OF THE PRACTICE) DURING
THE TERM OF THIS AGREEMENT, (III) PROVIDE SURGICAL SERVICES TO
PATIENTS WITHIN A TEN (10) MILE RADIUS OF THE CENTER, (IV)
ACTIVELY SOLICIT THE CENTER'S STAFF OR PATIENTS, OR (V) SOLICIT
REFERRALS FROM ANY PHYSICIAN WHO REFERRED ONE OR MORE PATIENTS TO
SURGEON OR THE PRACTICE WITHIN THE TWO YEARS PRIOR TO SUCH
TERMINATION.
The running of the two year period prescribed above shall be tolled and
suspended by the length of time Surgeon works in circumstances that a court of
competent jurisdiction subsequently finds to violate the terms of this partial
restraint.
6. CONFIDENTIAL INFORMATION. The Surgeon shall agree to maintain in
strict confidence, and not use or disclose except under the instruction of the
Practice, any confidential business information comprising confidential
information and/or a trade secret of the Practice or an Affiliate (as
hereinafter defined). Trade secrets are property rights protected by law and,
for purposes of this letter, shall have the meaning provided under applicable
Georgia law. Some of the information that the Practice treats as trade secrets
includes financial information (revenues, margins, assets, net income, etc.),
annual and long-range business plans, marketing plans and methods, account
invoices, training, educational, and administrative manuals, patient
information, employee lists, suppliers, wholesalers, and future business plans
of the Practice. Confidential information shall also include all information
regarding BII or any Affiliate, BII's or any Affiliate's activities, BII's or
any Affiliate's business or BII's or any Affiliate's customers or patients that
is not generally known to persons not employed by BII or an Affiliate, but that
does not rise to the level of a Trade Secret and that is not generally disclosed
by practice or authority of BII or an Affiliate to persons not employed by BII
or an Affiliate. Throughout the term of this Agreement and at all times after
the date that this Agreement terminates for any reason, Surgeon shall not
directly or indirectly transmit or disclose any confidential information or
trade secret to any person, concern or entity, and shall not make use of any
such trade secret, directly or indirectly, for himself or for others, except (i)
to the extent such disclosure is consistent with Surgeon's duties hereunder or
(ii) for a disclosure that is required by an law or regulation or court order,
in which latter case Surgeon shall provide BII prior written notice of such
disclosure and an opportunity to contest such disclosure. Upon expiration of the
Term of this Agreement or any termination of this Agreement, Surgeon will return
all trade secrets and all confidential information of the Practice or BII,
including without limitation, any documents, notes, analyses, compilations or
other materials incorporating or based on any trade secrets or confidential
information of the Practice or BII. As used in this Agreement, the term
"Affiliate" shall mean (i) each corporation or other business Practice directly
or indirectly controlling, controlled by, or under common control with the
Practice or BII, and (ii) each medical practice (except the Practice) to which
BII provides management or consulting services, the employees and principals of
such
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practices, and each corporation or other business Practice directly or
indirectly controlling, controlled by, or under common control with each such
practice or the principals thereof.
7. WAIVER. Any waiver of any term or condition or any amendment of
this Agreement shall be effective only if in writing and signed by the parties.
The waiver by either party of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach by either
party.
8. PUBLICITY. Following termination of the Surgeon's employment,
neither party will intentionally disparage or injure the reputation of the other
party. This obligation will include, in the Surgeon's case, refraining from
negative statements about the Practice's methods of doing business, the
effectiveness of its business policies, and the quality of any of its services
or personnel. In addition, neither party will make any statements regarding the
other or regarding the Surgeon's former employment with the Practice to any
member of the print or broadcast media except after mutual consultation.
9. PATIENT CARE. Nothing in this Agreement is intended to interfere,
or shall be construed as interfering, in any way with the Surgeon's ability to
independently exercise professional and ethical judgment in the performance of
his patient care responsibilities.
10. MISCELLANEOUS.
(a) This Agreement contains the entire agreement between the
Practice and the Surgeon with respect to the subject matter hereof and
supersedes all prior arrangements or understandings with respect hereto.
(b) The descriptive headings of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any
provision.
(c) Notwithstanding any other term or provision of this Agreement,
all amounts payable to the Surgeon by the Practice hereunder shall be subject to
the withholding of such sums relating to taxes as the Practice may reasonably
determine it is required to withhold pursuant to any applicable law or
regulation.
(d) All notices pursuant to this Agreement shall be in writing and
sufficient if delivered personally or sent by facsimile (receipt confirmed),
overnight courier or registered or certified mail, postage prepaid, addressed as
follows:
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If to the Practice to:
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Attn:
Facsimile:
Telephone:
If to the Surgeon to:
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Facsimile:
Telephone:
Notice shall be effective upon delivery if delivered personally or sent by
facsimile (receipt confirmed), one (1) day after sent by overnight courier or
three (3) days after sent by registered or certified mail. Either party may by
written notice change the address to which notices to such party are to be
delivered or mailed.
(e) The parties acknowledge and agree that any legal remedies
for breach of this Agreement would be inadequate and irreparable harm shall be
presumed. The faithful observance of all covenants in this Agreement is an
essential condition to Surgeon's employment, and Practice is depending upon
absolute compliance herewith. Damages would be very difficult, if not
impossible, to ascertain if the Surgeon breaches this Agreement. Surgeon
acknowledges and agrees that any court of competent jurisdiction should
immediately enjoin any breach of this Agreement upon the request of Practice,
and Surgeon specifically releases Practice from the requirement of posting any
bond in connection with temporary or interlocutory injunctive relief, to the
extent permitted by law.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of _____________ (without respect to its
rules of conflicts of law).
(g) This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same Agreement.
(h) In the event that any provision of this Agreement or the
application thereof to the Surgeon or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of
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this Agreement and the application of any such invalid or unenforceable
provision to parties, jurisdictions or circumstances other than to whom or to
which it is held invalid or unenforceable shall not be affected thereby nor
shall the same affect the validity or enforceability of any other provision of
this Agreement.
(i) No remedy set forth in this Agreement or otherwise
conferred upon or reserved to any party shall be considered exclusive of any
other remedy available to any party, but the same shall be distinct, separate
and cumulative and may be exercised from time to time as often as occasion may
arise or as may be deemed expedient.
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IN WITNESS WHEREOF, the Practice and the Surgeon have executed this
Agreement under seal as of the day and year first above written.
PRACTICE:
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By:
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Name:
Title:
SURGEON:
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