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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
BETWEEN
AMEDISYS, INC.
AND
XXXXX XXXXXX
February 1, 2000
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") entered into as of the
1st day of February, 2000, and continuing for an indefinite duration, by and
between AMEDISYS, INC., a Delaware corporation (the "Company") and XXXXX XXXXXX
("XXXXXX").
RECITALS:
A. The Company owns, manages and/or operates agencies and
facilities for the provision of home health, alternate site infusion therapy and
ambulatory surgery health care services (the "Business").
X. XXXXXX is employed by the Company as the Chief Operations
Officer;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement, the parties agree as follows:
1. RECITATIONS. The above recitations are incorporated herein by
this reference.
2. PERFORMANCE OF DUTIES. XXXXXX shall perform such duties as are
usually performed by the Chief Operations Officer of health care companies of a
business similar in size and scope as the Company and such other reasonable
additional duties as may be prescribed from time to time by the Company's Chief
Executive Officer which are reasonable and consistent with the expectations of
the Company and the Company's operations, taking into account XXXXXX'x expertise
and job responsibilities, including but not limited to, adherence to internal
compliance and governmental and regulatory rules, regulations and applicable
laws. XXXXXX shall report directly to the Chief Executive Officer of the Company
or his designee.
2.1 Devotion of Time. XXXXXX agrees to devote full time and
attention to the business and affairs of the Company to the extent necessary to
discharge the responsibilities assigned to XXXXXX and to use reasonable best
efforts to perform faithfully and efficiently such responsibilities.
3. TERMINATION OF EMPLOYMENT.
3.1 Termination of Employment by the Company for Cause. The
Company may terminate XXXXXX'x employment for Cause, as defined herein, without
any obligation of severance payments to XXXXXX. Cause shall be defined as
follows:
(a) a material default or breach by XXXXXX of any of
the provisions of this Agreement materially detrimental to the Company which is
not cured within thirty (30) days following written notice thereof;
(b) actions by XXXXXX constituting fraud, embezzlement
or dishonesty which result in a conviction of a criminal offense not overturned
on appeal;
(c) intentionally furnishing materially false,
misleading, or omissive information to the Company's Chief Executive Officer,
Board of Directors or any committee of the Board of Directors, that is
materially detrimental to the Company;
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(d) actions constituting a breach of the
confidentiality of the Business and/or trade secrets of the Company which is
materially detrimental to the Company;
(e) willful failure to follow reasonable and lawful
directives of the Company's Chief Executive Officer or Board of Directors, which
are consistent with XXXXXX'x job responsibilities and performance which is not
cured within thirty (30) days following written notice thereof; and
3.2 Termination Without Cause. The Company shall have the
right to terminate XXXXXX' employment without Cause, at any time and subject to
the sole discretion of the Company. In such event, XXXXXX will cease to have any
power of his position as of the effective date of the termination.
3.3 Termination by XXXXXX. XXXXXX may terminate his
employment upon thirty (30) days written notice to the Company. Such notice
shall set forth in sufficient detail for the Company to understand the nature of
the facts underlying said termination.
3.4 Change of Control. Upon the occurrence of a "Change of
Control," if such occurs prior to XXXXXX'x receiving a notice of termination by
the Company for Cause, XXXXXX shall be entitled to the Severance described
herein. "Change of Control" is defined as the following:
(a) The acquisition by any person, entity or "group"
within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934 (the "Exchange Act") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of fifty-one (51%) percent or more of
either the then outstanding shares of the Company's common stock or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors; provided however, purchase by
underwriters in a firm commitment public offering of the Company's securities or
any securities purchased for investment only by professional investors shall not
constitute a Change of Control.
4. COMPENSATION.
4.1 Salary. Company shall pay to XXXXXX a base salary at the
annual rate of $180,000 (the "Base Salary"). Notwithstanding anything herein to
the contrary, the Company shall have the sole discretion at any time and from
time to time to increase the Base Salary. Base Salary shall be payable in
installments consistent with the Company's normal payroll schedule, in effect
from time to time, subject to applicable withholding and other taxes.
4.2 Base Salary Increases. Commencing February 1, 2001,
XXXXXX'x Base Salary shall be automatically increased on February 1 of each year
during the term hereof by the greater of (i) six (6%) percent, or (ii)
$15,000.00, whichever is greater. Notwithstanding anything herein to the
contrary, the Chief Executive Officer may grant a Base Salary Increase in excess
of the amount stipulated to within this Section 4.2.
4.3 Bonus. At the end of each fiscal year of employment, the
Company shall pay XXXXXX a bonus up to $90,000, payable in terms which shall be
at the Company's discretion, and only if the Company attains or exceeds the
operating income (loss) as presented in the budget approved by the Company's
Board of Directors for that fiscal year, and if certain performance based
criteria which shall, from time to time, be determined by the Company and made
known to XXXXXX. Notwithstanding anything herein to the contrary, the Chief
Executive Officer may pay a bonus in excess of the amount earned pursuant to
this Section 4.3.
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4.4 Stock Options. Effective February 1 of each year during
the term hereof, the Company shall cause to be granted to XXXXXX, pursuant to a
stock option plan duly adopted by the Company or otherwise, options to purchase
such number of shares of the Company's common stock equal to the greater of (i)
seventy five one-hundredths (.75%) percent of the number of shares of Company
common stock issued by the Company during the preceding fiscal year; or (ii)
15,000 shares. Notwithstanding anything herein to the contrary, XXXXXX shall not
be entitled to the grant of options during any time in which XXXXXX is receiving
severance payments from the Company, as outlined below. Notwithstanding anything
herein to the contrary, the Chief Executive Officer may recommend that the Board
of Directors of the Company grant options in excess of the amount stipulated to
in this Section 4.4.
4.5 Severance Compensation. Should XXXXXX be terminated
without Cause, as defined herein, or should a Change of Control, as defined
herein, occur during XXXXXX'x employment with Company, XXXXXX shall be entitled
to severance compensation in an amount equal to eighteen (18) months of XXXXXX'x
Base Salary at the time of such Change of Control, payable at the discretion of
the Company, but at a minimum, payable by the Company via regularly scheduled
payroll distributions until the entire severance amount due XXXXXX is paid in
full.
4.6 Additional Benefits.
(a) Vacation. XXXXXX shall be entitled to the maximum
amount of paid time off for Company employees stipulated by the Company PTO
policy during each calender year of his employment with the Company. In
addition, XXXXXX shall be entitled to paid time off for the same holidays as
other employees of the Company as established by the Company's Board of
Directors.
(b) Reimbursement of Expenses. XXXXXX is authorized to
incur reasonable traveling and other expenses in connection with the Business
and in performance of his duties under this Agreement. XXXXXX shall be
reimbursed by the Company for all Business expenses which are reasonably
incurred by XXXXXX. All reimbursable travel expenses shall be in accordance with
mutually agreeable and reasonable policy.
(c) Participation in Employee Benefit Plans. XXXXXX
shall be entitled to participate, subject to eligibility and other terms
generally established by the Company's Board of Directors, in any employee
benefit plan (including but not limited to life insurance plans, long-and
short-term disability, stock option plans, group hospitalization, health, dental
care plans, (which health insurance plans shall also cover XXXXXX'x dependents)
profit sharing and pension, and other benefit plans), as may be adopted or
amended by the Company from time to time.
5. REPRESENTATION BY XXXXXX. XXXXXX hereby represents to the
Company that he is physically and mentally capable of performing his duties
hereunder and he has no knowledge of present or past physical or mental
conditions which would cause him not to be able to perform his duties hereunder.
6. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
6.1 Confidentiality. XXXXXX shall not, during his employment
with the Company or any time thereafter, divulge, furnish or make accessible to
anyone, without the Company's prior written consent, any knowledge or
information with respect to any confidential or secret aspect of the Business
which if disclosed could reasonably be expected to have a material adverse
effect on the Business ("Confidential Information").
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6.2 Ownership of Information. XXXXXX recognizes that all
Confidential Information and copies or reproductions thereof, relating to the
Company's operations and activities made or received by XXXXXX in the course of
his employment are the exclusive property of the Company, as the case may be,
and XXXXXX holds and uses same as trustee for the Company and subject to the
Company's sole control and will deliver same to the Company at the termination
of his employment, or earlier if so requested by the Company in writing. All of
such Confidential Information, which if lost or used by XXXXXX outside the scope
of his employment, could cause irreparable and continuing injury to the
Company's Business for which there may not be an adequate remedy at law. XXXXXX
acknowledges that compliance with the provisions of this Section 6 is necessary
to protect the goodwill and other proprietary interests of the Company and is a
material condition of employment.
7. RESTRICTIVE COVENANT. As an inducement to cause the Company to
enter into this Agreement, and in consideration of the Severance obligation of
Company herein, XXXXXX covenants and agrees that during his employment and, for
a period of eighteen (18) months after he ceases to be employed by Company,
regardless of the manner or cause of termination:
7.1 Solicitation of Business. He will not initiate any
contact with, call upon, solicit Business from, sell or render services to any
client or patient of the Company or any Company affiliate, within any area which
the Company conducts business, a list of which is included in Schedule 7.1,
which is attached hereto and incorporated herein ("Restricted Area"), for or on
behalf of himself or any business, firm, proprietorship, corporation,
partnership, association, entity or venture primarily engaged in the business of
providing home health, alternate site infusion therapy or ambulatory surgery
services, which is a similar business as the Business ("Competing Business"),
and XXXXXX shall not directly or indirectly aid or assist any other person, firm
or corporation to do any of the aforesaid acts.
7.2 Solicitation of Employees. He will not directly or
indirectly, as principal, agent, owner, partner, stockholder, officer, director,
employee, independent contractor or consultant of any competing Business, or in
any individual or representative capacity hire, solicit, directly or indirectly
cause others to hire, or solicit the employment of, any officer, sales person,
agent, or other employee of the Company or any Company affiliate, for the
purpose of causing said officer, sales person, agent or other person to
terminate employment with the Company or any Company affiliate and be employed
by such competing Business.
7.3 Employment. He will not accept or engage employment
with, or consult, contract or otherwise provide services to, any Competing
Business operating within the Restricted Area.
7.4 Material Violation. A proven material violation of this
Section 7 shall constitute a material and substantial breach of this Agreement
and shall result in the imposition of the Company's remedies contained in
Section 8 herein. XXXXXX acknowledges and agrees that proof of such personal
solicitation by XXXXXX of an employee shall constitute absolute and conclusive
evidence that XXXXXX has substantially and materially breached the provisions of
this Agreement.
7.5 Other Employment. It is understood by and between the
parties that the foregoing covenants set forth in Sections 6 and 7 are essential
elements of this Agreement, and that but for the Agreement of XXXXXX to comply
with such covenants, the Company would not have entered into this Agreement.
Such covenants by XXXXXX shall be construed as agreements independent of any
other provision of this Agreement and the existence of any claim or cause of
action XXXXXX may have against the Company whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by Company of
these covenants.
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7.6 Defaults and Deferred Compensation.
(a) XXXXXX Breach. If XXXXXX breaches any requirement
of Section 7 herein, in addition to any other remedy to which the Company may be
entitled, XXXXXX shall return to the Company any Severance already paid to
XXXXXX at the time of said breach, and all of XXXXXX'x rights to receive any
portion of his Severance not already paid to him shall terminate. The right to
receive unpaid Severance will not be reinstated notwithstanding any cessation by
XXXXXX of his breach of Section 7.
7.7 Discontinued Operations. Notwithstanding anything in
this Section 7 to the contrary, this Section 7 shall not apply to any of the
Company's product or service divisions which at the time of XXXXXX'x employment
termination was considered by the Company to be a discontinued operation.
8. REMEDIES. XXXXXX hereby acknowledges, covenants and agrees
that in the event of a material default or breach under this Agreement:
8.1 Company may suffer irreparable and continuing damages as
a result of such breach and its remedy at law will be inadequate. XXXXXX agrees
that in the event of a violation or breach of this Agreement, in addition to any
other remedies available to it, Company shall be entitled to an injunction
restraining any such default or any other appropriate decree of specific
performance, with the requirement to prove actual damages or to post any bond or
any other security and to any other equitable relief the court deems proper; and
8.2 Any and all of Company's remedies described in this
Agreement shall not be exclusive and shall be in addition to any other remedies
which Company may have at law or in equity including, but not limited to, the
right to monetary damages.
9. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections, subdivisions, or subparagraphs contained
in this Agreement shall not affect the enforceability of the remaining portions
of this Agreement or any part thereof, all of which are inserted conditionally
on their being legally valid.
10. SUCCESSORS AND ASSIGNS.
10.1 Successors. This Agreement shall be binding upon the
parties hereto and their successors and assigns. For purposes of this Agreement,
the term "successor" of Company shall include any person or entity, whether
direct or indirect, whether by purchase, merger, consolidation, operation of
law, assignment, or otherwise acquires or controls: (i) all or substantially all
of the assets of Company (ii) fifty-one percent (51%) or more of the total
voting capital stock, and was not affiliated with or in common control of
Company as of the date of this Agreement; or (iii) any other Business
combination with or without the consent of Company's shareholders.
10.2 Assignment. This Agreement shall be non-assignable by
either Company or XXXXXX without the written consent of the other party, it
being understood that the obligations and performance of this Agreement are
personal in nature.
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11. MISCELLANEOUS.
11.1 Amendment. No amendment, waiver or modification of this
Agreement or any provisions of this Agreement shall be valid unless in writing
and duly executed by both parties.
11.2 Binding Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assigns.
11.3 Waiver. Any waiver by any party of any breach of any
provision of this Agreement shall not be considered as or constitute a
continuing waiver or waiver of any other breach of any provision of this
Agreement.
11.4 Captions. Captions contained in this Agreement are
inserted only as a matter of convenience or for reference and in no way define,
limit, extend, or describe the scope of this Agreement or the intent of any
provisions of this Agreement.
11.5 Attorneys' Fees. In the event of any litigation arising
out of this Agreement the prevailing party shall be entitled to recover from the
other party its attorneys' fees and costs, including attorneys' fees and costs
incurred on appeal.
11.6 Prior Agreements. This Agreement supersedes and
replaces all prior agreements between the parties hereto dealing with the
subject matter hereof.
11.7 Governing Law. This Agreement shall be governed by the
laws of Louisiana.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
AMEDISYS, INC.
By: /s/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX, CEO
/s/ XXXXX XXXXXX
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XXXXX XXXXXX
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