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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
BETWEEN
AMEDISYS, INC.
AND
XXXX XXXXXXXX
June 1, 2000
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") entered into as of the
1st day of June, 2000, and continuing for an indefinite duration, by and between
AMEDISYS, INC., a Delaware corporation (the "Company") and XXXX XXXXXXXX
("XXXXXXXX").
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. XXXXXXXX is employed by the Company as the Senior Vice
President of Finance;
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. XXXXXXXX shall perform such duties as
are usually performed by the Senior Vice President of Finance 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
XXXXXXXX'x expertise and job responsibilities, including but not limited to,
adherence to internal compliance and governmental and regulatory rules,
regulations and applicable laws. XXXXXXXX shall report directly to the Chief
Executive Officer of the Company or his designee.
2.1 Devotion of Time. XXXXXXXX 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 XXXXXXXX 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 XXXXXXXX'x employment for Cause, as defined herein,
without any obligation of severance payments to XXXXXXXX. Cause shall be defined
as follows:
(a) a material default or breach by XXXXXXXX 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 XXXXXXXX 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 XXXXXXXX'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 XXXXXXXX'x employment without Cause, at any time and subject
to the sole discretion of the Company. In such event, XXXXXXXX will cease to
have any power of his position as of the effective date of the termination.
3.3 Termination by XXXXXXXX. XXXXXXXX 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 XXXXXXXX'x receiving a notice of termination
by the Company for Cause, XXXXXXXX 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; and
(b) The individuals who serve on the Company's Board of
Directors as of the effective date of this Agreement (the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board of Directors
of the Company; provided, however, any person who becomes a director subsequent
to the effective date of this Agreement, whose election or nomination for
election by the Company's shareholders was approved by a vote of at least a
majority of the directors then compiling the Incumbent Board, shall for purposes
of this Agreement be considered as if such person was a member of the Incumbent
Board.
4. COMPENSATION.
4.1 Salary. Company shall pay to XXXXXXXX a base salary at
the annual rate of $136,000 (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,
XXXXXXXX'x Base Salary shall be automatically increased on February 1 of each
year during the term hereof by the greater of
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(i) six (6%) percent, or (ii) $12,000.00, 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 XXXXXXXX a bonus up to $60,000, 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 XXXXXXXX. 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.
4.4 Stock Options. Effective February 1 of each year during
the term hereof, the Company shall cause to be granted to XXXXXXXX, 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) 12,000 shares. Notwithstanding anything herein to the contrary,
XXXXXXXX shall not be entitled to the grant of options during any time in which
XXXXXXXX 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 XXXXXXXX be terminated
without Cause, as defined herein, or should a Change of Control, as defined
herein, occur during XXXXXXXX'x employment with Company, XXXXXXXX shall be
entitled to severance compensation in an amount equal to eighteen (18) months of
XXXXXXXX'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
XXXXXXXX is paid in full.
4.6 Additional Benefits.
(a) Vacation. XXXXXXXX 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, XXXXXXXX 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. XXXXXXXX is authorized
to incur reasonable traveling and other expenses in connection with the Business
and in performance of his duties under this Agreement. XXXXXXXX shall be
reimbursed by the Company for all Business expenses which are reasonably
incurred by XXXXXXXX. All reimbursable travel expenses shall be in accordance
with mutually agreeable and reasonable policy.
(c) Participation in Employee Benefit Plans. XXXXXXXX
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 XXXXXXXX'x
dependents) profit sharing and pension, and other benefit plans), as may be
adopted or amended by the Company from time to time.
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5. REPRESENTATION BY XXXXXXXX. XXXXXXXX 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. XXXXXXXX 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").
6.2 Ownership of Information. XXXXXXXX recognizes that all
Confidential Information and copies or reproductions thereof, relating to the
Company's operations and activities made or received by XXXXXXXX in the course
of his employment are the exclusive property of the Company, as the case may be,
and XXXXXXXX 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 XXXXXXXX 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.
XXXXXXXX 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, XXXXXXXX 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 XXXXXXXX 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
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remedies contained in Section 8 herein. XXXXXXXX acknowledges and agrees that
proof of such personal solicitation by XXXXXXXX of an employee shall constitute
absolute and conclusive evidence that XXXXXXXX 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 XXXXXXXX to comply
with such covenants, the Company would not have entered into this Agreement.
Such covenants by XXXXXXXX shall be construed as agreements independent of any
other provision of this Agreement and the existence of any claim or cause of
action XXXXXXXX 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.
7.6 Defaults and Deferred Compensation.
(a) XXXXXXXX Breach. If XXXXXXXX breaches any
requirement of Section 7 herein, in addition to any other remedy to which the
Company may be entitled, XXXXXXXX shall return to the Company any Severance
already paid to XXXXXXXX at the time of said breach, and all of XXXXXXXX'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 XXXXXXXX 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 XXXXXXXX'x
employment termination was considered by the Company to be a discontinued
operation.
8. REMEDIES. XXXXXXXX hereby acknowledges, covenants and agrees
that in the event of a material default or breach under this Agreement, in
addition to any other remedy set forth herein:
8.1 Company may suffer irreparable and continuing damages as
a result of such breach and its remedy at law will be inadequate. XXXXXXXX
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
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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 XXXXXXXX without the written consent of the other party, it
being understood that the obligations and performance of this Agreement are
personal in nature.
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:
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XXXXXXX X. XXXXX, CEO
-----------------------------------
XXXX XXXXXXXX
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SCHEDULE 7.1
ALABAMA NORTH CAROLINA
COUNTIES GEORGIA COUNTIES TENNESSEE COUNTIES COUNTIES OKLAHOMA COUNTIES
------- ---------------- ------------------ -------------- -----------------
Lowndes Xxxx Xxxxxxxx Xxxxxxxx Xxxxxxxx Creek
Xxxxx Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx Okmulgee
Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx Alamance Pawnee
Xxxxxxx Xxxxx Cumberland Xxxxxxx Chatam Xxxxx
Autauga Xxxxxx Xxxxxxxx Xxxxxx Durham Tulsa
Choctaw Xxxxxx Xxxxxx White Orange Washington
Xxxxxx Xxxxxx Xxxxxxxx Person Xxx
Xxxx Xxxxxx Xxxxxx Wake Noble
Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Ofuskee
Sumter Cherokee Meigs Xxxxxxxx Xxxxxx
Madison Xxxxxxx Xxxxxx Xxxx Osage
Xxxxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxx Coweta XxXxxx LOUISIANA PARISHES Xxxxx
Xxxxxxx Dekalb Polk ------------------ Xxxxxxx
Limestone Xxxxxxx Xxxx St. Xxxx Xxxxxxxx Muskogee
Xxxxxxxxxx Xxxxxxx Xxxxx Ascension Richland Cherokee
Xxxx Xxxxxx Xxxxx Xxxxxxxxx Ouachita Xxxxx
Coosa Gwinnett Sequatchie Plaquemine Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Van Xxxxx Xxxxxxxxxx Claiborne Delaware
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Orleans Ottawa
Pike Rockdale Bedford St. Xxxxxx Xxxxxxx Nowata
Xxxxx Xxxxxxxx Cannon Lafayette St. Bernhard Xxxxxxxx
Xxxxxxxx Xxxxxx Coffee Xxxxxxxxxx St. Xxxxxxx Xxxxxxx
Green Xxxxxx Xxxxxxxx Iberia Bienville XxXxxxxx
Xxxxxxx Xxxxx Acadia Tensas Xxxxxxx
XXXXXXXX Xxxx Lincoln St. Xxxxxx Catahoula
COUNTIES Xxxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxxx
-------- Xxxxxxx Xxxxx St. Xxxx Xxxx Xxxxxxx
Xxx Banks Rutherford Xxxxxxxxx Xxxxx West Xxxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx Union
Wise Xxxxxxxx Xxxxxxxx Pointe Coupee Lincoln
Xxxxxxxxx Habersham Xxxxx Xxxxxxxxxx Concordia
Xxxxxxx Xxxx Maury Assumption St. Tammany
Tazewell Madison Xxxxxxxxxx Xxxxxxxxxx Bossier
Xxxxxx Xxxxx Xxxxxxxxx Rapides Caddo
Washington Xxxxxxxx Xxxxxxxxxx Avoyelles Calcasieu
Catoosa Xxxxx Xxxx Xxxxxxx
Chatooga Xxxxxx Xxxxxx St. Xxxxxx
Xxxx Xxxxxxxxx Xxxxx Red River
Xxxxxx Xxxxxx Tangipahoa Xxxxxxx
Xxxxxx Xxxxxxxxxx Natchitoches
Walker Washington LaSalle
Xxxxxxxxx Xxxxxx East Baton Rouge
Xxxxx Xxxxxxx West Baton Rouge
Polk Unicoi East Xxxxxxxxx
Xxxxxxx West Xxxxxxxxx
Xxxxxx St. Xxxxx
Xxxxxxxx Iberville
Xxxxxxx Lafourche
Xxxxxxx
Houston
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TEXAS COUNTIES FLORIDA COUNTIES
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Xxxxxx Xxxx Pinellas
Xxxxxxx Xxxxxxxxx Xxxxx
Montague Goliad Citrus
Comanche Xxxxxxxx Manatee
Xxxxx Xxxxx Sarasota
Dallas Nueces DeSoto
Xxxxxx Xxxxxxx Hillborough
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx Xxx
Xxxx Xxxxxxx Highlands
Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Palo Pinto Uvalde Lake
Xxxxxx Xxxxxxxx Xxxx
Rockwall Xxxxxxxxxx Orange
Xxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx De Xxxx
Xxxxxxx Xxxxx
Xxxxxxxxx Xxxxxx
Hood
Xxxxxxx
Xxxxxxx
Xxxxx
Van Zandt
Wise
Atascosa
Austin
Austin-San Antonio Corridor
Bandera
Xxxx
Bexar
Xxxxxx
Burnet
Xxxxxxxx
Xxxxxxx
Callaban
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxx
Live Oak
Llano
Xxxxx
XxXxxxxx
Xxxxxx
Xxxxx
Xxxxxxx
