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EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), made and entered into
and effective this 26th day of November, 1996 (the "Effective Date"), by and
between XXXXXXX X. XXXXXXX, an individual resident of the State of Georgia
(hereinafter referred to as "Executive"), and PHYSICIANS' SPECIALTY CORP., a
corporation organized under the laws of the State of Delaware (hereinafter
referred to as "Company");
W I T N E S S E T H:
WHEREAS, Company is engaged in the business (the "Business") of providing
management and business services to, and acquiring assets of, physician
practices;
WHEREAS, the Board of Directors of Company (the "Board of Directors")
recognizes Executive's substantial skills and expertise in the Business and
desires to provide for the employment of Executive on the terms and conditions
herein provided;
WHEREAS, Executive is willing to commit himself to serve Company on the
terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, Company and Executive wish to
enter into an employment agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
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SECTION 1. SCOPE OF EMPLOYMENT.
1.1 EMPLOYMENT. Subject to terms hereof, Company hereby agrees to the
employment of Executive during the "Term" (as defined in Section 2.1), and
Executive hereby accepts such employment. Executive shall hold the office of
Chief Executive Officer of Company and, as such, shall perform the
executive-level services (collectively, "Services") described in Company's
Bylaws and as delegated to him by the Board of Directors. Such duties shall
include, among others, initiating, evaluating and consummating strategic
acquisitions on behalf of Company. Company agrees to nominate Executive for
membership on the Board of Directors for the duration of the Term, and, if
Executive is elected as a director, he shall be entitled to serve on the
Compensation and Executive Committees of the Board of Directors (if such
committees are established). Executive's serving on the Board of Directors shall
be deemed to be part of the "Services". Executive shall devote substantially all
of Executive's business time, energy and skill to performing his obligations
hereunder and shall perform his obligations hereunder diligently, faithfully and
to the best of Executive's abilities.
1.2 PLACE OF PERFORMANCE. During the Term, Executive shall be based in
Atlanta, Georgia at the principal executive offices of Company, except for
reasonably required travel on business.
1.3 COMPLIANCE WITH POLICIES. Subject to the terms of this Agreement,
during the Term Executive shall comply in all material respects with all
policies and procedures applicable to senior executives of Company generally and
to Executive specifically.
SECTION 2. TERM; TERMINATION.
2.1 TERM. The initial term of Executive's employment under this Agreement
(the "Initial Term") shall be a three (3) year period commencing on the
Effective Date. After the Initial Term, Executive's employment under this
Agreement shall automatically renew for successive additional one (1) year
("Renewal Terms") terms (the Initial Term and any Renewal Terms being
collectively referred to as the "Term"). The Term shall be subject to
termination in accordance with Section 2.2.
2.2 TERMINATION.
(A) DEATH. This Agreement shall automatically and immediately terminate
upon the death of Executive.
(B) DISABILITY. This Agreement may be terminated by either party hereto
upon written notice to the other in the event Executive becomes "Disabled" (as
hereinafter defined). For purposes of this Agreement, "Disabled" shall be
defined as either: (a) the reasonable, good faith determination by an
independent physician selected by the Board of Directors of Company that due to
a mental or physical impairment or disability, Executive has been incapable or
unable, even with reasonable accommodations, to fully perform the material
duties performed by Executive for Company immediately prior to such disability
for a period of at least one hundred
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eighty (180) days in the aggregate (although not necessarily consecutively)
within any consecutive three hundred sixty-five (365)-day period; or (b) a
determination that Executive is disabled pursuant to the terms of any long-term
disability insurance policy which Company or Executive has purchased and which
covers Executive.
(C) CAUSE. In addition to any other rights or remedies available to Company
at law, in equity or pursuant hereto, Company may, in its sole discretion,
terminate Executive's employment for "Cause" (as hereinafter defined) effective
immediately upon delivery of written notice to Executive. For purposes of this
Agreement, "Cause" shall mean any of:
(i) the imposition by any governmental authority of any material
restriction or limitation on Executive's ability to perform his services
hereunder;
(ii) (A) Executive has committed an act constituting fraud, deceit or
intentional material misrepresentation with respect to Company or any
client, customer or supplier of Company; or (B) Executive has embezzled
funds or assets from Company or any client or customer of Company;
(iii) Executive's breach or default in the performance of any
material provision of this Agreement which Executive has not cured or
corrected to Company's reasonable satisfaction within thirty (30) days
after receiving notice of such breach or default (provided that any breach
by Executive of any obligation under Section 5.4 shall be grounds for
immediate termination "For Cause" without any notice or right to cure or
correct); or
(iv) (A) Executive has engaged in willful misconduct or fraud or
gross negligence; or (B) Executive's conduct is materially detrimental to
the reputation, character or standing of Company.
(D) DISCRETIONARY TERMINATION.
(i) Either Company or Executive may terminate the Term effective as of the
end of the Initial Term or the then-current Renewal Term by providing the
other with written notice of termination at least sixty (60) days prior to
the end of the Initial Term or then current Renewal Term, as the case may
be. In the event of Termination under this Section 2.2(d)(i), Executive
shall not be entitled to any severance benefit under Section 6.
(ii) The Company shall have the right to terminate the Term and
Executive's employment hereunder without cause at any time upon notice to
Executive. In such event, Executive shall be entitled to the severance
benefit provided in Section 6(b), unless such termination without cause
follows a Change of Control, in which event Executive shall be entitled to
the severance benefit provided in Section 6(c).
(E) CHANGE OF CONTROL. Executive may terminate the Term following a Change
of Control (as defined in Section 6(c)), by providing Company at least thirty
(30) days prior written
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notice of termination.
(F) GOOD REASON. Executive shall have the right to terminate this
Employment Agreement for "Good Reason." For purposes hereof, Good Reason shall
be limited to the repeated material breach by the Company of its material
obligations to Executive which the Company fails to correct or cure within a
period of forty-five (45) days after being provided with written notice by
Executive of such material breach.
SECTION 3. CASH COMPENSATION; EXPENSE.
3.1 BASE SALARY. Executive shall be paid a base salary (the "Base Salary")
during the Term at an initial rate of One Hundred Fifty Thousand Dollars
($150,000) per twelve (12) month period. The Base Salary shall be (a) payable in
equal installments on the schedule that Company may implement from time to time
for general payroll purposes, and (b) subject to any withholdings and deductions
required by applicable law.
3.2 BONUS. During the Term, Executive shall be eligible to be considered
for a periodic bonus (the "Bonus") of up to 50% of his Base Salary per annum,
based on Company's meeting certain milestones relating to such matters as
practice acquisitions, consolidated operating income levels, consummation of
follow-on financings and management team development; provided, however, that
the Bonus shall be subject to the Compensation Committee of the Board of
Directors adopting and ratifying such a bonus program and approving the periodic
Bonus grants to Executive.
SECTION 4. ADDITIONAL EXECUTIVE BENEFITS.
4.1 BENEFIT PLANS. During the Term, Executive shall be entitled to
participate in the group medical, 401k and the other employee benefit plans
adopted by the Board of Directors (or appropriate committee thereof) for
participation by Executive subject to the terms and conditions of such plans
(collectively, the "Benefit Plans"). Company shall have the right to purchase in
Executive's name a "key man" life insurance policy naming Company as sole
beneficiary under the policy. Company shall be the sole owner of such policy.
4.2 VACATION. Executive shall be entitled to three (3) paid weeks of
vacation per year during the Term, to be accrued and taken in accordance with a
policy that is consistent with Company's normal vacation policy applicable to
senior executive employees.
5. NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION COVENANTS.
5.1 DEFINITIONS. For purposes of this Section 5, the following terms shall
have the following respective meanings:
(a) "Competitive Position" shall mean (i) the direct or indirect
equity ownership (excluding ownership of less than 5% of the equity of an
entity whose equity is listed on a major U.S. exchange or traded on the
NASDAQ over-the-counter market) or
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control of all or any portion of a "Competitor" (as hereinafter
defined), or (ii) any employment, consulting, partnership, advisory,
directorship, agency, promotional or independent contractor arrangement
between Executive and any Competitor whereby Executive is required to
perform services substantially similar to those that he is to perform for
Company hereunder.
(b) "Competitor" shall refer to any person or entity engaged, wholly
or partly, in the Business.
(c) "Confidential Information" shall mean any and all proprietary and
confidential data or information of Company or any of its affiliates,
other than "Trade Secrets" (as hereinafter defined), which is of tangible
or intangible value to Company or any of its affiliates and is not public
information or is not generally known or available to Company's
competitors but is known only to Company or its affiliates and their
employees, independent contractors or agents to whom it must be confided
in order to apply it to the uses intended.
(d) "Restricted Territory" shall mean all areas within a twenty (20)
mile radius of the Company's principal office in Atlanta, Georgia. The
Parties intend for the "Restricted Territory" during the entire Term to
include a twenty (20) mile radius of all other United States cities where
Company is engaged in the Business, throughout which territory the parties
acknowledge Executive will be performing his employment responsibilities
on behalf of Company. As of the Effective Date, those cities include
Atlanta, Georgia. If applicable law permits a deemed or automatic
amendment to the definition of "Restricted Territory," then as soon as
Company begins to engage in the Business in any additional city, the
definition of "Restricted Territory" under this Agreement shall be deemed
automatically amended to include the city limits of any such additional
cities and a twenty (20) mile radius of those cities. If applicable law
does not permit a deemed or automatic amendment to the definition of
"Restricted Territory" under those circumstances, then the Parties
agree that when Company begins to engage in Business in additional cities,
they will promptly execute amendments to this Agreement to include those
additional cities in the definition of "Restricted Territory."
(e) "Trade Secrets" shall mean all knowledge, data and information of
Company or any of its affiliates which is defined as a "trade secret"
under applicable law.
(f) "Work Product" shall mean all work product, property, data,
documentation, "know-how", concepts, plans, inventions, improvements,
techniques, processes or information of any kind, prepared, conceived,
discovered, developed or created by Executive in connection with the
performance of his services hereunder.
5.2 ACKNOWLEDGMENTS. Executive hereby acknowledges and agrees that during
the term of this Agreement (i) Executive will frequently be exposed to certain
Trade Secrets and Confidential Information; (ii) Executive's responsibilities on
behalf of Company will extend to all geographical areas of the Restricted
Territory; and (iii) any competitive activity on Executive's
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part during the Term, or any competitive activity on Executive's part in the
Restricted Territory for a reasonable period thereafter, would necessarily
involve Executive's use of Company's Trade Secrets and Confidential Information
and would unfairly threaten Company's legitimate business interests, including
its substantial investment in the proprietary aspects of its business and its
associated goodwill. Moreover, Executive acknowledges that, in the event of the
termination of this Agreement, Executive would have sufficient skills to find
alternative, commensurate work in his field of expertise that would not involve
a violation of any of the provisions of this Section 5. Therefore, Executive
acknowledges and agrees that it is reasonable for Company to require Executive
to abide by the covenants set forth in this Section 5. The parties acknowledge
and agree that if the nature of Executive's responsibilities for or on behalf of
Company or the geographical areas in which Executive must fulfill such
responsibilities materially change, the parties will execute appropriate
amendments to the scope of the covenants in this Section 5.
5.3 NONDISCLOSURE; OWNERSHIP OF PROPRIETARY PROPERTY.
(a) In recognition of Company's need to protect its legitimate
business interests, Executive hereby covenants and agrees that: (A) with
regard to each item constituting a Trade Secret, at all times during which
such item shall constitute a Trade Secret (before or after the Term); and
(B) with regard to any Confidential Information, at all times during the
term of this Agreement and for a period of three (3) years following the
expiration or termination of the Term for any reason, Executive shall
regard and treat each item constituting a Trade Secret and all
Confidential Information as strictly confidential and wholly owned by
Company and will not, for any reason, in any fashion, either directly or
indirectly, use, sell, lend, lease, distribute, license, give, transfer,
assign, show, disclose, disseminate, reproduce, copy, misappropriate or
otherwise communicate any such item or information to any third party for
any purpose other than in connection with his performance of services for
the Company or as required by applicable law.
(b) Executive shall immediately notify Company of any intended or
unintended, unauthorized disclosure or use of any Trade Secrets or
Confidential Information by Executive or any other person or entity of
which Executive becomes aware. Executive shall cooperate fully with
Company in the procurement of any protection of Company's rights to or in
any of the Trade Secrets or Confidential Information.
(c) Immediately upon expiration or termination of the Term for any
reason, or if notice of termination is required hereunder, upon receipt of
such notice, or at any time after such termination or notice upon the
specific request of Company, Executive shall return to Company all written
or descriptive materials of any kind in Executive's possession or to which
Executive has access that constitute or contain any Confidential
Information or Trade Secrets, and the confidentiality obligations
described in this Agreement shall continue until their expiration under
the terms of this Agreement.
(d) To the greatest extent possible, any Work Product shall be deemed
to be "work made for hire" (as defined in the Copyright Act, 17 U.S.C.A.
Section 101 et seq., as amended) and owned exclusively by Company.
Executive hereby unconditionally and
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irrevocably transfers and assigns to Company all rights, title and
interest Executive currently has or in the future may have, by operation
of law or otherwise, in or to any Work Product, including, without
limitation, all patents, copyrights, trademarks, service marks and other
intellectual property rights. Executive agrees to execute and deliver to
Company any transfers, assignments, documents or other instruments which
Company may deem necessary or appropriate to vest complete title and
ownership of any Work Product, and all rights therein, exclusively in
Company.
5.4 NON-COMPETITION. In recognition of Company's need to protect its
legitimate business interests, Executive hereby covenants and agrees that during
the Term, Executive will not, either directly or indirectly, alone or in
conjunction with any other party, accept, enter into or take any action in
furtherance of a Competitive Position. Executive further agrees that for
eighteen (18) months following expiration or termination of the Term for any
reason other than termination by Executive for Good Reason, Executive will not,
either directly or indirectly, alone or in conjunction with any other party,
accept, enter into or take any action in furtherance of a Competitive Position
within the Restricted Territory (other than action to reject an offer of a
Competitive Position or to notify Company of the offer pursuant to the
requirements of the next sentence of this Section 5.4). Executive shall notify
Company promptly in writing if Executive receives an offer of a Competitive
Position within eighteen (18) months following expiration or termination of the
Term for any reason, and such notice shall describe all salient terms of such
offer.
5.5 NON-SOLICITATION OF CUSTOMERS. Executive hereby covenants and agrees
that (i) during the Term, Executive will not, either directly or indirectly,
alone or in conjunction with any other party, solicit, divert or appropriate or
attempt to solicit, divert or appropriate any medical practice managed by
Company (a "Managed Practice") or actively sought prospective Managed Practice
for the purpose of providing such Managed Practice or actively sought
prospective Managed Practice with management services competitive with those
offered by Company; and (ii) for a period of two (2) years following expiration
or termination of the Term for any reason other than termination by Executive
for Good Reason, Executive will not, either directly or indirectly, alone or in
conjunction with a Competitor or any other party, solicit, divert or
appropriate, or attempt to solicit, divert or appropriate any Managed Practice
or actively sought prospective Managed Practice for the purpose of providing (or
having a Competitor or any other person provide) such Managed Practice or
actively sought prospective Managed Practice with management services
competitive with those offered by Company. Executive shall promptly notify
Company in writing if: (A) during the two (2) years following the expiration or
termination of the Term for any reason, Executive is contacted by any Managed
Practice or actively sought prospective Managed Practice with a request that
Executive provide Managed Practice with any management services; and (B)
provision of such services, as requested, would constitute a violation of
Executive's covenants in this Section 5. Such notice shall include all salient
information associated with such customer's request, including, without
limitation, the identity of such Managed Practice, the exact services or
products requested and the party or parties on behalf of such Managed Practice
who contacted Executive.
5.6 NONSOLICITATION OF COMPANY PERSONNEL. Executive hereby agrees that
during the
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Term, except to the extent that he is required to do so in connection with his
responsibilities hereunder, Executive will not, either directly or indirectly,
alone or in conjunction with any other party, solicit or attempt to solicit any
employee, consultant, contractor or other personnel of Company to terminate,
alter or lessen such party's affiliation with Company or to violate the terms of
any agreement or understanding between such party and Company. Executive further
agrees that during the two (2) year period following expiration or termination
of the Term for any reason other than termination by Executive for Good Reason,
Executive will not, either directly or indirectly, alone or in conjunction with
any other party, solicit or attempt to solicit any "key" (as that term is
hereinafter defined) employee, consultant, contractor or other personnel of
Company located in the Restricted Territory to terminate, alter or lessen that
party's affiliation with Company or to violate the terms of any agreement or
understanding between such party and Company. For purposes of the preceding
sentence "key" employees, consultants, contractors or other personnel of Company
are those with knowledge of or access to Company's Trade Secrets or Confidential
Information.
5.7 REMEDIES. Executive agrees that damages at law for Executive's
violation of any of the covenants in this Section 5 would not be an adequate or
proper remedy and that, should Executive violate or threaten to violate any of
the provisions of such covenants, Company or its successors or assigns shall be
entitled to obtain a temporary or permanent injunction against Executive in any
court having jurisdiction prohibiting any further violation of any such
covenants, in addition to any award or damages (compensatory, exemplary or
otherwise) for such violation.
5.8 PARTIAL ENFORCEMENT. Company has attempted to limit the rights of
Executive to compete only to the extent necessary to protect Company from unfair
competition. Company, however, agrees that, if the scope of enforceability of
any of these restrictive covenants is in any way disputed at any time, a court
or other trier of fact may modify and enforce such covenant to the extent that
it believes to be reasonable under the circumstances existing at the time.
5.9 SURVIVAL. Notwithstanding any expiration or termination of this
Agreement, the provisions of this Section 5 shall survive and remain in full
force and effect, as shall any other provision hereof that, by its terms or
reasonable interpretation thereof, sets forth obligations that extend beyond the
termination of this Agreement.
SECTION 6. RIGHTS ON TERMINATION
(a) If Executive voluntarily resigns his employment or is terminated
for Cause, or dies or is terminated due to becoming Disabled, Executive
shall be entitled only to receive any salary and bonus amounts that have
accrued prior to the effective date of termination of the Term (the
"Termination Date").
(b) If Company terminates the Term pursuant to Section 2.2(d)(ii), or
if Executive terminates the Term following a Change of Control
pursuant to Section 2.2(e), Executive shall be entitled to: (a) all salary
and bonus amounts accrued through the Termination Date, and (b) payment,
for a period of twelve (12) months following the Termination Date, of an
amount equal to: (i) Executive's base salary as of the Termination Date
(with
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such payments to be made at such times as they would be made if
Executive's employment continued for an additional year) LESS (ii) any
salary or other amounts that Executive is paid by any other person during
that twelve month period (and Executive hereby agrees to take reasonably
diligent action to secure employment as soon as practicable after any such
termination from Company and to otherwise mitigate his losses resulting
from the loss of salary from Company). Executive's rights to any of the
compensation or benefits identified in the preceding sentence shall be
subject to Executive's compliance in all respects of each of Executive's
obligations under this Agreement.
(c) In the event that Company (or Company's successor) following a
Change of Control (as defined below) terminates Executive's employment
other than pursuant to an express termination right under Sections 2.2(a),
(b) or (c) of this Agreement, Executive shall be entitled to severance
compensation in the form of a lump sum payment in an amount equal to two
(2) times the taxable compensation received by Executive during the most
recently concluded fiscal year of Company. For purposes of this Agreement,
"Change of Control" shall mean the acquisition by any single person or
entity or related persons or entities of more than fifty percent (50%) of
the outstanding and issued common stock of Company following an initial
public offering of Company's common stock.
SECTION 7. MISCELLANEOUS.
7.1 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors,
representatives, heirs, and permitted assigns.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
7.3 HEADINGS. The titles, captions and headings contained in this Agreement
are inserted by convenience of reference only and are not intended to be a part
of or to affect in any way the meaning or interpretation of this Agreement.
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7.4 NOTICES.
(a) All notices, consents, requests and other communications hereunder
shall be in writing and shall be sent by hand delivery, by certified or
registered mail (return-receipt requested), by facsimile or by a recognized
national overnight courier service as set forth below:
If to Company: Physicians' Specialty Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
0000 XxxxxxxXxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Fax No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to Executive: Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
(b) Notices delivered pursuant to this Section 7.4(a) hereof shall be
deemed given: at the time delivered, if personally delivered, three (3) business
days after being deposited in the mail, if mailed; one (1) business day after
being sent, if faxed; and one (1) business day after timely delivery to the
courier, if by overnight courier service.
(c) Either party hereto may change the address to which notice is to be
sent by written notice to the other party hereto in accordance with this Section
7.4
7.5 COUNTERPARTS; FAX SIGNATURES. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute the same Agreement. Any signature page of any
such counterpart, or any electronic facsimile thereof, may be attached or
appended to any other counterpart to complete a fully executed counterpart of
this Agreement, and any telecopy or other facsimile transmission of any
signature shall be deemed an original and shall bind such party.
7.6 ENTIRE AGREEMENT. This Agreement is intended by the parties hereto to
be the final expression of their agreement with respect to the subject matter
hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
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7.7 SEVERABILITY. The unenforceability or invalidity of any provision of
this Agreement shall not affect the validity or enforceability of the remaining
provisions hereof, but such remaining provisions shall be construed and
interpreted in such a manner as to carry out fully the intent of the parties
hereto; provided, however, that should any judicial body interpreting this
Agreement deem any provision hereof to be unreasonably broad in time, territory,
scope or otherwise, it is the intent and desire of the parties hereto that such
judicial body, to the greatest extent possible, reduce the breadth of such
provision to the maximum legally allowable parameters rather than deeming such
provision totally unenforceable or invalid.
7.8 WAIVER. No waiver, termination or discharge of this Agreement, or any
of the terms or provisions hereof, shall be binding upon either party hereto
unless confirmed in writing. No waiver by either party hereto of any term or
provision of this Agreement or of any default hereunder shall affect such
party's right thereafter to enforce such term or provision or to exercise any
right or remedy in the event of any other default, whether or not similar.
7.9 INTERPRETATION. Should a provision of this Agreement require judicial
interpretation, it is agreed that the judicial body interpreting or construing
the Agreement shall not apply the assumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
an instrument is to be construed more strictly against the party which itself or
through its agents prepared the agreement, it being agreed that all parties
and/or their agents have participated in the preparation of this Agreement
equally.
7.10 APPLICABLE LAW. Should any provision of this Agreement, including,
without limitation, any provision relating to compensation, be found to be in
violation of any applicable law, rule or regulation, the parties hereto agree to
execute an amendment to this Agreement to bring such provision into compliance
with any such law, rule or regulation, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first above written.
"Company"
PHYSICIANS' SPECIALTY CORP.
By:
Name:
Its:
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"Executive"
XXXXXXX X. XXXXXXX
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