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Exhibit 10.58
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of January 1, 2001, by and between AMERICAN
HOMEPATIENT, INC., a Delaware corporation (the "Employer"), and XXXXXXX X'XXXX,
a resident of the State of Tennessee (the "Employee").
W I T N E S S E T H:
WHEREAS, Employee and Employer entered into that certain Employment
Agreement effective as of January 1, 1999; and
WHEREAS, Employee and Employer subsequently amended the Employment
Agreement by the First Amendment to Employment Agreement effective as of January
1, 2000 (the "First Amendment); and
WHEREAS, Employee and Employer subsequently amended the Employment
Agreement by the Second Amendment to Employment Agreement effective as of
December 1, 2000 (the "Second Amendment); and
WHEREAS, Employer and Employee have agreed to enter into this Agreement
which sets forth the terms and conditions of Employee's employment by Employer.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements made herein, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee
hereby accepts employment with Employer on the terms and conditions
specified herein.
2. TERM. The term of this Agreement shall be for a period
commencing on the date hereof and ending December 31, 2001; provided,
however, that this Agreement will thereafter automatically renew for
consecutive one-year terms unless either party notifies the other party
in writing at least thirty (30) days prior to the end of the then
current term that this Agreement will not renew but instead will
terminate at the expiration of the then current term. Such notice of
non-renewal by Employer under this Section 2 will be treated as a
termination without "cause" and will be subject to Section 5(b) herein.
Notwithstanding anything to the contrary contained in this Agreement,
except the provisions of Section 8 which supercede this provision, the
provisions of Section 6 and 7 will survive the expiration or
termination of this Agreement.
3. DUTIES OF EMPLOYEE. Employee shall be responsible for certain
assigned aspects of Employer's operations and shall initially have the
title Executive Vice President, Chief
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Financial Officer, and Corporate Secretary. Employee shall perform the
duties and responsibilities assigned to Employee from time to time in
accordance with the policies and objectives established by the Board of
Directors and Chief Executive Officer of Employer. Employee agrees to
devote her full time, attention and skill to her duties hereunder and
to use her best efforts to attain or exceed Employer's objective goals
for profit, quality, stability and growth. Employee will at all times
while employed by Employer comply fully with Employer's "Guidelines of
Company Policies and Conduct" and any other compliance programs of
Employer, as such programs may be amended from time to time, and
acknowledges that her obligations under such programs as an employee
are contractual in nature.
4. COMPENSATION.
a. Employee will be paid a base salary of Two Hundred
Ten Thousand Dollars and No/100 Dollars ($210,000) per year
during the term of this Agreement, payable in accordance with
Employer's standard payroll practices. Employee will be
entitled to receive incentive compensation of up to fifty
percent (50%) of her annual base salary under such incentive
programs as may from time to time be provided to employees of
Employer of similar rank, which programs may be created,
changed or terminated at any time at Employer's sole
discretion. Employer will periodically conduct a merit review
regarding Employee's performance to consider increasing, but
not decreasing, Employee's base salary.
b. Employer recognizes that Employee will be relocating
from her former primary residence in Warwick, Rhode Island to
Brentwood, Tennessee. As an inducement for such relocation,
Employer will reimburse Employee for all reasonable and actual
travel and other expenses incurred by Employee in traveling to
and from Warwick, Rhode Island and Brentwood, Tennessee during
the term of this Agreement. Reimbursement hereunder will be
subject to compliance with Employer's reimbursement policies
as established from time to time.
c. Employee will be entitled to such medical, dental,
disability and life insurance benefits, participation in any
profit-sharing plan or similar plans of Employer, and such
other employee benefits as are provided to employees of
Employer of similar rank from time to time. Promptly following
execution and delivery of this Agreement, either the Board of
Directors of Employer or such Board's Independent Stock Option
Committee will consider and act upon a grant of stock options
under Employer's 1991 Non-Qualified Stock Option Plan in favor
of Employee.
5. TERMINATION.
a. Employee's employment will be terminable by Employer
at any time for cause, which will include but not be limited
to (i) insubordination, malfeasance, misconduct, (ii) charge
or conviction of a felony or of a misdemeanor involving
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moral turpitude, (iii) the inability of Employee to perform
her duties hereunder for a period of thirty (30) consecutive
days (or sixty (60) total days in any ninety (90) consecutive
day period) by reason of illness or mental or physical
disability, (iv) death, and (v) other circumstances deemed by
the Employer to be materially detrimental to the Employer.
Notwithstanding the above, it is the intent of the Employer at
all times to comply with the Americans With Disabilities Act,
the Family and Medical Leave Act and any other applicable
federal and state employment laws. This Agreement will be
terminable by Employee upon thirty (30) days written notice to
Employer if without cause. In the case of termination under
this Section 5(a), all obligations of the parties under this
Agreement and relating to Employee's employment will cease
except for Employee's obligations under Sections 6 and 7
hereof.
b. Employee's employment will be terminable by Employee
upon written notice to Employer if Employer willfully breaches
any material terms of this Agreement, after fifteen (15) day's
written notice and right to cure. Employee's employment will
also be terminable by Employer at any time without "cause", as
such term is defined above in clause (a). A notice of
non-renewal by Employer pursuant to Section 2 of this
Agreement will be treated as a termination without "cause" and
shall be subject to the provisions of this Section 5(b). In
the case of termination under this Section 5(b), all
obligations of the parties in this Agreement will cease except
for Employee's obligations under Sections 6 and 7 (the
continuation of such obligations being subject to Section 8).
If Employer terminates Employee's employment without "cause",
Employee will be entitled to receive as a severance payment in
a lump sum at termination an amount equal to (i) her annual
base salary (not including incentive compensation or
benefits), as in effect at the time of termination, plus (ii)
the annual incentive compensation Employee received for
performance during Employer's immediately preceding fiscal
year, multiplied by a fraction, the numerator of which is the
total number of full calendar months during which Employee was
employed by Employer during Employer's current fiscal year
prior to termination and the denominator of which is twelve
(12). Employer will pay Employee such severance in a lump sum
promptly following termination. In addition, Employer will (i)
pay Employee promptly following termination any earned but
unpaid base salary through the date of termination, and (ii)
pay the COBRA administrative services company the standard
employer portion of the COBRA premium attributable to
Employee's medical and dental insurance benefits as such
benefits were in effect immediately prior to termination with
payments beginning on the first day of the calendar month
immediately following the date of termination and continuing
until the earlier of (y) twelve (12) months after the date of
termination, or (z) the date on which Employee is eligible to
receive, as an employee, independent contractor or agent,
medical and/or dental insurance benefits from a third party.
Employer will deduct from the lump severance payment due to
Employee the standard employee portion of such COBRA premium
as in effect on the date of termination for a twelve (12)
month period. If Employee elects to discontinue COBRA for any
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reason before expiration of the applicable period and notifies
Employer of the same in writing, Employer will thereafter
refund to Employee that portion of the deduction, if any, not
attributable to the COBRA premium actually paid. Employer
acknowledges that in the event Employer terminates Employee's
employment under this Section 5(b) without "cause", Employee
will be entitled to her individual vested account balance with
respect to Employer's Stock Purchase Plan as such balance, if
any, exists as of the date of termination of employment.
Employee acknowledges that in the event Employer terminates
her employment without "cause", she will be entitled to no
payments other than as expressly set forth in this Section
5(b).
c. (1) In the event there is a "Change in Control"
of the ownership of Employer, and Employer terminates
Employee's employment within twelve (12) months following such
Change in Control, or Employee terminates her employment
pursuant to Section 5(d) below, Employee will be entitled to
receive as a severance payment in a lump sum upon such
termination an amount equal to the sum of (i) her monthly base
salary (not including incentive compensation or benefits) as
in effect at the time of such termination multiplied by
twenty-four (24), plus (ii) an amount equal to two (2) times
the greater of (x) the incentive compensation Employee
received for performance during Employer's immediately
preceding fiscal year and (y) the current incentive
compensation target in effect for Employee at the time of such
termination or resignation. In addition, any earned but unpaid
base salary and incentive compensation will be paid, and
Employer will subsidize COBRA premiums for Employee's medical
and dental insurance benefits as such benefits were in effect
immediately prior to termination by paying to Employee upon
termination an amount equal to the standard employer portion
of the COBRA premium for a twenty-four (24) month period.
Employer acknowledges that, in the event of such termination
following a Change in Control, Employee will be entitled to
her individual vested account balances with respect to
Employer's Supplemental Executive Retirement and Stock
Purchase Plans, as the balances, if any, exist as of the date
of termination of employment. Further, any stock options
granted to Employee will be fully vested upon a Change of
Control, whether or not Employee's employment is terminated,
notwithstanding any previously stated vesting restrictions but
subject to expiration or termination pursuant to the governing
stock option plan.
(2) A "Change in Control" will be deemed to have
occurred if (i) a tender offer will be made and consummated
for the ownership of more than fifty percent (50%) of the
outstanding voting securities of Employer, (ii) Employer will
be merged or consolidated with another corporation and as a
result of such merger or consolidation less than fifty percent
(50%) of the outstanding voting securities of the surviving or
resulting corporation will be owned in the aggregate by the
former shareholders of Employer, as the same will have existed
immediately prior to such merger or consolidation, (iii)
Employer will sell all or substantially all of its assets to
another corporation that is not a wholly-owned subsidiary, or
(iv) a
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person, within the meaning of Section 3(a)(9) or of Section 13
(d)(3) (as in effect on the date hereof) of the Securities and
Exchange Act of 1934 ("Exchange Act"), will acquire more than
fifty percent (50%) of the outstanding voting securities of
Employer (whether directly, indirectly, beneficially or of
record). For purposes hereof, ownership of voting securities
shall take into account and shall include ownership as
determined by applying the provisions of Rule 13d-3(d)(1)(i)
(as in effect on the date hereof) pursuant to the Exchange
Act.
d. In the event there is a Change in Control of the
ownership of Employer, and within twelve (12) months following
such Change in Control Employer (i) materially changes
Employee's job title or function, or (ii) requires Employee to
relocate from the greater Nashville, Tennessee area, Employee
may immediately terminate this Agreement, subject to the
continuing obligations found in Sections 6 and 7 hereof. Upon
a termination by Employee pursuant to this Section 5(d),
Employee will be entitled to the severance payment and other
benefits as provided in Section 5(c)(1) above.
6. CONFIDENTIAL INFORMATION. In consideration of the covenants of
Employer contained herein, Employee agrees as follows:
a. Employee hereby agrees and acknowledges that she has had
access to or is aware of certain confidential, restricted
and/or proprietary information concerning operation by the
Employer and its affiliates of their home health care
businesses (collectively the "Business"). Employee hereby
undertakes and agrees that she will have a duty to Employer
and its affiliates to protect such information from use or
disclosure.
b. For the purposes of this Section 6, the following definitions
will apply:
i. "Trade Secret" as related to the Business, will mean
any specialized technical information or data
relating to (w) procurement of medical equipment and
other inventory for resale; (x) marketing strategy or
plans of Employer or its affiliates; (y) proprietary
computer software; and (z) terms of contracts with
suppliers, employees and principal customers of
Employer or its affiliates which are not generally
known to the competitors of Employer.
ii. "Confidential Information," as related to
the Business, will mean any data or information,
other than Trade Secrets, which is material to
Employer or its affiliates and not generally known by
the public. Confidential Information will include,
without limitation, any information pertaining to the
Business Opportunities (as hereinafter defined) of
Employer or its affiliates, the details of this
Agreement, and the business plans, financial
statements and projections of Employer or its
affiliates.
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iii. "Business Opportunity" will mean any
information or plans of Employer or its affiliates
concerning the purchase of or investment in any
retail outlets, stores, distribution centers or
similar retail facilities in the field of home health
care, or the availability of any such outlets for
purchase or investment by Employer or its affiliates,
together with all related information, concerning the
specifics of any contemplated purchase or investment
(including price, terms and the identity of such
outlet), regardless of whether Employer or its
affiliates have entered any agreement, made any
commitment, or issued any bid or offer to such outlet
or other facility.
c. Employee will not, without the prior written consent
of Employer, use or disclose, or negligently permit any
unauthorized person who is not an employee of Employer to use,
disclose, or gain access to, any Trade Secrets or Confidential
Information.
d. Employee hereby agrees to maintain on behalf of
Employer, or, upon request or termination of this Agreement,
deliver to Employer, all memoranda, notes, records, drawings,
manuals, documents, disks, computer software and other
materials, including all copies and derivations of such
materials, containing Trade Secrets or Confidential
Information, whether made or compiled by Employee or furnished
to her from any source by virtue of her relationship with
Employer or its affiliates.
e. Employee will, with reasonable notice during and
after her employment by Employer, furnish information as may
be in her possession and cooperate with Employer or its
affiliates as may reasonably be requested in connection with
any claims or legal actions in which Employer is or may become
a party. Employer will reimburse Employee for any reasonable
out-of-pocket expenses she incurs in order to satisfy her
obligations under this clause (e).
7. NONCOMPETE, ETC. In consideration of the covenants of the
Employer contained herein, the Employee agrees as follows:
a. During and after her employment by Employer, Employee
will not use her status with Employer to obtain loans, goods
or services from another organization on terms that would not
be available to her in the absence of her relationship to
Employer. During the period of employment and for a twelve
(12) month period following termination of such employment for
any reason, (i) Employee will not make any statements or
perform any acts intended to advance the interest of any
existing or prospective competitor of Employer in any way that
will injure the interests of Employer or an affiliate; and
(ii) Employee will not directly or indirectly own or hold any
"Proprietary Interest" in or be employed by or receive
compensation from any party engaged in the same or any similar
business within fifty (50) miles of any location of Employer
upon the date of termination of
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employment. The states in which Employer and its affiliates
currently conduct business are Alabama, Arizona, Arkansas,
Colorado, Connecticut, Delaware, Florida, Georgia, Illinois,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Nebraska, Nevada, New Jersey, New Mexico, New York, North
Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Texas, Virginia, Washington, West
Virginia and Wisconsin. During her employment by Employer and
for a twelve (12) month period following termination of such
employment for any or no reason, (i) Employee will not solicit
any client of Employer or an affiliate or discuss with any
client or employee of Employer or an affiliate any information
or the operation of any business intended to compete with
Employer or an affiliate; and (ii) Employee will not, directly
or indirectly, hire any current or future employee of Employer
or an affiliate, or solicit or encourage any such employee to
leave the employ of Employer or an affiliate. For the purposes
of this Agreement, "Proprietary Interest" means legal or
equitable ownership, whether through stock holdings or
otherwise, of a debt or equity interest (including options,
warrants, rights and convertible interests) in a business firm
or entity, or ownership of more than 5% of any class of equity
interest in a publicly-held company. Employee acknowledges
that the covenants contained herein are reasonable as to
geographic and temporal scope.
b. Employee acknowledges that her breach or threatened
or attempted breach of any provision of Section 6 or 7 would
cause irreparable harm to Employer not compensable in monetary
damages and that Employer will be entitled, in addition to all
other applicable remedies, to a temporary and permanent
injunction and a decree for specific performance of the terms
of Section 6 or 7 without being required to prove damages or
furnish any bond or other security. Nothing herein contained
will be construed as prohibiting Employer from pursuing any
other remedy available to it for such breach or threatened or
attempted breach.
c. All parties hereto acknowledge the necessity of
protection against the competition of the Employee and that
the nature and scope of such protection has been carefully
considered by the parties. The period and area covered are
expressly acknowledged and agreed to be fair, reasonable and
necessary. If any covenant contained in Section 6 or 7 is held
to be invalid, illegal or unenforceable because of the
duration of such covenant, the geographic area covered thereby
or otherwise, the parties agree that the court making such
determination will have the power to reduce the duration, the
area and/or other provision(s) of any such covenant to the
maximum permissible and to include as much of its nature and
scope as will render it enforceable, and, in its reduced form
said covenant will be valid, legal and enforceable.
8. PAYMENT BREACH BY EMPLOYER. Notwithstanding anything to the
contrary in this Agreement, Employee's obligations under Sections 6 and
7 will automatically cease in
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the event Employer fails to make a severance or other payment to which
Employee is entitled pursuant to Section 5(b) or 5(c).
9. COVENANT REGARDING CERTAIN PROCEEDINGS. Employee covenants
that she will not, without Employer's prior written consent unless
required to do so by means of a valid court order or subpoena,
cooperate with any person in the institution or prosecution of any
proceeding, suit, claim, investigation or administrative proceeding
brought, initiated or conducted by any person against Employer, its
affiliates, agents, employees, officers and representatives. Employee
further covenants that she will notify Employer immediately if she is
contacted by any person regarding any pending or contemplated
proceeding, suit, claim or investigation involving Employer, its
affiliates, agents, employees, officers or representatives. The parties
understand that the covenants stipulated in this paragraph 8 do not
limit Employee's ability to initiate or bring any proceeding, suit,
claim or action against Employer regarding her employment hereunder.
10. ASSIGNMENTS; SUCCESSORS AND ASSIGNS. The rights and
obligations of Employee hereunder are not assignable or delegable and
any prohibited assignment or delegation will be null and void. Employer
may assign and delegate this Agreement. The provisions hereof shall
inure to the benefit of and be binding upon the permitted successors
and assigns of the parties hereto.
11. GOVERNING LAW. This Agreement will be interpreted under,
subject to and governed by the substantive laws of the State of
Tennessee, without giving effect to provisions thereof regarding
conflict of laws, and all questions concerning its validity,
construction, and administration will be determined in accordance
thereby.
12. COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which will be deemed an original
but all of which will together constitute one and same instrument.
13. INVALIDITY. The invalidity or unenforceability of any
provision of this Agreement will not affect any other provision hereof,
and this Agreement will be construed in all respects as if such invalid
or unenforceable provision was omitted. Furthermore, in lieu of such
illegal, invalid, or unenforceable provision there will be added
automatically as a part of this Agreement a provision as similar in
terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid and enforceable.
14. EXCLUSIVENESS. This Agreement, the Guidelines of Company
Policies and Conduct and other policies of Employer constitute the
entire understanding and agreement between the parties with respect to
the employment by Employer of Employee and supersedes any and all other
agreements, oral or written, between the parties.
15. MODIFICATION. This Agreement may not be modified or amended
except in writing signed by the parties. No term or condition of this
Agreement will be deemed to have been waived except in writing by the
party charged with waiver. A waiver will
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operate only as to the specific term or condition waived and will not
constitute a waiver for the future or act on anything other than that
which is specifically waived.
16. NOTICES. All notices, requests, consents and other
communications hereunder will be in writing and will be deemed to have
been made when delivered or mailed first-class postage prepaid by
registered mail, return receipt requested, or when delivered if by
hand, overnight delivery service or confirmed facsimile transmission,
to the following:
a. If to the Employer, at 0000 Xxxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000 Attention: President and Chief
Executive Officer, or at such other address as may have been
furnished to the Employee by the Employer in writing; or
b. If to the Employee, at 000 Xxxxxxxxx Xxx. Xxx. 000,
Xxxxxxxxx, XX 00000 or such other address as may have been
furnished to Employer by Employee in writing.
17. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this
Agreement will preclude Employer from consolidating or merging in to or
with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations
and undertaking of Employer hereunder.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date first above written.
"EMPLOYER"
AMERICAN HOMEPATIENT, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx III
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Title: Chairman, President and CEO
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"EMPLOYEE"
/s/ Xxxxxxx X'Xxxx
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XXXXXXX X'XXXX
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