EXHIBIT 10.14
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into
effective as of August 1, 2003, by and between United Surgical Partners
International, Inc., a Delaware corporation ("USPI"), and Xxxxxxxx X. Xxxx
("Employee"), with reference to the following facts:
RECITALS
A. USPI desires to employ Employee in the capacities
and on the terms and conditions hereinafter set forth and Employee is willing
to serve in such capacities and on such terms and conditions.
B. This Agreement shall replace any and all existing
employment agreements and arrangements between USPI and Employee as of the date
hereof.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants contained herein, USPI and Employee mutually agree as
follows:
AGREEMENT
1. EMPLOYMENT. USPI hereby employs Employee as Senior
Vice President, Operations, of USPI.
2. DUTIES. Employee shall devote substantially all of
his working time, energies and skills to USPI's business. Employee shall report
to the President of USPI and shall have such duties, responsibilities and
authority as may be assigned to Employee by the President. Employee agrees to
serve USPI diligently and to the best of his ability.
3. COMPENSATION.
(A) BASE SALARY. USPI shall pay Employee a Base
Salary ("Base Salary") at a rate of $250,000 per year. In addition, the Board
of Directors of USPI (the "Board") shall consider granting increases in such
salary based on Employee's performance and the growth and/or profitability of
USPI, but it shall have no obligation to grant any such increases in
compensation. Base Salary shall be payable in equal semi-monthly installments
on the 15th day and the last working date of the month, or at such other times
and in such installments as may be agreed upon between USPI and Employee. All
payments shall be subject to the deduction of payroll taxes and similar
assessments as required by law.
(B) PERFORMANCE BONUSES. In addition to the
Base Salary, Employee shall be eligible to receive bonus compensation of up to
75% of the Base Salary based on such performance goals and criteria as the
Board shall, from time to time, determine.
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4. EXPENSES AND BENEFITS. USPI agrees to provide
Employee with the following benefits:
(A) EXPENSE REIMBURSEMENTS. Employee is
authorized to incur reasonable expenses in connection with the business of
USPI, including expenses for entertainment, travel and similar matters. USPI
will reimburse Employee for such expenses upon presentation by Employee of such
documentation as USPI shall from time to time require.
(B) OFFICE SERVICES. USPI will provide Employee
with an administrative assistant of his choice and reasonable office space and
services.
(C) INSURANCE. Major medical health insurance
and disability insurance as currently in place (as the same may be modified
from time to time by USPI for its senior executives).
(D) EMPLOYEE BENEFIT PLANS. Participation in
any other employee benefit plans now existing or hereafter adopted by USPI for
its employees.
(E) OTHER. Such items and benefits as USPI
shall, from time to time, consider necessary or appropriate to assist Employee
in the performance of his duties.
(F) VACATIONS. Employee shall be entitled (in
addition to the usual public holidays) to a paid vacation of an aggregate of
three weeks in each calendar year.
5. TERM; SEVERANCE. The term of this Agreement shall be
for a period of two years from the date hereof; provided, however, that either
party may terminate this Agreement at any time upon at least 90 days prior
written notice. In the event of such termination by USPI, Employee shall be
entitled to severance pay equal to his annual Base Salary at the time of
termination, plus a bonus equal to the Company's good faith estimate of what
Employee's bonus would have been for the year in which the termination
occurred, as determined by the Company in its sole and absolute discretion
based on all information available at such time. Such severance pay shall be
payable in monthly installments over a period of 12 months following
termination, and USPI shall continue the benefits set forth in Sections 4(c)
and (d) for the period during which such severance payments are to be made. In
addition, this Agreement shall terminate as provided for in Section 7 or upon
the death of Employee, and no severance pay shall be due in the event of such a
termination.
6. DISABILITY. In the event that Employee becomes
Permanently Disabled (as hereinafter defined) during the term of this
Agreement, Employee shall continue in the employ of USPI but his compensation
hereunder shall be reduced to three-fourths of the Base Salary then in effect
as set forth in Section 3(a), commencing upon the determination of Employee's
Permanent Disability and continuing thereafter until the first to occur of (i)
12 months or (ii) the death of Employee; and during such period of time,
Employee shall not be entitled to payment of expenses or benefits specified in
Section 4 (except for reimbursement of expenses incurred by Employee prior to
becoming Permanently Disabled), except that USPI shall continue to provide
Employee with the insurance benefits specified in Section 4(c). The obligation
of USPI for
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continuation of three-fourths of Employee's Base Salary shall be net of
payments to Employee from the disability insurance referred to in Section 4(c).
For purposes of this Agreement, the terms "Permanent
Disability" or "Permanently Disabled" shall mean three months of substantially
continuous disability. Disability shall be deemed "substantially continuous"
if, as a practical matter, Employee, by reason of his mental or physical
health, is unable to sustain reasonably long periods of substantial performance
of his duties. Frequent long illnesses, though different from the preceding
illness and though separated by relatively short periods of performance, shall
be deemed to be "substantially continuous." Disability shall be determined in
good faith by the Board, whose decision shall be final and binding upon
Employee. Employee hereby consents to medical examinations by such physicians
and medical consultants as USPI shall, from time to time, require.
7. TERMINATION BY USPI FOR CAUSE. USPI shall have the
right to terminate Employee's employment under this Agreement for "Cause" by an
affirmative vote to so terminate by not less than 75% of the members of the
Board, in which event no compensation shall be paid or other benefits furnished
to Employee after termination for Cause. Termination for Cause shall be
effective immediately upon notice sent or given to Employee. For purposes of
this Agreement, the term "Cause" shall mean and be strictly limited to: (a)
indictment for a crime constituting a felony under state or federal law; (b)
conviction of a crime constituting a misdemeanor and involving an act of moral
turpitude, including without limitation fraud, embezzlement and use of illegal
drugs; (c) commission of any material act of dishonesty against USPI; or (d)
willful and material breach of this Agreement by Employee.
8. NON-COMPETITION. Employee recognizes and understands
that in performing the responsibilities of his employment, he will occupy a
position of fiduciary trust and confidence, pursuant to which he will develop
and acquire experience and knowledge with respect to USPI's business. It is the
expressed intent and agreement of Employee and USPI that such knowledge and
experience shall be used exclusively in the furtherance of the interests of
USPI and not in any manner that would be detrimental to USPI's interests.
Employee further understands and agrees that USPI conducts its business within
a specialized market segment throughout the United States and in portions of
Europe, and that it would be detrimental to the interests of USPI if Employee
used the knowledge and experience which he currently possesses or which he
acquires pursuant to this employment hereunder for the purpose of directly or
indirectly competing with USPI, or for the purpose of aiding other persons or
entities in so competing with USPI. Employee therefore agrees that so long as
he is employed by USPI and for an additional period equal to one year following
termination, unless Employee first secures the written consent of USPI,
Employee will not directly or indirectly invest, engage or participate in or
become employed by any entity in direct or indirect competition with USPI's
business, which shall include the ownership and/or operation of outpatient
surgical centers and surgical specialty hospitals in the United States and the
ownership and/or operation of hospitals in the countries in Europe in which
USPI owns or operates hospitals as of the date of termination. These
non-competition provisions shall not be construed to prohibit Employee from
being employed in the health care industry during the applicable period, but
rather to permit him to be so employed so long as such employment does not
involve Employee's direct or indirect
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participation in a business which is the same or similar to USPI's business (as
defined above). In the event that the provisions of this Section 8 should ever
be deemed to exceed the time or geographic limitations permitted by applicable
laws, then such provisions shall be reformed to the maximum time or geographic
limitations permitted by applicable law.
9. STOCK OPTIONS. In the event that (a) USPI elects to
terminate this Agreement pursuant to Section 5, (b) Employee's employment is
terminated for any reason by a successor to USPI within one year after a
"Change of Control Event" (as defined below) or (c) USPI breaches this
Agreement by termination of Employee without the notice required under Section
5 or without Cause under Section 7, then in each such event, all USPI stock
options held by Employee shall thereupon automatically be amended so as to (i)
cause to vest, immediately prior to the date of such Change in Control Event or
such termination of employment, all then unvested stock options, and (ii)
provide Employee 90 days to exercise such options (or such greater period as
may be provided by the terms of such options). For purposes of the foregoing,
the term "Change of Control Event" shall mean (A) a consolidation or merger of
USPI with or into any other corporation (other than a merger which will result
in the voting capital stock of USPI outstanding immediately before the
effective date of such consolidation or merger being converted into more than
50% of the voting capital stock of the surviving entity outstanding immediately
after such consolidation or merger), (B) a sale of all or substantially all of
the properties and assets of the Company as an entirety in a single transaction
or in a series or related transactions to any other "person" or (C) the
acquisition of "beneficial ownership" by any "person" or "group" (other than
Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P. or its affiliates) of voting stock of
the Company representing more than 50% of the voting power of all outstanding
shares of such voting stock, whether by way of merger of consolidation or
otherwise. As used herein, (x) the terms "person" and "group" shall have the
meanings set forth in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), whether or not applicable, (y) the term
"beneficial owner" shall have the meaning set forth in Rules 13d-3 and 13d-5
under the Exchange Act, whether or not applicable, except that a person shall
be deemed to have "beneficial ownership" of all shares that any such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time or upon the occurrence of certain events, and (z) any
"person" or "group" will be deemed to beneficially own any voting stock so long
as such person or group beneficially owns, directly or indirectly, in the
aggregate a majority of the voting stock of a registered holder of such voting
stock.
10. GENERAL PROVISIONS.
(A) NOTICES. All notices required or permitted
by this Agreement shall be in writing and may be delivered in person or sent by
regular, registered or certified mail or United States Postal Service Express
Mail, with postage prepaid, or by other courier service, or by facsimile
transmission, and shall be deemed sufficiently given if served in the manner
specified in this Section 10(a). The addresses and facsimile numbers set forth
below shall be the parties addressed and facsimile numbers for purposes for
purposes of delivery or mailing of notices:
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If to USPI: c/o United Surgical Partners
International, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Chief Executive Officer
Fax No.: (000) 000-0000
If to Employee: Xxxxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
The parties may change addresses and facsimile numbers noted above through
written notice in compliance with this Section 10(a). Any notice sent by
registered or certified mail, return receipt requested, shall be deemed given
when actually received by the addressee, as shown on the receipt card which
must be signed by a representative of the addressee. If sent by regular mail,
the notice shall be deemed given after the notice is addressed, mailed with
postage prepaid and when actually received by the addressee. Notices delivered
by United States Express Mail or other courier service shall be deemed given
when actually received by the addressee as shown by the signature of an
authorized representative of the addressee on the log or other documentation
maintained by the United States Postal Service or courier to show proof of
delivery. If any notice is transmitted by facsimile transmission or similar
means, the notice shall be deemed served or delivered upon telephone
confirmation of receipt of the transmission.
(B) CHOICE OF LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas,
excluding principles of conflict of laws.
(C) INTEGRATION; MODIFICATION AND WAIVER. This
Agreement constitutes the entire understanding of the parties hereto relating
to the subject matter hereof, supersedes any and all other agreements, whether
oral or in writing, between the parties hereto and their affiliates with
respect to the employment of Employee from and after the date hereof, and
contains all covenants and agreements between the parties hereto relating to
such employment in any manner whatsoever; provided, however, that except as
expressly provided herein, this Agreement shall not affect any stock option
agreements, indemnity agreements or agreements relating to Employee's purchase
or ownership of USPI securities to which Employee is now or hereafter a party,
that arose prior to the date of this Agreement. This Agreement shall not be
amended, modified or revised in any respect, except by a writing signed by USPI
and Employee. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision, whether or not
similar, and no waiver shall constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
(D) SEVERABILITY. If any provision of this
Agreement shall be determined by a court or governmental agency of competent
jurisdiction to be invalid, illegal or
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unenforceable, such invalidity, illegality or unenforceability shall not affect
the remainder of this Agreement, which shall remain in full force and effect
and be enforced in accordance with its remaining enforceable terms.
(E) ASSIGNMENT. Because of the personal nature
of the services to be rendered hereunder, the obligations of Employee under
this Agreement may not be delegated or assigned in whole or in part without the
prior written consent of USPI (which consent may be withheld in its sole
discretion). However, subject to the foregoing limitation, this Agreement shall
be binding upon, and shall insure to the benefit of, the parties hereto and
their respective heirs, devisees, executors, administrators, trustees, legal
representatives, successors, transferees and assigns.
(F) ATTORNEYS' FEES. In any action or
\ proceeding at law or in equity, including but not limited to arbitration,
brought to enforce or construe any provisions or rights under this Agreement,
the unsuccessful party or parties to such litigation or arbitration, as
determined by the appropriate court or arbitrator pursuant to a final judgment
or decree, shall pay the successful party or parties all costs, expenses and
reasonable attorneys' fees incurred by such successful party or parties
(including but not limited to such costs, expenses and fees in connection with
any appeals) and, if such successful party or parties shall recover judgment in
any such action or proceeding, such costs, expenses and attorneys' fees shall
be included as part of such judgment.
(G) SURVIVAL OF CERTAIN PROVISIONS. The
provisions of Sections 4(a) (as to expenses incurred prior to termination), 5,
8 and 9 shall survive the expiration or other termination of this Agreement.
(H) HEADINGS AND CAPTIONS. Headings and
captions are included in this Agreement for purposes of convenience only and
are not a part of this Agreement.
(I) MISCELLANEOUS. Any term used in the plural
shall refer to all members of the relevant class and any term used in the
singular shall refer to any one or more of the members of the relevant class.
References in this Agreement to articles, sections, paragraphs and exhibits are
to articles, sections, paragraphs and exhibits to this Agreement. The terms
"herein," "hereof," "hereto," "hereunder" and other terms similar to such terms
refer to this Agreement as a whole and not merely to the specific article,
section, paragraph or clause where such terms may appear.
(J) COUNTERPARTS AND FACSIMILE SIGNATURES.
Separate copies of this Agreement may be signed by the parties hereto, with the
same effect as though all of the parties had signed one copy of this Agreement.
Signatures transmitted by facsimile shall be accepted as original signatures.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Employment Agreement as of the date first written above.
USPI: UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
/s/ Xxxxxxxx X. Xxxx
EMPLOYEE: -----------------------------------------------
Xxxxxxxx X. Xxxx
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