EMPLOYMENT AGREEMENT
EXHIBIT 10.1
THIS EMPLOYMENT AGREEMENT (the “Agreement”), dated as of October 11, 2010, is by and between
IASIS Healthcare Corporation, a Delaware corporation (the “Company”), and Xxxxxxx Xxxxxxx (the
“Executive”).
WHEREAS, the Executive has experience beneficial to the Company’s operations, management and
business development of acute care hospitals, outpatient facilities and ancillary medical services
(the “Business”);
WHEREAS, the Company desires that effective October 11, 2010 (the “Effective Date”), the
Executive shall serve as Chief Operating Officer of the Company and the Executive desires to hold
such position under the terms and conditions of this Agreement; and
WHEREAS, the parties desire to enter into this Agreement setting forth the terms and
conditions of the employment relationship of the Executive with the Company.
NOW, THEREFORE, intending to be legally bound hereby, the parties agree as follows:
1. Employment. The Company hereby offers to employ the Executive and the Executive
hereby accepts the offer of employment with the Company, upon the terms and subject to the
conditions set forth herein.
2. Term.
(a) Subject to termination pursuant to Section 10 hereof, the term of the employment by the
Company of the Executive pursuant to this Agreement (as the same may be extended, the “Term”) shall
commence on the Effective Date and terminate on the fifth anniversary thereof.
(b) Commencing on the fifth anniversary of the Effective Date and on each subsequent
anniversary thereof, the Term shall automatically be extended for a period of one (1) additional
year following the expiration of the otherwise applicable Term unless, not later than ninety (90)
days prior to any such anniversary date, either party hereto shall have notified the other party
hereto in writing that such extension shall not take effect.
3. Position; Location. During the Term, the Executive shall serve as Chief Operating
Officer of the Company. The Executive shall perform such duties as the Chief Executive Officer or
the Board shall determine, which duties shall not be materially inconsistent with the duties to be
performed by executives holding similar offices in similarly-sized healthcare corporations. The
Executive shall report directly to the Chief Executive Officer. The parties acknowledge and agree
that during the Term, (i) the Executive’s principal office will not be moved to a location more
than 20 miles from Metropolitan Nashville and Davidson County, Tennessee without his approval and
(ii) the Company shall maintain, in the organizational documents thereof, indemnification
provisions providing for the maximum indemnification permitted by applicable law of the Executive
by the Company for actions taken in his capacity as an officer or employee thereof (and,
notwithstanding anything herein to the contrary, the
Executive’s right to indemnification shall survive termination of the Executive’s employment
with the Company).
4. Duties. During the Term, the Executive shall devote all of his time and attention
during normal business hours to the business and affairs of the Company. Notwithstanding the
foregoing, with the prior approval of the Chief Executive Officer, the Executive may serve as a
director of other entities, provided, however that such entities do not directly compete
with the Company in any material respect; and provided, further, that the Executive
may serve as a director of no more than one for profit entity at any time, and such service shall
not interfere with his duties or responsibilities hereunder.
5. Salary and Bonus.
(a) During the period in which the Executive serves as Chief Operating Officer, the Company
shall pay to the Executive a base salary at the rate of $550,000 per year. The Board shall review
the base salary annually and may increase such amount from time to time as it may deem advisable
(such salary, as the same may be increased, the “Base Salary”). The Base Salary shall be payable
to the Executive in substantially equal installments in accordance with the Company’s normal
payroll practices.
(b) During the period in which the Executive serves as Chief Operating Officer, the Executive
shall be eligible to receive for each fiscal year (or part thereof), an annual cash target bonus
(the “Bonus”) of 50% of Base Salary (the “Bonus Target”) with a maximum annual bonus of one hundred
percent (100%) of the Base Salary, subject to the terms of the Company’s executive bonus plan (the
“Bonus Plan”) and subject to the satisfaction of certain performance objectives to be determined by
the Board (or a committee thereof) or, to the extent more favorable to the Executive, other
incentive compensation plan established by the Board for the Company’s senior executive officers,
as either of the same may be amended from time to time (provided that no such amendment or
alternative plan shall diminish the Bonus Target and the associated maximum bonus opportunities
described above).
(c) Upon execution of this Agreement, the Company shall pay to the Executive a one-time
signing bonus in the amount of $75,000.
6. Stock Options. On or as soon as practical following the Effective Date, Executive
shall be issued options to acquire 165,000 shares of the Company’s primary common stock at an
exercise price equal to fair value per share as of the grant date, (the “New Option”) pursuant to
the terms and conditions of the 2004 Stock Option Plan and related stock option grant agreements.
The New Option shall be granted by delivery to and execution by the Executive and delivery to and
execution by the Company of a stock option agreement and, to the extent not already executed, a
stockholders agreement, each to be provided to the Executive in the form attached hereto.
Thereafter during the Term, the Executive shall be eligible to participate in the 2004 Stock Option
Plan or other equity plans established by the Board for the Company’s senior executive officers, as
the same may be amended from time to time.
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7. Vacation, Holidays and Sick Leave. During the Term, the Executive shall be
entitled to paid vacation, paid holidays and sick leave in accordance with the Company’s
standard policies for its senior executive officers; provided that the Executive shall during
each year of the Term be entitled to at least five (5) weeks of such vacation, which shall not
accrue from year to year.
8. Business Expenses. The Executive shall be reimbursed for all reasonable and
necessary business expenses incurred by him in connection with his employment (including, without
limitation, expenses for travel and entertainment incurred in conducting or promoting business for
the Company) upon timely submission by the Executive of receipts and other documentation in
accordance with the Company’s normal expense reimbursement policies.
9. Other Benefits. During the Term, the Executive shall be eligible to participate
fully in all health and other employee benefit arrangements available to senior executive officers
of the Company generally. The Company shall reimburse the Executive for COBRA premium payments
made by the Executive for medical insurance coverage in respect of the period beginning on the
Effective Date and ending on the first date on which the Executive becomes eligible for coverage
under the Company’s medical insurance plan.
10. Termination of Agreement. The Executive’s employment by the Company pursuant to
this Agreement shall not be terminated prior to the end of the Term hereof except as set forth in
this Section 10.
(a) By Mutual Consent. The Executive’s employment pursuant to this Agreement may be
terminated at any time by the mutual written agreement of the Company and the Executive.
(b) Death. The Executive’s employment pursuant to this Agreement shall be terminated
upon the death of the Executive, in which event the Executive’s spouse or heirs shall receive (i)
all Base Salary, vacation, annual bonus in respect of the immediately preceding year (to the extent
not already paid), and entitlements under benefit plans (including stock option plans), in each
case to be paid or provided to the Executive under this Agreement or otherwise and accrued through
the Date of Termination (as defined in Section 10(h) hereof) (collectively, the “Accrued
Obligations”), (ii) to the extent applicable, an amount equal to the pro rata bonus (the “Pro Rata
Bonus”) determined by comparing the Company’s actual performance measures applicable to the Bonus
for the fiscal year in which the Date of Termination occurs (the “Performance Measures”) for the
period beginning on the first day of the fiscal year during which the Date of Termination occurs
and ending on the last day of the month in which the Date of Termination occurs, (such period, the
“Bonus Measuring Period”) with the aggregate budgeted Performance Measures as reflected in the
monthly budgets prepared by the Company and accepted by the Board with respect to such period, and
(iii) any other death benefits arrangements available to senior executive officers of the Company
generally, as in effect at that time. The Pro Rata Bonus shall be in an amount equal to the
product of (I) a fraction, the numerator of which equals the number of months in the Bonus
Measuring Period and the denominator of which equals twelve and (II) the bonus set forth in the
Bonus Plan for the fiscal year in which the Date of Termination occurs, treating the Bonus
Measuring Period as if it was the full fiscal year for purposes of determining the Executive’s
bonus percentage. The payments required to be paid pursuant to this paragraph 10(b) shall be paid
to the Executive’s spouse or heirs no later
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than ten (10) days following the Date of Termination;
provided, however, that any Pro Rata Bonus shall be paid to the Executive’s spouse or heirs no later than five (5) days
following the determination of the amount of such payments, if any, and provided,
further, that any benefits payable pursuant to Subsection (iii) shall be payable in
accordance with the Company’s normal practices as are in effect at that time. Additionally, in the
event the Executive’s employment is terminated pursuant to this Section 10(b), all of the
Executive’s options to purchase shares of capital stock of the Company which are unvested as of the
Date of Termination but otherwise scheduled to vest on the first vesting date scheduled to occur
following the Date of Termination, shall immediately vest and become exercisable on the Date of
Termination and all remaining unvested options shall terminate as of the Date of Termination. In
the event the Executive’s employment is terminated pursuant to this Section 10(b), all of the
Executive’s options to purchase capital stock of the Company which are vested as of the Date of
Termination or become vested pursuant to the immediately preceding sentence may be exercised by the
Executive’s spouse or heirs within the earlier of (i) the tenth anniversary of the date the options
were granted or (ii) one (1) year following the Date of Termination and shall then terminate, and
the Executive’s spouse or heirs shall be permitted to exercise such options on a net basis (e.g.,
by satisfying the exercise price and withholding tax obligations having withheld a number of option
shares that have a fair market value equal to such obligations).
(c) Disability. The Executive’s employment pursuant to this Agreement may be
terminated by written notice to the Executive by the Company or to the Company by the Executive in
the event that (i) the Executive becomes unable to perform his duties as set forth in Section 3 by
reason of physical or mental illness or accident for any six (6) consecutive month period or (ii)
the Company receives written opinions from both a physician for the Company and a physician for the
Executive that the Executive will be so disabled. In the event the Executive’s employment is
terminated pursuant to this Section 10(c), the Executive shall be entitled to receive (A) the
Accrued Obligations, (B) to the extent applicable, an amount equal to the Pro Rata Bonus, and (C)
any other Disability benefits arrangements available to senior executive officers of the Company.
All of the payments required to be paid pursuant to this Section 10(c) shall be paid to the
Executive no later than ten (10) days following the Date of Termination; provided,
however, that any Pro Rata Bonus shall be paid to the Executive no later than five (5) days
following the determination of the amount of such payments, if any, and provided,
further, that any benefits payable pursuant to Subsection (C) shall be payable in
accordance with the Company’s normal practices, as are in effect at that time. Additionally, in
the event the Executive’s employment is terminated pursuant to this Section 10(c), all of the
Executive’s options to purchase shares of capital stock of the Company which are unvested as of the
Date of Termination but otherwise scheduled to vest on the first vesting date scheduled to occur
following the Date of Termination, shall immediately vest and become exercisable on the Date of
Termination and all remaining unvested options shall terminate as of the Date of Termination. In
the event the Executive’s employment is terminated pursuant to this Section 10(c), all of the
Executive’s options to purchase capital stock of the Company which are vested as of the Date of
Termination or become vested pursuant to the immediately preceding sentence may be exercised by the
Executive within the earlier of (i) the tenth anniversary of the date the options were granted or
(ii) one (1) year following the Date of Termination and shall then terminate, and the Executive (or
the Executive’s spouse or heirs) shall be permitted to exercise such options on a net basis (e.g.,
by satisfying the exercise price and withholding tax obligations having withheld a number of option
shares that have a fair market value equal to such obligations).
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(d) By the Company for Cause. The Executive’s employment pursuant to this Agreement
may be terminated by written notice to the Executive (“Notice of Termination”) upon the occurrence
of any of the following events (each of which shall constitute “Cause” for termination): (i) the
Executive commits any act of gross negligence, fraud or willful misconduct causing material harm to
the Company, (ii) the conviction of the Executive of a felony that would reasonably be expected by
the Company to adversely affect the Company or its reputation, (iii) the Executive intentionally
obtains material personal gain, profit or enrichment at the expense of the Company or from any
transaction in which the Executive has an interest which is adverse to the interest of the Company,
unless the Executive shall have obtained the prior written consent of the Board, or (iv) any
material breach of the Executive of this Agreement, including, without limitation, a material
breach of Section 14 hereof, which breach remains uncorrected for a period of fifteen (15) days
after receipt by the Executive of written notice from the Company setting forth the breach. In the
event the Executive’s employment is terminated pursuant to this Section 10(d), the Executive shall
be entitled to receive all the Accrued Obligations and no more.
(e) By the Company Without Cause. The Executive’s employment pursuant to this
Agreement may be terminated by the Company at any time without Cause by delivery of a Notice of
Termination to the Executive. In the event that the Executive’s employment is terminated pursuant
to this Section 10(e), the Executive shall be entitled to receive (i) the Accrued Obligations, (ii)
an amount equal to (a) two hundred percent (200%) of the Executive’s Base Salary and (b) two
hundred percent (200%) of the annual Bonus Target, in each case at the rate in effect immediately
prior to the Date of Termination (without regard to any reductions of such rate, or failure to
increase such rate, in breach of this Agreement), (iii) to the extent applicable, an amount equal
to the Pro Rata Bonus, and (iv) a lump sum payment equal to the then present value of all major
medical, disability and life insurance coverage to be provided pursuant to Section 9 above through
the date twenty four (24) months after the Date of Termination, provided that under such
circumstances the Executive shall make all COBRA premium payments on his own behalf. The sum of
the amounts described in clauses (ii) and (iv) above are hereafter referred to as the “Section
10(e) Severance Amount.” The amounts described in clause (i) shall be paid to the Executive no
later than ten (10) days following the Date of Termination; any amount payable under clause (iii)
shall be paid to the Executive no later than five (5) days following the determination of the
amount of such payment, if any. Payment of the Section 10(e) Severance Amount shall be subject to
and conditioned upon the execution of an agreement by the Executive, in form and substance
reasonably satisfactory to the Company, providing for (I) a full release by the Executive of the
Company, its officers, directors, representatives and affiliates from all liabilities, obligations
or claims, other than those obligations specifically provided in this Section 10(e) and rights to
indemnification, (II) an affirmation of the Executive’s obligations pursuant to Section 14 hereof
and (III) an agreement by the Executive to immediately repay to the Company one hundred percent
(100%) of the Section 10(e) Severance Amount upon any breach of such agreement. The Section 10(e)
Severance Amount shall be paid to the Executive no later than ten (10) days following the later of
(x) the Date of Termination and (y) the execution of an agreement by the Executive as specified in
the immediately preceding sentence. Additionally, in the event that the Executive’s employment is
terminated pursuant to this Section 10(e), all of the Executive’s options to purchase shares of
capital stock of the Company which are unvested as of the Date of Termination
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but otherwise scheduled to vest on the first vesting date scheduled to occur
following the Date of Termination, shall immediately vest and become exercisable on the Date of
Termination and all remaining unvested options shall terminate as of the Date of Termination. In
the event the Executive’s employment is terminated pursuant to this Section 10(e), all of the
Executive’s options to purchase capital stock of the Company that are vested as of the Date of
Termination or become vested pursuant to the immediately preceding sentence may be exercised by the
Executive within the earlier of (i) the tenth anniversary of the date the options were granted or
(ii) one (1) year following the Date of Termination and shall then terminate, and the Executive (or
the Executive’s spouse or heirs) shall be permitted to exercise such options on a net basis (e.g.,
by satisfying the exercise price and withholding tax obligations having withheld a number of option
shares that have a fair market value equal to such obligations).
(f) By the Executive for Good Reason. The Executive’s employment pursuant to this
Agreement may be terminated by the Executive by written notice of his resignation (“Notice of
Resignation”) delivered within twelve (12) months after the occurrence of any of the following
events (each of which shall constitute “Good Reason” for resignation): (i) the removal of the
Executive from the position of Chief Operating Officer of the Company, (ii) any material reduction
by the Company of the Executive’s duties or responsibilities, including on a Change in Control, or
the assignment to the Executive of duties materially inconsistent with such position, which breach
remains uncorrected for a period of thirty (30) days after receipt by the Company of written notice
from the Executive or (iii) any breach by the Company of this Agreement (including the provisions
of Section 3), which breach remains uncorrected for a period of thirty (30) days after receipt by
the Company of written notice from the Executive. In the event that the Executive resigns for Good
Reason pursuant to this Section 10(f), the Executive shall be entitled to receive, (A) the Accrued
Obligations, (B) an amount equal to (i) two hundred percent (200%) of the Executive’s Base Salary
and (ii) two hundred percent (200%) of the Bonus Target, in each case at the rate in effect
immediately prior to the Date of Termination (without regard to any reductions of such rate, or
failure to increase such rate, in breach of this Agreement), (C) to the extent applicable, an
amount equal to the Pro Rata Bonus, and (D) a lump sum payment equal to the then present value of
all major medical, disability and life insurance coverage to be provided pursuant to Section 9
above through the date twenty four (24) months after the Date of Termination, provided that under
such circumstances the Executive shall make all COBRA premium payments on his own behalf. The sum
of the amounts described in clauses (B) and (D) above are hereafter referred to as the “Section
10(f) Severance Amount.” All of the amounts described in clause (A) shall be paid to the Executive
no later than ten (10) days following the Date of Termination; provided that any amount payable
under clause (C) shall be paid to the Executive no later than five (5) days following the
determination of the amount of such payment, if any. Payment of the Section 10(f) Severance Amount
shall be subject to and conditioned upon the execution of an agreement by the Executive, in form
and substance reasonably satisfactory to the Company, providing for (I) a full release by the
Executive of the Company, its officers, directors, representatives and affiliates from all
liabilities, obligations or claims, other than those obligations specifically provided in this
Section 10(f) and rights to indemnification, (II) an affirmation of the Executive’s obligations
pursuant to Section 14 hereof and (III) an agreement by the Executive to immediately repay to the
Company one hundred percent (100%) of the Section 10(f) Severance Amount upon any breach of such
agreement. The Section 10(f) Severance Amount
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shall
be paid to the Executive no later than ten (10) days following the later of (x) the Date of Termination and (y) the execution of an
agreement by the Executive as specified in the immediately preceding sentence. Additionally, in
the event that the Executive’s employment is terminated pursuant to this Section 10(f), all of the
Executive’s options to purchase shares of capital stock of the Company which are unvested as of the
Date of Termination but otherwise scheduled to vest on the first vesting date scheduled to occur
following the Date of Termination, shall immediately vest and become exercisable on the Date of
Termination and all remaining unvested options shall terminate as of the Date of Termination. In
the event the Executive’s employment is terminated pursuant to this Section 10(f), all of the
Executive’s options to purchase capital stock of the Company that are vested as of the applicable
Date of Termination or become vested pursuant to the immediately preceding sentence may be
exercised by the Executive within the earlier of (i) the tenth anniversary of the date the options
were granted or (ii) one (1) year following the Date of Termination and shall then terminate, and
the Executive (or the Executive’s spouse or heirs) shall be permitted to exercise such options on a
net basis (e.g., by satisfying the exercise price and withholding tax obligations having withheld a
number of option shares that have a fair market value equal to such obligations).
For purposes of this Agreement, a “Change in Control” shall mean any transactions or series of
related transactions pursuant to which any Person (as defined in Section 13(d)(3) or 14(d)(2) of
the Securities and Exchange Act of 1934, as amended from time to time (the “Exchange Act”)) (other
than TPG Partners IV, LP and the other parties to the operating agreement of IASIS Investment LLC,
a Delaware limited liability company, on the Effective Date or their respective affiliates) or
“group” of Persons (as defined in Section 13(d) of the Exchange Act), (other than a group including
and controlled by TPG Partners IV, LP and the other parties to the operating agreement of IASIS
Investment LLC, a Delaware limited liability company, on the Effective Date or their respective
affiliates), in the aggregate, directly or indirectly, acquires beneficially or of record, (i)
equity of a Designated Person, as hereinafter defined, possessing the voting power to elect a
majority of the Designated Person’s governing body (whether by merger, consolidation,
reorganization, combination, sale or transfer of equity, stockholder or voting agreement, proxy,
power of attorney or otherwise) or (ii) all or substantially all of a Designated Person’s assets.
For purposes of this Agreement, “Designated Person” shall mean IASIS Investment LLC and the
Company. Notwithstanding the foregoing, in no event will a Change in Control occur as a result of
the initial public offering of the Company’s shares of common stock or any secondary offering to
the public.
(g) By the Executive Without Good Reason or Executive’s Failure to Extend Term. The
Executive’s employment pursuant to this Agreement may be terminated by the Executive at any time by
delivery of a Notice of Resignation to the Company or by the Executive providing notice to the
Company of his intent not to extend the Term for any additional period as provided in Section 2(b).
In the event that the Executive’s employment is terminated pursuant to this Section 10(g), the
Executive shall receive the Accrued Obligations and no more.
(h) Date of Termination. The Executive’s Date of Termination shall be (i) if the
Executive’s employment is terminated pursuant to Section 10(b), the date of his death, (ii) if the
Executive’s employment is terminated pursuant to Section 10(c), the last day of the six-month
period referred to in Section 10(c)(i) or the date of delivery of the last physician’s opinion
referred to in Section 10(c)(ii), as the case may be, (iii) if the Executive’s employment is
terminated pursuant to Section 10(d), 10(e) or 10(f), the date on which a Notice of
Termination is given or such other date as specified in such Notice, (iv) if the Executive’s
employment is terminated pursuant to Section 10(g) (other than as a result of Executive’s failure
to extend the Term), one hundred twenty (120) days after the date the Notice of Resignation is
given or such shorter period as may be determined by the Company and (v) if the Company or
Executive provides notice of its or his intent not to extend the Term for any additional period as
provided in Section 2(b), the expiration of the Term.
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(i) Company’s Failure to Extend Term. In the event the Company provides notice of its
intent not to extend the Term for any additional period as provided in Section 2(b) and the
Executive is not then in violation of Section 14 hereof, the Executive shall be entitled to receive
(i) the Accrued Obligations; (ii) an amount equal to (a) one hundred percent (100%) of the
Executive’s Base Salary and (b) the annual Bonus Target, in each case at the rate in effect
immediately prior to the provision of such notice (without regard to any reductions of such rate,
or failure to increase such rate, in breach of this Agreement); (iii) to the extent applicable, an
amount equal to the Pro Rata Bonus, and (iv) a lump sum payment equal to the then present value of
all major medical, disability and life insurance coverage to be provided pursuant to Section 9
above through the date twelve (12) months after the Date of Termination, provided that under such
circumstances the Executive shall make all COBRA premium payments on his own behalf. The sum of
the amounts described in clauses (ii) and (iv) above are hereafter referred to as the “Section
10(i) Severance Amount.” The amounts described in clause (i) shall be paid to the Executive no
later than ten (10) days following the Date of Termination; any amount payable under clause (iii)
shall be paid to the Executive no later than five (5) days following the determination of the
amount of such payment, if any. Payment of the Section 10(i) Severance Amount shall be subject to
and conditioned upon the execution of an agreement by the Executive, in form and substance
reasonably satisfactory to the Company, providing for (I) a full release by the Executive of the
Company, its officers, directors, representatives and affiliates from all liabilities, obligations
or claims, other than those obligations specifically provided in this Section 10(i) and rights to
indemnification, (II) an affirmation of the Executive’s obligations pursuant to Section 14 hereof
and (III) an agreement by the Executive to immediately repay to the Company one hundred percent
(100%) of the Section 10(i) Severance Amount upon any breach of such agreement. The Section 10(i)
Severance Amount shall be paid to the Executive no later than ten (10) days following the later of
(x) the Date of Termination and (y) the execution of an agreement by the Executive as specified in
the immediately preceding sentence.
(j) Notwithstanding any provision herein to the contrary, the provisions of this Section 10(j)
shall apply to the payment of the Section 10(e) Severance Amount, the Section 10(f) Severance
Amount and the Section 10(i) Severance Amount (the “Release Payments”). The Release Payments shall
be made only if Executive shall have executed, on or prior to the Release Expiration Date (as
defined below), the release, affirmation and agreement described in Sections 10(e), (f) or (i), as
applicable, hereof (the “Release”) and any waiting periods contained in the Release shall have
expired. In any instance where the execution of a Release is required, the Company shall deliver
the Release in form and substance reasonably satisfactory to the Company to Executive within five
(5) business days following the date on which Notice of Termination (or Notice of Resignation or
notice of the Company’s intent not to extend the Term for an additional period, as the case may be
and for purposes of this Section 10(j), collectively “Notice of Termination”) is
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given. If Executive fails to execute the Release on or prior to
the Release Expiration Date or timely revokes Executive’s acceptance of the Release thereafter,
Executive shall not be entitled to any Release Payments. The Release Payments shall be made
immediately upon the expiration of any waiting periods contained in the Release, or if no waiting
periods are applicable, within two business days following Executive’s execution and delivery of
the Release to the Company; provided, however, notwithstanding anything herein to
the contrary, in any case where the date the Notice of Termination and the Release Expiration Date
fall in two separate taxable years, any Release Payments that are treated as deferred compensation
for purposes of Section 409A of the Code shall be made in the later taxable year. For purposes of
this Section 10(j), the “Release Expiration Date” shall mean the later of (i) Executive’s Date of
Termination, and (ii) the date that is twenty-one (21) days following the date on which the Company
timely delivers a Release to the Executive for Executive’s execution, or in the event that a
termination of employment is “in connection with an exit incentive or other employment termination
program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date
that is forty-five (45) days following such delivery date.
(k) Other Section 409A Matters.
(i) In any case that a Pro Rata Bonus must be determined, the Company shall make such
determination by the end of the month following the month in which the Executive’s Date of
Termination occurs.
(ii) It is intended that (A) each installment of the payments provided under this Agreement
is a separate “payment” for purposes of Section 409A of the Internal Revenue Code (the “Code”)
and (B) that the payments satisfy, to the greatest extent possible, the exemptions from the
application of Section 409A of the Code provided under Treasury Regulations 1.409A-1(b)(4),
1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v).
(iii) Notwithstanding anything to the contrary in this Agreement, if the Company determines
(A) that on the date the Executive’s employment with the Company terminates or at such other time
that the Company determines to be relevant, the Executive is a “specified employee” (as such term
is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company and (B) that any payments to
be provided to the Executive pursuant to this Agreement are or may become subject to the
additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed
under Section 409A of the Code if provided at the time otherwise required under this Agreement
then such payments shall be delayed until the date that is six (6) months after the date of the
Executive’s “separation from service” (as such term is defined under Treasury Regulation
1.409A-1(h)) with the Company, or, if earlier, the date of the Executive’s death. Any payments
delayed pursuant to this Section 10(k)(iii) shall be made in a lump sum on the first day
following the end of the six (6) month period described above, or, if earlier, upon Executive’s
death.
(iv) To the extent that any reimbursement, fringe benefit or other, similar plan or
arrangement in which the Executive participates during the term of Executive’s employment under
this Agreement or thereafter provides for a “deferral of compensation” within the meaning of
Section 409A of the Code, subject to any shorter time periods provided herein or the applicable
plans or arrangements, any reimbursement or payment of an expense
under such plan or arrangement must be made on or before the last day of the calendar year
following the calendar year in which the expense was incurred.
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11. Excise Tax. The parties hereto agree to reasonably cooperate with each other to
minimize any taxes that may be imposed under Section 4999 of the Code which may include, at the
Executive’s election, the Executive waiving a portion of his payment unless approved by the
shareholders.
12. Representations.
(a) The Company represents and warrants that this Agreement has been authorized by all
necessary corporate action of the Company and is a valid and binding agreement of the Company
enforceable against it in accordance with its terms.
(b) The Executive represents and warrants that he is not a party to any agreement or
instrument, which would prevent him from entering into or performing his duties in any way under
this Agreement, and that this is a valid and binding agreement of the Executive enforceable against
him in accordance with its terms.
13. Assignment; Binding Agreement. This Agreement is a personal contract and the
rights and interests of the Executive hereunder may not be sold, transferred, assigned, pledged,
encumbered, or hypothecated by him, except as otherwise expressly permitted by the provisions of
this Agreement. This Agreement shall inure to the benefit of and be enforceable by the Executive
and his personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any amount would still be
payable to him hereunder had the Executive continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to his devisee,
legatee or other designee or, if there is no such designee, to his estate.
14. Confidentiality; Non-Competition; Ownership of Works.
(a) The Executive acknowledges that: (i) the Business is intensely competitive and that the
Executive’s employment by the Company will require that the Executive have access to and knowledge
of confidential information of the Company relating to the Business, including, but not limited to,
the identity of the Company’s employees, physicians, payors or suppliers, the kinds of services
provided by the Company, the manner in which such services are performed or offered to be
performed, the service needs of actual or prospective patients, physicians or payors, pricing
information and other contractual terms, information concerning the creation, acquisition or
disposition of products and services, creative ideas and concepts, including clinical and financial
systems, compliance programs and physician relation and retention programs, computer software
applications and other programs, research data, personnel information and other trade secrets, in
each case other than as and to the extent such information is generally known or publicly available
through no violation of this Section 14 by the Executive or such information is readily discernible
(the “Confidential Information”); (ii) the disclosure of any such Confidential Information may
place the Company at a competitive disadvantage and may do damage, monetary or otherwise, to the
Company’s business; and (iii) the engaging by the Executive in any of the activities prohibited by
this Section 14 may constitute improper
appropriation and/or use of such Confidential Information. The Executive expressly
acknowledges the trade secret status of the Confidential Information and that the Confidential
Information constitutes a protectable business interest in the Company. Accordingly, the Company
and the Executive agree as follows:
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(b) For purposes of this Section 14, the Company shall be construed to include the Company and
its parents and subsidiaries engaged in the Business, including any divisions managed by the
Executive.
(c) During the Executive’s employment with the Company, and at all times after the termination
of the Executive’s employment by expiration of the Term or otherwise, the Executive shall not,
directly or indirectly, whether individually, as a director, stockholder, owner, partner, employee,
principal or agent of any business, or in any other capacity, make known, disclose, furnish, make
available or utilize any of the Confidential Information, other than in the proper performance of
the duties contemplated herein, or as expressly permitted herein, or as required by a court of
competent jurisdiction or other administrative or legislative body, provided that the Executive
shall promptly notify the Company so that the Company may seek a protective order or other
appropriate remedy. The Executive agrees to return all documents or other materials containing
Confidential Information, including all photocopies, extracts and summaries thereof, and any such
information stored electronically on tapes, computer disks or in any other manner to the Company at
any time upon request by the Company and immediately upon the termination of his employment for any
reason.
(d) For a period of twenty four (24) months following the Executive’s Date of Termination for
any reason other than the Company’s failure to extend the Term, in which case such period shall be
reduced to twelve (12) months, the Executive shall not engage in Competition, as defined below,
with the Company or its subsidiaries within twenty-five (25) miles of the location of any hospital
managed by the Company (or other facility managed by the Company from which in excess of five
percent (5%) of the Company’s annual revenues are derived) at the time of, or within six (6) months
prior to, the Executive’s Date of Termination or the expiration of the Term, as applicable (each,
an “Affected Facility”), or in which, during the three (3) month period immediately prior to the
Executive’s Date of Termination or the expiration of the Term (as applicable), the Company had made
substantial plans with the intention of establishing operations in such locality or region. For
purposes of this Agreement, “Competition” by the Executive shall mean the Executive’s engaging in
any activities relating to, or otherwise directly or indirectly being employed by or acting as a
consultant or lender to, or being a director, officer, employee, principal, agent, stockholder,
member, owner or partner of, or permitting his name to be used in connection with the activities of
any entity engaged in significant activities relating to, the Business. Notwithstanding the
foregoing, it shall not be a violation of this paragraph for the Executive to (ii) be a consultant
to, or a director, officer, employee, or agent of, any entity engaged in the Business which has
hospitals or other facilities within twenty-five (25) miles of any Affected Facility, so long as
the Executive does not provide any services or advice to, or have any management supervision of, or
responsibility for, any hospital or other facility located within twenty-five (25) miles of any
Affected Facility; or (ii) become the registered or beneficial owner of up to five percent (5%) of
any class of the capital stock of any one or more competing corporations registered under the
Securities Exchange Act of 1934, as amended, provided that the Executive does not
actively participate in the
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business
of such corporation until such time as this covenant expires. In the event that the Executive
breaches the restrictions set forth in Section 14(d) following a termination pursuant to Section
10(e), 10(f) or 10(i), the Executive shall pay the Company “Liquidated Damages” (as hereinafter
defined) within ten (10) days following any such breach. If Executive’s employment is terminated
pursuant to Section 10(e), 10(f) or 10(i) and the Executive has repaid the full amount of the
Liquidated Damages as provided pursuant to the immediately preceding sentence, the Company shall
not be entitled to any remedy, including, without limitation, additional damages or injunctive
relief, upon Executive’s breach of Section 14(d). “Liquidated Damages” shall mean the Section
10(e) Severance Amount, Section 10(f) Severance Amount or Section 10(i) Severance Amount received
by the Executive, as the case may be.
(e) For a period of twenty four (24) months following the Executive’s Date of Termination for
any reason other than the Company’s failure to extend the Term, in which case such period shall be
reduced to twelve (12) months, the Executive agrees that he will not, directly or indirectly, for
his benefit or for the benefit of any other person, firm or entity, do any of the following:
(i) solicit from any physician or physician group doing business with the Company as of
the Executive’s termination, business of the same or of a similar nature to the business of
the Company with such physician or physician group;
(ii) solicit from any known potential physician group business of the same or of a
similar nature to that which has been the subject of a known written or oral bid, offer or
proposal by the Company, or of substantial preparation with a view to making such a bid,
proposal or offer, within six (6) months prior to the Executive’s termination; or
(iii) recruit or solicit the employment or services of any person who was employed by
the Company upon termination of the Executive’s employment and is employed by the Company at
the time of such recruitment or solicitation.
(f) The Executive will make full and prompt disclosure to the Company of all inventions,
improvements, formulas, data, programs, processes, ideas, concepts, discoveries, methods,
developments, software, and works of authorship, whether or not copyrightable, trademarkable or
patentable, which relate to the actual or anticipated business, activities or research of the
Company and either (i) are created, made, conceived or reduced to practice by the Executive, either
alone, under his direction or jointly with others during the period of his employment with the
Company, (ii) result from or are suggested by work performed by the executive for the Company or
(iii) result, to any extent, from use of the Company’s premises or property (all of which are
collectively referred to in this Agreement as “Works”). All Works shall be the sole property of
the Company, and, to the extent that the Company is not already considered the owner thereof as a
matter of law, the Executive hereby assigns to the Company, without further compensation, all his
right, title and interest in and to such Works and any and all related intellectual property rights
(including, but not limited to, patents, patent applications, copyrights, copyright applications,
and trademarks) in the United States and elsewhere.
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(g) The Executive acknowledges that the services to be rendered by him to the Company are of a
special and unique character, which gives this Agreement a peculiar value to the Company, the loss
of which may not be reasonably or adequately compensated for by damages in an action at law, and
that a breach or threatened breach by him of any of the provisions contained in this Section 14 may
cause the Company irreparable injury. The Executive therefore agrees that the Company may be
entitled, in addition to any other right or remedy, to a temporary, preliminary and permanent
injunction, without the necessity of proving the inadequacy of monetary damages or the posting of
any bond or security, enjoining or restraining the Executive from any such violation or threatened
violations.
(h) If any one or more of the provisions contained in this Agreement shall be held to be
excessively broad as to duration, activity or subject, such provisions shall be construed by
limiting and reducing them so as to be enforceable to the fullest extent permitted by law.
15. Entire Agreement. This Agreement contains all the understandings between the
parties hereto pertaining to the matters referred to herein, and supersedes any other undertakings
and agreements, whether oral or in writing, previously entered into by them with respect thereto.
The Executive represents that, in executing this Agreement, he does not rely and has not relied
upon any representation or statement not set forth herein made by the Company with regard to the
subject matter or effect of this Agreement or otherwise.
16. Amendment or Modification Waiver. No provision of this Agreement may be amended
or waived, unless such amendment or waiver is agreed to in writing, signed by the Executive and by
a duly authorized officer of the Company. No waiver by any party hereto of any breach by another
party hereto of any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at the same time, any
prior time or any subsequent time.
17. Expenses. Each party shall bear its own expenses in connection with the
negotiation, execution, delivery and performance of this Agreement and the resolution of any
disputes hereunder.
18. Notices. Any notice to be given hereunder shall be in writing and shall be deemed
given when delivered personally, sent by courier or facsimile or registered or certified mail,
postage prepaid, return receipt requested, addressed to the party concerned at the address
indicated below or to such other address as such party may subsequently give notice hereunder in
writing:
To the Executive at the address on file with the Company.
To the Company at:
IASIS Healthcare Corporation
Dover Centre
000 Xxxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxx, XX 00000
Attention: General Counsel
Dover Centre
000 Xxxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxx, XX 00000
Attention: General Counsel
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With copies to IASIS Investment LLC at:
IASIS Investment LLC
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Secretary
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Secretary
And
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Any notice delivered personally or by courier under this Section 18 shall be deemed given on
the date delivered and any notice sent by facsimile or registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date transmitted by facsimile or
three business days after it is mailed.
19. Severability. If any provision of this Agreement or the application of any such
provision to any party or circumstances shall be determined by any court of competent jurisdiction
to be invalid and unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances other than those to which it is so determined to
be invalid and unenforceable, shall not be affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent permitted by law.
20. Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
21. Governing Law: Venue. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the principles of conflicts of
law thereof.
22. Headings. All descriptive headings of sections and paragraphs in this Agreement
are intended solely for convenience, and no provision of this Agreement is to be construed by
reference to the heading of any section or paragraph.
23. Withholding. All payments to the Executive under this Agreement shall be reduced
by all applicable withholding required by federal, state or local law.
24. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement on October 11,
2010 to be effective on the Effective Date.
| IASIS HEALTHCARE CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| /s/ Xxxx Xxxxxxx | ||||
| Xxxx Xxxxxxx | ||||
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