Exhibit 10.24
EMPLOYMENT AGREEMENT
This Agreement, dated as of November 1, 1995, by and between Brevard
Medical Center, Inc., a Delaware corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or any successor corporation thereto (the
"Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Employee").
W I T N E S S E T H
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WHEREAS, the Company wishes to employ Employee and Employee wishes to
accept such employment, on the terms and conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT.
A. The Company hereby agrees to employ Employee and Employee agrees to be
employed by the Company upon the terms and conditions set forth below. Subject
to earlier termination as provided herein, the employment provided for herein
shall commence on the date hereof. The period from the date hereof until the
Effective Date (as defined below) is referred to herein as the "Initial Period".
Subject to earlier termination as provided herein, the employment provided for
herein shall continue from the effective date (the "Effective Date") of the
initial public offering (the "Offering") of the Company, which currently is
expected to occur no later than February 28, 1996, for a period of one year from
the Effective Date (such one-year period, the "Employment Period"); thereafter,
this Agreement may be renewed for successive one-year Employment Periods upon
terms and conditions mutually agreed to by Employee and the Company unless,
within 30 days of the end of the then-current Employment Period, either party
notifies the other of its election not to so renew. If for any reason the
Offering is not
consummated on or before the February 28, 1996, then, unless such date is
extended by written agreement of the parties hereto, this Agreement shall be
terminated as of such date. During the Initial Period and the Employment Period,
Employee will hold the position of President and Chief Executive Officer of the
Company and shall perform all duties and services incident to those positions as
may be assigned to Employee from time to time by the Board of Directors of the
Company, as well as those duties and services that Employee, in his reasonable
discretion, deems to be consistent with his positions and in the best interest
of the Company. Employee will devote all his working time and efforts to the
business of the Company to accomplish the duties assigned by the Board of
Directors of the Company, will perform those duties to the best of Employee's
ability and will devote Employee's best efforts to advance the interests of the
Company.
B. During the term hereof, Employee shall serve as a member of the Board of
Directors of the Company and shall have the authority to appoint one additional
member to the Board of Directors of the Company, subject to the amendment of the
Certificate of Incorporation and/or By-laws of the Company, if necessary, and
any other arrangements necessary to implement the foregoing, all of which
arrangements the Company agrees to use its best efforts to effect; provided,
however, that the provisions of this paragraph 1B shall terminate upon the
termination of this Agreement and the two foregoing Board of Directors positions
shall then be vacated.
2. COMPENSATION.
A. For all services performed by Employee for the Company during the term
hereof, the Company will pay Employee a salary at the rate of $125,000 per
annum, payable in accordance with the normal payment practices of the Company;
provided, however, that, subject to paragraph 2D below, no such compensation
shall be payable with respect to the Initial Period unless
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and until the Offering shall have been consummated during the term hereof; and
provided further, that the salary and any incentive bonus (the "Remuneration"),
and the terms and conditions
B. thereof, for each successive employment period following the Employment
Period shall be mutually agreed to by Employee and the Company: (i) no later
than January 1, 1997 for the first such successive employment period, and (ii)
prior to the commencement of each subsequent such successive employment period.
During the Employment Period, the Company will provide Employee the use, for
business purposes, of a full-sized domestic automobile owned or leased by the
Company, at the Company's election. Employee will be entitled to vacation during
the Employment Period not to exceed three weeks per annum. The vacation may be
taken at times agreed upon by Employee and the Company. During that vacation,
Employee will receive Employee's usual compensation. No additional compensation
will be paid to Employee for vacation time that is not taken. Employee will be
entitled to participate, at a level commensurate with his position, in any
benefit plans, including health, pension and stock option plans adopted by the
Company for its executive employees.
C. As additional compensation for services rendered during the Employment
Period, pursuant to a stock option contract between the Company and the
Employee, Employee will be granted on the Effective Date, ten-year non-qualified
stock options (the "Options") to purchase two hundred and seventy-five thousand
(275,000) shares of common stock, par value $.01 per share of the Company
("Common Stock"), at an exercise price per share equal to $0.25. The Options
shall be exercisable immediately upon grant as to one-fourth of the shares
covered thereby and shall be exercisable as to one-fourth of the shares covered
thereby on each of the three successive anniversaries of the day before the date
of grant. In the event this Agreement is terminated earlier as provided in
paragraph 4 herein, the Employee may exercise the Options, only to the extent
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then exercisable, in accordance with the terms of the Plan, unless the Employee
is terminated for Cause, as defined in paragraph 5 herein, in which case the
Options shall terminate immediately. Commencing one year after the effective
date of the Company's initial public offering, the Company agrees to use its
best efforts, without incurring substantial expense and subject to applicable
securities and other laws, to file with the Securities and Exchange Commission a
registration statement on Form S-8 relating to the Options; provided that the
Company is eligible to use such Form.
D. The shares of the Company's Common Stock which may be purchased by
Employee pursuant to the Options granted under paragraph 2B (the "Option
Shares"), shall be held by Employee for his own account, for investment purposes
only and not with a view to the resale or distribution thereof, and no sale,
offer to sell or transfer of the Option Shares, or of any shares or other
securities issued in exchange for or in respect of the Shares shall be made
unless a registration statement under the Securities Act of 1933, as amended,
(the "Act") with respect to the Option Shares is in effect, or an exemption from
the registration requirements of the Act is then in fact applicable to the
Shares and the certificates representing the Option Shares shall contain a
legend to that effect.
E. The Company hereby agrees that in the event that it or its
shareholder(s) shall sell, or enter into a binding agreement to sell, the
Company or substantially all of the assets of the Company (other than in an
initial public offering), it being agreed however that the Company is not
prohibited from considering such sale, during the period from the date hereof
through February 28, 1996, then Employee shall be entitled to receive his salary
at the rate described in paragraph 2A above during the period from the date
hereof through and including the date of such sale (but not later than February
28, 1996).
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3. REIMBURSEMENT OF EXPENSES: As of the date hereof, and during the
Employment Period, the Company recognizes that Employee, in performing
Employee's duties hereunder, may be required to spend sums of money in
connection with those duties on behalf of or for the benefit of the Company.
Employee may present to the Company, on a weekly basis, an itemized voucher
listing all sums of money paid or expenses incurred by Employee in the
performance of Employee's duties on behalf of or for the benefit of the Company,
and on presentation of that itemized voucher and receipts for all such expenses
the Company will reimburse Employee or pay the expense incurred in conformity
with Company policy for all such reasonable expenses including, but not limited
to, travel, meals, lodging, entertainment and promotion.
4. DEATH AND DISABILITY:
A. The Employment Period shall terminate on the date of Employee's death,
in which event Employee's Remuneration, if any, payable through the date of
Employee's death, shall be paid to Employee's estate.
B. If, during the Employment Period, in the opinion of the Company,
Employee, because of physical or mental illness or incapacity, shall become
substantially unable to perform the duties and services required of him under
this Agreement for a period of six (6) consecutive months or nine (9) months in
the aggregate during any twelve (12) month period, the Company may, upon at
least ten (10) days' prior written notice given at any time after the expiration
of such six (6) or nine (9) month period, as the case may be, to Employee of its
intention to do so, terminate this Agreement as of such date as may be set forth
in the notice. In case of such termination, Employee shall be entitled to
receive his Remuneration earned or accrued and reimbursable expenses owing to
Employee through the date of termination. Employee will not be
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entitled to any other compensation upon termination of this Agreement pursuant
to this paragraph 4(B).
5. DISCHARGE FOR CAUSE: The Company may discharge Employee for cause at any
time. Cause for discharge will exist when (i) Employee materially breaches this
Agreement and such breach is not cured within thirty (30) days following written
notice by the Company to Employee of such breach, (ii) Employee commits any act
or engages in a course of action involving moral turpitude which adversely
affects the reputation of the Company, or (iii) Employee breaches any policy
applicable to all executive officers of the Company promulgated by Company's
Board of Directors, the breach of which has been specified by the Board of
Directors to be cause for discharge, including, without limitation, those
policies set forth in the Addendum to Employment Agreement between the Company
and Employee attached hereto and incorporated herein by reference. If, as of the
date hereof or during the Employment Period, Employee is discharged for cause,
this Agreement terminates and the Company, without any limitation on any
remedies it may have at law or equity, is without liability for Remuneration or
any other liability to Employee after the date of
such discharge.
6. DISCLOSURE OF CONFIDENTIAL INFORMATION: "Confidential Information" means
all information known by Employee, because of service by the Company, about the
Company's present or prospective products, processes, services, or activities.
Confidential Information does not include information generally known, other
than through breach of a confidentiality agreement with the Company, in the
industries in which the Company engages or may engage. The determination as to
whether information is generally known in the industries in which the Company
engages or may engage will be made, in good faith, solely by the Company and
will be binding on Employee. Employee will never, as of the date hereof and
during or after the Employment Period, directly or
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indirectly, use any Confidential Information except in the performance of
Employee's duties for the Company, or publish or disclose any Confidential
Information except to persons to whom disclosure of Confidential Information is
necessary in the performance of Employee's duties and to other persons as
directed by the Company. The Company has the right to decide in what
circumstances disclosures of Confidential Information are necessary. Employee
will use his best efforts to prevent unauthorized use or disclosure of
Confidential Information. Upon termination of this Agreement, Employee will
deliver to the Company all writings relating to or containing Confidential
Information, including, without limitation, notes, memoranda, letters, drawings,
diagrams and printouts and also including any tapes, discs or other forms of
recorded information. Full compliance with this paragraph is a condition of
continued employment with, or retention by or association with, the Company. If
Employee violates any provision of this paragraph commencing with the date
hereof, or at any time until the termination hereof, the Company may immediately
discharge Employee without any liability for Remuneration or any other liability
to Employee after the date of discharge. If Employee violates any provision of
this paragraph commencing with the date hereof, or at any time until the
termination hereof, the Company will have no further liability to Employee,
including rights, benefits, privileges or other interests which may have vested
for Employee's account during the Employment Period. Moreover, if Employee
violates any provision of this paragraph commencing with the date hereof, or
until the termination hereof, the Company may seek full indemnification from
Employee should the Company suffer any monetary damages or incur any legal
liability to any person as a result of the disclosure or use of Confidential
Information by Employee in violation of this paragraph.
7. RESTRICTIVE COVENANTS: During the Employment Period and for a period of
six months thereafter, Employee will not directly or indirectly, either as an
individual or as a partner, joint venturer, independent contractor, consultant,
stockholder, director, employee or officer, engage in
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or participate in the management or ownership of any business or activity in
Volusia or Brevard Counties, Florida, which directly or indirectly competes with
the business conducted by the Company; provided, however, that this paragraph 7
shall not apply in the event that Employee is actually discharged by the Company
without cause, as that term is described in paragraph 5 hereof.
8. OWNERSHIP OF INVENTIONS, DISCOVERIES AND IMPROVEMENTS: Employee shall
promptly disclose in writing to the Board of Directors of the Company all
inventions, discoveries, designs, developments, processes, software programs,
works of authorship, formulas, data, techniques and any other improvements
conceived, devised, created, or developed by Employee (either alone or with
others) while in the employ of the Company (collectively, "Invention"), and
Employee shall transfer and assign to the Company all right, title and interest
in and to such Invention, including any and all domestic and foreign patent
rights, domestic and foreign copyright rights therein, and any renewal thereof.
Such disclosure is to be made promptly after the conception of each Invention,
and each Invention is to become and remain the property of the Company, whether
or not patent or copyright applications are filed thereon by the Company. On
request of the Company, Employee shall execute from time to time, during or
after the termination of employment, such further instruments including, without
limitation, applications for patents and copyrights and assignments thereof as
may be deemed necessary or desirable by the Company to effectuate the provisions
of this paragraph 8.
9. CONSTRUCTION: If the provisions of paragraph 7 should be deemed
unenforceable, invalid or overbroad in whole or in part for any reason, then any
court of competent jurisdiction or any Arbitrator appointed in accordance with
paragraph 10 is hereby authorized, requested and instructed to reform such
paragraph to provide for the maximum competitive restraints
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upon Employee's activities (in time, product, geographic area and customer
solicitation as may then be legal and valid).
10. REMEDIES, DAMAGES AND JURISDICTION:
A. Employee agrees that violation of paragraphs 6, 7 or 8 would cause
irreparable injury to the Company for which the remedy at law would be
inadequate, and that the Company shall be entitled in any court of law or equity
or in any arbitration proceeding in accordance with this paragraph 10, whichever
forum is designated by the Company, to preliminary, permanent or other
injunctive relief against any breach of the provisions contained in paragraphs
6, 7 or 8, and such punitive and compensatory damages as shall be awarded.
Further, in the event of a violation of the provisions of paragraph 7, the
period of noncompetition referred to therein shall be extended but not decreased
for a period of time equal to the period that the violation occurred.
B. Except as otherwise provided in paragraphs 9 and 10A relating to the
reformation of the restrictive covenants and obtaining equitable relief, any
controversy or claim arising out of, or relating to this Agreement, or the
breach thereof, shall be settled by arbitration by one arbitrator in Florida, in
accordance with the rules of the American Arbitration Association, and judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
C. Each of the Company and Employee hereby consents to the jurisdiction of
the Supreme Court of the State of New York for the County of New York and the
United States District Court for the Southern District of New York for all
purposes in connection with said arbitration or for obtaining the relief
referred to in paragraphs 6 or 8, and further consents that any process or
notice of motion therewith may be served by certified or registered mail or
personal
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service, within or without the State of New York, provided a reasonable time for
appearance is allowed.
11. SEVERABILITY: If any of the provisions of this Agreement is held to be
invalid, illegal, or unenforceable, that determination will not affect the
enforceability of any other provisions of this Agreement, and the remaining
provisions of this Agreement will be valid and enforceable according to their
terms.
12. Binding Effect: This Agreement constitutes the entire understanding of
the parties, may be modified only in writing, is governed by and construed in
accordance with the laws of the state of New York, without regard to the
conflicts of law rules thereof, and will be binding upon and inure to the
benefit of Employee and Employee's personal representatives and the Company and
the Company's successors and assigns. This Agreement is in the nature of a
personal services contract, is not assignable by Employee and the duties imposed
hereby are non-delegable.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BREVARD MEDICAL CENTER, INC.
By:
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