EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement among American Medical Response, Inc., a Delaware
corporation (the "Company") and Xxxxx X. Xxxx ("Executive") is hereby entered
into as of September 6, 1996.
Recitals:
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As of the date of this Agreement, the Company and its affiliates are
engaged in the business of medical transportation services.
Executive is or will be employed by the Company in a confidential
relationship wherein Executive, in the course of her employment with the
Company, will become familiar with and aware of information as to the specific
manner of doing business and the customers of the Company, and its subsidiaries
and future plans with respect thereto, all of which will be established and
maintained at great expense to the Company and its subsidiaries; this
information is a trade secret and constitutes the valuable goodwill of the
Company and its subsidiaries.
Executive recognizes that the business of the Company and its subsidiaries
depends upon a number of trade secrets, including secret techniques, methods and
data. The protection of these trade secrets is of critical importance to the
Company and its subsidiaries.
The Company and its subsidiaries will sustain great loss and damage if
Executive should violate the provisions of paragraph 3 of this Agreement.
Further, monetary damages for such losses would be extremely difficult to
measure.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby agreed
as follows:
1. Employment and Duties.
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(a) The Company hereby employs Executive in an executive
position initially as Senior Vice President-Finance and Treasurer. In this
capacity, Executive shall report to the Company's Chief Financial Officer, and
shall supervise, under the direction of the Chief Financial Officer, the
Company's acquisition programs and financial strategies. Executive hereby
accepts this employment upon the terms and conditions herein contained and
agrees to devote her full time, attention and efforts to promote and further the
business and services of the Company. Executive shall faithfully adhere to,
execute and fulfill all policies established by the Company.
(b) Employee shall perform such duties, assume such
responsibilities and devote such time and energy to the business of the Company
as the Board of Directors and Chief Executive Officer of the Company shall from
time to time require and shall not, during the term of her employment hereunder,
be engaged in any other business activity pursued for gain, profit or other
pecuniary advantage without the prior approval of the Company. However, the
foregoing limitations shall not be construed as prohibiting Executive from
making personal investments in such form and manner as will neither require her
services in the operation or affairs of the companies or enterprises in which
such investments are made nor violate the terms of paragraph 3 hereof.
(c) All funds received by Executive on behalf of the Company, if
any, shall be held in trust for the Company and shall be delivered to the
Company as soon as practicable.
2. Compensation and Expenses. For all services rendered by Executive to
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the Company, the Company shall compensate the Executive as follows:
(a) Base Salary. The base salary payable to Executive shall be
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not less than $190,000 per year payable in accordance with the Company's
customary pay practices.
(b) Annual Bonus. Executive shall be eligible for an annual
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performance bonus subject to the evaluation and approval of the Chief Executive
Officer and the Compensation Committee of the Board of Directors.
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(c) Expenses. Executive shall be entitled to reimbursement for
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expenses incurred on behalf of the Company in the performance of her duties
hereunder, consistent with the Company's reimbursement policies.
(d) Disability. Executive shall be entitled to receive for a
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period of up to six (6) months her base salary and a pro rata portion of her
bonus during such time as, because of illness or physical or mental disability
or other incapacity, she is unable to perform her duties under this Agreement.
Such amounts payable shall be offset by any amounts paid to Executive under
disability insurance policies maintained by the Company.
(e) Signing Bonus. Within 30 days of the execution of this
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Agreement the Company shall pay to Executive a one-time signing bonus of
$30,000.
(f) Change of Control. The Company agrees that at the next
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meeting of the Compensation Committee of the Company's Board of Directors, the
Company shall recommend that the Executive be made subject to the provisions of
and entitled to one year's worth of benefits under the Company's Executive
Separation Allowance Plan. The Executive acknowledges and agrees that in
addition to this Agreement, her inclusion in the Company's Executive Separation
Allowance Plan constitutes good and valuable consideration for her covenants
under Paragraph 3 of this Agreement.
3. Non-Competition Agreement; Trade Secrets.
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(a) Executive agrees that, during the term of her employment
with the Company and for a two-year period following termination of her
employment with the Company for any reason, she shall not, directly or
indirectly, for herself or on behalf of, or in conjunction with, any other
person, company, partnership, corporation or business of whatever nature:
(i) knowingly call upon any past or present customer
of the Company or any of its subsidiaries (including any such
customer obtained by the Executive) for the purpose of soliciting
or selling any services or products in competition with those of
the Company or any of its subsidiaries;
(ii) knowingly call upon any employee of the Company
or any of its subsidiaries for the purpose or with the intent of
enticing them away from or out of the employ of the Company or
any of its subsidiaries for any reason whatsoever;
(iii) establish, enter into, be employed by or for,
advise, consult with or become an owner in or a part of, any
company, partnership, corporation or other business entity or
venture, or in any way engage in business for herself or for
others, that competes in the business of providing medical
transportation services with the Company or any of its
subsidiaries, within the United State of America or within 100
miles of any location in which the Company or any of its
subsidiaries conducts business; or
(iv) call upon any prospective acquisition candidates
on Executive's own behalf or on behalf of any competitor, which
candidate was either called upon by the Executive or for which
Executive made an acquisition analysis for the Company.
Ownership of not more than one percent of the voting stock of a
corporation whose stock is traded on a national securities exchange or over-the-
counter shall not of itself constitute a violation of this paragraph 3(a).
(b) Executive agrees that she will not, during or after the term
of her employment with the Company, disclose or use for her personal benefit
information relating to the customers or other trade secrets (whether in
existence or proposed) of the Company or any of its subsidiaries, or any other
confidential information of the Company or its subsidiaries to any person, firm,
partnership, corporation or business for any reason or purpose whatsoever.
(c) Because of the difficulty of measuring economic losses to
the Company and its subsidiaries as a result of the breach of any of the
foregoing covenants, and because of the immediate and irreparable damage that
would be caused to the Company and its subsidiaries for which they may have no
other adequate remedy, Executive agrees that, in the event of a breach by her of
any of the foregoing covenants, the Company or any of its subsidiaries may, in
addition to obtaining any other remedy or relief available to it, enforce the
foregoing covenants by all equitable relief, including injunctions and
restraining orders.
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(d) The covenants in this paragraph 3 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent which the court deems reasonable,
and this Agreement shall thereby be reformed.
(e) It is specifically agreed that the post-termination non-
competition period referred to in paragraph 3(a) shall be computed by excluding
from such computation any time during which Executive is in violation of any
provision of this paragraph 3 as determined by a final and nonappealable decree
of a court of competent jurisdiction.
4. Return of Company Property. All records, plans, memoranda, lists and
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other property delivered to Executive by or on behalf of the Company or any of
its subsidiaries or by a customer of any of them (including but not limited to,
any such customers obtained by Executive), and all records compiled by the
Executive which pertain to the business of the Company or any of its
subsidiaries shall be and remain the property of the Company or such subsidiary,
as the case may be, and be subject at all times to its discretion and control.
Likewise, all correspondence with customers or representatives, reports,
records, charts, advertising materials, and any data collected by Executive, or
by or on behalf of the Company, any of its respective subsidiaries or any
representative of any of them shall be delivered promptly to the Company without
request by them upon termination of Executive's employment.
5. Inventions. Executive shall disclose promptly to the Company any and
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all conceptions and ideas for inventions, improvements, discoveries and works,
whether or not patentable or copyrightable, which are conceived or made by
Executive solely or jointly with another during the period of employment or
within one (1) year thereafter and which are related to the business or
activities of the Company or any of is subsidiaries or which Executive conceives
as a result of her employment by the Company (collectively, "Proprietary
Rights"), and Executive hereby assigns and agrees to assign all her interests
therein to the Company or its nominee. All copyrightable Proprietary Rights
shall be considered to be "works made for hire". Whenever requested to do so by
the Company, Executive shall execute any and all applications, assignments or
other instruments and do such other acts that the Company shall request to apply
for and obtain Letters Patent of the United States or any foreign country or to
otherwise protect the Company's interest therein. These obligations shall
continue beyond the termination of employment with respect to inventions,
improvements, discoveries and works, whether or not patentable or copyrightable,
conceived, made or acquired by Executive during the period of employment or
within one (1) year thereafter, and shall be binding upon Executive's assigns,
executors, administrators and other legal representatives
6. Term; Termination; Rights of Termination.
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(a) The initial term of Executive's employment with the Company
hereunder shall, unless terminated as herein provided, continue for a term of
two (2) years ending on the second anniversary of the date of this Agreement.
The Executive's employment with the Company may be terminated in any one of the
following ways:
(i) The death of Executive or the inability of
Executive, because of illness or physical or mental disability or
other incapacity which continues for a period in excess of six
months, to perform her duties under this Agreement shall
terminate Executive's employment.
(ii) The Company may terminate the Executive's
employment after ten-days' written notice to Executive for good
cause, including without limitation:
(A) Executive's willful and knowing material
breach of this Agreement;
(B) Executive's fraud with respect to the
business or affairs of the Company or if Executive is
convicted of a felony involving fraud, dishonesty or
moral turpitude;
(C) Executive's exclusion from participation
in Medicare, Medicaid or any other third party
reimbursement program, for any reason, or if Executive
has had material civil money penalties or assessments
imposed on her under any federal or state law involving
Medicare, Medicaid, or any other third party
reimbursement program; or
(D) alcohol or drug abuse, or sexual
harassment by Executive.
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(iii) At any time after the commencement of Executive's
employment with the Company, the Company or Executive may,
without cause, terminate the Executive's employment thirty days
after written notice is provided to the other party.
(b) Upon termination of Executive's employment pursuant to
clause (i) of paragraph 6(a) or by the Company pursuant to clause (iii) of
paragraph 6(a), or by the Executive in the event her duties and responsibilities
are significantly diminished, Executive shall be entitled to receive (i) all
cash compensation earned under this Agreement to the date of termination plus
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(ii) an amount equal to last year's cash bonus, if any, prorated for any partial
year prior to termination plus (iii) base compensation as in effect on the date
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prior to termination for an additional period of twelve months plus (iv) an
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amount equal to the prior year's cash bonus, if any. In connection with a
termination for disability under clause (i) of paragraph 6(a), the amount to be
paid as set forth in this paragraph 6(b) shall be decreased by any payments made
under the Company's disability programs during the twelve months following such
termination.
(c) Upon termination of Executive's employment by the Company
pursuant to clause (ii) of paragraph 6(a), or by the Executive pursuant to
clause (iii) of paragraph 6(a), Executive shall be entitled, upon execution of a
standard release, to receive all base cash compensation earned under this
Agreement to the date of termination, together with an amount equal to a pro
rata portion of last year's cash bonus based on the number of days worked in the
year of such termination. Such termination of the Executive's employment shall
not otherwise accelerate the payment date of any monies accrued or accruing to
the account of Executive as a result of any bonuses or other compensation, nor
shall termination vest in Executive any right in connection therewith.
(d) In the event of termination of Executive's employment for
any reason provided in this paragraph 6, all rights and obligations of the
Company and Executive under this Agreement shall cease immediately, except that
Executive's obligations under paragraphs 1(c), 3, 4, 5 and 7 hereof shall
survive such termination, and thereafter Executive shall have the right to
receive, and the Company shall be obligated to pay, the compensation as set
forth in paragraphs 6(b) or 6(c).
7. Representations of Executive. Executive has represented and hereby
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represents and warrants to the Company that she is not subject to any
restriction or non-competition covenant in favor of a former employer or any
other person or entity, and that the execution of this Agreement by Executive
and her employment by the Company and the performance of her duties hereunder
will not violate or be a breach of any agreement with a former employer or any
other person or entity and Executive agrees to indemnify the Company for any
claim by any third party that such third party may now have or may hereafter
come to have against the Company based upon or arising out of any non-
competition agreement or invention and secrecy agreement between Executive and
such third party.
8. Complete Agreement. There are no oral representations,
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understandings or agreements with the Company or any of its officers, directors
or representatives covering the same subject matter as this Agreement and this
Agreement supersedes any prior agreement or understanding between the Company
and the Executive with respect to her employment. This Agreement is the final,
complete and exclusive statement and expression of this Agreement among the
Company and Executive and of all the terms of this Agreement, and it cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
oral or written agreements. This Agreement may not be later modified except by a
further writing signed by the parties, and no term of this Agreement may be
waived except by writing signed by the party waiving the benefit of such terms.
9. No Waiver. No waiver by the parties hereto of any default or breach
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of any term, condition or covenant of this Agreement shall be deemed to be a
waiver of any subsequent default or breach of the same or any other term,
condition or covenant contained herein.
10. Assignment: Binding Effect. Executive understands that she has been
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selected for employment by the Company on the basis of her personal
qualifications, experience and skills. Executive agrees, therefore, that she
cannot assign all or any portion of this Agreement. Subject to the preceding
sentence, this Agreement shall be binding upon and inure to the benefit of the
parties thereto and their respective heirs, successors and assigns.
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11. Notice. Whenever any notice is required hereunder, it shall be given
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in writing addressed as follows:
To the Company: American Medical Response, Inc.
0000 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
To Executive: Xxxxx X. Xxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party
may change the address for notice by notifying the other party of such change in
accordance with this paragraph 12.
12. Severability: Headings. If any portion of this Agreement is held
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invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part hereof.
13. Miscellaneous. This Agreement shall in all respects be construed
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according to the laws of The State of Colorado. This Agreement may be executed
in any one or more counterparts, each of which shall be deemed to be an original
but all of which together shall constitute one and the same instrument.
AMERICAN MEDICAL RESPONSE, INC.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Chief Executive Officer
EXECUTIVE:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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