EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BETWEEN
AMEDISYS, INC.
AND
XXXX XXXXXX
May 29, 2002
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") entered into as of the 29th day
of May, 2002, and continuing for an indefinite duration, by and between
AMEDISYS, INC., a Delaware corporation (the "Company") and XXXX XXXXXX
("XXXXXX"), an individual of the full age of majority residing at 0000 Xxxxxxx
Xx., Xxx Xxxxxxx, XX 00000.
RECITALS:
A. The Company owns, manages and/or operates agencies and facilities
for the provision of home health nursing services (the "Business").
X. XXXXXX is employed by the Company as its Chief Financial Officer;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties agree as follows:
1. RECITATIONS. The above recitations are incorporated herein by this
reference.
2. PERFORMANCE OF DUTIES. XXXXXX shall perform such duties as are
usually performed by the Chief Financial Officer of health care companies of a
business similar in size and scope as the Company and such other reasonable
additional duties as may be prescribed from time to time by the Company's Chief
Executive Officer which are reasonable and consistent with the expectations of
the Company and the Company's operations, taking into account XXXXXX'x expertise
and job responsibilities, including but not limited to, adherence to internal
compliance and governmental and regulatory rules, regulations and applicable
laws. XXXXXX shall report directly to the Chief Executive Officer of the Company
or his designee.
2.1 Devotion of Time. XXXXXX agrees to devote full time and
attention to the business and affairs of the Company to the extent necessary to
discharge the responsibilities assigned to XXXXXX and to use reasonable best
efforts to perform faithfully and efficiently such responsibilities.
3. TERMINATION OF EMPLOYMENT.
3.1 Termination of Employment by the Company for Cause. The
Company may terminate XXXXXX'x employment for Cause, as defined herein, without
any obligation of severance payments to XXXXXX. Cause shall be defined as
follows:
(a) a material default or breach by XXXXXX of any of the
provisions of this Agreement materially detrimental to the Company which is not
cured within thirty (30) days following written notice thereof;
(b) actions by XXXXXX constituting fraud, embezzlement or
dishonesty which result in a conviction of a criminal offense not overturned on
appeal;
(c) intentionally furnishing materially false, misleading, or
omissive information to the Company's Chief Executive Officer, Board of
Directors or any committee of the Board of Directors, that is materially
detrimental to the Company;
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(d) actions constituting a breach of the confidentiality of the
Business and/or trade secrets of the Company which is materially detrimental to
the Company;
(e) willful failure to follow reasonable and lawful directives of
the Company's Chief Executive Officer or Board of Directors, which are
consistent with XXXXXX'x job responsibilities and performance which is not cured
within thirty (30) days following written notice thereof; and
3.2 Termination Without Cause. The Company shall have the right to
terminate XXXXXX'x employment without Cause, at any time and subject to the sole
discretion of the Company. In such event, XXXXXX will cease to have any power of
his position as of the effective date of the termination.
3.3 Termination by XXXXXX. XXXXXX may terminate his employment upon
thirty (30) days written notice to the Company. Such notice shall set forth in
sufficient detail for the Company to understand the nature of the facts
underlying said termination.
3.4 Change of Control. Upon the occurrence of a "Change of
Control," if such occurs prior to XXXXXX'x receiving a notice of termination by
the Company for Cause, XXXXXX shall be entitled to the Severance described
herein. "Change of Control" is defined as the following:
(a) The acquisition by any person, entity or "group" within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty-one (51%) percent or more of either
the then outstanding shares of the Company's common stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors; provided however, purchase by
underwriters in a firm commitment public offering of the Company's securities or
any securities purchased for investment only by professional investors shall not
constitute a Change of Control; and
(b) The individuals who serve on the Company's Board of Directors
as of the effective date of this Agreement (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors of the
Company; provided, however, any person who becomes a director subsequent to the
effective date of this Agreement, whose election or nomination for election by
the Company's shareholders was approved by a vote of at least a majority of the
directors then compiling the Incumbent Board, shall for purposes of this
Agreement be considered as if such person was a member of the Incumbent Board.
4. COMPENSATION.
4.1 Salary. Company shall pay to XXXXXX a base salary at the annual
rate of $165,000.00 (the "Base Salary"). Notwithstanding anything herein to the
contrary, the Company shall have the sole discretion at any time and from time
to time to increase Base Salary, which increase shall be reflected in a written
amendment to this contract. Base Salary shall be payable in installments
consistent with the Company's normal payroll schedule, in effect from time to
time, subject to applicable withholding and other taxes.
4.2 Base Salary Increases. Commencing on the anniversary hereof,
XXXXXX'x Base Salary shall be automatically increased on each anniversary hereof
during the term hereof by an amount equal to at least 6% of XXXXXX'x then
effective salary. Notwithstanding anything herein to the contrary,
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the Chief Executive Officer may grant a Base Salary Increase in excess of the
amount stipulated to within this Section 4.2.
4.3 Bonus. At the end of each fiscal year of employment, the Company
shall pay XXXXXX a bonus of an amount up to 50% of XXXXXX'x Base Salary related
to the year for which the bonus is being paid, payable in terms which shall be
at the Company's discretion, and only if the Company reaches certain performance
based criteria which shall, from time to time, be determined by the Company and
made known to XXXXXX.
4.4 Stock Options. Upon execution of this document, the Company shall
xxxxx XXXXXX 50,000 options to purchase Amedisys, Inc. common stock, which shall
be pursuant to the terms of a Stock Option Agreement. On the anniversary hereof,
the Company shall xxxxx XXXXXX 25,000 options to purchase Amedisys, Inc. common
stock, which shall be pursuant to the terms of a Stock Option Agreement issued
at the time of said grant. On the second anniversary hereof, the Company shall
xxxxx XXXXXX 25,000 options to purchase Amedisys, Inc. common stock, which shall
be pursuant to the terms of a Stock Option Agreement issued at the time of said
grant. On each anniversary date subsequent to the second anniversary hereof, and
so long as XXXXXX is employed by the Company in the capacity of Chief Financial
Officer, the Company shall xxxxx XXXXXX 12,500 options to purchase Amedisys,
Inc. common stock, which shall be pursuant to the terms of a Stock Option
Agreement issued at the time of said grant.
4.5 Severance.
(a) Change of Control. Should a Change of Control, as defined
herein, occur during XXXXXX'x employment with Company, XXXXXX shall be entitled
to severance compensation in an amount equal to twelve (12) months of XXXXXX'x
salary at the time of such Change of Control, payable at the discretion of the
Company, but at a minimum, payable by the Company via regularly scheduled
payroll distributions until the entire severance amount due XXXXXX is paid in
full. Additionally, upon the occurrence of a Change of Control, all outstanding
non-vested options held by XXXXXX shall immediately vest.
(b) Termination Without Cause. Should XXXXXX be terminated without
Cause, as defined herein, XXXXXX shall be entitled to severance compensation in
an amount equal to six (6) months of XXXXXX'x salary at the time of such
termination, payable at the discretion of the Company, but at a minimum, payable
by the Company via regularly scheduled payroll distributions until the entire
severance amount due XXXXXX is paid in full.
4.6 Additional Benefits.
(a) Vacation. XXXXXX shall be entitled to the maximum amount of
paid time off for Company employees stipulated by the Company PTO policy during
each calender year of his employment with the Company. In addition, XXXXXX shall
be entitled to paid time off for the same holidays as other employees of the
Company as established by the Company's Board of Directors.
(b) Reimbursement of Expenses. XXXXXX is authorized to incur
reasonable traveling and other expenses in connection with the Business and in
performance of his duties under this Agreement. XXXXXX shall be reimbursed by
the Company for all Business expenses which are reasonably incurred by XXXXXX.
All reimbursable travel expenses shall be in accordance with mutually agreeable
and reasonable policy.
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(c) Participation in Employee Benefit Plans. XXXXXX shall be
entitled to participate, subject to eligibility and other terms generally
established by the Company's Board of Directors, in any employee benefit plan
(including but not limited to life insurance plans, long-and short-term
disability, stock option plans, group hospitalization, health, dental care
plans, (which health insurance plans shall also cover XXXXXX'x dependents)
profit sharing and pension, and other benefit plans), as may be adopted or
amended by the Company from time to time.
5. REPRESENTATION BY XXXXXX. XXXXXX hereby represents to the Company
that he is physically and mentally capable of performing his duties hereunder
and he has no knowledge of present or past physical or mental conditions which
would cause him not to be able to perform his duties hereunder.
6. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
6.1 Confidentiality. XXXXXX shall not, during his employment with
the Company or at any time thereafter, divulge, furnish or make accessible to
anyone, without the Company's prior written consent, any knowledge or
information with respect to any confidential or secret aspect of the Business
which is disclosed could reasonably be expected to have a material adverse
effect on the Business ("Confidential Information").
6.2 Ownership of Information. XXXXXX recognizes that all
Confidential Information and copies or reproductions thereof, relating to the
Company's operations and activities made or received by XXXXXX in the course of
his employment are the exclusive property of the Company, as the case may be,
and XXXXXX holds and uses same as trustee for the Company and subject to the
Company's sole control and will deliver same to the Company at the termination
of his employment, or earlier if so requested by the Company in writing. All of
such Confidential Information, which if lost or used by XXXXXX outside the scope
of his employment, could cause irreparable and continuing injury to the
Company's Business for which there may not be an adequate remedy at law. XXXXXX
acknowledges that compliance with the provisions of this Section 6 is necessary
to protect the goodwill and other proprietary interests of the Company and is a
material condition of employment.
7. RESTRICTIVE COVENANT. As an inducement to cause the Company to enter
into this Agreement, and in consideration of the Severance obligation of Company
herein, XXXXXX covenants and agrees that during his employment and, for a period
of twelve (12) months after he ceases to be employed by Company, regardless of
the manner or cause of termination:
7.1 Solicitation of Business. He will not initiate any contact
with, call upon, solicit Business from, sell or render services to any client or
patient of the Company or any Company affiliate, within any area which the
Company conducts business, a list of which is included in Schedule 7.1, which is
attached hereto and incorporated herein ("Restricted Area"), for or on behalf of
himself or any business, firm, proprietorship, corporation, partnership,
association, entity or venture primarily engaged in the business of providing
home health, alternate site infusion therapy or ambulatory surgery services,
which is a similar business as the Business ("Competing Business"), and XXXXXX
shall not directly or indirectly aid or assist any other person, firm or
corporation to do any of the aforesaid acts.
7.2 Solicitation of Employees. He will not directly or indirectly,
as principal, agent, owner, partner, stockholder, officer, director, employee,
independent contractor or consultant of any competing Business, or in any
individual or representative capacity hire, solicit, directly or indirectly
cause others to hire, or solicit the employment of, any officer, sales person,
agent, or other employee of the Company or any Company affiliate, for the
purpose of causing said officer, sales person, agent or other
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person to terminate employment with the Company or any Company affiliate and be
employed by such competing Business.
7.3 Material Violation. A proven material violation of this
Section 7 shall constitute a material and substantial breach of this Agreement
and shall result in the imposition of the Company's remedies contained in
Section 8 herein. XXXXXX acknowledges and agrees that proof of such personal
solicitation by XXXXXX of an employee shall constitute absolute and conclusive
evidence that XXXXXX has substantially and materially breached the provisions of
this Agreement.
7.4 Covenants. It is understood by and between the parties that
the foregoing covenants set forth in Sections 6 and 7 are essential elements of
this Agreement, and that but for the Agreement of XXXXXX to comply with such
covenants, the Company would not have entered into this Agreement. Such
covenants by XXXXXX shall be construed as agreements independent of any other
provision of this Agreement and the existence of any claim or cause of action
XXXXXX may have against the Company whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Company of these
covenants.
7.5 Defaults and Deferred Compensation.
(a) XXXXXX Breach. If XXXXXX breaches any requirement of Section
7 herein, in addition to any other remedy to which the Company may be entitled,
XXXXXX shall return to the Company any Severance already paid to XXXXXX at the
time of said breach, and all of XXXXXX'x rights to receive any portion of his
Severance not already paid to him shall terminate. The right to receive unpaid
Severance will not be reinstated notwithstanding any cessation by XXXXXX of his
breach of Section 7.
7.6 Discontinued Operations. Notwithstanding anything in this
Section 7 to the contrary, this Section 7 shall not apply to any of the
Company's product or service divisions which at the time of XXXXXX'x employment
termination was considered by the Company to be a discontinued operation.
8. REMEDIES. XXXXXX hereby acknowledges, covenants and agrees that in
the event of a material default or breach under this Agreement, in addition to
any other remedy set forth herein:
8.1 Company may suffer irreparable and continuing damages as a
result of such breach and its remedy at law will be inadequate. XXXXXX agrees
that in the event of a violation or breach of this Agreement, in addition to any
other remedies available to it, Company shall be entitled to an injunction
restraining any such default or any other appropriate decree of specific
performance, with the requirement to prove actual damages or to post any bond or
any other security and to any other equitable relief the court deems proper; and
8.2 Any and all of Company's remedies described in this Agreement
shall not be exclusive and shall be in addition to any other remedies which
Company may have at law or in equity including, but not limited to, the right to
monetary damages.
9. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections, subdivisions, or subparagraphs contained
in this Agreement shall not affect the enforceability of the remaining portions
of this Agreement or any part thereof, all of which are inserted conditionally
on their being legally valid.
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10. SUCCESSORS AND ASSIGNS.
10.1 Successors. This Agreement shall be binding upon the parties
hereto and their successors and assigns. For purposes of this Agreement, the
term "successor" of Company shall include any person or entity, whether direct
or indirect, whether by purchase, merger, consolidation, operation of law,
assignment, or otherwise acquires or controls: (i) all or substantially all of
the assets of Company (ii) fifty-one percent (51%) or more of the total voting
capital stock, and was not affiliated with or in common control of Company as of
the date of this Agreement; or (iii) any other Business combination with or
without the consent of Company's shareholders.
10.2 Assignment. This Agreement shall be non-assignable by either
Company or XXXXXX without the written consent of the other party, it being
understood that the obligations and performance of this Agreement are personal
in nature.
11. MISCELLANEOUS.
11.1 Amendment. No amendment, waiver or modification of this
Agreement or any provisions of this Agreement shall be valid unless in writing
and duly executed by both parties.
11.2 Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assigns.
11.3 Waiver. Any waiver by any party of any breach of any
provision of this Agreement shall not be considered as or constitute a
continuing waiver or waiver of any other breach of any provision of this
Agreement.
11.4 Captions. Captions contained in this Agreement are inserted
only as a matter of convenience or for reference and in no way define, limit,
extend, or describe the scope of this Agreement or the intent of any provisions
of this Agreement.
11.5 Attorneys' Fees. In the event of any litigation arising out
of this Agreement the prevailing party shall be entitled to recover from the
other party its attorneys' fees and costs, including attorneys' fees and costs
incurred on appeal.
11.6 Prior Agreements. This Agreement supersedes and replaces all
prior agreements between the parties hereto dealing with the subject matter
hereof.
11.7 Governing Law. This Agreement shall be governed by the laws
of Louisiana.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMEDISYS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
XXXXXXX X. XXXXX, CEO
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
XXXX XXXXXX
SCHEDULE 7.1
ALABAMA COUNTIES GEORGIA COUNTIES TENNESSEE COUNTIES NORTH CAROLINA COUNTIES OKLAHOMA COUNTIES
---------------- ---------------- ---------------------------- ----------------------- -----------------
Lowndes Xxxx Xxxxxxxx Xxxxxxxx Xxxxxxxx Creek
Xxxxx Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx Okmulgee
Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx Alamance Pawnee
Xxxxxxx Xxxxx Cumberland Xxxxxxx Tulsa Xxxxx
Autauga Xxxxxx Xxxxxxxx Xxxxxx Chatam Durham Washington
Choctaw Xxxxxx Xxxxxx White Orange Xxx
Xxxxxx Xxxxxx Xxxxxxxx Person Xxxxx
Xxxx Xxxxxx Xxxxxx Wake Ofuskee
Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Sumter Cherokee Xxxxx Xxxxxxxx Osage
Xxxxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx Xxxxxx Xxxxx
Xxxxxx Coweta XxXxxx Xxxxxxx
Xxxxxxx Dekalb Polk LOUISIANA PARISHES Muskogee
Limestone Xxxxxxx Xxxx ------------------ Cherokee
Xxxxxxxxxx Xxxxxxx Xxxxx St. Xxxx Xxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxx Ascension Richland Xxxxx
Coosa Gwinnett Sequatchie Jefferson Ouachita Delaware
Xxxxxx Xxxxx Van Buren Plaquemine Xxxxxxxxx Ottawa
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx Claiborne Nowata
Pike Rockdale Bedford Xxxxxxxx Orleans Sequoyah
Xxxxx Xxxxxxxx Xxxxxx St. Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxxx Coffee Lafayette St. Xxxxxxxx XxXxxxxx
Green Xxxxxx Xxxxxxxx Xxxxxxxxxx St. Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxx Iberia Bienville
Tallapoosa Hall Lincoln Acadia Tensas FLORIDA COUNTIES
Mobile Xxxxxxx Xxxxxxxx St. Xxxxxx Catahoula ----------------
Washington Xxxxxxx Xxxxx Xxxxxxxxxx Madison
Escambia Banks Rutherford St. Xxxx Xxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxx West Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxx Union Jefferson
Cherokee Habersham Macon Pointe Coupee Xxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx Xxxxxxxxxx Concordia St. Clair
Cleburne Madison Xxxxxxxxxx Assumption St. Tammany Talladega
Etowah Xxxxx Xxxxxxxxx Xxxxxxxxxx Bossier Xxxxxx
Xxxxxxxx Xxxxxxxx Xxxxxxxxxx Rapides Caddo Xxxx
Talledega Catoosa Xxxxx Avoyelles Calcasieu
St. Clair Chatooga Xxxxxx Xxxx Cameron VIRGINIA COUNTIES
Tuscaloosa Dade Xxxxxxxxx Xxxxxx St. Helena -----------------
Xxxxxxx Xxxxxx Xxxxxx Grant Red River Xxx
Xxxxxxx Xxxxxx Xxxxxxxxxx Tangipahoa Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Washington Natchitoches Wise
Xxxxxxxxx Xxxxxx LaSalle Xxxxxxxxx
Xxxxx Xxxxxxx East Baton Rouge Xxxxxxx
Xxxx Unicoi West Baton Rouge Tazewell
TEXAS COUNTIES Xxxxxxx East Xxxxxxxxx Xxxxx
----------------------------------- Xxxxxx West Xxxxxxxxx Xxxxxxxxxx
Bee Xxxxxxx Xxxxxxxx St. Xxxxx
Nueces Xxxxx Xxxxxxx Iberville SOUTH CAROLINA COUNTIES
Aransas Xxx Xxxxx Xxxxxxx Lafourche -----------------------
San Xxxxxxx Xxxxxx Houston Xxxxxxx
Xxxxxxx Goliad Charleston
Xxxxxxx Live Oak Dorchester
Xxx Xxxx
