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EXHIBIT 10.3
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
This Senior Executive Employment Agreement is dated as of
DATE, and is entered into between Inphynet Administrative Services, Inc.,
formerly known as Emergency Medical Services Associates, Inc. (the "Company"),
and NAME ("Executive").
WHEREAS, Executive and the Company desire to embody in this
Agreement the terms and conditions of Executive's employment by the Company.
NOW, THEREFORE, the parties hereby agree:
ARTICLE I
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
1.01. EMPLOYMENT. The Company shall employ Executive in such
capacity as may be determined by the Board of Directors (the "Board") of
Inphynet Medical Management, Inc. ("IMMI") or the Chief Executive Officer of the
Company (the "CEO"). Executive hereby accepts such employment. Executive agrees
to devote his full business time and efforts to promote the interests of the
Company. The expenditure of reasonable amounts of time for personal or outside
business, charitable, voluntary activities shall not be deemed a breach of this
Agreement, provided such activities do not interfere with the services required
to be rendered by the Executive hereunder. Unless otherwise prohibited herein,
the making of personal investments and the conduct of private business affairs
shall not be prohibited hereunder.
1.02. DUTIES AND RESPONSIBILITIES. Executive shall have such
duties and responsibilities as may be assigned to him from time to time by the
Board or the CEO, and the Executive agrees to faithfully discharge such duties
to the best of his ability. In the performance of his duties, Executive shall
make his principal office in Broward County, Florida (or such other location as
the Company may be headquartered), or such place as he and the CEO may from time
to time agree.
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TERM
2.01. TERM. (a) The term of this Agreement (the "Term") shall
commence on the date hereof and shall continue until the day prior to the third
anniversary of the date hereof.
(b) Executive represents and warrants to the Company that, to
the best of his knowledge, neither the execution and delivery of this Agreement
nor the performance of his duties hereunder violates or will violate the
provisions of any other agreement to which he is a party or by which he is
bound.
ARTICLE III
COMPENSATION AND EXPENSES
3.01. SALARY, BONUSES AND BENEFITS. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement, Executive shall be entitled to the following (subject, in each case,
to the provisions of ARTICLE V hereof):
(a) SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of the
Company and subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of COMP ("Salary").
(b) BONUS. The Executive shall be entitled to participate
in the Company's Executive Incentive Bonus Plan under the terms and conditions
thereof, as it may be amended from time to time, and to receive an annual bonus
thereunder for any year with respect to which the criteria to receive a bonus
thereunder are attained.
(c) STOCK AWARDS. The Executive shall be eligible for
grants of stock or stock-based awards under the Company's 1994 Stock Incentive
Plan (or any successor thereto); provided that any such awards, and the amount
thereof, shall be in the sole discretion of the Compensation Committee of the
Board.
(d) BENEFITS. Executive shall be entitled to participate
during the Term in such pension, life insurance, health, disability and major
medical insurance plans, and in such
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other employee benefit plans and programs, for the benefit of the employees of
the Company, as may be maintained from time to time during the Term, in each
case to the extent and in the manner available to other senior executives of the
Company and subject to the terms and provisions of such plans or programs.
(e) VACATION. Executive shall be entitled to a paid
vacation of at least four (4) weeks per annum, in accordance with Company policy
(but not necessarily consecutive vacation weeks) during the Term.
3.02. EXPENSES. The Company will reimburse Executive for
reasonable business-related expenses incurred by him in connection with the
performance of his duties hereunder during the Term, subject, however, to the
Company's policies relating to business-related expenses as in effect from time
to time during the Term.
ARTICLE IV
EXCLUSIVITY, ETC.
4.01. EXCLUSIVITY. Unless consistent with Article I of this
Agreement, Executive shall diligently and conscientiously devote substantially
all of his time and attention to the Company's affairs. Executive agrees that
all of his activities as an employee of the Company shall be in conformity with
all reasonable policies, rules, regulations and directions of the Board or the
CEO not inconsistent with this Agreement and established in good faith.
4.02. CONFIDENTIALITY. Executive agrees that he will not, at
any time during or after the Term, make use of or divulge to any other person,
firm or corporation any trade or business secret, process, method or means, or
any other confidential information concerning the business or policies of the
Company, which he may have learned in connection with his employment. For
purposes of this Agreement, a "trade or business secret, process, method or
means, or any other confidential information" shall mean and include written
information treated as confidential or as a trade secret by the Company.
Executive's obligation under this Section 4.02 shall not apply to any
information which (i) is known publicly; (ii) is in the public domain or
hereafter enters the public domain without the fault of Executive; (iii) is
known to Executive prior to his receipt of
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such information from the Company, as evidenced by written records of Executive
or (iv) is hereafter disclosed to Executive by a third party not under an
obligation of confidence to the Company. Executive agrees not to remove from the
premises of the Company, except as an employee of the Company in pursuit of the
business of the Company or except as specifically permitted in writing by the
Company, any document or other object containing or reflecting any such
confidential information. Executive recognizes that all such documents and
objects, whether developed by him or by someone else, will be the sole exclusive
property of the Company. Except as specifically authorized by the CEO, upon
termination of his employment hereunder, Executive shall forthwith deliver to
the Company all such confidential information, including without limitation all
lists of customers, correspondence, accounts, records and any other documents or
property made or held by him or under his control in relation to the business or
affairs of the Company, and no copy of any such confidential information shall
be retained by him.
ARTICLE V
TERMINATION
5.01. TERMINATION BY THE COMPANY. The Company shall have the
right to terminate the Executive's employment at any time, with or without
"Cause." For purposes of this Agreement, "Cause" shall mean (i) the extended
failure by the Executive to perform his duties hereunder in a manner which meets
the expectations of the Board or the CEO, including the failure to comply with
any lawful instructions thereof, (ii) conduct grossly insubordinate or disloyal
to the Company, (iii) the conviction of or pleading guilty or no contest to a
felony, or (iv) the continued use of drugs (including alcohol) by the Executive
such that Executive becomes significantly impaired in the performance of his
duties hereunder, in each case (i)-(iv), as determined by the Board or the CEO
in good faith.
5.02. DEATH. In the event Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of Executive's death.
5.03. DISABILITY. In the event that Executive shall become
Disabled, the Company shall have the right to terminate this Agreement, such
termination to be effective upon the giving of notice thereof to Executive in
accordance with Section 6.03 hereof. The term "Disabled" shall mean (i) entitled
to benefits under the Company's long-term disability policy, (ii) entitled to
receive disability benefits pursuant to Title II of the Federal Social Security
Act, or (iii) inability to perform the Executive's obligations hereunder due to
a physical or mental disability for a period of at least 90 consecutive days, or
150 non-consecutive days within any 180 day period, as determined in good faith
by the Board or the CEO.
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5.04. TERMINATION FOR GOOD REASON. The Executive shall have
the right to terminate his employment with the Company for "Good Reason." For
purposes of this Agreement, "Good Reason" shall mean:
(a) without the Executive's consent, a decrease in
Executive's salary or benefits (other than changes in benefits that apply to all
of the Company's senior executives);
(b) a breach or default by the Company in the due
observance or performance of the Company's obligations under this Agreement, if
such default or breach continues for a period of thirty (30) days after written
notice of such default or breach is given to the Company by the Executive; and
(c) without the Executive's consent, a relocation of the
Executive's primary place of employment to a location which is (i) more than 30
miles from the Executive's then-current primary place of employment and (ii)
farther from the Executive's primary residence than such residence is from the
Executive's then-current primary place of employment.
5.05. EFFECT OF TERMINATION. (a) In the event of termination
of Executive's employment for any reason, the Company shall pay to Executive (or
his beneficiary in the event of his death) any base salary or other compensation
earned but not paid to Executive prior to the effective date of such
termination.
(b) Subject to Section 5.05(e), in the event of
termination of Executive's employment (i) by the Company for Cause, (ii) by
Executive for any reason other than Good Reason, (iii) because of Executive's
death, or (iv) pursuant to Section 5.03, because Executive has become Disabled,
neither the Executive nor any beneficiary shall be entitled to any further
compensation other than the amounts described in Section 5.05(a)
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hereof. This Section 5.05(b) shall not limit in any way the liability of the
Executive to the Company for the breach of this Agreement for the termination of
Executive's employment by the Executive for any reason other than Good Reason.
In the event of death or disability, Executive shall be paid an amount equal to
the Annual Bonus that Executive would have earned for the calendar year in which
his employment was terminated had such termination not occurred, prorated for
the number of days within such year that Executive was employed and paid as of
the time such Annual Bonus would have otherwise been paid had his employment not
been terminated.
(c) Subject to Section 5.05(e), in the event of
termination of Executive's employment (i) by the Company other than for Cause or
Disability or (ii) by Executive for Good Reason, the Company shall pay
Executive, in addition to the amounts described in Section 5.05(a) hereof, (A)
twelve months Salary in accordance with the normal pay practices of the Company,
and (B) an amount equal to the Annual Bonus that Executive would have earned for
the calendar year in which his employment was terminated, had such termination
not occurred, prorated for the number of days within such year that Executive
was employed and paid as of the time such Annual Bonus would have otherwise been
paid had his employment not been terminated. In addition, the Company shall
continue to provide the Executive for a period of one year following termination
all welfare benefits (including medical, hospitalization and life and disability
insurance) for which the Executive was eligible at the time of termination;
provided that (I) the Executive will be provided such benefits only if allowed
under applicable law or if including the Executive, would not jeopardize any tax
benefit available to the Company, and (II) the Company's obligation to provide
any such benefit will expire when the Executive becomes eligible for the same or
analogous benefit from another employer (including for this purpose the employer
of the Executive's spouse).
(d) The Executive's rights upon termination of employment
with respect to option or other incentive awards not covered by this Agreement
shall be governed by the terms and conditions of the option agreement or such
other award agreement.
(e) Notwithstanding Section 5.05(b) or (c), if the
Executive's employment is terminated (i) by the Company other than for
Disability or Cause (which for this purpose shall
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not include clause (i) of the second sentence of Section 5.01) or (ii) by the
Executive for any reason, in either case on or within 12 months after a "Change
of Control," the Company shall, within five (5) business days of such
termination, pay to Executive one and one-half times his annual Salary, in a
lump sum, in lieu of any other severance benefits, other than as set forth in
the last sentence of Section 5.05(c) above, to which the Executive may have been
entitled under this Agreement. Notwithstanding Section 5.05(b) or (c), if the
Executive's employment is terminated (i) by the Company other than for
Disability or Cause or (ii) by the Executive for Good Reason, more than 12 but
less than 25 months after a "Change in Control," the Company shall, within five
(5) business days of such termination, pay to the Executive one half times his
annual Salary, in a lump sum, in lieu of any other severance benefits to which
the Executive may have been entitled under this Agreement. For purposes of this
Agreement, "Change of Control" shall be deemed to occur if (i) any "person" (as
that term is used in Sections 13 and 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act")), other than an "affiliate" of IMMI (as defined in 17
C.F.R. ss. 230.405) or an employee benefit plan maintained by IMMI or an
"affiliate", is or becomes the beneficial owner (as that term is used in Section
13(d) of the Exchange Act), directly or indirectly, of 25% or more of IMMI's
capital stock entitled to vote in the election of directors ("Voting Stock"),
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board cease for any reason to constitute
at least a majority thereof, excluding for this purpose any new director who is
approved by a vote of at least a majority of the directors then still in office
who were directors at the beginning of the period, (iii) a merger, consolidation
or similar transaction following which the holders of Voting Stock immediately
before such transaction do not have beneficial ownership of at least 50% of the
voting securities of the resulting entity or (iv) a sale of all or substantially
all of IMMI's assets occurs.
ARTICLE VI
MISCELLANEOUS
6.01. NO DUTY TO MITIGATE; NO OFFSET. In the event that an
amount becomes payable to Executive pursuant to Section 5.05(c) or 5.05(e)
above, such amount shall not be reduced by (i) any outstanding amounts owed by
Executive to the Company or (ii)
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the amount of any compensation for services earned by Executive from any source,
whether paid currently or deferred. Executive shall have no obligation to
mitigate any amounts to be paid under Section 5.05(c) or (e) above.
6.02. NONCOMPETITION; NONSOLICITATION. (a) During the Term and
during the one-year period following his termination of employment hereunder for
any reason, including termination is by the Company without Cause or by the
Executive with Good Reason, Executive shall not directly or indirectly, own,
manage, operate, join, control or participate in or be connected with, as an
officer, employee, partner, stockholder, or otherwise, any business, individual,
partnership, firm, or corporation (collectively "Entity") which is at the time
engaged principally or significantly in a business which is, directly or
indirectly, at the time in competition with the business of the Company, or any
subsidiary or affiliate (as defined in the Securities Exchange Act) thereof in
an area in which the Company or such subsidiary or affiliate then conducts
business. Nothing herein, however, shall prohibit Executive from acquiring or
holding any issue of stock or securities of any Entity which has any securities
listed on a national securities exchange or quoted in the daily listing of
over-the-counter market securities, provided that at any one time he and members
of his immediate family do not own more than five percent of the voting
securities of any such Entity.
(b) During the one-year period following his termination
of employment hereunder Executive shall not directly or indirectly solicit to
enter into the employ of any other Entity, or hire, any of the employees of the
Company.
(c) If any provision of this Section 6.02 is held to be
invalid, void or unenforceable, any court so holding shall substitute a valid,
enforceable provision that preserves, to the maximum lawful extent, the terms
and intent of this Section.
6.03. NOTICES. Any notice required or permitted hereunder
shall be in writing and shall be sufficiently given if personally delivered or
if sent by telegram or telex or by registered or certified mail, postage
prepaid, with return receipt requested, addressed: (a) in the case of the
Company to Inphynet Medical Management Inc., 0000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx
000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000, Attention: General Counsel,
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or to such other address and/or to the attention of such other person as the
Company shall designate by written notice to Executive; and (b) in the case of
Executive, to Executive's last known address as reflected in the Company's
records, or to such other address as Executive shall designate by written notice
to the Company. Any notice given hereunder shall be deemed to have been given at
the time of receipt thereof by the person to whom such notice is given.
6.04. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties hereto with respect to the terms and conditions
of Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
changed or modified except by an instrument in writing signed by both of the
parties hereto.
6.05. WAIVER. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any subsequent breach hereof.
6.06. HEADINGS. The Article and Section headings herein are
for convenience of reference only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions hereof.
6.07. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Florida without reference to the principles of conflict of laws.
6.08. AGREEMENT TO TAKE ACTIONS. Each party hereto shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.09. ARBITRATION. Except for disputes with respect to Article
IV hereof, any dispute between the parties hereto respecting the meaning and
intent of this Agreement or any of its terms and provisions shall be submitted
to arbitration in Fort Lauderdale, Florida in accordance with the Commercial
Rules
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of the American Arbitration Association then in effect, and the
arbitration determination resulting from any such submission shall be final and
binding upon the parties hereto. Judgment upon any arbitration award may be
entered in any court of competent jurisdiction.
6.10. 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.
6.11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision or provisions of this Agreement, which
shall remain in full force and effect.
6.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement effective as of the date first written above.
Inphynet Administrative
Services, Inc.
By:
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J. Xxxxxxxx Xxxxxxxx
President
Executive
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NAME
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