EXHIBIT 10.28
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Agreement is made this 2nd day of April, 2002 between North
American Medical Management California, Inc., a Tennessee corporation (the
"Company"), and Xxxx X. Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employee and the Company (and one or more of its affiliates)
are parties to an Employment Agreement, dated April 26, 1999, as amended, and
the parties desire to amend and restate such agreement subject to the terms and
conditions contained herein;
WHEREAS, in serving as an employee of the Company, Employee will be in a
position in which Employee will participate in the use and development of
confidential proprietary information about the Company's, its subsidiaries' and
affiliates' present and future products, its customers and suppliers and the
methods which the Company and its employees use in competition with other
companies, as to which the Company desires to protect fully its rights;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the
promises and the mutual covenants and agreements herein set forth, the parties
agree as follows:
1. Employment. The Company hereby employs Employee as President and
Chief Executive Officer, and Employee accepts such employment with the Company,
subject to the terms and conditions set forth herein. Employee shall perform all
duties and services incident to the position of President and Chief Executive
Officer, including serving as a director and officer of the Company's affiliate,
PrimeCare Medical Network, Inc., if so elected by its shareholders and its Board
of Directors, respectively. Employee shall perform such other duties and
services as may be prescribed by the Bylaws of the Company or established by the
Chairman or the Board of Directors of the Company from time to time. During his
employment hereunder, Employee shall devote his best efforts and attention, on a
full-time basis, to the performance of the duties required of him as an employee
of the Company.
2. Compensation. As compensation for services rendered by Employee
hereunder, Employee shall receive:
(a) An annual salary of $250,000;
(b) an opportunity to receive an annual bonus of up to 50% of
Employee's annual base salary based upon individual and Company-wide
performance criteria established by the Company; the payment of any such
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bonus shall be completely discretionary;
(c) Insurance and other benefits equivalent to the benefits
provided other senior officers of the Company;
(d) 26 days of Paid Time Off, to be used in accordance with the
Company's PTO policies;
(e) Participation, when eligible, in the Company's retirement
plan as such plan may be amended or modified by the Company from time to
time; and
(f) Reimbursement for all reasonable expenses incurred by
Employee in the performance of his duties under this Agreement, provided
that Employee submits verification of such expenses in accordance with
the policies of the Company.
Prior to the end of each calendar year of this Agreement, the Company
may review with Employee his compensation hereunder. Any increase in salary or
changes in fringe benefits agreed upon by Employee and the Company at such
annual review shall become effective the following January 1 unless otherwise
agreed to by the Company and Employee.
3. Confidential Information and Trade Secrets.
3.1 Employee recognizes that Employee's position with the Company
requires considerable responsibility and trust, and, in reliance on Employee's
loyalty, the Company may entrust Employee with highly sensitive confidential,
restricted and proprietary information involving Trade Secrets and Confidential
Information.
3.2 For purposes of this Agreement, a "Trade Secret" is any scientific
or technical information, design, process, procedure, formula or improvement
that is valuable and not generally known to competitors of the Company, its
subsidiaries and affiliates. "Confidential Information" is any data or
information, other than Trade Secrets, that is important, competitively
sensitive, and not generally known by the public, including, but not limited to,
the Company's business plan, business prospects, training manuals, product
development plans, bidding and pricing procedures, market strategies, internal
performance statistics, financial data, confidential personnel information
concerning employees of the Company, supplier data, operational or
administrative plans, policy manuals, and terms and conditions of contracts and
agreements and such similar information relating to subsidiaries and affiliates
of the Company. The terms "Trade Secret" and "Confidential Information" shall
not apply to information which is (i) already in Employee's possession (unless
such information was obtained by Employee from the Company or was obtained by
Employee in the course of Employee's employment by the Company), (ii) received
by Employee from a third party with no restriction on disclosure, or (iii)
required to be disclosed by any applicable law.
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3.3 Except as required to perform Employee's duties as an employee,
Employee will not use or disclose any Trade Secrets or Confidential Information
of the Company during employment, at any time after termination of employment
and prior to such time as they cease to be Trade Secrets or Confidential
Information through no act of Employee in violation of this Section 3.
3.4 Upon the request of the Company and, in any event, upon the
termination of employment hereunder, Employee will surrender to the Company all
memoranda, notes, records, drawings, manuals or other documents pertaining to
the Company's business, Employee's employment (including all copies thereof) or
the business of the Company's subsidiaries or affiliates. Employee will also
leave with the Company all materials involving any Trade Secrets or Confidential
Information of the Company. All such information and materials, whether or not
made or developed by Employee, shall be the sole and exclusive property of the
Company, and Employee hereby assigns to the Company all of Employee's right,
title and interest in and to any and all of such information and materials.
4. Covenant Not to Compete.
4.1 Employee hereby covenants and agrees with the Company that, during
the term of his employment with the Company and for a period of eighteen (18)
months after the expiration of this Agreement or the termination of employment
by Employee or by the Company, for any reason, with or without cause, Employee
will not directly or indirectly,
(i) within any geographic area where the Company does business or has
announced intentions, internally or externally, to commence doing
business, operate, develop, own any interest in (other than the
ownership of less than 5% of the equity securities of a publicly traded
company), be employed by, serve as a consultant to, or compete with the
Company, its subsidiaries or affiliates in the operation or development
of, any business which (A) involves the ownership, management or
operation of independent practice associations (B) owns, operates or
manages an entity which holds a limited Xxxx-Xxxxx license in the State
of California or any entity which has operations similar to an entity
which holds a limited Xxxx-Xxxxx license or (C) provides management and
consulting services to medical clinics, physician group practices,
independent practice associations, health system based medical groups,
independently-owned clinics or other similar entities;
(ii) interfere with, solicit, disrupt or attempt to disrupt any past, present
or prospective relationship, contractual or otherwise, between the
Company,
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or its subsidiaries or affiliates, and any physician, IPA, employer,
insuror, customer, client, supplier or employee of the Company, or its
subsidiaries or affiliates, including soliciting any physician under
contract with an IPA associated with or managed by the Company, or its
subsidiaries or affiliates; or
(iii) solicit any employee of the Company, or its subsidiaries or affiliates,
to leave their employment with the Company or its subsidiaries or
affiliates, as the case may be, or hire any such employee.
Employee shall not be entitled to circumvent the provisions of this
Section 4.1 by entering into a relationship with a Business as a consultant,
director, advisor, or otherwise, which has the effect of competing with the
Company, its affiliates or subsidiaries.
4.2 If a judicial determination is made that any of the provisions of
this Section 4 constitutes an unreasonable or otherwise unenforceable
restriction against Employee, the provisions of this Section 4 shall be rendered
void only to the extent that such judicial determination finds such provisions
to be unreasonable or otherwise unenforceable. In this regard, the parties
hereto hereby agree that any judicial authority construing this Agreement shall
be empowered to sever any portion of the territory or prohibited business
activity from the coverage of this Section 4 and to apply the provisions of this
Section 4 to the remaining portion of the territory or the remaining business
activities not so severed by such judicial authority. Moreover, notwithstanding
the fact that any provisions of this Section 4 are determined not to be
specifically enforceable, the Company shall nevertheless be entitled to recover
monetary damages as a result of the breach of such provision by Employee. The
time period during which the prohibitions set forth in this Section 4 shall
apply shall be tolled and suspended as to Employee for a period equal to the
aggregate quantity of time during which Employee violates such prohibitions in
any respect.
5. Specific Enforcement. Employee specifically acknowledges and agrees
that the restrictions set forth in Sections 3 and 4 hereof are reasonable and
necessary to protect the legitimate interest of the Company and that the Company
would not have employed Employee in the absence of such restrictions. Employee
further acknowledges and agrees that any violation of the provisions of Sections
3 or 4 hereof will result in irreparable injury to the Company, that the remedy
at law for any violation or threatened violation of such Sections will be
inadequate and that in the event of any such breach, the Company, in addition to
any other remedies or damages available to it at law or in equity, shall be
entitled to temporary injunctive relief before trial from any court of competent
jurisdiction as a matter of course and to permanent injunctive relief without
the necessity of proving actual damages. The existence of any claim or cause of
action on the part of Employee against the Company, whether arising from this
Agreement or otherwise, shall not constitute a defense to the granting or
enforcement of this injunctive relief. If the Company is required to enforce any
of its rights under this Agreement, the
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Company shall be entitled to recover from Employee all attorneys' fees, court
costs and other expenses incurred by the Company in connection with the
enforcement of those rights.
6. Term of Agreement. This Agreement shall be effective as of January 1,
2002, and shall continue for a term of two years unless terminated by either
party in the manner set forth herein. This Agreement shall be automatically
renewed for successive one year terms unless notice of termination is given by
either party at least 180 days prior to the end of the then current term.
7. Termination Upon Death or Disability of the Employee. In the event
the Employee dies during the term of this Agreement or the Employee is disabled
and unable to perform his duties in any material respect for a period of three
months, this Agreement shall immediately terminate and neither the Employee nor
the Company shall have any further obligations hereunder, except that the
Company shall continue to be obligated under Section 2 hereof for any unpaid
salary, accrued benefits or unreimbursed expenses owed to Employee or his estate
that have accrued but not been paid as of the Termination Date.
8. Termination by Employee. Employee may at any time terminate his
employment by giving the Company ninety (90) days prior written notice of his
intent to terminate the Agreement. At the Termination Date, the Company shall
have no further obligation to Employee and Employee shall have no further rights
or obligations hereunder, except as set forth in Sections 3 and 4 above, and
except for the Company's obligation under Section 2 hereof for unpaid salary,
accrued benefits or unreimbursed expenses that have accrued but have not been
paid as of the Termination Date.
9. Termination for Cause. The Company shall have the right at any time
to terminate Employee's employment immediately for cause, which shall include
any of the following reasons:
(a) If Employee shall violate the provisions of Sections 3 or 4
of this Agreement, or shall fail to comply with any other material term
or condition of this Agreement, or shall fail to perform competently and
efficiently the tasks assigned to him by his supervisor, or shall engage
in any material misconduct, neglect of duties or failure to act which
materially and adversely affects the business or affairs of the Company;
or
(b) If Employee shall (i) be convicted of a felony or (ii)
commit an act of dishonesty, fraud or embezzlement against the Company
or its affiliates.
Employee's obligations under Sections 3 and 4 hereof shall survive the
termination of the Agreement pursuant to this Section 9. In the event Employee's
employment hereunder is terminated in accordance with this Section, the Company
shall have no further obligation
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to make any payments to Employee hereunder except for unpaid salary, accrued
benefits or unreimbursed expenses that have accrued but have not been paid as of
the Termination Date.
10. Termination Without Cause. The Company may terminate Employee
without cause (which shall not include expiration of this Agreement or a
termination pursuant to Sections 7, 8 or 9) by giving Employee thirty (30) days
prior written notice.
(a) In the event Employee is terminated without cause during the term
hereof, other than a termination under Section 10(b) below, the Company shall
pay Employee all accrued benefits and unreimbursed expenses owed to Employee
that have accrued but have not been paid as of the Termination Date. In the
event the Termination Date is after the effective date of PhyCor Inc.'s Plan of
Reorganization under Chapter 11 of the Bankruptcy Code, the Company shall also
continue to pay to Employee his salary set forth in Section 2(a) hereof for a
period of six months after the Termination Date and shall continue to provide
the health insurance benefits hereof for a period of six months.
(b) Other than the issuance of voting securities under the Company's
Plan of Reorganization under Chapter 11 of the Bankruptcy Code, in the event
either (i) the Company sells substantially all of its assets, or (ii) PhyCor,
Inc. or its affiliates sell 50% or more of the outstanding voting securities of
the Company to persons other than affiliates of PhyCor, Inc., or (iii) the
Company is merged or consolidated with or into another company (that is not an
affiliate of PhyCor, Inc.) and the Company does not survive the transaction or
survives only as a subsidiary of a company other than PhyCor, Inc. or its
affiliates, or (iv) in the event any person or group (as such terms are defined
in Section 13(d) of the Securities Exchange Act of 1934, as amended) becomes the
holder of 50% or more of the outstanding voting securities of PhyCor, Inc. or
has the power, directly or indirectly, to designate a majority of the members of
the Board of Directors of PhyCor, Inc., then, in the event Employee is
terminated without cause during six months after consummation of such
transaction, or Employee terminates his employment with the Company, with or
without cause, during the first six months after consummation of such
transaction, the Company shall pay Employee all accrued benefits and
unreimbursed expenses owed to Employee that have accrued but have not been paid
as of the Termination Date. In addition, the Company shall continue to pay to
Employee his salary set forth in Section 2(a) hereof for a period equal to the
greater of (x) the remaining term of this Agreement or (y) twelve (12) months
after the Termination Date and shall continue to provide the health insurance
benefits hereof for such period.
(c) The foregoing severance payments shall be made in accordance with
Employee's regular salary schedule. The Company's obligation to continue paying
Employee's salary will cease upon notification by Employee that he has commenced
employment with another employer, and the Company's obligation to continue
paying Employee's health insurance benefits will cease upon notification by
Employee that he has qualified for coverage with such new employer. As a
condition of the foregoing severance provisions, Employee shall advise the
Company, in writing, by the first day of
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each month, of his employment status and whether he has been employed. Failure
to so advise the Company shall result in termination of severance and benefits.
Employment with another employer includes receiving compensation for services as
a consultant, advisor or any relationship in which Employee is provided
compensation for services performed. Payment of the severance benefits set forth
herein shall be subject to the execution and delivery of a Separation Agreement
containing a full release of the Company's obligations to Employee. Whether or
not the provisions of Section 4 hereof are ultimately held to be enforceable or
unenforceable, the Company's obligations pursuant to this Section 10 shall
terminate immediately (i) upon acceptance of employment in violation of Section
4, or (ii) upon notice by Employee to Employer, whether or not in writing, that
Employee does not intend to honor the provisions of Section 4, or the taking of
any other action by Employee that would have the effect of declaring the
provisions of Section 4 not enforceable.
11. Assignment.
(a) The rights and benefits of Employee under this Agreement,
other than accrued and unpaid amounts due under Section 2 hereof, are
personal to him and shall not be assignable. Discharge of Employee's
undertakings in Sections 3 and 4 hereof shall be an obligation of
Employee's executors, administrators, or other legal representatives or
heirs.
(b) This Agreement may not be assigned by the Company except to
an affiliate of the Company, provided, however, that if the Company
shall merge or effect a share exchange with or into, or sell or
otherwise transfer substantially all its assets to, another corporation,
the Company shall assign its rights hereunder to that corporation and
cause such corporation to assume the Company's obligations under this
Agreement.
12. Notices. Any notice or other communications under this Agreement
shall be in writing, signed by the party making the same, and shall be delivered
personally or sent by certified or registered mail, postage prepaid, addressed
as follows:
If to Employee: Xxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to the Company: North American Medical Management-
Southern California, Inc.
00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
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or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date personally delivered or
mailed.
13. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Tennessee.
14. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid, but if any one
or more of the provisions contained in this Agreement shall be invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability for any such provisions in every other respect and of the
remaining provisions of this Agreement shall not be in any way impaired.
15. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter contained herein. There
are no restrictions, promises, covenants, or undertakings, other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. This
Agreement may not be changed except by a writing executed by the parties.
16. Dispute Resolution Procedures.
(a) Meet and Confer. The parties agree to meet and confer on any issue
that is the subject of a material dispute under this Agreement, as a condition
precedent to the mediation and arbitration provisions of this Section. All
deadlines specified in this provision may be extended by mutual agreement. The
Initiating Party shall give written notice to the other party, describing in
general terms the nature of the dispute, the Initiating Party's position and a
summary of the evidence and arguments supporting its position, and identifying
one or more individuals with authority to negotiate and settle the dispute on
such party's behalf. The individuals so designated by a party shall be known as
the Authorized Individuals. The Responding Party shall have ten (10) business
days within which to respond. The response shall be in writing, and include the
Responding Party's position and a summary of the evidence and arguments
supporting its position and shall also identify one or more Authorized
Individuals with authority to negotiate and settle the dispute on such party's
behalf. The Authorized Individuals for the Parties shall meet at a mutually
acceptable time and place within ten (10) business days of the Responding
Party's response and thereafter as often as they deem reasonably necessary to
exchange relevant information and to attempt to resolve the dispute. If the
matter has not been resolved within sixty (60) days of the Initiating Party's
notice, or if the Responding Party will not meet as required herein, either
party may submit the dispute to mediation in accordance with paragraph (b) by
giving the other party written notice that the matter is being submitted to
mediation.
(b) Mediation. The mediation proceeding shall commence not more than
thirty (30) days after the written notice initiating the mediation process is
given by
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one party to the other. The mediation shall be conducted in Nashville, Tennessee
by an impartial third party mediator selected in accordance with the procedures
of JAMS/Endispute, Inc. The mediator may be given written statements prepared by
the parties and may inspect any applicable documents or instruments. All
mediation proceedings shall be attended by Authorized Individuals. The costs and
expenses associated with the mediator and the mediation shall be divided and
paid equally by the Parties regardless of the result of the mediation
proceeding. Each party shall bear its own attorneys fees and costs in connection
with the mediation process. If as a result of the mediation, a settlement of the
dispute is reached, then (1) the mediator shall be deemed to be, and
automatically be, appointed by the parties as an arbitrator for the sole purpose
of signing the settlement agreement reached through the mediation process, (ii)
the settlement agreement shall have the same force and effect as an arbitration
award, and (iii) judgment may be entered upon the settlement agreement in any
court of competent jurisdiction in accordance with applicable law. Evidence or
admissions made during the meetings described in Section (a) above and the
mediation proceedings shall be inadmissible and not subject to discovery in any
civil proceeding.
(c) Arbitration. If a dispute is not resolved through the mediation
process described in Section (b) above, then either party may commence
arbitration by giving a written notice to the other party demanding arbitration.
The written demand for arbitration shall set forth the nature of the dispute,
the dollar amount involved, and the remedies sought. There shall be one (1)
neutral third party arbitrator. If the parties are unable to agree upon a
mutually acceptable neutral arbitrator within thirty (30) days after the demand
for arbitration is given, then the parties stipulate to the arbitration before a
single neutral third party arbitrator who is a retired judge on the panel of
JAMS/Endispute, Inc. and who is selected by the then serving chief
administrative officer of JAMS/Endispute, Inc. The parties will share equally
all costs of arbitration including the administrative fees and the arbitrator's
fees. Positions taken by the parties in the arbitration should not be limited or
restricted by any position taken in the meet and confer and mediation process as
set forth in sections (a) and (b) above. The positions and the results of said
meet and confer and mediation, including any recommendations of the mediator
shall not be disclosed to the arbitrator. At the conclusion of the arbitration,
the prevailing party, as determined or apportioned by the arbitrator, shall be
entitled to reimbursement by the other party of the prevailing party's
attorneys' fees and any arbitration fees and expenses incurred by the prevailing
party in connection with the arbitration. As soon as reasonably practicable
after the written notice of demand for arbitration is delivered, a hearing with
respect to the dispute or matter to be resolved shall be conducted by the
arbitrator. As soon as reasonably practicable thereafter, but not later than
thirty (30) days after the hearing is completed, the arbitrator shall arrive at
a final decision, which shall be in writing, signed by the arbitrator and mailed
to each of the parties and their respective legal counsel. All decisions of the
arbitrator shall be final, binding and conclusive on all parties; and
arbitration shall be the only method of resolving disputes or matters that have
not been resolved through the meet and confer or mediation process described
above. The party against whom the award has been rendered shall pay any monetary
award and/or comply with any other order of the
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arbitration within sixty (60) days of the issuance of the award. The arbitrator
or a court of competent jurisdiction may issue a writ of execution to enforce
the arbitrator's decision and costs of filing may be recovered by the party that
initiates such action to have an award enforced. Judgment may be entered upon
such arbitrator's decision in accordance with applicable law in any court having
competent jurisdiction thereof. Notwithstanding anything herein to the contrary,
each of the parties hereto shall have the right to apply for and obtain a
temporary restraining order of other temporary, interim or permanent injunctive
or equitable relief from a court of competent jurisdiction in order to enforce
the provisions of any part of this Agreement as may be necessary to protect a
party's rights under the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
day and year first above written.
NORTH AMERICAN MEDICAL MANAGEMENT
CALIFORNIA, INC.
Attest: By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
/s/ N. Xxxxxxx Xxxxxxxx Title: Chairman and Executive
---------------------------- -----------------------------------
Title: Secretary Vice President
Witness: EMPLOYEE
/s/ Xxxxxxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxxx
---------------------------- -----------------------------------------
Xxxx X. Xxxxx
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