Exhibit 10.9
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, dated effective as of January 1, 2000, is by and between
Meridian Occupational Healthcare Associates, Inc., a Delaware business
corporation ("Employer"), and Xxxxxxx Xxxxxxx Xxxxxxxxxx ("Employee").
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions set
forth in this Agreement.
2. TERM. The term of this Agreement shall commence as of the date hereof,
and shall continue for a period of two (2) years (the "Term") unless
sooner terminated pursuant to Paragraph 6 hereof. This Agreement shall
be automatically renewed for one (1) year periods unless at least one
hundred eighty (180) days before the second and all subsequent
anniversary dates of this Agreement either party gives notice in
writing to the other of its election not to extend the Term.
3. DUTIES. Employee shall serve as Chief Financial Officer. Employee
agrees to devote his/her entire working time, energy and skills, and to
the best of his/her ability, carry out the duties and responsibilities,
commensurate with the foregoing title, reasonably requested of him/her.
Notwithstanding the foregoing, Employee shall be permitted to continue
non-competitive outside business activities such as service on
charitable boards, corporate boards and volunteer activities, approved
by the Board of Directors, its Compensation Committee or an authorized
officer. The employee's services shall be based in Nashville,
Tennessee, although reasonable business travel may be required.
4. COMPENSATION
(a) Annual Salary. Employee shall receive a salary of One Hundred Fifty
Thousand ($150,000) per year ("Annual Salary"), payable in regular
installments at such time and in such manner as other executive
employees of Employer, but no more frequently than bi-weekly. The
Annual Salary will be reviewed by Employer for potential upward
adjustment at least once annually. Compensation adjustments will be
based on the results of a performance appraisal due annually. Any
determination to increase Employee's Annual Salary shall be in the sole
discretion of the Board, its Compensation Committee, or an authorized
officer. Downward adjustment of Annual Salary may entitle Employee to
terminate for Good Reason to the extent provided, and with the
consequences described, in Section 6.
(b) Bonuses. Employer may pay bonuses to Employee from time to time
during the term of this Agreement. Not less than once each year, the
Board of Directors, its Compensation Committee or an authorized officer
will review whether to pay Employee a bonus based upon his or her
performance during the applicable year, as well as Employer's financial
performance and condition. Payment of any such bonuses shall be in the
sole and absolute discretion of the Board of Directors, its
Compensation Committee or an authorized officer; provided that it is
intended that Employee shall participate in any bonus pool maintained
by Employer for executive employees.
(c) Commissions. No commissions will be paid to Employee with respect
to any contracts entered into by Employer, any affiliate of Employer,
or otherwise.
5. FRINGE BENEFITS
(a) General. During the term hereof, Employee shall receive fringe
benefits including health, life and disability insurance, pension or
retirement plan participation, to the extent provided to executive
officers of Employer generally.
(b) Vacation. Employee shall be entitled to receive paid time off for
vacation and/or sick days in an annual amount not less than the greater
of four weeks per year or the amount provided for Employee under
Employer's PTO policy as of the effective date of this Agreement.
Employee shall, in his or her reasonable discretion with the reasonable
approval of the Board, its Compensation Committee, or an authorized
officer, and subject to the general policies and practices of Employer,
determine the time and intervals of such vacation. Notwithstanding the
first sentence of this paragraph, any paid vacation that has been
accrued but not used as of December 31 of any year shall be deducted
from the maximum amount that may accrue during the following year, so
that at no time will any Employee have accrued more than the maximum
amount set forth in the first sentence of this paragraph, unless such
continued accrual is approved by the Board, its Compensation Committee,
or an authorized officer.
(c) Reimbursement for Reasonable Business Expenses. Employer shall,
within its general policies and practices (including without limitation
the requirement of reasonable documentation), reimburse Employee for
reasonable business expenses incurred by him or her in connection with
the performance of her duties pursuant to this Agreement, including,
but not limited to, travel expenses and other reasonable business
expenses.
6. TERMINATION
(a) Death. If Employee shall die during the Term, this Agreement shall
terminate, except that Employee's legal representatives shall be
entitled to receive the Annual Salary and any accrued but unused
vacation pay to the last day of the month in which Employee's death
occurs.
(b) Disability. If Employee shall suffer permanent or long term
disability during the Term, this Agreement shall terminate, except that
Employee shall be entitled to receive the Annual Salary and any accrued
but unused vacation pay to the earlier of (a) the last day of the month
in which Employee first becomes eligible for reimbursement under any
long term disability insurance policy then maintained by the Employer
for the benefit of Employee (the "Insurance Policy"), or (b) 180 days
following the occurrence of such permanent or long term disability.
Permanent or long term disability shall be defined in the same manner
as under the Insurance Policy, if any, or, if no Insurance Policy
exists, shall mean such disability as shall prevent Employee from
performing his or her duties hereunder for a period in excess of 90
days.
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(c) Other Early Termination. Notwithstanding any other provision herein
to the contrary, Employer may terminate Employee's employment hereunder
with cause or without cause by written notice to Employee at any time
specifying the date of termination. If Employer terminates Employee
without cause or if Employee terminates his or her employment hereunder
with Good Reason as defined below, Employee shall be entitled to
receive and Employer shall be obligated to pay, as severance: (i) an
amount equal to twelve (12) months of Employee's then current Annual
Salary payable in monthly installments; (ii) continuation at Employer's
expense for twelve (12) months of group health insurance. Employee's
employment by Employer shall be deemed to have been terminated for
cause if terminated for any of the following reasons, each of which
shall be "cause" for termination of Employee's employment: (i)
Employee's willful failure to comply with this Agreement or perform his
or her duties hereunder in any material respect, provided that Employee
shall have been given ten days' written notice of such failure and an
opportunity to cure; or (ii) Employee's commission of a material act of
dishonesty related to performance of his or her duties or to Employer's
affairs, or an act of fraud, embezzlement or any crime classed as a
felony under applicable law.. Employee will be deemed to have
terminated his or her employment hereunder with Good Reason if he or
she terminates his or her employment within thirty (30) days after: (i)
a diminution in Employee's Annual Salary of more than five percent
(5%); (ii) Employee's relocation by Employer to a place of work more
than thirty (30) miles from Employee's previous place of work, or (iii)
a material diminution, without Employee's consent, in Employee's title
or responsibilities as compared to those described in Section 3.
7. RESTRICTIVE COVENANTS
(a) Confidentiality. Employee agrees to keep secret and retain in the
strictest confidence, all confidential matters of Employer, including,
without limitation, trade secrets, "know-how", provider lists, customer
lists, pricing policies, utilization review and quality management
protocols, operational methods and other business affairs and plans of
Employer and its affiliates and subsidiaries, and not to disclose such
information to anyone outside of the Employer, except in the course of
performing his or her duties hereunder or with Employer's express
written consent. Upon termination of employment with Employer, or at
any time the Employer may so request, Employee agrees to deliver
promptly to the Employer all memoranda, notes, records, manuals, and
other documents (and all copies hereof) relating to the Employer's
business and all property associated therewith, which Employee may then
possess or have under his or her control.
(b) Non-Competition. Employee agrees that during the Term, and for a
period of six (6) months after termination or expiration of the Term
for any reason, Employee shall not serve as proprietor, partner,
employee, stockholder, principal, agent, consultant, director, or
officer, or in any other capacity participate, engage or have a
financial or other interest in, any business which is a Direct
Competitor of Employer. The term "Direct Competitor" as used herein
shall mean any person or entity which is engaged in, or is about to
become engaged in, the development or operation of an entity or
business similar to Employer, or which provides services similar to
those offered by Employer in any state in which Employer or any of its
subsidiaries or affiliates conducts business activities or plans to
conduct business activities as described above during the Term or at
the time of the
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termination thereof. This paragraph shall not preclude Employee from
accepting employment or otherwise establishing a consulting or
financial relationship with a health maintenance organization,
insurance company or other third party payer of health benefits so long
as Employee is not involved in the management, development, or
operation of occupational health or primary care facilities or
programs, or other lines of business in which Employer is engaged at
the time of termination of Employee's employment hereunder. For
purposes of this Paragraph, the ownership of an interest constituting
not more than one percent (1%) of the outstanding debt or equity in a
corporation whose shares are traded in a recognized stock exchange or
traded in an over-the-counter market, even though the corporation may
be a Direct Competitor, shall not be deemed financial interest or
participation in a Direct Competitor.
(c) Non-Solicitation. Employee agrees that for a period of one (1) year
beginning on the date of termination of Employee's employment with
Employer, for any reason, he or she shall not directly or indirectly,
either individually or as an employee, agent, partner, shareholder,
consultant or in any other capacity: (i) solicit or attempt to solicit
or influence any employee of Employer or employee or physician
independent contractor of any affiliate or subsidiary of Employer, or
successor or assign thereof, to perform any services whatsoever for any
business which is a Direct Competitor; or (ii) call upon any person or
entities having business relationships with Employer or any of
Employer's affiliates or subsidiaries, or any successor or assign
thereof, with a view to inducing such person or entities to cease doing
business with Employer, its affiliates or subsidiaries, or any
successor or assign thereof.
(d) Remedies. If the Employee commits a breach, or threatens to commit
a breach, of any of the provisions of this Paragraph 7, Employer's
rights and remedies shall include, but are not limited to, the
following:
(i) the right and remedy to have the provisions of this
Agreement specifically enforced by any court of competent
jurisdiction, it being acknowledged that any such breach or
threatened breach shall cause irreparable injury to the
Employer, and that money damages shall not provide an adequate
remedy to Employer; and
(ii) the right and remedy to require Employee to account for
any and pay over to Employer all compensation, profits,
monies, accruals, or other benefits derived or received by him
or her as a result of any transactions constituting a breach
of any of the provisions of this Paragraph 7, and the Employee
hereby agrees to account for and pay over such amounts to
Employer.
Each of the rights and remedies enumerated above shall be
independent of the other and shall be severally enforceable,
and all such rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to
Employer under law or in equity.
(e) Construction. If any of the covenants contained in this Paragraph
7, or any part thereof, hereafter is construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant
or covenants, which shall be given full effect, without regard to
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the invalid portions. If any of the covenants contained in this
Paragraph 7, or any part thereof, is held to be unenforceable because
of the duration of such provision or the areas covered thereby, the
parties agree that the court making such determination shall have the
power to reduce the duration and/or the area of such provision, and, in
its reduced form, said provision shall then be enforceable.
8. WAIVER. The failure of either party to insist, in any one or more
instances, upon the performance of the terms or conditions of this
Agreement shall not be construed as a waiver or relinquishment of any
right granted hereunder or of the future performance of any such term,
covenant, or condition.
9. INDEMNIFICATION. Employer hereby indemnifies and holds harmless
Employee from any and all liability, loss, damage, claim or expense of
any kind incurred by Employee, including costs and reasonable
attorney's fees, arising from or related to Employee's good faith
performance of his or her duties hereunder. The indemnifications of
this Paragraph 9 shall survive the termination of this Agreement.
10. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally, or by
overnight delivery services, or sent by registered or certified mail,
return receipt requested, first-class postage prepaid and properly
addressed as follows:
If to Employer: Meridian Occupational Healthcare Associates, Inc.
00 Xxxxxx Xxxxx Xxxxxxxxx - Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Human Resources Director
If to Employee: __________________________________
__________________________________
__________________________________
11. AMENDMENT. This Agreement may be amended only by an agreement in
writing signed by the Employer and Employee.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
13. ASSIGNMENT; SUCCESSORS AND ASSIGNS. The rights and obligations of
Employee may not be delegated or assigned except as specifically set
forth in this Agreement, and except for normal and customary
delegations of responsibilities to subordinate officers or employees of
Employer. This Agreement shall be binding upon and inure to the benefit
of and shall be enforceable by employer and its respective successors
and assigns, and employee, his or her heirs, beneficiaries and legal
representatives.
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14. ENTIRE AGREEMENT. This Agreement contains the entire Agreement of the
parties with respect to Employee's employment by Employer and this
Agreement supersedes any prior Agreements between them, whether oral or
written.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of January 1, 2000.
MERIDIAN OCCUPATIONAL HEALTHCARE ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Date: 1-20-2000
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Employee: Xxxxxxx Xxxxxxx
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(print)
/s/ Xxxxxxx Xxxxxxx
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(signature)
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