1
Exhibit 10.9
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT (the "Agreement"), dated November
19, 1999, between AMN Healthcare, Inc. (the "Company") and Xxxxx X. Xxxxxxxxxx
("Executive").
1. Employment at Will.
The Company agrees to employ Executive and Executive hereby agrees to
be employed by the Company upon such terms and conditions as are mutually agreed
upon. Executive's employment with the Company shall be at the discretion of the
Company and Executive hereby agrees and acknowledges that the Company may
terminate Executive's employment at any time, for any reason, with or without
cause, and without notice. Nothing contained in this Agreement shall (a) confer
on Executive any right to continue in the employ of the Company, (b) constitute
any contract or agreement of employment, or (c) interfere in any way with the
at-will nature of Executive's employment with the Company.
2. Severance Benefits.
In the event that the Company terminates Executive's employment without
"Cause" (as defined below), the Company agrees to:
(a) Pay to Executive severance payments in an amount equal to twelve
(12) months base salary as in effect on the date of the termination of
Executive's employment (the "Termination Date"), commencing with the first
payroll date after the Termination Date and payable in equal installments by
mail or by direct deposit in accordance with the Company's normal payroll
schedule and practices. All withholding taxes and other deductions which the
Company is required by law to make from wage payments to employees will be made
from such severance payments.
(b) If Executive makes an election to continue Executive's coverage
under the Company's group health plans pursuant to Section 601 of the Employee
Retirement Income Security Act of 1974, as amended, reimburse Executive for the
cost of such coverage during the period beginning on the Termination Date and
ending on the earlier of (i) the twelve month anniversary of the Termination
Date or (ii) the date upon which the Executive becomes eligible for comparable
coverage under another employer's group health plans. Such period shall run
concurrently with the period of Executive's rights under COBRA.
For purposes of this Agreement, "Cause" for termination of the
Executive shall mean (a) Executive's failure to perform in any material respect
his duties as an employee of the Company, (b) the engaging by Executive in
willful misconduct or gross negligence which is injurious to the Company or any
of its affiliates, monetarily or otherwise, (c) the commission by Executive of
an
2
act of fraud or embezzlement against the Company or any of its affiliates, or
(d) the conviction of Executive of a crime which constitutes a felony or a
pleading of guilty or nolo contendre with respect to a crime which constitutes a
felony; provided, however, that in the case of (a) or (b), the Company shall
furnish Executive with at least twenty (20) business days prior written notice
of such failure or breach and allow Executive twenty (20) business days after
receipt of such notice to cure such failure or breach, if such breach or failure
is curable in such period.
3. No Other Payments.
Executive understands and agrees that the payments and benefits
described above are in lieu of, and discharge, any obligations of the Company to
Executive for compensation, incentive or performance payments, or any other
expectation or form of remuneration or benefit to which Executive may be
entitled, including severance benefits under any Company plan or program, except
for: (i) any unpaid wages due for work performed during the last pay period(s)
prior to the Termination Date; (ii) any unused vacation which is duly recorded
on the Company's payroll records as of the Termination Date; (iii) the
continuation of Executive's coverage under the Company's group health plans
pursuant to the terms of such plans and applicable law, and (iv) any amounts
payable to Executive under any retirement plan of the Company.
4. Severance Benefits Conditioned Upon Release.
Executive acknowledges and understands that Executive's eligibility for
severance pay and other benefits hereunder is contingent upon Executive's
execution and acceptance of the terms and conditions of, and the effectiveness
of the Company's standard Covenant and General Release of All Claims (the
"Release") as in effect on the Termination Date. The Company's standard Release
in effect as of the date of this Agreement is set forth on Exhibit A hereto. The
Company's standard Release may be modified from time to time in the Company's
discretion as it deems appropriate. If Executive fails to execute a Release
within twenty-one (21) days of receipt of such Release (or if Executive revokes
such Release in a manner permitted by law), then Executive shall not be entitled
to any severance payments or other benefits to which Executive would otherwise
be entitled under this Agreement.
5. Miscellaneous Provisions.
(a) This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and may be amended, modified or
changed only by a written instrument executed by Executive and the Company. No
provision of this Agreement may be waived except by a writing executed and
delivered by the party sought to be charged.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without reference to principles of
conflict of laws.
(c) All notices and other communications hereunder shall be in writing;
shall be delivered by hand delivery to the other party or mailed by registered
or certified mail, return
2
3
receipt requested, postage prepaid; shall be deemed delivered upon actual
receipt; and shall be addressed as follows:
If to the Company:
AMN HEALTHCARE, INC.
00000 Xx Xxxxxx Xxxx, #000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
If to Executive:
Xxxxx X. Xxxxxxxxxx
X.X. Xxx 000
Xxxxxx Xxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
(d) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.
Date: November 19, 1999 AMN HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________
Title: President
Date: November 19, 1999
By: /s/ Xxxxx X. Xxxxxxxxxx
_____________________________
Xxxxx X. Xxxxxxxxxx
"Executive"
3
