Exhibit 10.22
EXECUTION VERSION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is made as of December 23, 2016, by and between PEDIATRIC SERVICES OF AMERICA, INC., a Georgia corporation (the "Company"), and Ed Reisz ("Executive"). The "Effective Date" of this Agreement shall be the Closing Date, as such term is defined in that certain Agreement and Plan of Merger, dated as of December 23, 2016 (the "Merger Agreement"), by and among PSA Healthcare Intermediate Holding, Inc., a Delaware corporation, BCPE Eagle Buyer LLC, a Delaware limited liability company ("Buyer"), BCPE Eagle Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Buyer, PSA Healthcare Holding, LLC, a Delaware limited liability company, and BCPE Eagle Holdings, Inc., a Delaware corporation ("Holdings"); provided that if the transactions contemplated by the Merger Agreement (collectively, the "Transaction") are not consummated, this Agreement shall be null and void ab initio and of no force and effect.
WHEREAS, pursuant to that certain Employment Agreement dated May 9, 2016, by and between the Company and Executive (the "Prior Agreement"), Executive serves as chief people officer (the "Chief People Officer"); and
WHEREAS, subject to the consummation of the Transaction, the Company seeks to retain Executive's services pursuant to the terms of this Agreement, which will supersede the Prior Agreement in its entirety; provided that, for the avoidance of doubt, the parties' entry into this Agreement will not constitute "Good Reason" to terminate Executive's employment under the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
KE 44795196
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proceeds to decrease Executive's Base Salary, Executive shall retain the right to terminate his employment for Good Reason in accordance with the applicable provisions of this Agreement, subject to (A) the decrease in Executive's Base Salary being material (as contemplated by clause (i) of the first sentence of Section 9(h)), (B) Executive providing a Notice of Termination (as defined below) as described in clause (1) of the last proviso of Section 9(h) and (C) the Company's right to cure as provided in clause (2) of the last proviso of Section
.2(hl. If, after the Company gives Executive a Section 4(a)(ii) Company Notice, Executive does not provide the Company with a Section 4(a)(ii) Notice of Intent to Terminate in accordance with the foregoing, then (A) the applicable decrease in Base Salary shall not constitute Good Reason (or otherwise be a basis therefor) and (B) Executive shall be deemed to have consented to, and waived the right to terminate his employment for, Good Reason in connection with the applicable decrease in his Base Salary (whether or not the decrease is material). If the Company increases or decreases Base Salary as contemplated by this Section 4(a)(ii), "Base Salary" in this Agreement thereafter is to refer to Executive's Base Salary, as so increased or decreased.
NTD: To be adjusted depending on when the Transaction is consummated.
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the lesser of (x) the COBRA Premium and (y) the premium required to continue such coverage after COBRA coverage is converted to individual plan(s).
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Executive were to engage in the conduct prohibited by this Section 7. Accordingly, Executive agrees to the following restrictions.
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of the Company Group would seek from the referral source at the time of termination of employment.
businesses, products, services or activities; provided that such restriction shall not prohibit truthful testimony compelled by valid legal process.
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deleted and irretrievable. Notwithstanding the foregoing, Executive shall be permitted to retain a copy of mutually agreeable presentations and other documents not containing Confidential Information that demonstrate the results Executive achieved with the Company, such agreement not to be unreasonably withheld.
G) Enforcement. In signing this Agreement, Executive gives the Company assurance that Executive has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed on Executive under this Section 7. Executive agrees that these restraints are necessary for the proper protection of the Company Group and their Affiliates and their trade secrets and Confidential Information and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area, and that these restraints, individually or in the aggregate, will not prevent Executive from obtaining other suitable employment during the period in which Executive is bound by the restraints. Executive agrees that, before
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providing services, whether as an employee or consultant, to any entity during the Restricted Period, Executive will provide a copy of this Agreement (including, without limitation, Section 7) to such entity. Executive acknowledges that each of these covenants has a unique, very substantial and immeasurable value to the Company Group, that Executive has sufficient assets and skills to provide a livelihood while such covenants remain in force and that, as a result of the foregoing, in the event that Executive breaches
such covenants, monetary damages would be an insufficient remedy for the Company Group and equitable enforcement of the covenant would be proper. Executive therefore agrees that the Company Group, in addition to any other remedies available to it, shall be entitled to seek preliminary and permanent injunctive relief against any breach by Executive of any of those covenants, without the necessity of showing actual monetary damages or the posting of a bond or other security. Executive understands and agrees that if it is finally determined that he violated any of the obligations set forth in the Restrictive Covenants (as defined below), the period of restriction applicable to each obligation violated shall cease to run during the pendency of any litigation over such violation; provided that such litigation was initiated during the period of restriction. Executive and the Company further agree that, in the event that any provision of this Section 7 is determined by any court of competent jurisdiction to be unenforceable by reason of it being extended over too great a time, too large a geographic area or too great a range of activities, that provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law. It is also agreed that each of the Affiliates of the Company Group will have the right to enforce all of Executive's obligations to that affiliate under this Agreement, including without limitation pursuant to this Section 7, and that such parties' ability to enforce their rights under the Restrictive Covenants or applicable law against Executive shall not be impaired in any way by the existence of a claim or cause of action on the part of Executive based on, or arising out of, this Agreement or any other event or transaction relating thereto other than Section 4, Section Q or Section 8 of this Agreement or any other event or transaction relating thereto.
(k) Severability and Modification of Covenants. Executive acknowledges and agrees that each of the covenants in this Section 7 (the "Restrictive Covenants") is reasonable and valid in time and scope and in all other respects. The parties agree that it is their intention that the Restrictive Covenants be enforced in accordance with their terms to the maximum extent permitted by law. Each of the Restrictive Covenants shall be considered and construed as a separate and independent covenant. Should any part or provision of any of the Restrictive Covenants be held invalid, void, or unenforceable, such invalidity, voidness, or unenforceability shall not render invalid, void, or unenforceable any other part or provision of this Agreement or such Restrictive Covenant. If any of the provisions of the Restrictive Covenants should ever be held by a court of competent jurisdiction to exceed the scope permitted by the applicable law, such provision or provisions shall be automatically modified to such lesser scope as such court may deem just and proper for the reasonable protection of the Company Group's legitimate business interests and may be enforced by the Company to that extent in the manner described above and all other provisions of this Agreement shall be valid and enforceable.
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provision of this Agreement, after notice and a period of thirty (30) days to cure such failure, to the extent curable.
(iv) if Executive's employment is terminated by Executive without Good Reason, then sixty (60) days from the date on which the Notice of Termination is given.
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physical or mental incapacity exists or existed during the applicable period, then such dispute is to be decided by a medical doctor selected by the Company and a medical doctor selected by Executive and Executive's legal representative (or, in the event that these doctors fail to agree, then in the majority opinion of these doctors and a third medical doctor chosen by these doctors). Each party shall pay all costs associated with engaging the medical doctor selected by such party and the parties shall each pay one half of the costs associated with engaging any third medical doctor.
G) "Material Contact" means contact between Executive and a customer or referral source of the Company Group (i) with whom or which Executive has or had dealings on behalf of the Company Group; (ii) whose dealings with the Company Group are or were coordinated or supervised by Executive; (iii) about whom Executive obtains Confidential Information in the ordinary course of business as a result of his employment with the Company Group; or (iv) who receives products or services of the Company Group, the sale or provision of which results or resulted in compensation, commissions, or earnings for Executive within the two (2) years prior to Executive's Date of Termination.
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reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive's employment under the provision so indicated. For purposes of this Agreement, no purported termination by either party is to be effective without a Notice of Termination.
(12) or twenty-four (24) months later, as applicable.
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specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
Notices to Executive:
Ed Reisz
To his home address currently on file with the Company Notices to the Company:
Pediatric Services of America, Inc. Six Concourse Parkway
Suite 1100
Atlanta, GA 30328
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Attention: Chief Financial Officer Facsimile: +l (770) 248-8192
With a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP 300 North LaSalle Street Chicago, IL 60654
Attention: Jon A. Ballis, P.C. and Matthew H. O'Brien Facsimile: (312) 862-2200
Email: jballis@kirkland.com and obrienm@kirkland.com
DechertLLP
1095 Avenue of the Americas New York, NY 10036-6797
Attention: Markus Bolsinger Facsimile: (212) 698 3599
E-mail: markus.bolsinger@dechert.com
or any other address or to the attention of any other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement is to be deemed to have been given when so delivered, sent or mailed.
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reference to the masculine, feminine or neuter gender will be deemed to include any gender or all three, as appropriate. Whenever the words "include," "includes" or "including" are used in this Agreement, they will be deemed to be followed by the words "without limitation," whether or not they are in fact followed by those words or words of like import. "Writing," "written" and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. The term "ordinary course" or "ordinary course of business" or comparable terms means, in respect of any Person, the ordinary course of such Person's business, as conducted by such Person in accordance with past practice (including with respect to timing, frequency, amount and price, as applicable). References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. Any reference to "days" means calendar days unless business days are expressly specified. If any action under this Agreement is required to be done or taken on a day that is not a business day, then such action will be required to be done or taken not on such day but on the first succeeding business day thereafter.
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The parties are signing this Agreement as of the date stated in the introductory clause.
Pediatric Services of America
/s/ Rod Windley
Name: Rodney D. Windley Title: Executive Chairman
Executive
/s/ Ed Reisz
Name: Ed Reisz
[Signature Page to Employment Agreement]
APPENDIX 1-0UTSIDE ACTIVITIES
APPENDIX 2 - RELEASE AGREEMENT
This Release Agreement (this "Release Agreement") is entered into as of the [ ] day of [ ], 20LJ between PEDIATRIC SERVICES OF AMERICA, INC., a Delaware corporation (the "Company"), and ED REISZ ("Executive"). INTENDING TO BE LEGALLY BOUND,
Executive and the Company agree as follows.
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Employment Agreement and under any agreement (other than the Employment Agreement) entered into by Executive and the Company, including, but not limited to, this Release Agreement, any indemnification agreement, any equity award agreement, and any exhibits to such agreements (collectively, the "Subject Agreements"); (ii) Executive's rights of indemnification with regard to his service as an officer or director of any of the Released Parties, including as set forth in Section 4(f) of the Employment Agreement and as set forth in the any indemnification agreement, certificate of incorporation, bylaws, operating agreement, or other governing company documents; (iii) Executive's rights under any D&O policy maintained by or for the benefit of the Released Parties or their respective employees, officers or directors at any time during or after the course of Executive's employment with, any of the Released Parties; (iv) Executive's rights to contribution with regard to Executive's service as an officer and director of the Released Parties; (v) acts or omissions occurring or claims by Executive arising after the Effective Date; (vi) Executive's rights to any Payments, any other rights under the Employment Agreement, rights under this Release Agreement, and/or rights under any Released Parties' employee benefit plans or under COBRA or other applicable benefits laws; (vii) any rights that Executive may have to assert an affirmative defense to a claim by the Released Parties; (viii) Executive's rights as an equityholder of BCPE Eagle Holdings, Inc.; or (ix) any rights or obligations under applicable law that cannot be waived or released pursuant to an agreement (such rights under subclauses (i)-(ix), "Preserved Rights"). Any claims, rights, and causes of actions not specifically set forth in this Section 3 as Preserved Rights are forever released and waived pursuant to Section 2.
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the CEO within the seven-day period. In the event of Executive's revocation, this Release Agreement, and the obligations recited herein, including the payment specified above, shall be null and void in accordance with its terms.
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Executive, and no course of conduct or failure or delay in enforcing the provisions of this Release Agreement is to affect the validity, binding effect or enforceability of this Release Agreement.
PEDIATRIC SERVICES OF AMERICA, INC., as
Company
By:/s/ Rod Windley
Name: Rodney D. Windley
Title: Executive Chairman Date:
ED REISZ,
as Executive
/s/ Ed Reisz
Date:
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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this “Amendment”) is made and entered into, effective as of January 1, 2022 (the “Effective Date”), by and among Aveanna Healthcare LLC f/k/a BCPE Eagle Buyer LLC, a Delaware limited liability company (“Aveanna Healthcare”), Pediatric Services of America, Inc., a Georgia corporation (the “Company”), and Ed Reisz (“Executive”).
RECITALS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties, intending to be legally bound, hereby expressly agree as follows:
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Employment Agreement to be duly executed and delivered as of the day and year first above written.
PEDIATRIC SERVICES OF AMERICA, INC.
By: /s/ Rod Windley
Name: Rodney D. Windley
Title: Executive Chairman
AVEANNA HEALTHCARE LLC
By: /s/ Rod Windley
Name: Rodney D. Windley
Title: Executive Chairman
EXECUTIVE
/s/ Ed Reisz
Ed Reisz
Signature Page to Amendment to Employment Agreement