EXHIBIT 10.37
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of the 16th day
of March, 2009, by and between UCI Medical Affiliates of South Carolina, Inc., a
South Carolina corporation ("UCI"), and Joseph A. Boyle, CPA ("Boyle").
WHEREAS, Boyle currently serves as the Interim Chief Financial Officer of
UCI; and
WHEREAS, UCI desires to continue to employ Boyle, and Boyle desires to
continue to be employed by UCI, in accordance with the terms and conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. Employment. UCI hereby agrees to continue to employ Boyle to perform
the duties described in Section 3 below subject to and in accordance with the
terms and conditions hereof, and Boyle hereby accepts such employment.
2. Term. The employment hereunder shall commence on the date hereof,
and shall continue until terminated in accordance with the provisions of Section
6 of this Agreement.
3. Duties of Boyle.
A. In accepting employment by UCI hereunder, Boyle shall
undertake and assume the responsibility of performing for and on behalf of UCI
the duties of the Executive Vice-President and Chief Financial Officer of UCI,
and shall report directly to the Chief Executive Officer. Except with his
written consent, Boyle shall not be assigned to (i) any position of lower
professional status, or (ii) a location outside of Richland or Lexington
Counties, South Carolina. Boyle shall have such duties and authority as are
typical of the Chief Financial Officer and Executive Vice-President of a company
such as UCI, including, without limitation, those specific in UCI's bylaws.
B. During the term of this Agreement Boyle shall be a
full-time employee of UCI, and shall devote his full working time and efforts to
his duties hereunder. Boyle shall perform all of his duties hereunder to the
best of his ability and shall not, directly or indirectly, engage or participate
in any activities in conflict with the best interests of UCI, and will conduct
all activities in strict loyalty to UCI.
4. Compensation. As compensation for the services to be rendered by
Boyle for UCI under this Agreement, Boyle shall be compensated by UCI on the
following basis:
A. Base Salary. During the term of this Agreement, Boyle shall
receive from UCI an initial annual salary of Two Hundred Twenty-Two Thousand and
No/100 ($222,000) Dollars (the "Base Salary") payable in pay periods as
determined by UCI, but in no event less frequently than monthly. Boyle's Base
Salary shall be reviewed no less frequently than annually and may be increased
(but not reduced) at the discretion of the Board of Directors of UCI (or a
committee thereof) and, as so increased, shall constitute Boyle's "Base Salary"
hereunder.
B. Incentive Bonus. During the term of this Agreement,
provided that Boyle is a full-time employee of UCI on the final day of UCI's
fiscal year, in addition to other compensation to be paid under this Section 4,
Boyle shall receive a performance-based annual incentive bonus payment for the
then completed fiscal year of UCI (the "Annual Incentive Bonus"), which shall be
a percent of Base Salary. The amount actually awarded and paid to Boyle each
fiscal year will be determined by the Board of Directors of UCI and will be
based on specific performance criteria to be identified in writing in advance to
Boyle under a separate communication. The total amount of the Annual Incentive
Bonus to be paid hereunder shall be calculated by UCI and paid to Boyle within
90 days of the end of UCI's fiscal year to which the Annual Incentive Bonus
applies. UCI's calculation of the Annual Incentive Bonus amount shall be
conclusive and binding absent fraud or manifest and material error.
C. Vacation. During the term of this Agreement, Boyle annually
shall be entitled to a total of twenty (20) business days of paid vacation. Such
vacation days are to be taken at such time or times as Boyle may reasonably
request, subject to the UCI's convenience and prior approval, which approval
shall not be unreasonably withheld. Vacation time shall cumulate as specified in
UCI's then current vacation policy, as amended from time to time.
D. Reimbursement For Expenses. During the term of this
Agreement, UCI shall reimburse Boyle for all reasonable, ordinary and necessary
business expenses incurred by Boyle for the benefit of UCI in the performance of
his duties hereunder; provided however, reimbursement for such expenses shall
require the written approval of the Board of Directors of UCI or the Chief
Executive Officer of UCI. UCI shall also reimburse Boyle's reasonable expenses
for continuing education courses necessary to maintain any certifications or
licenses Boyle may hold.
E. Deferred Compensation. During the term of this Agreement,
Boyle may participate in UCI's Executive Nonqualified Excess Plan, as amended
from time to time (the "Plan"). During the term of this Agreement, and subject
to the terms and conditions of the Plan which may be amended from time to time
in accordance with the terms thereof, UCI shall make a matching credit to the
deferred compensation account of Boyle in an amount equal to 300% of the first
10% of the compensation Boyle defers to his account thereunder.
F. Other Benefits. Boyle shall be entitled to participate in
any employee benefit plans now existing or established hereafter generally
available to employees of UCI or senior officers of UCI, and to all normal
perquisites provided to senior officers of UCI, provided Boyle is otherwise
qualified to participate in such plans or programs.
The compensation stated above is intended to be the total compensation
paid to Boyle.
5. Confidentiality and Secrecy. Boyle acknowledges that in and as a
result of his employment hereunder, he will be making use of, acquiring, and/or
adding to confidential information of a special and unique nature and value
relating to UCI's business, including without limitation technological knowhow,
copyrights, proprietary information, trade secrets, systems, procedures,
manuals, confidential reports, records, operational expertise, lists of
customers and projects, the nature and type of services rendered by UCI, the
equipment and methods used and preferred by UCI's customers, and the fees paid
by them (all of which are deemed for all purposes confidential and proprietary).
As a material inducement to UCI to enter into this Agreement and to pay to Boyle
the compensation stated in Section 4 herein, Boyle covenants and agrees that
during the term of his employment hereunder, and for five (5) years after the
termination thereof, he shall not, directly or indirectly, make use of, or
disclose to any person, any confidential information of UCI or its affiliates.
6. Termination.
A. For Cause By UCI. Notwithstanding any other provision
hereof, UCI may terminate Boyle's employment under this Agreement immediately at
any time for "cause." For purposes hereof the term "cause" shall include, but
not be limited to, the commission of any of the following by Boyle: dishonesty;
theft; unethical business conduct; indictment for a felony; indictment for a
misdemeanor involving moral turpitude; drug or alcohol addiction or abuse;
incompetence in the performance of material duties on behalf of UCI; violation
of the terms and provisions of this Agreement; willful or recurring
insubordination; or failure to attempt, in good faith, to comply with reasonable
instructions of UCI. All compensation (including without limitation the Base
Salary, and all perquisites and fringe benefits) to which Boyle would otherwise
be entitled shall be discontinued and forfeited as of the effective date of such
termination.
B. Without Cause By UCI. UCI may terminate this Agreement
"without cause" at any time upon ninety (90) days prior written notice to Boyle.
All compensation (including without limitation any prerequisites and fringe
benefits, if any) to which Boyle would otherwise be entitled (for periods after
the effective date of such termination) shall be discontinued and forfeited as
of the effective date of such termination.
C. Termination By Boyle. Boyle may with or without cause
terminate this Agreement upon ninety (90) days prior written notice to UCI. In
the event of such termination, all compensation (including without limitation
the Base Salary and any perquisites and fringe benefits, if any) to which Boyle
would otherwise be entitled (for periods after the effective date of the
termination) shall be discontinued and forfeited as of the effective date of
such termination.
D. Death. In the event Boyle dies during the term of this
Agreement, this Agreement shall terminate, and UCI shall pay to Boyle's estate
all Base Salary accrued but unpaid through the date of Boyle's death and any
deferred compensation benefit in accordance with the Plan.
7. Burden and Benefit. This Agreement shall be binding upon, and shall
inure to the benefit of UCI, Boyle, UCI's affiliates, and their respective
heirs, personal and legal representatives, successors, and assigns.
8. Assignment. This Agreement and any rights hereunder are personal to
Boyle and shall not be assigned or otherwise transferred by Boyle.
9. Governing Law/Jurisdiction. The construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of South Carolina. Boyle and UCI hereby (i) agree that any litigation,
action or proceeding arising out of or relating to this Agreement may be
instituted in a state or federal court in Columbia, South Carolina, (ii) waives
any objection which it might have now or hereafter to any such litigation,
action or proceeding based upon improper venue or inconvenient forum, and (iii)
irrevocably submits to the jurisdiction of such courts in any such litigation,
action or proceeding. For all purposes of this Agreement, Boyle and UCI hereby
further agree that service of process upon Boyle and UCI may be effected
pursuant to United States mail.
10. Usage. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Term such as "hereof", "hereunder",
"hereto", "herein", and words of similar import shall refer to this Agreement in
its entirety and all references shall refer to specified portions of this
Agreement, unless the context clearly requires otherwise.
11. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provisions.
12. Notice. Any notice, request, approval, consent, demand or other
communication hereunder shall be effective if in writing and upon the first to
occur of the following: (i) upon receipt by the party to whom such notice,
request, approval, consent, demand or other communication is being given; or
(ii) three (3) business days after being duly deposited in the U.S. Mail,
certified, return receipt requested, and addressed as follows:
Boyle: Joseph A. Boyle, CPA
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103 Boulder Top Court
West Columbia, South Carolina 29169
UCI: UCI Medical Affiliates of South
Carolina, Inc.
4416 Forest Drive
Columbia, South Carolina 29206
Attn: Chief Executive Officer
The parties hereto may change their respective addresses by notice in writing
given to the other parties this Agreement.
13. Section 409A. This Agreement is intended to comply with the
requirements of Section 409A of the Internal Revenue Code and regulations
promulgated thereunder (together, "Section 409A"), and shall, to the extent
practicable, be construed in accordance therewith. Notwithstanding anything
contained herein to the contrary, if any amount payable pursuant to this
Agreement constitutes a "deferral of compensation" subject to Section 409A and
if, at the date of Boyle's "separation from service," as such term is defined in
Section 409A, from UCI (his "Separation from Service"), Boyle is a "specified
employee", within the meaning of Section 409A, of UCI as determined by UCI from
time to time, then each such payment that would otherwise be payable to Boyle
within the six (6) month period following Boyle's Separation from Service shall
be delayed and paid to Boyle without interest on the first business day of the
seventh month following Boyle's Separation from Service. For the avoidance of
doubt, for purposes of this Agreement, any amount which would not be considered
a "deferral of compensation" within the meaning of Section 409A by reason of
Treas. Reg. Sections 1.409A-1(b)(4) or 1.409A-1(b)(9) shall not be considered a
deferral of compensation for which payment shall be delayed in accordance with
the preceding sentence. For purposes of this Agreement, each payment to which
Boyle may be entitled pursuant to this Agreement shall be considered a separate
payment within the meaning of Treas. Reg. Section 1.409A-2(b)(2).
Notwithstanding the foregoing, to the extent that this Agreement or any payment
or benefit hereunder shall be deemed not to comply with Section 409A, then
neither UCI, nor any of its principals, employees, designees or agents, shall be
liable to Boyle or to any other person to the extent such failure to comply
results from any actions, decisions or determinations made in good faith.
14. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between UCI and Boyle with respect to the employment of
Boyle, and no representations, promises, agreements, or understandings, written
or oral, not contained herein shall be of any force or effect. No change or
modification of this Agreement shall be valid or binding unless it is in writing
and signed by the party intended to be bound. No waiver of any provision of this
Agreement shall be valid unless it is in writing and signed by the party against
whom the waiver is sought to be enforced. No valid waiver of any provision of
this Agreement at any time shall be deemed a waiver of any other provision of
this Agreement at such time or at any other time.
IN WITNESS WHEREOF, UCI and Boyle have duly executed this Agreement
under seal to be effective as of the day and year first above written.
IN THE PRESENCE OF: UCI:
/s Nancy Wilkes UCI MEDICAL AFFILIATES OF SOUTH
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Witness CAROLINA, INC. (SEAL)
By: /s D. Michael Stout
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D. Michael Stout, M.D.
Its: Chief Executive Officer
BOYLE:
/s Nancy Wilkes /s Joseph A. Boyle (SEAL)
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Witness Joseph A. Boyle, CPA