EXHIBIT 10.29
EMPLOYMENT AGREEMENT
American Medical International, Inc. ("AMI"), and Thomas J. Sabatino, Jr.,
Esq. ("Executive") enter into this Employment Agreement effective as of
November 1, 1992.
1. DUTIES -- Executive is employed by AMI as the Associate General Counsel
of American Medical International, Inc. located in Dallas, Texas. Executive
will diligently and conscientiously devote his full and exclusive business
time, attention, and best efforts in discharging his duties and
responsibilities as Executive subject to governance of the Senior Executive
management of AMI. Executive will scrupulously comply with all provisions of
the AMI Code of Ethics and Conflicts of Interest Policy.
2. COMPENSATION AND BENEFITS -- In consideration for his services and the
other undertakings and obligations agreed to herein, Executive will be
compensated as follows:
(a) BASE SALARY: Executive will receive a base salary of One Hundred
Seventy-Five Thousand Dollars ($175,000) per year, payable as it is earned on
a bi-weekly basis.
(b) ANNUAL BONUS: Executive will be eligible to receive an annual bonus
based upon criteria determined by AMI's Board of Directors prior to the
beginning of each fiscal year, to be paid, if otherwise payable, only for
employment during the entirety of the fiscal year; there shall be no pro rata
vesting or credit for partial years (other than the first year of employment,
which bonus shall be prorated), unless provided for in the incentive
compensation plan document. AMI's Board of Directors and management shall be
the sole judge of whether the criteria are satisfied. The targeted bonus for
Executive shall initially be 30%, with payout of any or all of the target
subject to Executive's performance as measured by AMI Senior Management.
(c) BENEFITS: Executive is eligible to receive all standard employment
benefits and participate in all standard benefits plans that inure to AMI
employees in a similar capacity, including health, disability, time off with
pay, and retirement, subject to the express plan documents, or where no plan
document exists, to the written policies adopted by AMI. Executive will
receive a car allowance of $900.00 per month.
(d) STOCK OPTIONS: Upon execution of the appropriate option agreements by
Executive, he/she shall be entitled to options to purchase 10,000 shares of
AMI's common stock in accordance with and governed by the Non-Qualified
Performance Stock Option Plan. Such options shall vest at 20% per year based
on performance requirements and conditions provided by the above-referenced
plan.
3. RELOCATION -- All relocation amounts paid by AMI are subject to the AMI
Relocation Guidelines, and Executive agrees that
if he voluntarily terminates his employment within twenty-four (24) months of
the effective date of this Agreement, Executive will reimburse AMI on a
pro-rata basis (for example, 50% in the case of a voluntary termination at the
end of one year).
4. ACKNOWLEGEMENT OF PROTECTABLE INTERESTS -- Executive acknowledges and
agrees that his employment involves building and maintaining business
relationships and good will on behalf of AMI with customers, patients,
physicians and other professional contractors, employees and staff, and
various providers and users of health care services; that he is entrusted with
proprietary, strategic and other confidential information which is of special
value to AMI; and that the foregoing matters are significant interests which
AMI is entitled to protect.
5. CONFIDENTIAL INFORMATION -- Executive agrees that all confidential
information that comes or has come into his possession by reason of this
employment is the property of AMI and shall not be used except in the course
of employment by AMI and and for AMI's exclusive benefit. Further, Executive
shall not, during his employment or thereafter, disclose or acknowledge the
content of any confidential information to any person who is not an employee
of AMI authorized to possess such confidential information. "Confidential
information" means all proprietary and other information relating to the
business and operations of AMI which has not been specifically designated for
release to the public by an authorized representative of AMI at the level of
Chief Operating officer or above. Confidential information includes, by way of
illustration and without limitation, trade secrets, future business plans,
marketing plans and strategies, pricing information, financial data, customer,
patient and supplier information, regulatory approval strategies, new service
line and contract products, and other information that was developed,
assembled, gathered by, or originated with AMI for its own private use. Upon
termination of employment, all documents, writings, electronic storage
devices, and other tangible things containing any confidential information
shall be delivered to AMI without making or retaining copies, excerpts, or
notes of such information.
6. NON-COMPETITIVE/NON-INTERFERENCE-- During (a) the period of his
employment, (b) the period, if any, for which he receives severance payments
from AMI or for which he claims entitlement to receive severance payments, AND
(c) the additional period of twelve (12) months after the last date of (a) and
(b), Executive will not compete, directly or indirectly, with AMI within a
fifty (50) mile radius of the AMI facility for which he last performed
services or within a fifty (50) mile radius of any other AMI facility for which
he performed services as an Executive during the last two (2) years of his
employment unless such facility is California or Florida in which instance
Executive will agree the radius under (c) shall be
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fifteen (15) miles of any other AMI facility in such state. "Compete" means
and includes rendering services, accepting employment, consultation, or any
other business relationship with any company, association, affiliation,
consortium, or other for-profit or not-for-profit organization that provides
or offers health care services or contracts or agreements for health care
services similar to those provided or offered by AMI. Executive also agrees
that during the periods stated in (a), (b), and (c) above, he will not (i)
directly or indirectly solicit or encourage in any manner the resignation or
re-affiliation of any employee, physician, contractor, or professional health
care provider or provider organization that is employed by, affiliated or
associated with any facility for which Executive rendered services as an
Executive during his employment by AMI; (ii) directly or indirectly solicit
or divert customers, patients, or business of any such AMI facility; or (iii)
attempt to influence, directly or indirectly, any person or entity to cease,
reduce, alter or rearrange any business relationship with any such AMI
facility. All provisions of this paragraph 6 shall apply irrespective of the
type or reason for termination of employment.
7. ENFORCEMENT/SEVERABILITY/REFORMATION -- (a) The parties agree that a
breach or threatened breach of any protective or restrictive provisions
contained in paragraph 5 and 6 above will cause immediate irreparable harm to
AMI for which legal remedies alone are inadequate to compensate. Therefore,
Executive agrees that these provisions shall be enforceable by equitable
process of injunction in addition to, but without limitation of, any monetary
damages, sanctions or other legal remedies available, plus recovery by AMI of
its reasonable attorney's fees and expense incurred in enforcing these
provisions.
(b) In the event that any provision of this Amendment is declared invalid
or unenforceable, as written, the remaining provisions shall not be abridged or
affected. Further, in the event that any specific restrictive or protective
provisions contained in paragraphs 5 and 6 above cannot be given full effect,
as written, Executive and AMI empower a court or arbitrator hereunder of
competent jurisdiction, to modify, reduce or otherwise reform such
provisions(s) in such fashion as to carry out the parties' intent to grant AMI
the maximum allowable protection consistent with the applicable law and facts.
8. TERMINATION AND SEVERANCE -- (a) AMI and Executive each may terminate
this employment at any time for any reason deemed sufficient in the sole
discretion of either of them in which event all compensation shall cease. Upon
involuntary termination of Executive's employment by AMI without cause, AMI
will pay Executive severance pay at Executive's base salary level in effect at
the time of his termination, exclusive of bonuses, incentive
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compensation, employment benfits, stock options, or any other benefits except
those required to be made available by applicable federal or state law
notwithstanding this Agreement. Severance will be paid in the manner of salary
continuation on a bi-weekly basis, but without benefits or accruals based on
salary, and shall cease upon Executive's obtaining of substantially equivalent
employment but in no event later than one (1) year after the date of
termination of employment. No severance is due in the event of a voluntary
termination by Executive. Executive acknowledges that this agreement by AMI
to pay certain severance hereunder, except in the case of a voluntary quit or
involuntary termination for cause, alone constitutes a sufficient agreement
and consideration for his post-termination obligations, and that in the event
those obligations are not honored by Executive or enforced by a court or
arbitration, no severance payments will be made and any such payments already
made may be recovered.
(b) Following termination of employment, either voluntarily or
involuntarily, Executive will cooperate fully with AMI, upon request, in
relation to AMI's defense, prosecution or other involvement in any continuing
or future claims, lawsuits, charges, and internal or external investigations
which arise out of events or business matters which occurred during
Executive's prior employment by AMI. Such continuing duty of cooperation shall
include making himself available to AMI, upon reasonable notice, for
depositions, interviews, and appearances as a witness, and furnishing
information to AMI and its legal counsel upon request. AMI will reimburse
actual documented reasonable out-of-pocket expenses necessarily incurred such
as travel, lodging, meals. Severance payments, if otherwise payable to
Executive, shall terminate in the event of a failure of cooperation.
9. ARBITRATION OF ALL DISPUTES -- Executive and AMI agree that any dispute,
controversy or claim arising from the employment relationship, including but
not limited to any claim based on the employment agreement and any claim
arising under any federal, state, or other governmental unit's statutes,
regulations or codes (including specifically, without limitation, the Age
Discrimination in Employment Act and other anti-discrimination laws), shall be
submitted to final and binding arbitration in accordance with the Federal
Arbitration Act (FAA), Title 9 of the U.S. Code, or if the FAA is deemed
inapplicable, then, and only then, in accordance with the arbitration laws of
the state in which Executive last performed services for AMI. The parties
agree that such arbitration shall be governed by the employment arbitration
procedures and rules for non-union employees administered by the Houston,
Texas office of AAA, except as specifically otherwise provided or modified by
Exhibit A to this Agreement which is made a part hereof. A judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The parties further
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agree that this provision for final and binding arbitration shall not preclude
AMI from obtaining preliminary or other injunctive relief in court to enforce
the provisions of paragraphs 4 through 6 above, without regard to whether any
such claim has been or can be referred to arbitration.
10. ENTIRE AGREEMENT/MODIFICATION -- The parties agree that this Employment
Agreement constitutes the complete and entire agreement between the parties,
and that no previous agreement, either oral or written, shall have any
effect. All previous agreements, either oral or written, are expressly
superseded, canceled and revoked by this Employment Agreement. The parties
further agree that the terms, conditions, and provisions of this Employment
Agreement may not be modified by any subsequent agreement, unless the
modifying agreement: (i) is in writing; (ii) expressly refers to this
Employment Agreement; (iii) is signed and executed by the President of AMI as
representative of AMI; and (iv) is signed by Executive.
Executed this 25th day of November, 1992 at Dallas, Texas.
Thomas J. Sabatino, Jr.
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THOMAS J. SABATINO, JR.
AMERICAN MEDICAL INTERNATIONAL, INC.
BY: O. Edwin French
------------------------------------
O. EDWIN FRENCH
Senior Vice President
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EXHIBIT A TO AMENDMENT TO EMPLOYMENT AGREEMENT
ADDITIONAL AGREED ARBITRATION PROVISIONS
1. Arbitration may be initiated by joint submission in writing or by a
written demand by either party filed with the Houston, Texas office of AAA
containing a brief description of the dispute or controversy and a statement
of issues to be submitted to the arbitrator. Any party asserting a claim for
relief shall be obligated to state such claim in its demand for arbitration or
response thereto.
2. The party asserting a claim for relief is responsible for payment in
advance of any administrative fee required by AAA, except that in the event
both parties assert claims for relief, each shall be responsible for one-half
of such administrative fee.
3. A demand for arbitration shall request the Houston, Texas of AAA to
furnish a list of five (5) arbitrators who, in the judgment of such AAA
office, are qualified and experienced to hear and determine the
executive-level employment dispute. None of the arbitrators shall have served
in any labor-management arbitration under the auspices of AAA or the Federal
Mediation and Conciliation Service (FMCS). In the event claims are asserted
under statutes or laws, the arbitrators shall also be attorneys licensed to
practice law in at least one state of the United States.
4. The arbitrator selection procedure shall be as follows: the parties or
their counsel shall confer, and Executive shall first remove two names from
the list; AMI shall then remove two names; and the name remaining shall be the
arbitrator.
5. The hearing shall be conducted within ninety (90) days of the
appointment of the arbitrator at a time and place within one hundred (100)
miles of the location at which Executive last performed services for AMI, to
be designated by the AAA office administering the case, unless the parties
otherwise agree.
6. Any discovery or exchange of information shall be within the
arbitrator's discretion but shall not delay the hearing. Allowance of a
stenographic record of the hearing shall be in the discretion of the
arbitrator.
7. The arbitrator shall render his award within thirty days of the closing
of the hearing by the arbitrator.
8. All expenses of the arbitration, including the arbitrator's fees, shall
be borne by the parties equally. However, each party shall always bear the
expense of its own counsel, experts, witnesses, and preparation and
presentation of proofs, irrespective of the outcome.