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EXHIBIT 10.10
AMENDMENT AND RESTATEMENT OF
EMERGENCY PROFESSIONAL SERVICES, INC.
DEFERRED COMPENSATION PLAN
Effective as of January 31, 1996
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TABLE OF CONTENTS
ARTICLE I
CONDITION PRECEDENT AND PURPOSE................................1
ARTICLE II
DEFINITIONS....................................................1
ARTICLE III
PAYMENT OF BENEFITS............................................4
ARTICLE IV
FORFEITURES....................................................6
ARTICLE V
ADMINISTRATION.................................................7
ARTICLE VI
AMENDMENT AND TERMINATION......................................7
ARTICLE VII
MISCELLANEOUS..................................................7
EXHIBIT A.................................................................10
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ARTICLE I
CONDITION PRECEDENT AND PURPOSE
1.1 This Amendment and Restatement of the Emergency Professional
Services, Inc. Deferred Compensation Plan shall be effective as of January 31,
1996, but only upon approval of the shareholder of Emergency Professional
Services, Inc.
1.2 This Deferred Compensation Plan is adopted and amended and
restated by Emergency Professional Services, Inc., in the form of an unfunded
deferred compensation arrangement for a select closed group of key individuals,
to fulfill certain incentive commitments made to said individuals to continue in
employment or contract arrangements with or for the benefit of the Company and
as a means of compensating those persons of outstanding abilities who were
instrumental in developing new ideas and in ensuring the growth of the Company
and upon whom the future success of the Company's business largely depended.
ARTICLE II
DEFINITIONS
Unless the context otherwise indicates, the following terms shall
have the meanings set forth below whenever used in this document:
2.1 The words "Account Balance" shall mean, for any Participant at
any point in time, up to and including the Participant's Determination Date, an
amount (expressed in United States dollars) which shall be the sum of (a) plus
(b), where:
(a) equals the Participant's January 31, 1996 Account
Balance; and
(b) equals any forfeitures allocated to the Participant
pursuant to Section 4.2.
2.2 The words "Active Participant" shall mean, with respect to any
Service Year, a Participant who both completes a Year of Service with respect to
such Service Year and is a Covered Physician on the last day of the Service
Year.
2.3 The word "Affiliate" shall mean:
(a) for periods prior to the Closing Date, any person that,
directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under
common control with the Company, including any
corporation or unincorporated trade or business which is
a member of an affiliated service group (within the
meaning of 26 U.S.C. Section 414(m)) which includes the
Company; and
(b) with respect to periods on and after the Closing Date,
any person that, directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is
under common control with MedPartners/Mullikin including
any corporation which is a
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member of a controlled group of corporations (within the
meaning of 26 U.S.C. Section 1563(a)) which includes
MedPartners/Mullikin.
2.4 The word "Age" shall mean for any Participant his or her actual
attained age in full years.
2.5 The word "Beneficiary" shall mean any person who is designated
to receive payment of any benefit under the terms of the Plan following a
Participant's death.
2.6 The words "Benefit Amount" shall mean for any Participant an
amount, determined as of the Participant's Determination Date, which shall be
equal to the product of (a) multiplied by (b), where:
(a) equals the Participant's Account Balance; and
(b) equals the Participant's Vested Percentage.
2.7 The words "Closing Date" shall mean the date of the Merger.
2.8 The word "Company" shall mean Emergency Professional Services,
Inc. (f/k/a Emergency Professional Services of Ohio, Inc.), an Ohio corporation,
or any successor to the Company's business and/or obligations hereunder.
2.9 The words "Covered Physician" shall mean a Participant who is a
licensed physician who, pursuant to a contractual arrangement (whether as an
employee or an independent contractor), provides medical services in connection
with the business of the Company or an Affiliate, whether personally or through
the medium of a professional corporation or other controlled entity. A person
shall cease to be a Covered Physician at such time as he or she ceases to
perform medical services in connection with the business of the Company or an
Affiliate pursuant to such a contractual arrangement.
2.10 The words "Determination Date" shall mean for any Participant
the first to occur of either (a) the date the Participant ceases to be a Covered
Physician or (b) the date the Participant receives the first payment of his or
her Benefit Amount pursuant to Section 3.3.
2.11 The word "Hour" shall mean for any Covered Physician an hour
during which the Covered Physician either was on active duty in a hospital
emergency room in Participant's capacity as a Covered Physician or performed
executive and/or administrative functions on behalf of the Company or an
Affiliate, and for which Participant was directly or indirectly-paid or entitled
to payment by the Company or an Affiliate.
2.12 The words "January 31, 1996 Account Balance" shall mean, for
any Participant, the amount set forth opposite Participant's name on Exhibit 1,
attached to the Emergency Professional Services, Inc. Board Resolution approving
this Plan amendment and restatement.
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2.13 The words "MedPartners/Mullikin" shall mean
MedPartners/Mullikin, Inc., a Delaware corporation, which owns, directly or
indirectly, all of the issued and outstanding stock of the Company.
2.14 The word "Merger" shall mean a transaction pursuant to which
MedPartners/Mullikin became the beneficial owner, directly or indirectly, of all
of the issued and outstanding stock of the Company.
2.15 The word "Participant" shall mean any person whose name is set
forth on Exhibit A, attached hereto and no one else.
2.16 The word "Plan" shall mean this document, as originally
executed and as it may be later amended, and/or the arrangement created by this
document. The word "Plan" shall also mean, as the context may require, the
Emergency Professional Services, Inc. Deferred Compensation Plan as it existed
prior to the Closing Date.
2.17 The words "Service Year" shall mean either:
(a) in respect of periods ending on or before January 31, 1996, the
twelve (12) month period ending on January 31 in any calendar
year; or
(b) the eleven (11) month period beginning on February 1, 1996 and
ending on December 31, 1996; or
(c) in respect of periods commencing after December 31, 1996, the
calendar year, commencing with 1997.
2.18 The words "Total and Permanent Disability" shall mean any
physical or mental ailment which continuously disables and wholly prevents a
Participant from performing Participant's duties as a Covered Physician and
which is expected to be of a permanent duration; except that no Participant
shall be deemed to be totally and permanently disabled if such disability was
(a) contracted, suffered or incurred while the Participant was engaged in, or
resulted from Participant having engaged in, a criminal act or enterprise, or
(b) resulted from Participant's habitual drunkenness or addiction to narcotics,
or (c) resulted from an intentionally self-inflicted injury. The Company shall
determine in good faith whether a Participant is Totally and Permanently
Disabled and, to assist it in making such determination, may require any
Participant to submit to appropriate medical examination and tests at the
Company's expense.
2.19 The words "Vested Percentage" shall mean for any Participant a
percentage determined on the basis of Participant's number of Years of Service
in accordance with the following table:
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YEARS OF SERVICE VESTED PERCENTAGE
---------------- -----------------
Less than 6 0%
6 but less than 7 10%
7 but less than 8 20%
8 but less than 9 30%
9 but less than 10 40%
10 but less than 11 50%
11 but less than 12 60%
12 but less than 13 70%
13 but less than 14 80%
14 but less than 15 90%
15 or more 100%
Notwithstanding the foregoing provisions of this Section 2.19:
(a) any Participant who has at least six (6) Years of Service and
the sum of whose Age and Years of Service (in full years), at
the time the Participant ceases to be a Covered Physician, is
at least seventy (70) will have a Vested Percentage of 100%
(b) any Participant who dies while he is a Covered Physician will
have a Vested Percentage of 100%; and
(c) any Participant who ceases to be a Covered Physician because of
Total and Permanent Disability will have a Vested Percentage of
100%.
2.20 The words "Year of Service" shall mean for any Participant a
Service Year during which the Participant was credited with at least One
Thousand Four Hundred Forty (1,440) Hours. Notwithstanding the preceding
sentence, if any Service Year is less than twelve (12) months in length, the
number of Hours with which a Participant must be credited in order to complete a
Year of Service shall be determined by multiplying One Thousand Four Hundred
Forty (1,440) by a fraction, the numerator of which is the number of full months
in such Service Year, and the denominator of which is twelve (12).
ARTICLE III
PAYMENT OF BENEFITS
3.1 Upon the occurrence of a Participant's Determination Date, the
Participant's Benefit Amount shall be determined. Such a Participant's Benefit
Amount shall be paid to Participant or Participant's Beneficiary at such time
and in such manner as set forth below in this Article III, but only upon the
execution and delivery to the Company by the Participant or Beneficiary of a
Distribution Election and Acknowledgment in such form as may be prescribed by
Company from time to time.
3.2 A Participant's Benefit Amount shall be paid in sixty (60) equal
monthly payments. Each payment shall be equal to the quotient of (a) divided by
(b), where:
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(a) equals the Participant's Benefit Amount; and
(b) equals sixty (60).
3.3 A Participant who is a Covered Physician may, by giving at least
ten (10) days advance notice to the Company, elect to have payment of the
Benefit Amount commence on the first day of any month following the month in
which the sum of the Participant's Age and Years of Service (in full years)
equals sixty-five (65).
3.4 In the event that a Participant shall cease to be a Covered
Physician for any reason other than death or Total and Permanent Disability and
payment of the Participant's Benefit Amount had not commenced pursuant to
Section 3.3, payment of the Participant's Benefit Amount shall commence on the
later of: (a) the first day of the month next following the month in which the
sum of the Participant's Age and Years of Service (in full years) equals sixty
five (65); or (b) the first day of the month coinciding with or next following
the date the Participant ceases to be a Covered Physician.
3.5 In the event that a Participant shall cease to be a Covered
Physician because of his Total and Permanent Disability and payment of the
Participant's Benefit Amount had not commenced pursuant to Section 3.3, payment
of the Participant's Benefit Amount shall commence as soon as practicable
following the later of (a) the date the Participant ceases to be a Covered
Physician; or (b) the date the Company determines that the Participant ceased to
be a Covered Physician because of his Total and Permanent Disability.
3.6 If a Participant shall die while a Covered Physician and payment
of the Participant's Benefit Amount had not commenced pursuant to Section 3.3,
payment of the Participant's Benefit Amount shall commence to be made to the
Participant's Beneficiary as soon as practicable following the Participant's
death.
3.7 In the event that a Participant shall cease to be a Covered
Physician and shall die prior to the date payment of the Participant's Benefit
Amount has commenced, payment of the Participant's Benefit Amount shall commence
to be made to the Participant's Beneficiary as soon as practicable following the
Participant's death.
3.8 In the event that a Participant shall die after the date payment
of the Participant's Benefit Amount commenced, the monthly payments specified in
Section 3.2 shall continue to be made to the deceased Participant's Beneficiary
until the total number of monthly payments made to the Participant and the
Participant's Beneficiary combined equal sixty (60).
3.9 The Company, in its sole and absolute discretion, may accelerate
the time of any payment hereunder to any Participant or Beneficiary in such
amounts as it may deem necessary in order to alleviate financial hardship being
suffered or which may be suffered by the Participant or the Beneficiary.
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3.10 Notwithstanding any other provision of this Article III except
as set forth in Section 3.3, no amounts shall be paid hereunder to any
Participant while he is a Covered Physician.
3.11 A Participant may designate in writing, delivered to the
Company prior to Participant's death, the Beneficiary and/or contingent
Beneficiary to receive, in the event of his death, the remaining payments of his
Benefit Amount A Participant may change his designation of Beneficiary at any
time. In the event that upon the death of a Participant, the Beneficiary
designation on file with the Company does not dispose of all of the remaining
payments of his Benefit Amount, or in the event no Beneficiary designation shall
be on file with the Company at the time of the Participant's death, then, to
such extent the remaining payments of his Benefit Amount shall be made to the
Participant's spouse if the Participant's spouse survives the Participant or, if
the spouse does not survive, to the personal representative of the Participant
for distribution as a part of the Participant's estate.
3.12 Notwithstanding any other provision of this Plan, in the event
a Participant directly or indirectly violates any noncompetition provision
contained in any agreement which either the Participant or any professional
corporation which is in whole or in part owned by the Participant has with the
Company or an Affiliate, the Participant and the Participant's Beneficiary shall
forfeit any right either may have to receive any payments pursuant to this Plan.
ARTICLE IV
FORFEITURES
4.1 Upon the occurrence, on or after the Closing Date, of the
Determination Date of a Participant whose Vested Percentage is less than 100%,
an amount shall be forfeited equal to the difference of (a) minus (b), where:
(a) equals the Participant's Account Balance; and
(b) equals the Participant's Benefit Amount.
4.2 The total of all amounts forfeited during a Service Year
pursuant to Section 4.1 shall, as of the last day of the Service Year in which
the forfeiture occurs, be allocated among those Participants who:
(a) were Active Participants in respect of such Service Year; and
(b) had not, as of the last day of such Service Year, commenced to
receive payment of their respective Benefit Amounts.
4.3 Forfeitures shall be allocated among the Active Participants
determined in accordance with Section 4.2, pro rata on the basis of the relative
Account Balances of such Active Participants determined as of the last day of
such Service Year and prior to the allocation of forfeitures in respect of such
Service Year.
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4.4 In the last Service Year of the Plan's existence, forfeitures,
if any, shall be allocated pro rata among those Participant's and Beneficiaries
who receive benefit payments during the last Service Year, based on the amounts
paid in that Service Year.
ARTICLE V
ADMINISTRATION
5.1 The Company, through its officers, shall administer and
interpret this Plan. All decisions of the Company concerning the Plan shall be
made in good faith. Neither any member of the Board of Directors of the Company
nor any officer of the Company nor the shareholder of the Company shall be
liable for any action taken by the Company or determination made by the Company
with respect to the Plan.
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 This Plan was originally effective as of January 31, 1987. It is
amended and restated, effective as of January 31, 1996. The Plan may be further
amended at any time by the Company, through its duly authorized officers.
6.2 This Plan may be terminated at any time by the Company, through
its duly authorized officers.
6.3 Notwithstanding the provisions of Sections 6.1 and 6.2, no such
amendment or termination shall in reduce either: (a) the Account Balance of any
Participant whose Determination Date has occurred; or (b) the Vested Percentage
of any Participant.
ARTICLE VII
MISCELLANEOUS
7.1 No interest shall accrue on any Participant's Account. No
interest shall accrue for delays in payments of benefits in the reasonable, good
faith administration of the Plan, nor in any event for any delays in payments
during the period from January 1, 1996, through May 31, 1997.
7.2 No person other than a Participant or a Participant's
Beneficiary shall be entitled to receive any amounts pursuant to the Plan.
7.3 The undertakings of the Company herein constitute merely the
unsecured promise of the Company to make the payments as provided for herein. No
property of the Company or any Affiliate is or shall be, by reason of this Plan,
held in trust for any Participant, any Beneficiary or any other person, and
neither a Participant nor any Beneficiary nor any other person shall have, by
reason of this Plan, any rights, title or interest of any kind in or to any
property of the Company or any Affiliate. Company's and Plan's liability for
benefits under this Plan shall not exceed a total of $4,568,127, the sum of the
Participant Account Balances as of January 31, 1996.
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7.4 The provisions of this Plan shall be binding upon and inure to
the benefit of any successor of the Company and any Participant and Beneficiary
(including, without limitation, the Participant's estate).
7.5 Except as set forth herein, no rights of any kind under this
Plan shall, without the written consent of the Company, be transferable or
assignable by a Participant, any Beneficiary or any other person, or be subject
to alienation, encumbrance, garnishment, attachment, execution or levy of any
kind, voluntary or involuntary.
7.6 In the event that any provision of the Plan is determined by any
judicial, quasi-judicial or administrative body to be void or unenforceable for
any reason, all other provisions of the Plan shall remain in full force and
effect as if such void or unenforceable provision had never been a part of the
Plan.
7.7 The singular herein shall include the plural, or vice versa,
wherever the context so requires.
7.8 A pronoun in the masculine, feminine, or neuter gender shall be
deemed, where appropriate, to include also the masculine, feminine or neuter
gender.
7.9 If the Company shall find that any person to whom any amount is
payable under the Plan is unable to care for his affairs because of illness or
accident, or is a minor, any payment due (unless a prior claim therefor shall
have been made by a duly appointed guardian, committee or other legal
representative) may be paid to such person's spouse, child, parent, or brother
or sister, or to any person deemed by the Company to have incurred expense for
such person otherwise entitled to payment, in such manner and proportions as the
Company may determine.
7.10 The Plan shall be construed in accordance with, and governed
by, the laws of the State of Ohio, determined without regard to conflict of laws
rules.
7.11 Nothing herein shall affect the benefit amount due under the
Plan to any person who, prior to the Closing Date, terminated as an "Employee"
(as such term was defined in the prior Plan document). A comprehensive list of
such persons and the amount payable to each such person in accordance with Plan
as it existed prior to the Closing Date is part of Exhibit 1 to the Company
Board resolution approving this amendment and restatement of the Plan. The
amounts due such persons are include in the total stated liability of the
Company under Section 7.3.
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IN WITNESS WHEREOF, Emergency Professional Services, Inc., by its
officers duly authorized, has executed this document as of the 31st day of
January, 1996, effective for all purposes, assuming satisfaction of the
condition precedent set forth in Article I, as of the Closing Date.
EMERGENCY PROFESSIONAL SERVICES,
INC.
By:
-----------------------------
Its:
-----------------------------
MedPartners/Mullikin, Inc., the owner of the Company, hereby consents to the
foregoing amendment and restatement of the Plan, this day of ,
1997.
MEDPARTNERS/MULLIKIN, INC.
By:
-----------------------------
Its:
-----------------------------
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EMERGENCY PROFESSIONAL SERVICES, INC. (CORPORATION)
CERTIFIED COPY OF BOARD OF DIRECTORS' RESOLUTIONS
AMENDING AND RESTATING THE DEFERRED COMPENSATION PLAN
By action of the Board of Directors of the Corporation taken ____________, 1997,
the following resolutions were duly adopted:
WHEREAS, Emergency Professional Services, Inc. ("Corporation") wants
to restate the Corporation's Deferred Compensation Plan ("Plan") to fulfill its
obligations under that certain merger agreement among Corporation and
MedPartners/Mullikin, Inc., which required Corporation to freeze benefit
accruals under the Plan effective as of January 31, 1996; and
WHEREAS, the Plan provides for its amendment upon the action of the
Corporation board of directors, subject to shareholder approval of any such
amendment; and
WHEREAS, the only Participants in the Plan and their Account
Balances and Vested Percentages as of January 3 1, 1996, and the only prior Plan
Participants due benefits under the Plan as of January 31, 1996, and the amount
and beginning date for payment, are shown on Exhibit 1.
RESOLVED, that the Board of Directors hereby adopts and approves the
amended and restated Plan, substantially in the form presented to this Board and
as attached as Exhibit 2, effective as January 31, 1996;
RESOLVED FURTHER, that full power and authority are hereby conferred
upon the President or his designee to execute the Plan within the general intent
and purpose of this resolution and the purchase agreement;
RESOLVED FURTHER, that the President or his designee is hereby
appointed to act for the Corporation as the Plan Administrator of such Plan and
is delegated have such powers and duties as are set forth in the Plan for all
purposes of interpreting, construing, and implementing the terms and conditions
of the Plan and shall have discretion in making decisions and determinations
concerning the general operation of the Plan, and to amend and terminate the
Plan on behalf of the Corporation.
CERTIFICATE
I hereby certify that the foregoing is a true and exact copy of resolutions
adopted by the Board of Directors of this Corporation and that such resolutions
have not been amended, modified or revoked and are still in full force and
effect.
IN WITNESS THEREOF, I have signed this Certificate as of this _________ day of
__________, 1997.
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-----------------------------------------
Secretary,
Emergency Professional Services, Inc.
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DISTRIBUTION ELECTION AND ACKNOWLEDGMENT
To: The Administrator of the Emergency Professional Services, Inc.
("Company") Deferred Compensation Plan ("Plan").
From: _____________________________________, Participant or Beneficiary.
1. Application for Benefit Distribution. I hereby apply for a benefit under
the Plan, as follows:
(a) My proposed first Distribution Date begins the first day of
____________, 199___, and continues on the first of each month
thereafter for a total of 60 equal monthly payments,
computed as follows:
(b) My January 31, 1996 Account Balance: $__________.
(c) Annual Forfeitures Allocated to Account from
January 31, 1996, through proposed first Distribution Date: $__________.
(d) Account Balance [(a) plus (b)]: $__________.
(e) Vested percentage _________%.
(f) Benefit Amount [(d) times (e)]: $__________.
(g) Monthly benefit payment [(f) divided by 60]: $__________.
2. Basis for Eligibility for Benefit. I am entitled to begin receiving
benefit payments from the Plan on the following basis:
/ / (a) My age and service total 65 or more and I elect to begin benefit
payments immediately.
/ / (b) I am Totally and Permanently Disabled and no longer a Covered
Physician as defined in the Plan. I elect to begin benefit payments
immediately.
/ / (c) I am the Beneficiary of a deceased Participant and I am entitled to
begin or continue benefit payments from the Participant's Account.
3. Beneficiary Designation. I understand that I am entitled to name a
designated beneficiary to receive any amount due me under the Plan, in the event
I die before all amounts due me are paid. A beneficiary designation form is
available from the Company and must be received by the Company before my death
to be effective.
4. Tax Withholding. I understand that the Company may withhold as required
by applicable Federal, State, or local income, employment or other tax law on
all amounts paid me under the Plan.
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I understand that since this benefit payment is not from a qualified retirement
plan or IRA, the amounts paid are not subject to rollover or transfer to another
qualified plan, IRA, or tax sheltered annuity (403(b) or 457) plan.
5. Cessation of Vesting and of Allocation of Forfeitures. I acknowledge
that:
(a) Even if I am still a Covered Physician under the Plan, when I elect
to start benefit payments under the Plan, I will not continue to accrue
service credit for vesting purposes; and
(b) If I am not fully vested when I start benefit payments, I will not in
the future ever be entitled under the Plan to earn further vesting, even
if I am otherwise a Covered Physician under the Plan; and
(c) Under the Plan I will not be entitled to allocation of future
forfeitures once I begin benefit payments; and
(d) The monthly amount shown in Section I above to be paid in 60 month
installments (or the balance of 60 monthly installments, if I am the
beneficiary of a deceased participant) is the sole benefit to which I am
entitled under the Plan; and
(e) No interest or earnings accrue on amounts paid under the Plan.
6. Irrevocable Election. My benefit elections under this Participant
Distribution Election and Acknowledgment are irrevocable. I understand that once
I return this form to the Company, I will not be able to change my election to
start payments as of the proposed first Distribution Date stated in Section
1(a). However, I will be able to change my Beneficiary Designation at any time
so long as I am entitled to further benefit payments.
7. Further Information. Before you sign this form, if you have any question
regarding the information provided or about your Plan distribution, please
contact the Company or the Vice President of Human Resources, Team Health,
Knoxville.
8. Execution. Dated this ____ day of ____________ 19___.
____________________________________
Participant's Signature
____________________________________
Participant's Social Security Number
_______________________________________________________________________________
RECEIVED by Emergency Professional Services, Inc. on ____________, 199__.
By: _____________________________________
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DESIGNATION OF BENEFICIARY
To: The Administrator of the Emergency Professional Services, Inc., Deferred
Compensation Plan ("Plan")
From: _______________________________, Participant
Pursuant to the provisions of the Plan permitting the designation of a
beneficiary or beneficiaries by a participant, I hereby designate the following
person or persons as primary and secondary beneficiaries of my Account Balance
under the Plan payable by reason of my death:
PRIMARY BENEFICIARY(IES) [INCLUDE ADDRESS AND RELATIONSHIP]:
SECONDARY BENEFICIARY(IES) [INCLUDE ADDRESS AND RELATIONSHIP]:
I RESERVE THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION. I HEREBY
REVOKE ALL PRIOR DESIGNATIONS (IF ANY) OF PRIMARY BENEFICIARIES AND CONTINGENT
BENEFICIARIES.
The Plan will pay all sums payable under the Plan by reason of my death to the
primary beneficiary, if he or she survives me, and if no primary beneficiary
survives me, then to the secondary beneficiary. If no named beneficiary survives
me, then the Plan will pay all amounts in accordance with the Plan.
I understand this Beneficiary Designation is not effective until delivered to
the Administrator for the Plan.
_______________________________ __________________________________
Date of this Designation Signature of Participant
_______________________________________________________________________________
RECEIVED by Emergency Professional Services, Inc. on ___________, 199__.
By: ______________________________
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EMERGENCY PROFESSIONAL SERVICES, INC.
DEFERRED COMPENSATION PLAN
EXHIBIT A
Exclusive List of Plan Participants
DC196
EMERGENCY PROFESSIONAL SERVICES, INC.
DEFERRED COMPENSATION
JANUARY 31, 1996
1 STOUT
2 HOPE
3 RYBAK
4 THOMAS
5 KLATZKO
6 WEEKS
7 JONES
8 STAUTER
9 SPIRTOS
10 DEEHRING
11 GRABER
12 COSBY
13 COSTARELL
14 KONGMUANG
15 MIRASOL
16 PEARCE
17 NIEMI
18 BONNIE
19 FAIRLEY
20 AMSTERDAM
21 MCNAMARA
22 ACHAREKAR
23 SUDIMACK
24 OLSON
25 TAFURI
26 GREER
27 BLAU
28 FRANK
29 GALAN
30 BUISER
31 MCELREE
32 MEYER
33 SILVA
34 TISHMAN
35 ZIEMAK
36 HASTINGS
37 MASARYK
38 SOLTIS
TERMINATIONS
1 JACOBS
2 GINSBERG
3 OGAN
4 KILE
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EMERGENCY PROFESSIONAL SERVICES, INC.
DEFERRED COMPENSATION
JANUARY 31, 1996
4,327,715.99 VESTING VESTED YRS AGE @
UNITS A/R % $ SERVICE 01-31-96 TOTAL
-------- ----------- ------- -------- ------- -------- ------
1 STOUT 203.10 315,170.15 100.00% 315,170 17 47 64
2 HOPE 189.60 294,220.88 100.00% 294,221 17 48 65
3 RYBAK 278.99 432,936.09 100.00% 432,936 16 52 68
4 THOMAS 197.41 306,340.42 100.00% 306,340 16 45 61
5 KLATZKO 162.12 251,577.47 100.00% 251,577 16 53 69
6 WEEKS 182.46 283,141.04 100.00% 283,141 15 48 63
7 JONES 150.75 233,933.53 90.00% 210,540 14 47 61
8 STAUTER 151.45 235,019.79 90.00% 211,518 14 43 57
9 SPIRTOS 186.31 289,115.46 90.00% 260,204 14 41 55
10 DEEHRING 122.08 189,443.48 80.00% 151,555 13 49 62
11 GRABER 118.52 183,919.08 70.00% 128,743 12 47 59
12 COSBY 58.22 90,345.67 60.00% 54,207 11 47 58
13 COSTARELL 70.05 108,703.44 60.00% 65,222 11 46 57
14 KONGMUANG 67.79 105,196.38 60.00% 63,118 11 49 60
15 MIRASOL 75.88 117,750.42 60.00% 70,650 11 54 65
16 PEARCE 66.58 103,318.70 60.00% 61,991 11 47 58
17 NIEMI 51.00 79,141.69 40.00% 31,657 9 40 49
18 BONNIE 49.84 77,341.61 40.00% 30,937 9 43 52
19 FAIRLEY 44.92 69,706.76 40.00% 27,883 9 41 50
20 AMSTERDAM 59.74 92,704.41 40.00% 37,082 9 43 52
21 MCNAMARA 40.52 62,878.85 30.00% 18,864 8 52 60
22 ACHAREKAR 32.53 50,479.98 30.00% 15,144 8 53 61
23 SUDIMACK 33.70 52,295.59 30.00% 15,689 8 40 48
24 OLSON 19.30 29,949.70 20.00% 5,990 7 45 52
25 TAFURI 18.73 29,065.17 20.00% 5,813 7 35 42
26 GREER 23.58 36,591.39 20.00% 7,318 7 42 49
27 BLAU 12.72 19,738.87 10.00% 1,974 6 44 50
28 FRANK 12.71 19,723.35 10.00% 1,972 6 37 43
29 GALAN 15.11 23,447.67 10.00% 2,345 6 43 49
30 BUISER 10.93 16,961.15 10.00% 1,696 6 55 61
31 MCELREE 15.67 24,316.67 10.00% 2,432 6 70 76
32 MEYER 10.47 16,247.32 10.00% 1,625 6 44 50
33 SILVA 11.08 17,193.92 10.00% 1,719 6 60 66
34 TISHMAN 14.47 22,454.52 10.00% 2,245 6 39 45
35 ZIEMAK 10.72 16,635.27 10.00% 1,664 6 39 45
36 HASTINGS 6.95 10,785.00 0.00% 0 5 40 45
37 MASARYK 6.73 10,443.60 0.00% 0 5 38 43
38 SOLTIS 6.11 9,481.49 0.00% 0 5 36 41
-------- ------------ ---------
2,788.84 4,327,715.99 3,375,182
TERMINATIONS
1 JACOBS 12,208 12,208 6 53 59
2 GINSBERG 3,276 3,276 6 51 57
3 OGAN 218,401 218,401 15 48 63
4 KILE 6.526 6,526 7 47 54
------------ ---------
4,568,127 3,615,593
========= =========
19
EMERGENCY PROFESSIONAL SERVICES, INC.
ACTION OF SHAREHOLDER
BY WRITTEN CONSENT
, 1997
------------
The undersigned person, being the sole shareholder of the Corporation, consents
to the following action taken without a meeting, this instrument to have the
same force and effect as if the action had been taken by unanimous vote at a
specially called meeting of the Shareholder.
Consent to Amendment and Restatement to Deferred Compensation Plan. The
Shareholder hereby adopts the following resolution:
WHEREAS, Emergency Professional Services, Inc. ("Corporation") wants
to restate the Corporation's Deferred Compensation Plan ("Plan") to fulfill its
obligations under that certain purchase agreement among Corporation and
MedPartners/Mullikin, Inc., which required the Corporation to freeze benefit
accruals under the Plan effective as of January 31, 1996; and
WHEREAS, the Plan provides for its amendment upon the action of the
Corporation board of directors, subject to shareholder consent to any such
amendment;
RESOLVED, that the shareholder hereby consents to the amended and
restated Plan, substantially in the form presented to the Shareholder, effective
as January 31, 1996, including delegation to the President or his designee to
further amend or terminate the Plan without further shareholder approval.
IN WITNESS WHEREOF, the shareholder has executed this instrument by a duly
authorized representative as of the date first above written and it shall be
filed with the minutes of the proceedings of the shareholder.
MedPartners/Mullikin, Inc.
By:
-------------------------------------
Its:
-------------------------------------
Shareholder