EXHIBIT 10.6
EMPLOYMENT AGREEMENT BETWEEN
UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.
AND
MICHAEL STOUT, M.D.
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EMPLOYMENT AGREEMENT
This Employment Agreement is made as of the 1st day of November, 1995, by
and between UCI Medical Affiliates of South Carolina, Inc., a South Carolina
Corporation (UCI), and Michael Stout, M. D. ("Stout").
WHEREAS, UCI desires to employ Stout, and Stout desires 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 bond, agree
as follows:
1. Employment. UCI hereby agrees to employ Stout to perform the duties
described in Section 3 below subject to and in accordance with the terms and
conditions hereof, and Stout hereby accepts such employment.
2. Term. The employment shall commence on the date hereof, and shall
continue for a period of Five (5) years unless earlier terminated in accordance
with the provisions of Section 8 of this Agreement.
3. Duties of Stout.
A. In accepting employment by UCI, Stout shall undertake and
assume the responsibility of performing for and on behalf of UCI the duties of
Vice President of Medical Affairs of UCI in Columbia, South Carolina.
B. Other than Stout's duties as an employee of Doctor's Care,
P.A., Stout shall be a full-time employee of UCI, and shall devote his full
working time and efforts to his duties hereunder. Stout 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. Without limiting the generality of the foregoing, Stout shall
not engage in any activity for compensation or pecuniary gain other than his
employment hereunder, his association with Doctor's Care, P.A., and passive
investing for the account of himself or members of his household. Stout agrees
that his total compensation for his service to UCI shall be described in Section
4 of this Agreement.
Stout has entered into a separate Employment Agreement with
respect to his association with Doctor's Care, P.A. His compensation for
services to Doctor's Care, P.A. is described in Section 3 of that Agreement.
Stout agrees that his total compensation for his service to Doctor's Care, P.A.
is set forth in Section 4 of that Agreement.
4. Compensation. As compensation for the services to be rendered by Stout
for UCI under this Agreement, Stout shall be compensated by UCI on the following
basis:
A. Salary. During the term of this Agreement, Stout shall receive from UCI
an annual salary of Fifty Thousand and No/100 ($50,000), payable in pay periods
as determined by UCI, but in no event less frequently than monthly, subject to
an annual review.
B. Other Benefits. During the term of Stout's employment with UCI, Stout
shall receive from UCI such other benefits (e.g. health insurance coverage, life
insurance coverage, participation in pension plans, and participation in stock
option plans, etc.) reasonably comparable to, and no worse than, those benefits,
if any, generally provided to other senior executives of UCI.
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5. Confidentiality and Secrecy. Stout 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 business, including without limitation technological
know-how, 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 customers, and the fees paid by
inducement to UCI to enter into this Agreement and to pay to Stout the
compensation stated in Section 4 herein, Stout 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.
Stout agrees that he will never disclose trade secrets of UCI and assigns his
rights to confidential information as "work made for hire" to UCI.
6. Covenants Against Competition. In view of the unique value to
UCI of the services of Stout for which UCI has contracted hereunder, because of
the confidential information to be obtained by or disclosed to Stout, as herein
above set forth, and because Stout's employment hereunder will result in Stout's
development of a unique relationship with customers, suppliers and employees as
a material inducement to UCI to enter into this Agreement and to pay to Stout
the compensation stated in Section 4 hereof, Stout covenants and agrees as
follows:
A. during Stout's employment hereunder, and for a period of
two (2) years after the termination of Stout's employment hereunder for any
reason, Stout shall not directly or indirectly solicit or divert employment of
any employee of UCI's business or employ any person previously employed by UCI
or its affiliates.
B. During Stout's employment hereunder, and for a period of
two (2) years after the termination of Stout's employment whereunder for any
reason, Stout shall not directly or indirectly solicit, divert, or convert, or
assist another person or entity to solicit, divert or convert, the customers of
UCI or its affiliates to any other company or entity.
C. During Stout's employment hereunder, and for a period of
two (2) years after the termination of Stout's employment with UCI, Stout shall
not within the geographic area specified below engage in any business or perform
any services, directly or indirectly, in competition with the business of UCI or
its affiliates or have any interest, whether as a proprietor, partner, employee,
stockholder (directly or beneficially), principal, agent, consultant, director,
officer or in any other capacity or manner whatsoever, in any enterprise that
shall so engage, except that Stout shall be permitted to own for investment
purposes only, directly or beneficially, up to (but not more than) 2% in the
aggregate of the stock of a competing corporation which is publicly-traded on a
national stock exchange or the NASDAQ National Market System, so long as Stout
is not a controlling person of, or a member of a group that controls, such
corporation and Stout is not otherwise affiliated in any capacity with such
corporation. The restrictions to this Section 6(C) shall apply everywhere within
a five (5) mile radius of (i) any primary or urgent care facility owned or
operated by UCI or an affiliate, and (ii) each other location where UCI or any
affiliate maintains an office, in existence as of the date of such termination.
7. Reasonableness, Enforceability and Remedies.
A. Stout has carefully read and considered the provisions of
Section 5, 6 and 7, and, having done so, agrees that the restrictions set forth
in these Sections, including, but not limited to, the time period of restriction
and geographic limitations set forth in Section 6, are fair and reasonable and
are reasonably required for the protection of the interest of UCI and its
officers, directors, shareholders, employees, and affiliates.
B. In the event that, notwithstanding the foregoing, any of the provisions
of Sections 5, 6 and 7 hereof or any parts thereof shall beheld to be invalid or
unenforceable, the remaining provisions or parts thereof shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
portions or parts had not been included therein. In the event that any provision
of Sections 5 and 6 hereof
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relating to the time period and/or geographic restrictions and/or related
aspects shall be declared by a court of competent jurisdiction to exceed the
maximum restrictiveness such court deems reasonable and enforceable, the time
period and/or geographic restrictions and/or related aspects deemed reasonable
and enforceable by the court shall become and thereafter be the maximum
restriction in such regard, and the restriction shall remain enforceable to the
fullest extent deemed reasonable by such court.
C. Stout acknowledges that the services he is to render are of a special
and unusual character with a unique value to UCI and its affiliates, the loss of
which cannot adequately be compensated by damages in an action at law. In the
event of a breach or threatened breach by Stout of any of the provisions of
Section 5 or 6 hereof, UCI or its affiliates, in addition to and not in
limitation of, any other rights, remedies, or damages available to UCI or its
affiliates under this Agreement, shall be entitled to a permanent injunction in
order to prevent or restrain any such breach by Stout or by Stout's partners,
agents, representatives, servants, employees, consulting clients, and/or any and
all persons directly or indirectly acting for or with him.
D. Stout covenants and agrees that if he shall violate any of
his covenants or agreements under Section 5 or 6 hereof, UCI or its affiliates
shall be entitled to: (I) an accounting and repayment of all profits,
compensation, commissions, remuneration, or other benefits that Stout directly
or indirectly has realized and/or may realize as a result of, growing out of, or
in connection with, any such violation; (ii) recover actual damages incurred by
UCI or its affiliates as a result of any such violation; (iii) any injunctive
relief to which UCI or its affiliates is or may be entitled by law, in equity,
or under this Agreement; and (iv) exercise its other rights respecting a breach
of this Agreement as set forth herein.
E. Stout's obligations under Section 5 and 6 hereof shall survive any
termination of employment hereunder.
8. Termination
A. For Cause by UCI. Notwithstanding any other provisions
hereof, UCI may terminate Stout's employment under this Agreement immediately at
any time for "cause". For purposes hereof the term "cause" shall include, but
not limited to, the commission of any of the following by Stout: dishonesty:
theft; unethical business conduct; indictment for a felony; incompetence in the
performance of material duties on behalf of UCI; violation of the terms and
provisions of this Agreement; willful or recurring insubordination; failure to
attempt, in good faith, to comply with reasonable instructions of UCI; if
Stout's license to practice medicine in the State of South Carolina is revoked
or otherwise terminated; or if Stout fails to follow accepted medical practices
or is guilty of misconduct under the principles of medical ethics of the
American Medical Association. All compensation (including without limitation the
Base Salary, and all prerequisites and fringe benefits) to which Stout would
otherwise be entitled shall be discontinued and forfeited as of the effective
date of such termination.
B. Disability. In the event of Stout's disability during
employment under this Agreement, then employment under this Agreement shall
terminate. For purposes of this Agreement, except as provided herein below,
"disability" shall mean the inability of Stout, due to sickness or other
incapacity, to perform his duties under his Agreement for a period in excess of
ninety (90) substantially consecutive days. Such termination shall become
effective at UCI's election upon the expiration of such ninety (90) day period
of disability. Upon termination of employment under this Agreement due to
Stout's disability, Stout shall be entitled to payment of his Salary up to the
date of termination.
C. Death. In the event Stout dies during this term of this Agreement, this
Agreement shall terminate and UCI shall pay to Stout's estate all Base Salary
accrued but unpaid through the date of Stout's death.
9. Burden of Benefit. This Agreement shall be binding upon, and shall inure
to the benefit of UCI, Stout, UCI's affiliates, and their respective heirs,
personal and legal representatives, successors, and assigns.
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10. Assignment. This Agreement and any rights hereunder are personal to
Stout and shall not be assigned or otherwise transferred by Stout.
11. 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. Stout 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
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, Stout
and UCI hereby further agree that service of process upon Stout and UCI may be
affected pursuant to United States mail.
12. 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", "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
contest clearly requires otherwise.
13. 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 validity and enforceability of the
other provisions.
14. 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 communications 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:
Stout Michael Stout, M. D.
511 Beltline Blvd.
Columbia, S. C. 29205
UCI: UCI Medical Affiliates of South Carolina, Inc.
6168 St. Andrews Road
Columbia, S. C. 29212
Attn. Stephen Seeling, Esquire
The parties hereto may change their respective addresses by notice in writing
given to the other parties of this Agreement.
15. Entire Agreement. This Agreement contains the entire agreement
and understanding by and between UCI and Stout with respect to the employment of
Stout, 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.
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IN WITNESS WHEREOF, UCI and Stout have duly executed this
Agreement under seal to be effective as of the day and year first above written.
IN THE PRESENCE OF: UCI:
UCI MEDICAL AFFILIATES OF SOUTH
Witness CAROLINA, INC. (SEAL)
By: /s/ M.F. McFarland, III, M.D.
Witness Its: President
STOUT:
__________________________________ /s/ Michael Stout, M.D. (SEAL)
Witness Michael Stout, M.D.
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Witness
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