Agreement for Severance
Benefits and
Restrictive Covenants
This AGREEMENT FOR SEVERANCE BENEFITS AND
RESTRICTIVE COVENANTS (“Agreement”) is entered into
between IASIS Management Company, a Delaware corporation
(“Company”) , and Carolyn Rose
(“Employee”) , as of March 1, 2001 (the
“Effective Date”) . The Company and Employee are
sometimes referred to herein individually as
“Party” and collectively as the
“Parties” .
WHEREAS, Employee is currently employed by the Company to
provide executive and administrative services in her capacity as
Chief Executive Officer of Health Choice Arizona, Inc., an
affiliate of the Company (“Health
Choice”);
WHEREAS, as consideration for the severance benefits
herein described and the other covenants herein provided, Employee
is willing to enter into certain restrictive covenants in favor of
the Company as set forth in this Agreement; and
NOW, THEREFORE, as consideration for the mutual covenants
contained in this Agreement and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, the parties hereby
agree as follows:
1.
Covenants Against Competition
(a) Company Business; Exposure to
Confidential Matters . Employee acknowledges that (i) the
Company and its Affiliates (as hereinafter defined) are engaged in
the ownership, operation and management of acute care hospitals,
and related healthcare facilities, including Health Choice (all of
which are referred to collectively as the “Company
Business”) and (ii) Employee’s work relating
to Company Business will bring Employee into close contact with
information regarding the Company and its Affiliates that is not
readily available to the public. For purposes of this Agreement,
the term “Affiliates” means all persons that,
directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the
Company.
(b) Covenant Not to Compete . After
Employee’s termination of employment and continuing for a
period of fifteen (15) months following the termination of
Employee’s employment with the Company, in the event
Employee’s employment is terminated voluntarily by Employee
or for cause by the Company (as defined below in Section 5(f))
(collectively, the “Restricted Period”) ,
Employee covenants and agrees that Employee will not, without the
prior written consent of the Company, engage in any business,
directly or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, employee, trustee, consultant
or in any other relationship or capacity, that is competitive with
Health Choice; provided, however, that Employee may, without
violating this Section 1(b), (a) own, directly or
indirectly, solely as an investment, securities of any entity that
is competitive with Health Choice if Employee (i) does not
own, directly or indirectly, five percent (5%) or more of any class
of the securities of such entity, and (ii) does not
participate in the business of such entity, and (b) perform
uncompensated services for any tax exempt organization within the
meaning of section 170(c) of the Internal Revenue Code.
2. Confidential Information
. Employee covenants and agrees that during employment with the
Company and continuing until the termination of the Restricted
Period, Employee will keep secret and not disclose to any person,
other than authorized representatives of the Company and its
Affiliates, or appropriate to Employee’s own use or the use
of any person other than the Company and its Affiliates, any
Confidential Information (as hereinafter defined). For purposes of
this Agreement, the term “Confidential
Information” means all secret or confidential information
or knowledge pertaining to the Company Business heretofore or
hereafter disclosed, communicated or otherwise learned or made
known to Employee while an employee of the Company, including
without limitation trade know-how, trade secrets, patient records,
patient lists and other patient information, customer or similar
lists, pricing policies, operational methods, marketing plans or
strategies, financial statistics, financial projections and other
financial information, business acquisition plans, new personnel
acquisition plans, drawings, designs and design projects,
inventions, research and developments, projects, and other
information, written or oral, marked, identified as or reasonably
understood to be confidential at the time of disclosure to Employee
by, through or on behalf of the Company or any of its Affiliates.
Notwithstanding the foregoing, information shall not be deemed
Confidential Information for purposes of this Agreement to the
extent (a) disclosure of such information is required pursuant
to applicable law or order of a court or other tribunal;
(b) such information is in or subsequently enters the public
domain through means other than direct or indirect disclosure in
violation of this Agreement; or (c) such information is
lawfully received from a third party who is not subject to
restriction on further disclosure. In addition to the foregoing,
Employee shall abide by such other policies and procedures as IASIS
and/or the Company may adopt, from time to time, regarding privacy
and confidentiality.
3. Employees of the Company and its
Affiliates . After Employee’s termination of
employment and during the Restricted Period, without the prior
written consent of the Company, Employee shall not directly or
indirectly through any other person hire or solicit for hire any
person who is employed by the Company or one of its Affiliates at
the time of the termination of Employee’s employment and who
is employed by the Company at the time of such hiring or
solicitation; provided, however, nothing in this Section 3
shall prevent Employee from hiring an employee of the Company or
its Affiliates as a result of such employee’s unsolicited
response to job opportunities, including advertisements placed in
newspapers, magazines or similar media of general circulation to
the public.
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4. Property of the Company and its
Affiliates . Employee will make full and prompt disclosure
to the Company of all inventions, improvements, formulas, data,
programs, processes, discoveries, methods, developments, software,
Internet website addresses (URLs), and works of authorship, whether
or not copyrightable, trademarkable or patentable, which relate to
actual or anticipated Company Business and either (i) are
created, made or conceived by Employee, either alone, under his
direction or jointly with others during the period of his
employment with the Company, (ii) result from work performed
by Employee for the Company or (iii) result, to any extent,
from use of the Company’s premises or property (all of which
are collectively referred to in this Agreement as
“Works”) . All Works shall be the sole property
of the Company, and, to the extent that the Company is not already
considered the owner thereof as a matter of law, Employee hereby
assigns to the Company, without further compensation, all his
right, title and interest in and to such Works and any and all
related intellectual property rights (including, but not limited
to, patents, patent applications, copyrights, copyright
applications, and trademarks) in the United States and elsewhere,
and Employee agrees to cooperate with the Company to provide such
additional documentation as may be necessary to carry out the
intent of this Section 4.
5. Severance Benefits . As
consideration for Employee’s execution of this Agreement, the
Company hereby agrees to provide Employee the following severance
benefits (the “Severance Benefits”) upon
termination of Employee’s employment without cause by the
Company:
(a) Severance Payment . So long as
Employee is not in material breach of any provision of this
Agreement, the Company agrees to pay Employee severance in an
amount equal to Employee’s monthly base salary at the time of
termination for a period of nine (9) consecutive months (the
“Severance Period”) , less applicable federal
and state taxes, Employee’s portion of benefits premiums,
withholdings and other appropriate payroll deductions. This
severance payment shall be payable beginning the immediately
succeeding routine payroll period after Employee’s employment
by the Company is terminated and continuing monthly to the end of
the Severance Period. During the Severance Period, the Company will
continue to pay its portion of Employee’s benefits premiums
pursuant to Section 5(d) of this Agreement below.
(b) Unused Vacation Payment .
Additionally, on or before the time of the Company’s
immediately succeeding routine payroll period after
Employee’s employment by the Company is terminated, the
Company will make a one-time cash payment to Employee in an amount
equal to all of Employee’s unused sick leave, vacation time
and/or paid time off (consistent with Company policy for employees
of the Company with similar rank or pay grade level as Employee),
less applicable federal and state taxes, benefits and other
withholding payable.
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