EMPLOYMENT
AGREEMENT dated November 11, 2008 by and between Robert C. Low
(the “ Employee ”) and Chindex International,
Inc., a Delaware corporation (the “ Employer
”).
The Employer
agrees to employ the Employee, and the Employee agrees to serve in
the employ of the Employer, commencing the date hereof and
terminating, unless terminated earlier in accordance with
Section 7 below, on the third anniversary of the date hereof
(unless otherwise agreed to in writing by the parties), on the
terms and conditions set forth in this Agreement.
The Employee shall
initially serve as Vice President, Finance and Chief Accounting
Officer of the Employer, shall report to the Chief Financial
Officer of Employer, and shall perform, faithfully and diligently,
such service and duties, and shall have such responsibilities,
appropriate to said positions, as shall be assigned by the Chief
Financial Officer or Chief Executive Officer of the Employer.
Without limiting the generality of the foregoing, the
Employee’s duties shall include the responsibilities set
forth in Schedule A attached hereto. The Employee agrees to
devote his best efforts, skills and full business time to
fulfilling the performance of his duties and responsibilities
hereunder. The principal place of performance of services by the
Employee hereunder shall be Bethesda, Maryland.
3.
Salary; Bonus; Incentive Compensation .
3.1 Base
Salary . In consideration of the performance by the
Employee of the services set forth herein and his observance of the
other covenants set forth herein, the Employer shall pay to the
Employee, and the Employee shall accept, a base salary at the rate
of $195,000 per annum, payable in accordance with the standard
payroll practices of the Employer.
3.2
Bonus . The Employee will be eligible to participate
subject at all times to eligibility requirements and at
Employer’s sole discretion in the annual performance bonus
program, if any, implemented by the Employer from time to time,
providing for a bonus to the Employee ranging from 10% to 35% of
the Employee’s base salary based on combined individual,
departmental and consolidated company performance, all determined
in accordance with such program. Any annual bonus earned shall be
paid in cash as soon as reasonably practicable after the end of the
fiscal year for which such bonus was earned, and in any event not
later than six months after the end of such fiscal year, unless the
Company determines (at a time and in a manner that complies with
Section 409A of the U.S. Internal Revenue Code
(“Section 409A”) that payment shall be made at a
later date and/or in a different form.
Chindex - Low
Employment Agreement
3.3 Stock
Options . In consideration of the performance by the
Employee of the services set forth herein and his observance of the
other covenants set forth herein, on the date hereof the Employee
shall be awarded under the Company’s 2007 Stock Incentive
Plan (the “Plan”) non-qualified options to purchase
6,000 shares of the Company’s common stock, $0.01 par value
per share, having an exercise price per share equal to the Fair
Market Value thereof on the date hereof determined in accordance
with the Plan, expiring ten years from the date hereof, vesting
ratably on each of the first three anniversaries of the date hereof
(subject to Employee’s continued employment through the
respective vesting date), and covered by a written stock option
award having such other reasonable terms and conditions as shall be
determined by the Employer that are not inconsistent with such
foregoing terms.
4.
Expense Reimbursement .
During the term of
this Agreement, the Employer shall reimburse the Employee for all
reasonable and necessary out-of-pocket expenses incurred by him in
connection with the performance of his duties hereunder, subject to
prior approval in accordance with the policies of the Employer from
time to time. The Employee shall provide Employer with such
documentation of such expenses as is required by such policies no
later than 60 days after the expense was incurred.
Reimbursement shall be made as soon as practicable, but no later
than the end of the calendar year following the calendar year in
which such expenses are incurred.
5.
Benefits and Paid Time Off .
5.1 Employee
Benefit Plans . During the term of this Agreement, the
Employee will have the right to participate in all employee benefit
and health plans and programs of the Employer offered to similarly
situated employees of comparable seniority, including the
Employer’s 401(k) retirement plan, subject to the provisions
of such plans and programs as in effect from time to time. The
Employer retains the right to amend or terminate any employee
benefit or health plan and program in its sole discretion at any
time.
5.2
Vacation . The Employee shall be entitled annually to
four weeks paid vacation to be used at the Employee’s
discretion, subject to the approval of the Chief Financial Officer.
Should the Employee fail to use his vacation days, he may not carry
any unused vacation time into the following year.
5.3 China
Operations . The Employee acknowledges that substantially
all of the Employer’s operations are conducted in the
People’s Republic of China. In this regard and without
limiting any other provision hereof, among other requirements that
may apply, the Employee agrees that he may be required to travel to
China pursuant to his duties hereunder not less than five times
during each year of his employment hereunder on such dates, for
such durations and with such itineraries as shall be required by
the Chief Executive Officer or Chief Financial Officer of the
Employer.
6.
Compliance with Company Policies .
The Employee
agrees that during the term of this Agreement he will comply with
all rules, policies and procedures implemented by the Employer from
time to time, including those set forth in the Employee Handbook,
and in all applicable codes of ethics and other policies
implemented in accordance with the Sarbanes Oxley Act of 2002 and
otherwise. The Employee understands that failure to comply with
such rules, policies and procedures may result in disciplinary
action including termination of Employee’s employment with
Employer pursuant to Section 7.2 of this Agreement.
7.
Termination of Employment .
7.1 Death;
Disability/Voluntary Termination . The Employee’s
employment and this Agreement (i) shall terminate
automatically upon the Employee’s death, (ii) may be
terminated by the Employer at any time if the Employee is unable to
perform the essential functions of his position, with or without
reasonable accommodation, by reason of a physical or mental
impairment that is reasonably expected to be permanent or
continuing for 180 consecutive days, and (iii) may be
voluntarily terminated by the Employee at any time. In the event of
any such termination of employment, the Employer shall pay to the
Employee (or to his estate or other legal representative), within
30 days after such termination, the base salary provided for
in Section 3.1 accrued to the date of such termination and not
theretofore paid. Rights and benefits, if any, of the Employee
under the benefit plans and programs of the Employer shall be
determined in accordance with the terms and conditions of such
plans and programs. Neither the Employee nor the Employer shall
have any further rights or obligations under this Agreement, except
as provided in Sections 8, 9 and 10.
7.2
Termination by the Employer For Cause . (a) The
employment of the Employee hereunder and this Agreement may be
terminated by the Employer at any time for Cause (as hereinafter
defined). If the Employer terminates the Employee’s
employment for Cause, the Employee shall have no further rights
hereunder after the date of termination, all obligations of the
Employer to provide compensation and benefits shall cease,
effective as of the date of termination, except that the Employer
shall pay to the Employee, within 30 days after such
termination, the base salary provided for in Section 3.1
accrued to the date of such termination and not theretofore paid.
The Employer’s rights under this Agreement or otherwise, if
any, against the Employee shall survive any such termination of
this Agreement. Rights and benefits, if any, of the Employee under
the benefit plans and programs of the Employer shall be determined
in accordance with the terms and conditions of such plans and
programs. Neither the Employee nor the Employer shall have any
further rights or obligations under this Agreement, except as
provided in Sections 8, 9 and 10.
(b) For
purposes hereof, “Cause” shall mean:
(i) Employee’s willful misconduct or gross negligence in
the performance of his obligations to the Employer or one of its
Affiliates; (ii) Employee’s dishonesty or
misappropriation relating to the Employer or one of its Affiliates
or any funds, properties, or other assets of the Employer or any
such Affiliate; (iii) Employee’s inexcusable repeated or
prolonged absence from
work (other
than as a result of, or in connection with, a disability);
(iv) any unauthorized disclosure by Employee of confidential
or proprietary information of the Employer or one of its Affiliates
which is reasonably likely to result in material harm to the
Employer or such Affiliate; (v) Employee’s conviction
(including entry of a guilty or nolo contendere plea) of any
felony, or of any crime involving fraud, dishonesty, or moral
turpitude, or involving a violation of federal or state securities
laws; (vi) Employee’s willful or grossly negligent
violation of the Employer’s policies and procedures or of
reasonable and appropriate directions from senior management; or
(vii) the unsatisfactory performance of Employee, as
determined in the sole discretion of the Employer, if not remedied
within 30 days of notice from the Employer. For purposes of
this Agreement, “Affiliate” shall mean any person or
entity that directly, or through one or more intermediaries,
controls or is controlled by or is under common control with
Employer.
7.3
Termination by the Employer Without Cause .
(a) The employment of the Employee hereunder and this
Agreement may be terminated by the Employer at any time without
Cause. If the Employer terminates Employee’s employment
without Cause (and such termination is not pursuant to
Section 7.1 or 7.2), the Employer shall pay to the Employee,
within 30 days after such termination, the base salary
provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid. In addition, in lieu of any
severance or termination benefits generally payable to employees
under any of the Employer’s plans, policies or practices, and
subject to Section 7.3(b) and to Executive’s compliance with
the provisions of Sections 8, 9, and 10, the Employer shall
continue to pay Employee’s base salary, in accordance with
the Employer’s normal payroll practice, for a period of
(i) three months, if such termination occurs prior to the
first anniversary of the date hereof, or (ii) six months, if
such termination occurs after the first anniversary and before the
third anniversary of the date hereof. The rights and benefits of
the Employee under the benefit plans and programs of the Employer
shall be determined in accordance with the terms and conditions of
such plans and programs. Neither the Employee nor the Employer
shall have any further rights or obligations under this Agreement,
except as provided in this Section 7.3 and Sections 8, 9,
and 10.
(b) Employee
shall not be entitled to receive the salary continuation payments
described in paragraph (a) unless he executes a general
release of claims against the Employer in the form annexed as
Exhibit A hereto (but with such changes therein as may be
necessary to comply with changes in law to make it effective)
within forty-five (45) days of termination of employment and
does not revoke such release within any applicable revocation
period. Notwithstanding the provisions of paragraph (a), all
payments of such salary continuation that would otherwise be due
prior to the sixtieth (60 th )
day after the Employee’s termination of employment shall be
delayed and paid to Employee in a lump sum on the first payroll
date on or following the sixtieth (60 th )
day after the Employee’s termination of employment, and any
remaining salary continuation payments due under this
Section 7.3 shall be paid in accordance with the normal
payment dates specified in Section 7.3(a).
7.4 Special
409A Provisions . Notwithstanding the provisions of
Section 7.3, if Employee is a specified employee within the
meaning of Section 409A, as determined by the Compensation
Committee of the Employer’s Board of Directors in
accordance with
Section 409A, the amount of salary continuation payments under
Section 7.3 that are paid during the first six months
following Employee’s termination of employment shall not
exceed two times the lesser of (A) Employee’s annual
rate of pay (within the meaning of Section 409A) for the
calendar year before Employee’s termination of employment
(adjusted for any increase in rate of pay during that year that was
expected to continue indefinitely) or (B) the maximum amount
of compensation that may be taken into account under a qualified
plan for the calendar year of Employee’s termination of
employment. If such payments reach this limit during the first six
months after Employee’s termination of employment, such
payments will be suspended. The payments will resume as soon as
practicable (but no later than 30 days) after the six-month
anniversary of Employee’s termination of employment, at which
time all payments that were suspended will be paid to Employee in a
lump sum. For purposes of Section 409A of the Internal Revenue
Code, each payment of salary continuation and each other
installment payment payable under this Agreement will be treated as
a separate payment. A termination of employment shall not be deemed
to have occurred for purposes of any provision of this Agreement
providing for the payment of any amounts or benefits upon or
following a termination of employment unless such termination is
also a “separation from service” within the meaning of
Section 409A.
8.
Confidential Information .
8.1
Confidential Information Defined . For the purposes
hereof, the term “Confidential Information” shall
include, but is n
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