EXHIBIT 10.4
EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“ Agreement ”) is made and entered into this
DAY day of MONTH , 2008 by and among US Oncology,
Inc., a Delaware corporation (together with its present and future
subsidiaries, hereinafter referred to as the “ Company
”), US Oncology Holdings, Inc., a Delaware corporation
(“ Parent ”) and NAME (hereinafter
referred to as the “ Employee ”). In
consideration of the mutual terms, conditions and covenants
hereinafter set forth, the Company and the Employee agree to the
following:
1. Term and Renewal;
Effectiveness.
Except as otherwise provided herein,
the Company hereby agrees to employ the Employee, and the Employee
hereby agrees to remain in the employ of the Company, for a one
(1) year period. Provided that this Agreement has not already
been terminated, this Agreement shall automatically renew for
successive one-year terms, unless at least thirty (30) days
prior to the expiration of the initial or any renewal term the
Company provides to the Employee written notice that the Company is
not renewing this Agreement.
2. Position and
Duties.
The Employee, at the discretion of
the Company’s Board of Directors (the “ Board
”), Chief Executive Officer of the Company or his designee,
in accordance with the Company’s policies, shall perform such
duties and services as assigned. The reporting relationship of the
Employee may from time to time be determined by the Board, Chief
Executive Officer or his designee and shall not be construed as a
loss of responsibility or a change of control. The Employee shall
not have the authority to enter into any contracts, agreements,
undertakings or other arrangements on behalf of the Company except
to the extent that he is authorized to do so by the Board, Chief
Executive Officer or his designee.
The Employee shall, at all times,
devote his full time and attention to the business and affairs of
the Company, and shall use his best efforts to perform faithfully
and efficiently such responsibilities. The foregoing shall not be
construed as preventing the Employee from making passive
investments in other businesses or enterprises, provided, however,
that:
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(i)
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Such investments would not
require services on the part of the Employee which would in any way
impair the performance of his duties under this
Agreement;
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(ii)
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Such investments are not in
violation of any provision of Section 5 or
Section 6 of this Agreement; and
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(iii)
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Such investments are not in
violation of Company policies in effect from time to
time.
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The Employee shall not be required
by the Company to relocate out of the Greater Houston metropolitan
area. Routine visits to the Company’s locations and other
business travel in the ordinary course of the Company’s
business shall not constitute relocation.
3. Compensation and
Benefits.
The Company shall provide the
following compensation to the Employee for his services under this
Agreement:
(a) Base Salary . The Company
shall pay the Employee a base salary at an annual rate of $
SALARY (including any greater amount as a result of future
increases provided for herein, the “ Base Salary
”). The Base Salary shall be payable in equal semi-monthly
installments on the fifteenth and final days of each month during
the term of this Agreement or pursuant to the standard payroll
cycle of the Company in effect during this Agreement. The Base
Salary may not be decreased, but may be reviewed and increased by
the Board or the compensation committee thereof, as circumstances
dictate and in the sole discretion of the Board or the compensation
committee thereof.
(b) Annual Bonus . The
Employee shall be eligible for a bonus as determined by the Board
or the compensation committee thereof. Payment will be made in a
way or under a plan that will ensure Employee is not subject to
taxes, penalty or interest under section 409A of the Internal
Revenue Code.
(c) Expense Reimbursement .
The Company shall reimburse the Employee for all business-related
expenses incurred by the Employee in conducting authorized business
activities on behalf of the Company in accordance with Company
policies as in effect from time to time; provided, however, that
the Employee shall provide reasonably suitable receipts and other
records of the expenses to be reimbursed, and shall in all events
comply with Company policies in incurring and requesting
reimbursement for such expenses.
(d) Welfare Benefit Plans .
In accordance with, and subject to, the terms of the applicable
plan documents, the Employee shall be eligible to participate in
all welfare benefit plans of the Company as may be in effect from
time to time. The foregoing shall not, in any respect, require the
Company to implement, continue or amend any plan.
(e) Vacation Holidays . The
Employee shall be eligible for annual paid vacation, sick leave and
holidays as the Company may, in its discretion, provide for the
employees of the Company under the Company’s policies and
programs, it being agreed that the foregoing shall not in any
respect require the Company to continue or put into effect any
plan, practice, policy or program. The Employee shall have no right
to receive pay in lieu of vacation, sick leave or holidays, and
upon termination of the Employee’s employment pursuant to
this Agreement, all unused vacation, sick leave or holidays shall
be lost without any compensation to the Employee.
(f) Withholding . All
compensation paid pursuant to this Agreement shall be subject to
any and all applicable payroll and withholding deductions required
by the law of any jurisdiction, with taxing authority with respect
thereto.
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4. Termination.
(a) Termination Events . This
Agreement, and the employment relationship between the Employee and
the Company, shall terminate upon the occurrence of any of the
following:
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(i)
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the death of the
Employee;
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(ii)
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the disability of the Employee,
whether due to illness, injury, accident or other condition of
either a physical or psychological nature, which creates an
impairment (despite reasonable accommodation) that renders the
Employee mentally or physically incapable of performing the
essential duties and services required of the Employee hereunder
for a period of at least 180 days during any period of 365
days;
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(iii)
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the Company provides the Employee
with written notice that the Company is terminating his employment
other than for Cause (as defined below);
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(iv)
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the expiration of the sixtieth
(60 th ) day after the Employee
provides the Company with written notice that he is terminating his
employment other than for Good Reason (as defined
below);
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(v)
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the expiration of the stated term
of this Agreement, as it may from time to time be
extended;
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(vi)
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the Company’s written
notice to the Employee of the Company’s termination of
Employee’s employment for Cause. “ Cause ”
shall mean a written determination by the Board of the occurrence
of any of the following events:
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(A)
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the conviction of the Employee,
whether or not appeal be taken, of any felony crime of any nature
or any misdemeanor crime involving personal dishonesty, moral
turpitude or willfully violent conduct;
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(B)
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the embezzlement or wrongful
diversion of funds of the Company or any affiliate of the Company,
or other material dishonesty involving the Company or any affiliate
of the Company;
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(C)
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gross business misconduct by the
Employee that is demonstrably and materially injurious to the
Company but no action or omission shall be considered to constitute
gross business misconduct unless carried out by the Employee
without a reasonable belief that such action was in or not opposed
to the Company’s best interest;
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(D)
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gross malfeasance by the Employee
in the conduct of his duties;
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(E)
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breach of Section 5
or Section 6 of this Agreement, provided the Company
has given the Employee written notice thereof and the Employee has
not ceased any continuing breach and cured, to the extent
practicable, any such breach within 5 days following receipt of the
Company’s notice; or
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(F)
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any other material breach of this
Agreement, provided the Company has given the Employee written
notice thereof and the Employee has not ceased any continuing
breach and cured, to the extent practicable, any such breach within
30 days following receipt of the Company’s notice;
or
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(vii)
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the Employee’s written
notice to the Company of the Employee’s termination of his
employment for Good Reason. “ Good Reason ”
shall mean (i) the Company’s breach of any provision of
this Agreement, provided the Employee has given the Company written
notice of such breach and the Company has not ceased any continuing
breach and cured, to the extent practicable, any such breach within
30 days following receipt of the Employee’s written notice of
such breach, and (ii) at any time subsequent to a Change of
Control, the Company assigns to the Employee any duties materially
inconsistent with the Employee’s positions, duties,
responsibilities and status with the Company immediately prior to
such Change of Control or the Company changes the Employee’s
reporting responsibilities, titles or offices as in effect
immediately prior to such Change of Control. “ Change of
Control ” has the meaning given to such term in the
Parent’s 2004 Equity Incentive Plan.
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(b) Effect of Termination;
Termination Pay and Benefits .
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(i)
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If this Agreement is terminated
under Section 4(a)(i) , Section 4(a)(ii) ,
Section 4(a)(iii) , Section 4(a)(v) or
Section 4(a)(vii) :
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(A)
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in addition to any termination
pay, the Company shall pay to the Employee any accrued and unpaid
Base Salary through the date of termination of employment, any
earned but unpaid bonus, and a prorated bonus for the period
beginning immediately after the end of the last period for which
the Employee has earned a bonus and ending with the date of
termination of his employment, basing such prorated bonus on the
Employee’s target bonus in effect for the year in which the
termination occurs; and
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(B)
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as termination pay, the Company
shall pay the Employee the Base Salary in effect for the year in
which the termination occurs, plus the target bonus in effect for
the year in which the termination occurs, for a period of twelve
(12) months after the termination occurs. Termination pay
shall be payable to the Employee in equal semi-monthly installments
on the fifteenth and final days of each month or pursuant to the
standard payroll cycle of the Company; and
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(C)
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For a period of one year after
termination, Employee and eligible dependents at the time of the
termination shall be permitted, in addition to any other benefits,
to participate in the Company’s group health plans on the
same terms as would be available to Employee if Employee were still
an employee of the Company.
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(D)
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After, expiration of the period
described in 4(b)(i)(C) above, if Employee is fifty (50) years
of age or older at the time his employment terminates and Employee
has worked for the Company for five (5) or more years prior to
his termination, then the Employee and eligible dependents at the
time of the termination shall be permitted, in addition to any
other benefits, to participate in the Company’s group health
plans at the Employee’s expense in an amount not to exceed
the appl
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