Exhibit
10.63
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“ Agreement
”) is made this 9th day of September, 2008, by and between
MICHAEL L. PRETIGER (“ Employee ”) and
STONECO H, INC. (“ Company ”), a Delaware
corporation.
WITNESSETH:
WHEREAS, Company has acquired
substantially all of the assets and business of MDA Holdings, Inc.,
a Georgia corporation (“ Holdings ”), Medical
Doctor Associates, Inc., a Georgia corporation (“ MDA -
GA ”), Allied Health Group, Inc., a Georgia corporation
(“ AHG ”), Credent Verification and Licensing,
Inc., a Georgia corporation (“ CVL ”) and all of
the issued and outstanding shares of Jamestown Indemnity,
Ltd. (“Jamestown,” together with Holdings, MDA-GA, AHG
and CVL, collectively referred to herein as “ MDA
”);
WHEREAS, Employee previously served as
the former Chief Financial Officer of Holdings;
WHEREAS, Company is
engaged in the business of contracting with physicians and allied
health professionals for temporary and/or permanent assignments at
healthcare facilities throughout the United States and the Employee
will be involved in that business after the date hereof;
WHEREAS, Employee
possesses certain skills which Company wishes to utilize in its
business, and Employee wishes to provide certain services to
Company upon the terms and conditions set forth in this Agreement;
and
NOW, THEREFORE, in
consideration of the premises and of the mutual promises and
agreements contained herein and other good and valuable
consideration, the receipt, legal adequacy and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1.
Employment . Company
engages Employee to serve as the EVP, Finance and Administration of
Company, and, subject to the limitations on the assignment of
duties set forth in Section 3(a), Employee agrees to serve Company
as an employee in any capacity as the Executive Vice President, Finance and
Administration of Company and its Board of Directors may, from time
to time, determine , upon the terms and
conditions hereinafter set forth.
Unless otherwise directed by the President or Company’s Board
of Directors, Employee shall report to the
President of Company.
2.
Term; Renewal
. The term of Employee’s employment under
this Agreement shall be for an initial term commencing and ending
on the dates set forth on Addendum A attached hereto
and incorporated herein by reference, which term shall
automatically renew for successive one (1) year terms, on the same
terms and conditions set forth herein, unless either Company or
Employee gives written notice to the other, at least sixty (60)
days prior to the expiration of the initial term or any renewal
term, that the then current term will not renew.
3.
Services; Duties
.
(a)
During the term of Employee’s
employment hereunder, Employee shall serve in the capacities and
perform the duties and responsibilities described in numbered item
5 of Addendum A , or as are normally associated with
the position of Executive Vice President. The Employee shall
also perform such additional or other duties as may be delegated to
Employee by the President or the Board of
Directors ; provided ,
however , that such additional or other duties shall be (i)
consistent with the needs of Company, (ii) consistent with
Employee’s skills and experience, and (iii) commensurate with
Employee’s title and level of compensation. Any
material diminution or increase in Employee’s duties or
responsibilities, or change in duties or responsibilities that
would require Employee to engage in employment outside the Atlanta
metropolitan area for periods of time materially greater than those
required while Employee was employed by Holdings, must be approved
by Employee.
(b)
During the term of Employee’s
employment hereunder, except for periods of illness, disability,
reasonable vacation periods, and reasonable leaves of absence, all
subject to policies generally applicable to other senior executives
of Company or Cross Country Healthcare, Inc. (“ Cross
Country ”), Employee shall devote substantially all of
Employee’s business time, attention, energy and skill to the
business of Company, and shall perform such services in a faithful,
competent, and diligent manner at the direction of the President.
Employee shall take actions that are reasonable and
consistent with Employee’s past practices as the former Chief
Financial Officer of Holdings. Employee agrees that Employee
will not hold any concurrent employment or business positions
without the prior express written consent of Company.
Employee shall be eligible to participate as a member in
community, civic, religious, or similar organizations, including
service on the board of directors or trustees of such
organizations, and may pursue personal investments which do not
present any conflict of interest with Company, or unfavorably
affect the performance of Employee’s duties pursuant to this
Agreement.
(c)
The foregoing notwithstanding, Company
acknowledges and agrees that
(i)
Employee will be engaged by Holdings as
an independent contractor (with signature authority) to provide
certain services to Holdings that are
necessary and appropriate to wind down, liquidate, and dissolve the
MDA businesses and the ESOP Trust that owns Holdings (the “
Wind Down ”);
(ii)
Employee will require limited access to
Company's computer systems and the former books and records of
Holdings for the purpose of preparing tax returns and performing
other necessary and appropriate tasks related to the Wind Down;
and
(iii)
Employee will receive compensation from
Holdings in respect of such services.
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(iv)
Employee agrees not to subcontract with
any other employee of Company or its affiliates on behalf of
Holdings, its shareholders or affiliates, or otherwise engage any
other employee of Company or its affiliates to assist with any
services provided to Holdings under this Section 3, without the
prior approval of Joseph A. Boshart, CEO of Cross
Country.
Employee may engage in the activities
that are necessary and appropriate to the Wind Down at any time so
long as Employee does so in a manner that is not disruptive to the
Company’s business and so long as Employee faithfully,
competently, and diligently performs Employee's duties under this
Agreement
(d)
During the term of Employee’s
employment hereunder, Company shall provide Employee with such
equipment, office space and administrative support as Company
determines in its business judgment to be appropriate for Employee
to perform Employee’s duties and responsibilities hereunder
.
(e)
The Employee shall comply with all
reasonable policies and procedures generally applicable to senior
executives of Company adopted by Company from time to
time.
(f)
The office of Employee shall be located
at Company’s main office in Norcross, Georgia, or at such
other location within thirty (30) miles of the main office in
Norcross, Georgia, as Company may from time to time
designate..
4.
Compensation as Employee
.
(a)
At all times during the initial term or
any renewal term of this Agreement, Company shall pay Employee's
base compensation as reflected on Addendum B attached
hereto and incorporated herein by reference (“
Employee’s Initial Base Salary” ), payable at
Company’s usual payroll dates, and provide Employee with the
opportunity to earn bonuses under a bonus plan, also as set forth
on Addendum B , and any other benefits set forth in
Addendum B . During the initial term or any
renewal term hereof, Employee’s base compensation shall not
be reduced below Employee’s Initial Base Salary and
Employee’s bonuses shall be substantially similar to the
bonus described on Addendum B and, in no event, any
less favorable to Employee than such bonus plan. All amounts
paid hereunder by Company to Employee shall be subject to all
applicable local, state and federal withholding taxes.
(b)
Company shall pay or reimburse Employee
for all reasonable travel and other expenses incurred by Employee
in the performance of Employee's obligations and duties under this
Agreement. Upon submission of such vouchers, receipts and
other evidence as may be required by Company, Employee shall be
entitled to receive reimbursement from Company, in accordance with
Company’s reimbursement practices for expenses for other
senior executives of Company or Cross Country.
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5.
Termination of
Employment .
(a)
In the event the employment of Employee
is terminated (i) for cause; or (ii) Employee resigns Employee's
employment with Company (other than for good reason) or fails to
accept Company’s renewal of this Agreement upon terms
that are substantially the same as those
contained herein; or (iii) Company does not renew the initial or
any renewal term of this Agreement for any reason other than for
cause, Employee (or Employee personal representative) shall be paid
all accrued salary, earned bonus pursuant to Addendum B, and any
other benefits which have then accrued and to which Employee is
entitled to as of the date of termination
. However, in
the event of a termination described in this
subsection (a) , Employee shall not be
entitled to the severance compensation provided for in subsection
(b). Provided, further, if Employee’s employment is
terminated under any of the circumstances described in subsections (a) (i), (a) (ii) or ( a)( iii) of this Section 5,
Employee also shall be subject to the restrictive covenant provisions of Section 7 as
well as Employee independent nondisclosure obligations set forth in
Section 8.
(b)
In the event (i) the employment of
Employee is terminated for any reason other than the circumstances
described in subsection (a) of this Section
5 or (ii) Employee terminates this Agreement
“for good reason” (as such term is defined in Section
5(f), then in addition to receiving all accrued salary, earned
bonus pursuant to Addendum B any other benefits which have then
accrued and to which Employee is entitled to as of the date of
termination, Company further agrees, subject to its right of set
off provided for in Section 9(a) and subject to Employee’s
performance of the restrictive covenants
provided for in Section 7 as well as
Employee independent nondisclosure obligations set forth in Section
8 respectively, to provide Employee with
severance compensation. The amount of such severance
compensation shall be equal to the average of Employee’s
annual compensation as reported on IRS Form W-2, for the two full
calendar years preceding the date of Employee’s termination
of employment. The severance compensation will be paid for a
period equal to one (1) year (which is the period of
non-competition and non-solicitation provided for under this
Agreement).
(c)
The portion of Employee’s severance
compensation which constitutes payments equal to Employee average
compensation shall be paid by Company to Employee in equal
installments over the months specified in subsection (b),
commencing on the date of Employee’s termination of
employment under this Agreement. Such severance payments
shall be made on Company’s usual payroll dates.
(d)
All amounts paid under subsections (b)
and (c) to Employee shall be subject to any applicable local, state
or federal withholding taxes.
(e)
For purposes of this Agreement, “
for cause ” means (i) Employee’s gross
negligence in the performance or intentional nonperformance of any
of Employee’s material duties and responsibilities as an
officer or employee of Company which is not due to a medical
impairment (as certified in writing by an independent physician
selected by Employee with the approval of Company, which approval
shall not be unreasonably withheld, and licensed to
practice
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medicine in the State of Georgia) or
total disability and which is not remedied within thirty (30) days
after receipt by Employee of written notice thereof from Company,
(ii) conviction of any felony, (iii) Employee’s proven
commission of fraud, (iv) Employee’s confirmed positive
illegal drug test result, or (v) Employee’s proven willful
breach of this Agreement that materially and adversely affects
Company.
(f)
For purposes of this Agreement, “
for good reason” means any situation during the term
of this Agreement in which the status, character, capacity,
location, or circumstances of Employee’s employment have been
materially and adversely altered by Company, whether by (1) any
relocation of Employee’s office to a location that is more
than thirty (30) miles of Company's main office in Norcross without
Employees consent, (2) any change in duties or responsibilities
that would require Employee to engage in employment outside the
Atlanta metropolitan area for periods of time materially greater
than those required while Employee was employed by Holdings, (3)
any material breach of this Agreement by Company, (4) any material
and adverse change in the title, reporting relationship(s),
responsibilities, or perquisites of Employee, and/or (5) any
assignment of duties materially and adversely inconsistent with
Employee’s position and duties as described in this Agreement
or inconsistent with Employee’s skill and
experience.
(g)
For purposes of this Agreement, “
total disability ” shall mean the inability of
Employee to perform the material aspects of Employee’s duties
under this Agreement for a period of at least ninety ( 90 )
substantially consecutive days, as determined by an independent
physician selected by Employee with the approval of Company, which
approval shall not be unreasonably withheld, and licensed to
practice medicine in the State of Georgia.
(h)
In the event that Employee’s
employment is terminated under Section 5 (b), then Company shall
pay Employee an additional amount equal to Employee’s cost of
COBRA health continuation coverage for Employee and Employee's
dependants for so long as Employee and Employee's eligible
dependants are entitled to receive COBRA continuation coverage from
Company under the applicable laws, rules and regulations governing
COBRA. For purposes of this Section 5 (i) and the
Employee’s right to elect continued coverage under
Company’s group health plan under COBRA, in the
case of a termination of the Employee’s employment with
Company under Section 5 (b), Employee’s “qualifying
event” (within the meaning of Internal Revenue Code
Section 4980B(f)(3)) shall be deemed to occur as of the date
termination under Section 5 (b)begins.
6.
Employee Benefits
.
(a)
In addition to Employee’s basic
annual salary, Employee shall be entitled to earn bonuses in
accordance with the bonus plan described in Addendum
B .
(b)
During the term of Employee’s
employment under this Agreement, Employee shall be entitled to
participate in the Cross Country Healthcare, Inc. 2007 Equity
Participation Plan, savings plans, and retirement plans applicable
generally to
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other senior executives of Company or
Cross Country, on the same basis as such other senior executives,
unless otherwise prohibited by the terms of such plans.
(c)
During the term of Employee’s
employment hereunder, Employee shall be entitled to participate and
receive benefits from, upon the same terms and conditions
applicable to employees generally, in any life, health,
hospitalization, any other insurance program, and any other health
and employee welfare benefit plan or program which Company may from
time to time provide or make available to other senior executives
of Company or Cross Country and for which Employee is eligible and
qualified. Provided, however, if the inclusion of Employee
under any such program or plan causes or would cause either such
program or plan to be terminated or Company to incur a materially
disproportionate additional cost, Company may elect to provide
benefits of a substantially similar nature which avoids such
adverse effects.
(d)
Employee shall be entitled, without loss
of pay, to vacation and sick leave as set forth on Addendum
C attached hereto and incorporated herein by
reference.
(e)
Except as otherwise provide by law,
Employee’s tenure during Employee’s employment with
Holdings shall be considered tenure with Company for purposes of
qualifying for participation and vesting in any of the benefit
programs addressed in Sections 6(b),(c), and (d). Under no
circumstances shall the benefits provided to Employee pursuant
Sections 6(b),(c), and (d) be materially less beneficial than the
benefits provided to Employee while Employee was employed with
Holdings.
7.
Restrictive Covenants
.
(a)
During Employee’s service hereunder
and for a period of one (1) year following
the date of termination , regardless of the
reason , cause, or
method of termination, Employee will not, directly or indirectly,
for Employee’s own benefit or the benefit of any other person
or entity:
(i)
Manage , operate,
or be employed as an officer, EVP, Finance
and Administration, or chief financial officer or in any position
(whatsoever the title) in which the Employee will use the same
skills, knowledge, and expertise as he did as EVP, Finance and
Administration of Company in any business, including but not limited to, a business association,
corporation, sole proprietorship or partnership , that engages in the
placement of physicians or allied health professionals in the United States. Employee specifically
agrees and acknowledges that Company has a reasonable interest in
protecting its business and goodwill from competition with the
Employee as set forth in the previous sentence. Employee
specifically agrees and acknowledges that because Company operates
throughout the United States and because Employee specific duties
and responsibilities involve management and operation of Company
throughout the United States that the territorial restriction is
reasonable.
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(ii)
Solicit in any manner or seek to obtain
the business of any customer or prospective customer of Company
with whom Employee had material contact (meaning contact
either on behalf of Company, MDA, or their respective affiliates,
or in an effort to further the business of Company, MDA, or their
respective affiliates) during Employee’s employment with
Company or MDA, other than for Company, or attempt to influence or
encourage any customers, prospective customers, vendors, agents,
consultants, referral sources, suppliers, landlords or other
business contacts with whom Employee had contact during the one
year prior to termination of Employee’s employment with
Company (including during Employee’s employment by Holdings)
to terminate, reduce, withdraw, curtail, cancel or otherwise cease
or
