Exhibit
10.62
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“ Agreement
”) is made this 9th day of September, 2008, by and between
JAMES E. GINTER (“ 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 President 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 President 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 CEO of
Cross Country Healthcare, Inc. and its Board of Directors may, from
time to time, determine , upon the terms and
conditions hereinafter set forth. Unless
otherwise directed by the CEO of Cross Country Healthcare, Inc. or
its Board of Directors, Employee shall report
to the CEO of Cross Country Healthcare, Inc.
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
President. The Employee shall also
perform such additional or other duties as may be delegated to
Employee by the CEO of Cross Country
Healthcare, Inc. or its 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 CEO of Cross
Country Healthcare, Inc. Employee shall take actions that are
reasonable and consistent with Employee’s past practices as
the former President. 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)
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
.
(d)
The Employee shall comply with all
reasonable policies and procedures generally applicable to senior
executives of Company adopted by Company from time to
time.
(e)
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
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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.
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).
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(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
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
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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 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, President or
in any position (whatsoever the title) in which the Employee will
use the same skills, knowledge, and expertise as he did as
President of Company in any
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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.
(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 materially and adversely modify their business relationship with
Company and/or its affiliates; or
(iii)
Solicit the employment o f or hire, or encourage any
employee with whom Employee interacted
during the one year prior to Employee’s termination of
employment with Company (including during Employee's employment by
Holdings prior to the date of this Agreement) to terminate Employee's employment with
Company.
Nothing in this
subsection (a) shall prohibit Employee from acquiring, directly or
indirectly, less than a five percent (5.0%) interest in any
business, including a business which competes with Company, the
equity securities of which are readily tradeable on an established
securities market.
(b)
For purposes of this Agreement, a “
custome r” shall be deemed to be any person, business,
partnership, proprietorship, firm, organization or corporation with
whom or which the Employee has had material contact within one (1)
year prior to the date of the te
