Exhibit 10.2
SEVERANCE
AGREEMENT
THIS SEVERANCE AGREEMENT (the
“Agreement”), dated effective as of August 10,
2009, is entered into by and between AMN Healthcare, Inc. (the
“Company”) and Bary Bailey (“Executive”),
in connection with Executive’s employment by the Company in
the position of Chief Financial Officer.
1. Employment at Will
.
The Company agrees to employ
Executive and Executive hereby agrees to be employed by the Company
upon such terms and conditions as are mutually agreed upon.
Executive’s employment with the Company shall be at the
discretion of the Company. Executive hereby agrees and acknowledges
that the Company may terminate Executive’s employment at any
time, for any reason, with or without cause, and without notice.
Nothing contained in this Agreement shall (a) confer on
Executive any right to continue in the employ of the Company,
(b) constitute any contract or agreement of employment, or
(c) interfere in any way with the at-will nature of
Executive’s employment with the Company.
2. Severance Benefits
.
(a) In the event that the Company
terminates Executive’s employment without “Cause”
(as defined below), the Company agrees to pay to Executive
severance payments in an amount equal to the sum of twelve
(12) months base salary at the rate in effect on the date of
the termination of Executive’s employment (the
“Termination Date”), plus the prorated portion of
Executive’s “Average Bonus” (an amount equal to
the average of the performance bonus payments received by the
Executive for the three most recent Fiscal Years (or such fewer
number of fiscal years during which Executive was employed)),
multiplied by the product of the number of days during the
Performance Period that Executive was employed, divided by 365)
(“Severance Benefits”). The Severance Benefits shall be
payable in a lump sum on the first payroll date after the
satisfaction of the conditions set forth in Section 4 below.
All withholding taxes and other deductions that the Company is
required by law to make from wage payments to employees will be
made from such severance payments. If Executive’s employment
terminates as a result of death or disability, such termination
shall not be considered a termination without “Cause”
that will entitle Executive to any severance payment.
(b) If Executive makes an election
to continue Executive’s coverage under the Company’s
group health plans pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”),
during the period beginning on the Termination Date and ending on
the earlier of (i) the twelve month anniversary of the
Termination Date or (ii) the date upon which Executive becomes
eligible for comparable coverage under another employer’s
group health plans, Executive shall continue to pay premiums with
respect to such coverage to the same extent that Executive was
paying such premiums immediately prior to such termination. Such
period shall run concurrently with the period of Executive’s
rights under COBRA.
(c) If the Company relocates
Executive’s position to a locale beyond a 50 mile radius from
the Company’s headquarters at 12400 High Bluff Drive, Suite
100, San Diego, California 92130, it shall be considered a
termination of Executive without “Cause,” entitling
Executive to resign and receive the Severance Benefits.
Notwithstanding the following, in
order to be eligible to receive the Severance Benefits under this
subsection 2(c), (i) Executive shall provide notice to the
Company no more than 90 days after the occurrence of such
relocation, (ii) such notice states the grounds for such
voluntary resignation and an effective date no earlier than 30 days
after it is given, and (iii) the Company has 30 days from the
giving of such notice within which to cure and, in the event of
such cure, such notice shall be of no further force or
effect.
(d) In the event a termination
without “Cause” occurs within one year after a
“Change in Control,” in lieu of the Severance Benefits
payable under subsection 2(a) or (c), as the case may be, Executive
shall be entitled to receive a lump sum equal to two (2) times
the sum of Executive’s twelve (12) months base salary at
the rate in effect on the Termination Date plus the Average Bonus.
Such amount shall be payable on the first payroll date after the
satisfaction of the conditions set forth in Section 4
below.
(e) For purposes of this Agreement,
the following terms are defined as follows:
(i) “Cause” for
termination of Executive shall mean (A) Executive’s
failure to perform in any material respect his or her duties as an
employee of the Company, (B) violation of the Company’s
Code of Business Conduct and Ethics, Code of Ethics for Senior
Financial Officers and Principal Executive Officer, and/or
Securities Trading Policy, (C) the engaging by Executive in
willful misconduct or gross negligence which is injurious to the
Company or any of its affiliates, monetarily or otherwise,
(D) the commission by Executive of an act of fraud or
embezzlement against the Company or any of its affiliates, or
(E) the conviction of Executive of a crime which constitutes a
felony or any lesser crime that involves Company property or a
pleading of guilty or nolo contendere with respect to a crime which
constitutes a felony or any lesser crime that involves Company
property.
(ii) “Change in Control”
shall be deemed to occur upon:
(A) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of a
majority of the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors;
2
(B) the dissolution or liquidation
of the Company;
(C) the sale of all or substantially
all of the business or assets of the Company; or
(D) the consummation of a merger,
consolidation or similar form of corporate transaction involving
the Company that requires the approval of the Company’s
stockholders, whether for such transaction or the issuance of
securities in the transaction (a “Business
Combination”), if immediately following such Business
Combination: (x) a Person is or becomes the beneficial owner,
directly or indirectly, of a majority of the combined voting power
of the outstanding voting securities eligible to elect directors of
the Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation), or (y)
