Exhibit 10.11
[LETTERHEAD OF ROTECH MEDICAL CORPORATION]
January 24, 2001
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Letter of Employment
Dear ▇▇▇▇▇▇▇:
Rotech Medical Corporation, a Florida Corporation ("Employer"), is very pleased
to offer you ("Employee") the position of Chief Legal Officer of Rotech Medical
Corporation. This Letter of Employment (the "Agreement") shall confirm the terms
of such employment.
1. Starting Date. Starting Date was January 15,2001.
2. Base Salary. Employer shall pay you an annual base salary in the amount
of $200,000 payable according to Employer's customary payroll
practices.
3. Annual Bonus. Employer shall pay you an annual incentive bonus equal to
75% of your annual base salary. Such annual bonus will be based on
goals that are mutually agreed upon by a compensation committee (or
reasonable equivalent) and you. In the event that your employment is
terminated pursuant to paragraph 13 hereof, you shall remain entitled
to receive your annual bonus or any pro rata part thereof where the
agreed upon goals have been achieved in whole or in part.
4. Signing Bonus. Upon the commencement of your employment, Employer shall
pay you a signing bonus in the amount of $30,000, less applicable
payroll taxes and withholding.
5. Equity Incentive Compensation. In the event that equity incentives
become available for Rotech's senior management during your
employment, you will be included in the equity allocation made
available to Rotech's top 20 (approximate) executives.
6. Relocation. Upon the Employer's request, on or about December 31, 2001,
▇▇▇▇▇▇▇▇ agrees to relocate to the Orlando, Florida area.
7. Relocation Package. You will receive a moving allowance in the amount
of $60,000 payable upon your relocation. This moving allowance will be
increased by $10,000 monthly in the event that you relocate prior to
December 31, 2001, as follows:
Move by: November 30,2001 $ 70,000
October 31, 2001 $ 80,000
September 30, 2001 $ 90,000
August 31, 2001 $100,000
July 31, 2001 $110,000
June 30, 2001 $120,000
Employer also agrees to reimburse you for any income taxes resulting
from the relocation package/moving allowance that you receive
hereunder upon your submission of appropriate written documentation of
such taxes.
8. Vacation/Benefits. You will receive four weeks of paid vacation
annually and paid holidays. You will also participate in Employer's
life, health, disability, 401(k), accidental death insurance,
reimbursement for professional dues and continuing education expenses,
and other benefit plans and policies. The health insurance plan will
specifically provide coverage for (or Employer will reimburse for
such costs) Employee and her family (specifically including the life
partner and child of Employee).
9. Reporting. You will report to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
10. Title. Chief Legal Officer.
11. Place of Work. Employee agrees to work at Employer's corporate office
or at other locations on RoTech business four days, generally, each
week during calendar year 2001.
12. Confidentiality, Covenant Not To Compete, Non-Solicitation. Employee
acknowledges that in her position as part of the senior management of
Rotech, she will have access to confidential information, plans,
strategies, business relationships and proprietary information of
Employer. Employee agrees that she will not, without Employer's prior
written consent, directly or indirectly, for such period of time that
she is receiving base salary or severance payments from Employer: (a)
disclose such confidential and proprietary information; (b) perform
any services for any entity that competes with Employer; or (c)
influence or attempt to influence customers of Employer or any of its
subsidiaries or affiliates to direct their business to any competitor
of Employer.
13. Indemnification/Corporate Insurance: Employer shall indemnify Employee
to the fullest extent permitted under the law for amounts (including,
without limitation, judgments, fines, settlement payments, expenses
and reasonable attorney's fees) reasonably incurred or paid by
Employee in connection with any claim, matter, action, suit,
investigation or proceeding arising out of or relating to the
performance by Employee of services for Employer, or the service by
Employee as an attorney, officer or employee of the Company or any
other person or enterprise at the request of the Company. Employer
also agrees to continuously maintain applicable and customary
corporate insurance policies including, but not limited to, D&O,
general liability, professional and malpractice policies.
14. Termination:
(a) For Cause. The Company may terminate Employee's employment
hereunder for Cause. For purposes of this Agreement, the
term "Cause" shall mean that Employee has committed a breach
of fiduciary duty or been convicted of a felony. In the
event that the Company intends to terminate the employment
of Employee for Cause, the Company agrees to give thirty
days written notice to Employee specifying the grounds
constituting Cause.
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(b) Breach by Company: Employee may terminate her employment
hereunder by written notice to the Company after any breach
of the Agreement by the Company. The Company shall have thirty
days to cure any such breach.
(c) Good Reason: Employee may terminate her employment hereunder
for Good Reason (as herein defined) at any time during the term
of her employment by written notice to the Company not more
than 6 months after the occurrence of the event which
constitutes Good Reason. For purposes hereof, Good Reason
shall mean (i) a decrease in the then current base salary
or the annual incentive bonus eligibility of Employee
without the prior written consent of Employee; (ii) a change
in title or reporting relationship without Employee's prior
written consent; (iii) requiring Employee to relocate other
than as agreed to in paragraph 6 hereof; or (iv) a change in
control of the Employer and you are not offered an
equivalent position following such change in control.
(d) No Fault. Either the Company or Employee can terminate this
Agreement at any time, for any reason, by providing written
notice to the other no less than forty-five days prior to
the termination date.
15. Termination Rights.
(a) For Cause; Termination by Employee. Upon the termination of
employment by Employer for Cause or upon termination of
employment by Employee under the No Fault provisions
contained herein, Employee shall be entitled to payment of
any base salary or bonus earned but not yet paid as of the
date of Employee's termination and reimbursement of any
reimbursable expenses.
(b) Breach by Company; Good Reason; Termination by Company. Upon
the termination of employment by Employee because of breach of
this Agreement by the Company, for Good Reason by Employee or
upon the termination by the Company under the No Fault Section
herein, Employee shall be entitled to receive (i) any base
salary or bonus earned but not yet paid as of the date
of termination and reimbursement of reimbursable expenses;
(ii) base salary and benefits as if she had remained in the
employ of Employer for one (1) year from the date of the
termination of employment (without mitigation on account of
any employment subsequently obtained by Employee); and (iii) if
such termination occurs after Employee relocates to the
Orlando, Florida area, Company will pay Employee a relocation
allowance in the amount of $30,000 upon your relocation back
to the New York tri-state area and reimburse you for any
income taxes resulting from such relocation allowance upon
your submission of appropriate written documentation of such
taxes.
16. Expense Reimbursement and Temporary Living Expenses. Employer agrees
to promptly reimburse Employee for any and all reasonable expenses
incurred by Employee in the performance of here duties hereunder
including, but not limited to, any and all expenses related to
temporary living expenses (airfare, hotel, car
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rentals, meals etc.) incurred prior to the time that you establish
a permanent residence in the Orlando, Florida area (including up
to 5 trips to Florida for Employee's family).
17. Modifications and Amendments: This Agreement may be modified or
amended only by a written agreement that is signed by the parties
hereto.
18. Successors. Employer and/or IHS will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of Employer and/or IHS to assume expressly and agree to
perform this Agreement in the same manner and to the same extent
that Employer and/or IHS would be required to perform it if no
succession had taken place.
19. Notices: Notices provided for in this Agreement shall be in
writing and shall be delivered either in person or by a nationally
recognized overnight service provider to the addresses set forth
herein.
If this letter accurately sets forth the terms of our Agreement, please sign in
the space below and return one fully-executed original counterpart to me.
We are delighted to have you join us and look forward to a lasting, mutually
successful relationship.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
I have read and accept the terms of this
Letter of Employment.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Date: 1/24/01
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[LETTERHEAD OF ROTECH MEDICAL CORPORATION]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ June 6, 2001
RE: Amendment to Letter of Employment dated January 24, 2001
Dear ▇▇▇▇▇:
This letter is a follow-up to our discussions last week regarding the timing
of my relocation to Orlando, an additional relocation bonus associated with an
earlier move, and Rotech providing me with an automobile for my use. We agreed
to amend my above referenced employment agreement as follows:
1. New Paragraph 6: Relocation. Upon Employer's request, on or by
July 31, 2001, ▇▇▇▇▇▇▇▇ agrees to relocate to the Orlando, Florida
area. Rotech will pay Employee an Additional Relocation Bonus in the
amount of $50,000 upon such relocation. Employer also agrees to
reimburse you for income taxes resulting from such Additional
Relocation Bonus.
2. New Sentence Added to the End of Paragraph 8: Vacation/Benefits.
Employer also agrees to pay all costs associated with the lease of
an automobile for Employee's use (a Volvo S60 or an equivalent)
including, but not limited to, lease payments, repair and maintenance,
mileage reimbursement and insurance.
Except for the additional terms set forth above, my January 24, 2001, Letter of
Employment remains unchanged. Thank you and I look forward to joining you in
Orlando.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Agreed to:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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[LETTERHEAD OF ROTECH MEDICAL CORPORATION]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO
Rotech Medical Corporation
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ February 25, 2002
RE: Second Amendment to Letter of Employment dated January 24, 2001
Dear ▇▇▇▇▇:
This Second Amendment confirms our agreement last week to amend my Employment
Agreement. We agreed to amend my above referenced Employment Agreement as
follows:
1. Paragraph 2: Base Salary. Employer shall pay you an annual base salary
in the amount of $275,000 effective January 15, 2002, payable
according to Employer's customary payroll practices.
Except for the revisions set forth above, my January 24, 2001, Letter of
Employment remains unchanged.
Very truly,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Agreed to:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO
[LETTERHEAD OF ROTECH HEALTHCARE INC.]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ October 30, 2002
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Re: Third Amendment to Letter of Employment Dated January 24, 2001
Dear ▇▇▇▇▇▇▇:
Reference is made to that certain Letter of Employment between you and
Rotech Medical Corporation dated January 24, 2001, as modified by amendments to
Letter of Employment dated June 6, 2001 and February 25, 2002 (collectively
referred to herein as the "Letter of Employment"). All defined terms used
without definitions shall have the meanings provided in the Letter of
Employment.
This letter, when fully executed below, shall amend the Letter of
Employment as follows:
1. Termination Rights. Paragraph 15(b) shall be amended by deleting it in
its entirety and replacing it with the following:
"(b) Breach by Company; Good Reason; Termination by Company. Upon the
termination of employment by Employee because of breach of this
Agreement by the Company, for Good Reason by Employee, by the Company
without Cause or upon the termination by the Company under the No
Fault Section herein, Rotech shall (a) pay to Employee, with your
final paycheck, any base salary or bonus earned by you but not yet
paid as of the date of the termination of your employment; (b) fully
reimburse you for all reimbursable expenses; (c) pay to you in a lump
sum no later than twenty (20) days after the termination of your
employment, an amount equal to the sum of (i) one hundred fifty
percent (150%) of your annual base salary (measured as of the time of
the termination of your employment and without mitigation due to any
remuneration or other compensation earned by you following such
termination of employment), and (ii) an amount equal to the full
amount of bonuses paid to you in 2001 and the full amount of the
performance bonuses paid to you for performance in 2001; and (d) pay
to Employee immediately upon termination of her employment a
re-relocation bonus in the amount of $70,000 plus any income taxes
resulting from such re-relocation allowance; and (e) continuation of
all of Employee's benefits set forth in paragraph 8, including
amendments thereto, upon the same conditions and terms as Employee was
receiving or was entitled to receive as of the date
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of the termination of her employment, for a period of eighteen
(18) months from the date of termination of employment.
2. Termination. Paragraph 14(c) Good Reason: shall be amended by adding
the following provisions:
(v) the Company's failure to pay your base salary, earned bonus or
additional earned compensation or its failure to continue your
benefits, perquisites or related benefits, (vi) without your written
consent, requiring you to regularly report to work at a facility more
than fifty (50) miles from the location of your employment at the time
of the execution of this letter agreement, (vii) without your written
consent, the directing to you of any duties or responsibilities which
are materially inconsistent with your responsibilities, positions
and/or titles, (viii) without your written consent, a material
reduction in your title, duties, positions or responsibilities, or (ix)
without your written consent, the failure by the Company to continue in
effect any employee benefit or compensation plan including, but not
limited to, any life insurance plan, health insurance plan and
accidental death or disability plan in which you participate unless (a)
such benefit or compensation plan, life insurance plan, health
insurance plan or related covenant, or accidental death or disability
plan or similar plan or benefit is replaced with a comparable plan in
which you will participate or which will provide you with comparable
benefits, or (b) the Company requests that you seek comparable coverage
under another such plan(s) and the Company reimburses you in full, on
an after-tax basis (taking into consideration all net Federal, State
and local income taxes), for such coverage.
Except as herein amended, all other terms and conditions of your Letter
of Employment shall remain the same and your Letter of Employment as herein
amended shall remain in full force and effect.
If the foregoing correctly sets forth our understanding, please sign
two (2) copies of this letter and return it to the undersigned, whereupon this
letter shall constitute a binding amendment to the Letter of Employment.
Very truly yours,
Rotech Healthcare, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Interim Co-CEO & President
Accepted and Agreed:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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