Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made this 1st day of January,
2001, by and between MDNY Healthcare, Inc., a corporation, having its principal
place of business at One ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
(the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇▇").
WITNESSETH
WHEREAS, the Company is a managed care organization; and
WHEREAS, the Company wishes to employ ▇▇▇▇▇▇▇ as Chief Executive Officer,
and to utilize his expertise, knowledge and services in that position, and
▇▇▇▇▇▇▇ desires to provide such expertise, knowledge and services to the Company
under the terms, conditions and covenants contained in this Agreement. The
Company and ▇▇▇▇▇▇▇ also desire that ▇▇▇▇▇▇▇ shall seek to obtain a Masters in
Health Policy and Management (a "Masters") as hereinafter provided.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, the Company
and ▇▇▇▇▇▇▇ agree as follows:
1. Duties and Responsibilities.
(a) Subject to the terms and conditions set forth in this Agreement,
▇▇▇▇▇▇▇ shall serve as Chief Executive Officer of the Company, in full charge of
the operation of its business and affairs, subject to the provisions of the
by-laws of the Company in respect of the duties and responsibilities assigned
from time to time by the Board of Directors to the Chief Executive Officer, and
subject also at all times to the control of the Board of Directors. ▇▇▇▇▇▇▇
shall perform such duties and perform such responsibilities as are commensurate
with his position, and as the Board of Directors shall from time to time
reasonably direct, recognizing the executive nature and scope of ▇▇▇▇▇▇▇'▇
employment.
(b) ▇▇▇▇▇▇▇ shall devote his entire working time, energy, attention,
knowledge, skill and best efforts to the affairs of the Company and to the
performance of his duties hereunder in a manner which will faithfully and
diligently further the business and interests of the Company. During the
operation of this Agreement, ▇▇▇▇▇▇▇ may not at any time, whether or not
actually engaged in providing services to the Company, directly or indirectly
perform any work for or on behalf of a competitor or any other company, or
otherwise enter into any business or employment with or for any entity which in
the Company's sole discretion could interfere or impede with the performance of
his job duties, except upon the Company's prior written consent. During the term
of this Agreement, ▇▇▇▇▇▇▇ may, but shall not be required to, devote up to 16
hours per month during normal business hours toward obtaining instruction toward
achieving a Masters, provided that the course of his instruction shall not be
permitted to unduly interfere with the performance of his duties as Chief
Executive Officer.
(c) ▇▇▇▇▇▇▇ shall not obtain goods or services or otherwise deal on
behalf of the Company with any business or entity in which ▇▇▇▇▇▇▇ or a member
of his family has a financial interest or from which ▇▇▇▇▇▇▇ or a member of
family may derive a financial benefit as a result of such transaction, except
that this prohibition shall not apply to any publicly traded company in which
▇▇▇▇▇▇▇ or a member of his family owns less than 1% of the outstanding stock or
in circumstances specifically approved by the Board of Directors after full
disclosure.
(d) The Board of Directors reserves the right from time to time to
assign to ▇▇▇▇▇▇▇ additional duties and responsibilities. All such additional
duties and responsibilities shall be made by the Board of Directors in good
faith and shall be consistent with ▇▇▇▇▇▇▇'▇ position as Chief Executive Officer
of the Company.
2. Compensation.
(a) The Company shall pay to ▇▇▇▇▇▇▇ an annual base salary of Three
Hundred Sixty Thousand Dollars ($360,000). This annual salary shall be paid in
accordance with the Company's regular payroll practices. The Board shall review
▇▇▇▇▇▇▇'▇ performance on or about January 1st of each year to determine whether,
in the Company's sole discretion, ▇▇▇▇▇▇▇'▇ annual salary shall be increased.
(b) In addition to ▇▇▇▇▇▇▇'▇ annual base salary, he will participate
in MDNY's annual incentive program, with an initial target incentive opportunity
of 30% of base salary. The terms of ▇▇▇▇▇▇▇'▇ incentive goals for the year shall
be set forth in a written notice delivered to him not later than 90 days after
the beginning of the year to which the incentive goal applies. Except as
described in Sections 8(a) and Section 9, the amount and nature of ▇▇▇▇▇▇▇'▇
participation in the annual incentive program shall be within the Company's sole
discretion.
(c) Throughout the term of this Agreement, ▇▇▇▇▇▇▇ shall be eligible
to participate in any profit-sharing, retirement or other benefit plans and any
health, life, accident or disability insurance plans or programs to the same
extent as other similarly situated key employees of the Company. ▇▇▇▇▇▇▇ shall
receive (1) the insured or self-insured health, life and disability benefits, if
any, provided for the executive officers of the Company and (2) the various
other fringe benefits, if any, provided to executive officers of the Company
that may be authorized from time to time by the Board of Directors.
(d) ▇▇▇▇▇▇▇ shall be entitled to take four (4) weeks of paid
vacation per year on a non-cumulative basis.
3. Business Expenses.
(a) The Company shall pay or reimburse ▇▇▇▇▇▇▇ for reasonable travel
and other expenses incurred by ▇▇▇▇▇▇▇ in connection with the performance of
▇▇▇▇▇▇▇'▇ duties under this Agreement, upon receipt of vouchers therefor and in
accordance with the Company's regular reimbursement procedures and practices in
effect from time to time.
-2-
(b) The Company shall provide ▇▇▇▇▇▇▇ with an automobile allowance
of $500 per month to be allocated for the expenses of maintaining an automobile
for his use in connection with business matters.
(c) The Company shall pay for, or reimburse ▇▇▇▇▇▇▇ upon receipt of
appropriate vouchers for, tuition and related expenses incurred during the term
of this Agreement for fees, books, supplies and equipment in connection with his
instruction at an appropriate accredited institution toward obtaining a Masters.
4. Term of Employment. Subject to the terms and conditions of this
Agreement, the Company agrees to employ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ accepts employment
with the Company for a period beginning on the date of this Agreement and
continuing for a period of three years. Upon the expiration of the three-year
period, ▇▇▇▇▇▇▇'▇ employment under the terms of this Agreement shall
automatically renew on a year to year basis unless terminated by either party by
the giving of at least 90 days prior written notice to other party.
5. Termination of Employment by Reason of Death. If ▇▇▇▇▇▇▇ shall die
during the term of this Agreement, this Agreement shall terminate automatically
as of the date of his death, and the Company shall pay to ▇▇▇▇▇▇▇'▇ legal
representatives the compensation which would otherwise be payable to ▇▇▇▇▇▇▇ up
to the end of the month in which his death occurs and no more.
6. Termination of Employment by Reason of Disability.
(a) If ▇▇▇▇▇▇▇ shall become temporarily disabled during the term of
this Agreement, all of ▇▇▇▇▇▇▇'▇ rights under this Agreement shall continue
until such time as ▇▇▇▇▇▇▇ either returns to work (but not for a period greater
than 180 days) or is deemed "permanently disabled" (as hereinafter defined in
Section 6(c)).
(b) If ▇▇▇▇▇▇▇ shall be deemed permanently disabled, this Agreement
shall terminate automatically as of the date ▇▇▇▇▇▇▇ is deemed permanently
disabled. ▇▇▇▇▇▇▇ shall receive the compensation which would otherwise be
payable to ▇▇▇▇▇▇▇ up to the end of the month in which ▇▇▇▇▇▇▇ was so deemed
permanently disabled and no more.
(c) ▇▇▇▇▇▇▇ shall be deemed permanently disabled for purposes of
this Agreement if:
i. in the reasonable opinion of the Board of Directors,
▇▇▇▇▇▇▇ is unable to render full-time service to the Company pursuant to the
terms of this Agreement for six (6) consecutive months; or
ii. in the reasonable opinion of the Board of Directors,
▇▇▇▇▇▇▇ is unable to render full-time service to the Company pursuant to the
terms of this Agreement for nine (9) months out of any twelve (12) consecutive
month period; or
iii. in the opinion of a physician mutually selected by the
Company and ▇▇▇▇▇▇▇ or selected in accordance with the provisions of Section
6(d), ▇▇▇▇▇▇▇ is permanently unable to render full-time service to the Company
under this Agreement.
-3-
(d) If the Company and ▇▇▇▇▇▇▇ are unable to mutually agree upon the
selection of a physician under Section 6(c)(iii) above within sixty (60) days of
either party requesting the other to so agree, each party shall select a
physician and the two physicians so selected shall promptly select a third
physician who shall make such determination.
7. Termination of Employment for Cause.
(a) The Company may immediately terminate ▇▇▇▇▇▇▇'▇ employment in
the event that ▇▇▇▇▇▇▇ shall do or cause to be done, or there shall occur, any
act which constitutes "cause" (as hereinafter defined) for termination.
(b) For purposes of this Agreement, "cause" shall be deemed to mean
the occurrence of any of the following:
i. a material breach by ▇▇▇▇▇▇▇ of this Agreement or
substantial non-performance by ▇▇▇▇▇▇▇ of his duties as the Chief Executive
Officer of the Company, provided that if any such breach or non-performance can
be cured by ▇▇▇▇▇▇▇, then such breach or non-performance shall not be "cause" if
it is cured within 20 days after notice thereof is given to ▇▇▇▇▇▇▇ and such
cure puts the Company in the same position, economically and otherwise, as it
was prior to such breach or non-performance;
ii. ▇▇▇▇▇▇▇'▇ dishonesty, fraud or breach of trust or
intentional misconduct in the performance of his duties as the Chief Executive
Officer of the Company;
iii. conviction of ▇▇▇▇▇▇▇ of a crime in any court which could
have the effect of causing the termination or suspension of any license, permit
or authorization which the Company has or holds;
iv. conviction of ▇▇▇▇▇▇▇ of a felony; or
▇. ▇▇▇▇▇▇▇'▇ excessive absenteeism not related to disability.
(c) The definition of cause set forth in Section 7(b) shall not be
deemed to include, only by itself, the failure to satisfy any particular
business plan, budget or financial target. Should ▇▇▇▇▇▇▇'▇ employment be
terminated by the Company for cause, the Company's only obligation shall be to
pay ▇▇▇▇▇▇▇ his salary and other compensation under Section 2 of this Agreement
which has accrued as of the date of such termination. Nothing contained in this
Section 7 shall in any way waive, restrict or prejudice the Company's rights and
remedies in equity and at law against ▇▇▇▇▇▇▇ with respect to the matter for
which ▇▇▇▇▇▇▇'▇ employment under this Agreement is terminated for cause.
-4-
8. Salary Continuation Upon Change in Control.
(a) If there is a Change of Control and there is a Termination of
Employment (as hereinafter defined) during the term of this Agreement solely for
the reason set forth in Section 8(c)(iii), the Company will continue to pay
▇▇▇▇▇▇▇ his base salary, payable bi-weekly, in effect on the date of the
Termination of Employment and pay ▇▇▇▇▇▇▇ an annual adjustment payment equal to
the greater of (1) the annual incentive paid to him for the previous year, and
(2) 200% of the annual base salary in effect at the time of the Termination of
Employment (an "Adjustment Payment"), subject to all required withholding taxes,
for a period commencing on the date of the Termination of Employment and ending
on the date which is the day before the second anniversary of such date. The
Company shall pay ▇▇▇▇▇▇▇ the Adjustment Payments within 45 days after the first
and second anniversaries of Termination of Employment as set forth in this
Section 8(a). The payments of base salary and Annual Adjustments set forth in
this Section are ▇▇▇▇▇▇▇'▇ sole and exclusive remedy for a Termination of
Employment as set forth in this Section 8(a).
(b) Subject to Section 8(c) below, "Termination of Employment" means
the termination of ▇▇▇▇▇▇▇'▇ employment with the Company for any reason other
than any of the following:
i. death of ▇▇▇▇▇▇▇;
ii. ▇▇▇▇▇▇▇ being deemed "permanently disabled" (as defined in
Section 6(c));
iii. the voluntary termination by ▇▇▇▇▇▇▇ of his employment
with the Company; or
iv. the termination of ▇▇▇▇▇▇▇'▇ employment by the Company for
"cause" (as defined in Section 7).
(c) A voluntary termination of employment shall nevertheless be
deemed a "Termination of Employment" if the voluntary termination occurs as a
result of any of the following:
i. the assignment to ▇▇▇▇▇▇▇ of any duties inconsistent in any
respect with his position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
2 of this Agreement, or any action by the Company which results in a diminution
in such position, authority, duties or responsibilities, excluding for this
purpose isolated, insubstantial and inadvertent actions not taken in bad faith
which are remedied by the Company promptly after receipt of notice thereof given
by ▇▇▇▇▇▇▇;
ii. the Company's requiring ▇▇▇▇▇▇▇ to be based at an office
or location greater than 50 miles from the Company's current offices; or
-5-
iii. any purported termination by the Company of ▇▇▇▇▇▇▇'▇
employment other than as expressly permitted by this Agreement.
(d) For purposes of this Agreement there shall be a "Change of
Control" if any of the following events occurs:
i. any person, entity or group (as such term is used in
Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder) directly or indirectly acquires or becomes the
beneficial owner (within the meaning of Rule 13d-3 under said Act) of, or
otherwise becomes entitled to vote stock of the Company with 35% or more of the
voting power entitled to vote in elections for directors;
ii. there occurs any merger or consolidation or any sale,
lease or exchange of all or any substantially all of the assets of the Company
to any other entity and (A) in the case of a merger or consolidation, the
holders of the outstanding stock of the Company immediately before such merger
or consolidation hold less than 50% of the voting stock of the survivor of such
merger or consolidation or its parent; or (B) in the case of any such sale,
lease or exchange the holders of the voting stock of the Company immediately
before such sale, lease or exchange do not own at least 50% of the voting stock
of the other entity; or
iii. individuals who, as of the date of this Agreement,
constitute the Board of Directors (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Directors; provided, however,
that
A. any individual becoming a director subsequent to the
date of this Agreement whose election, or nomination for election by the
Company, was approved by a majority of the directors who (1) are members of the
Incumbent Board and (2) represent any class of voting stock of the Company on
the date of this Agreement, shall be considered a member of the Incumbent Board;
and that
B. any individual shall not be considered a member of
the Incumbent Board who assumed the office of director as result of an actual or
threatened election contest or actual or threatened solicitation of proxies by
or on behalf of a person, entity or group not represented on the Board of
Directors at the time of this Agreement.
9. Salary Continuation in the Absence of A Change of Control. In the event
there is a Termination of Employment that is not in connection with a Change of
Control, then ▇▇▇▇▇▇▇ will continue to receive his base salary, payable
bi-weekly, in effect on the date of the Termination of Employment and pay
▇▇▇▇▇▇▇ an Adjustment Payment, subject to all required withholding taxes, for
the period commencing on the date that ▇▇▇▇▇▇▇'▇ employment is terminated and
ending on the date which is the day before the first anniversary of such date.
The Company shall pay ▇▇▇▇▇▇▇ the Adjustment Payment within 45 days after the
first anniversary of Termination of Employment as set forth in this Section 9.
The payments of base salary and the provision of Adjustment Payment set forth in
this Section are ▇▇▇▇▇▇▇'▇ sole and exclusive remedy in the event that his
employment is terminated as set forth in this Section 9.
-6-
10. Confidential Information.
(a) ▇▇▇▇▇▇▇ recognizes and acknowledges that while providing
services to the Company, he will be exposed to and/or will acquire eminently
valuable knowledge of certain secret or confidential information, which has been
developed through the Company's efforts or investments, and is valuable to the
successful operation of the Company. ▇▇▇▇▇▇▇ therefore agrees that during his
employment with the Company under this Agreement, and thereafter, regardless of
the reasons for the cessation of his employment, he shall not use for his
personal benefit or disclose, communicate or divulge to, or use for the direct
or indirect benefit of any person, firm, association or organization other than
the Company, any confidential or secret information of the Company which ▇▇▇▇▇▇▇
acquires, which is not otherwise lawfully known by and readily available to the
general public. This confidential or secret information (the "Confidential
Information") includes, but is not limited to: names and addresses of employees,
suppliers or customers; any data on or relating to past, present or prospective
customers, including customer lists; marketing or strategic plans; business,
selling, legal or accounting methods, policies, plans, procedures, operations,
strategies or techniques; research or development projects or results;
manufacturing processes, cost information, technology, discoveries, designs,
formulae, compositions, and other trade secrets or other knowledge or processes
of or developed by the Company. ▇▇▇▇▇▇▇ further recognizes and acknowledges that
if the confidentiality or secrecy of the Confidential Information is lost or
used in an unauthorized manner, the Company could suffer irreparable and
continuing injury to its business, for which there will not be any adequate
remedy at law. ▇▇▇▇▇▇▇ confirms the Confidential Information the exclusive
property of the Company, and agrees that, immediately upon his ceasing to
provide services to the Company, regardless of the reasons therefor, ▇▇▇▇▇▇▇
shall deliver to the Company the original and all copies and recordings of all
correspondence, documents, books, records, lists and other writings and
recordings, including any recordings in electronic media, relating to the
Company's business; and ▇▇▇▇▇▇▇ shall retain no copies, regardless of where or
by whom said writings or recordings were kept or prepared.
(b) ▇▇▇▇▇▇▇ acknowledges that compliance with the provisions of this
Section 10 is necessary to protect the goodwill and other proprietary interests
of the Company, and is a material condition of this Agreement.
11. Restrictive Covenant.
(a) ▇▇▇▇▇▇▇ acknowledges and agrees that as a necessary result of
his employment by the Company, he may become intimately familiar with all of the
Company's business operations, clients and suppliers everywhere the Company does
business. He further acknowledges and agrees that all present and future
business relationships and goodwill that the Company has or may have with those
clients, prospective clients and suppliers, made known to ▇▇▇▇▇▇▇ during his
provision of services to the Company, whether or not ▇▇▇▇▇▇▇ created those
business relationships, are indispensable proprietary rights and interests of
the Company, and inure to the sole benefit and are the property of the Company.
(b) ▇▇▇▇▇▇▇ agrees that in exchange for his employment under this
Agreement, during his employment with the Company, and for a period of one year
after ▇▇▇▇▇▇▇'▇ employment with the Company under this Agreement ends,
regardless of the reasons therefor, he shall not:
-7-
i. Solicit or in any way contact any of the Company's
customers, prospective customers, suppliers or service providers within the
Company's primary market area consisting of Nassau and Suffolk Counties of New
York (the "Market Area") in an attempt to obtain business of the same or similar
type as performed by the Company, or being planned by the Company during the
Agreement, or in any way interfere with the Company's business relationships
with those customers, suppliers or service providers;
ii. Directly or indirectly engage in (as a principal, partner,
director, officer, agent, employee, consultant, owner, independent contractor or
otherwise, with or without compensation), any business activities within the
Market Area which are the same as, similar to or in competition with business
activities carried on by the Company or being planned by the Company at the time
▇▇▇▇▇▇▇'▇ employment with the Company ends, within the Market Area;
iii. Directly or indirectly own or hold a financial interest
in (other than ownership by ▇▇▇▇▇▇▇ and members of his family of less than 1% of
the outstanding stock of a publicly traded company) any business which is
involved in business activities carried on by the Company or being planned by
the Company a the time ▇▇▇▇▇▇▇'▇ employment with the Company ends, within the
Market Area; or
iv. Directly or indirectly induce or influence any employee of
the Company to terminate his or her employment with the Company.
(c) The restrictive covenants set forth in this Section 11 shall be
separately construed so that the existence of any claim or cause of action of
▇▇▇▇▇▇▇ against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of these
covenants.
12. Survival of Confidentiality and Non-Competition Covenants. The
provisions of Sections 10 and 11 shall survive the termination of this
Agreement, regardless of the reason for its termination.
13. Remedies for Violation of Confidentiality and Non-Competition
Covenants. ▇▇▇▇▇▇▇ acknowledges and agrees that, in view of the nature of the
business in which the Company is engaged and the ▇▇▇▇▇▇▇'▇ exposure to the
Company's operations, the restrictions contained in Sections 10 and 11 are
reasonable and necessary to protect the legitimate interests of the Company, and
that any violation of those restrictions would result in irreparable injury to
the Company, for which there is no adequate remedy at law. ▇▇▇▇▇▇▇ therefore
agrees that in the event of any actual or threatened violation by him of Section
10 or 11, including a single actual or threatened violation, the Company shall
be entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief against ▇▇▇▇▇▇▇, in addition to damages from ▇▇▇▇▇▇▇
and an equitable accounting of all commissions, earnings, profits and other
benefits to ▇▇▇▇▇▇▇ from such violation, which rights shall be cumulative and in
addition to any other rights or remedies to which the Company may be entitled.
If any portion of the covenants contained in Sections 10 or 11, or the
application thereof, is construed to be invalid or unenforceable, the remainder
of such covenants or covenants or
-8-
the application thereof shall not be affected and the remaining covenant or
covenants will then be given full force and effect without regard to the invalid
or unenforceable portions. If any covenant(s) of Sections 10 or 11 is held to be
unenforceable because of the area covered, or the duration or scope thereof,
▇▇▇▇▇▇▇ agrees that the court making such determination shall have the power to
reduce or limit the area, duration and/or scope thereof, and the covenant(s)
shall then be enforceable in its or their reduced form. If ▇▇▇▇▇▇▇ violates any
of the restrictions contained in Section 11, the period of such violation (from
the commencement of any such violation until such time as such violation shall
be cured by ▇▇▇▇▇▇▇ to the satisfaction of the Company) shall not count toward
or be included in the one year restrictive period contained in Section 11.
14. Expenses of Enforcement.
(a) If there shall be a breach or threatened breach by the Company
of its obligations under Section 8(a) or 9, then the Company shall pay, to the
fullest extent permitted by law, all expenses, including attorney's fees and
expenses incurred in connection with any actual or threatened legal action
necessary to enforce his rights, and the Company hereby agrees to indemnify and
hold ▇▇▇▇▇▇▇ harmless from and against all such expenses.
(b) If there shall be a breach or threatened breach of this
Agreement other than as provided for in Section 14(a), then all expenses,
including, without limitation, attorney's fees and expenses incurred in
connection with any legal proceeding arising as a result of the breach or
threatened breach shall be borne by the losing party to the fullest extent
permitted by law, and the losing party hereby agrees to indemnify and hold the
other party harmless from and against all such expenses.
15. Prior Agreements. ▇▇▇▇▇▇▇ represents and warrants to the Company that:
(a) there are no restrictions, agreements or understandings whatsoever to which
▇▇▇▇▇▇▇ is a party which would prevent or make unlawful his execution of this
Agreement or working for the Company hereunder; (b) his execution of this
Agreement and his working for the Company hereunder shall not constitute a
breach of any contract, agreement or understanding, oral or written, to which he
is a party or by which he is bound; and (c) he is free and able to execute this
Agreement and to work for the Company.
16. Entire Understanding. This Agreement contains the entire understanding
between the Company and ▇▇▇▇▇▇▇ with respect to the subject matter hereof, as
well as all other prior and contemporary agreements and understandings,
inducements or conditions, express or implied, written or oral, between the
Company and ▇▇▇▇▇▇▇ except as herein contained. The express terms hereof control
and supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof.
17. Modifications. This Agreement may not be modified orally but only by
written agreement signed by ▇▇▇▇▇▇▇ and the Company acting by or under the
authority of its Board of Directors.
18. Provisions Separable. The provisions of this Agreement are independent
of and separable from each other, and no provisions shall be affected or
rendered invalid or
-9-
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part.
19. Consideration, Merger, or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another entity which
assumes this Agreement and all obligations and undertakings of the Company
hereunder. Under such a consolidation, merger or transfer of assets and
assumption of obligations and undertakings, the term "the Company", as used
herein, shall mean such entity and this agreement shall continue in full force
and effect.
20. Notices. Unless otherwise required by law, all notices, requests,
demands and other communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly given, made and
received when delivered (personally, by courier service such as federal express,
or by messenger) or when deposited in the United States mail, registered or
certified mail, postage pre-paid, return receipt requested, addressed as set
forth below:
(a) If to the Company:
MDNY Healthcare, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board
(b) If to ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this Section for the giving of notice.
21. No Attachment. Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such actions shall be null,
void and of no effect.
22. Binding Agreement. This Agreement shall be binding upon, and shall
inure to the benefit of the Company and its successors, representatives and
assigns and shall be binding upon ▇▇▇▇▇▇▇.
23. No Assignment of Rights or Obligations by Employee. ▇▇▇▇▇▇▇
acknowledges and agrees that the services to be rendered by him under this
agreement are unique
-10-
and personal. Accordingly, ▇▇▇▇▇▇▇ may not assign or transfer any of his rights
or obligations hereunder.
24. Indulgences. Neither the failure nor any delay on the part of either
party to exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
25. Section Headings. The section headings in this Agreement are for
convenience only, they form no part of this Agreement and shall not affect is
interpretation.
26. Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitation of actions), shall be governed by
and construed in accordance with the laws of the State of New York,
notwithstanding any conflict-of-laws doctrines of such state or any other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
27. Definition of Company. For purposes of this Agreement, the term
"Company" includes not only MDNY, but also any successor, parent, subsidiary,
branch office or affiliate of MDNY.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have duly executed and delivered this Agreement as of the date first above
written
MDNY HEALTHCARE, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Chairman of the Board
-11-
