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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of October 15, 1999, by and
between RENAL CARE GROUP, INC., a Delaware corporation (the "Company"), and R.
XXXX XXXXXXX (hereinafter "Employee").
WITNESSETH:
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, on the terms and conditions contained herein; and
NOW, THEREFORE, in consideration of the compensation payable to
Employee by the Company pursuant to this Agreement, and the mutual promises,
covenants, representations and warranties contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do agree as
follows:
1. Employment.
Effective as of October 18, 1999 (the "Effective Date"), the
Company employs Employee and Employee accepts employment with the Company under
the terms of this Agreement.
2. Term.
This Agreement shall begin on the Effective Date, and shall
continue for an initial period beginning on the Effective Date and ending on
December 31, 2002 (the "Initial Period"), subject to earlier termination by
Employee or the Company as hereinafter provided. Unless one party gives the
other notice of non-renewal not less than sixty (60) days prior to the
expiration of the Initial Period or an additional term, this Agreement shall
renew for additional terms of twelve (12) months each, subject to earlier
termination as hereinafter provided, on the same terms and conditions (subject
to mutually agreeable modifications, if any).
3. Compensation and Benefits.
(a) Base Compensation: The Company shall pay Employee a base
salary at an annual rate of (i) Two Hundred Fifty Thousand Dollars ($250,000)
from the Effective Date through March 31, 2001 (the "Base Compensation"). Such
Base Compensation may be adjusted as provided herein. The Base Compensation is
payable according to the pay periods of the Company as may be in effect from
time to time. Such payments shall be prorated for periods less than a full pay
period. The Base Compensation shall be subject to withholding for federal, state
and local payroll and all other taxes or withholdings applicable to Employee.
Any increases of the Base Compensation shall be at the discretion of the
Company, provided that any decreases to the then current Base Compensation shall
require the consent of Employee. The Base Compensation and target percentage for
the Annual Bonus (as defined below) will be reviewed annually by the
Compensation Committee of the Company.
(b) Benefits: During the term of this Agreement, Employee
shall also be entitled to participate in the insurance and other fringe benefits
made available generally to
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similar employees of the Company, as such benefits may be determined from time
to time by the Company, provided that Employee shall have at least four (4)
weeks of paid vacation time. In addition, during the term of this Agreement, the
Company will provide term life insurance coverage of One Million Dollars
($1,000,000) on Employee's life with the death benefit to be payable to
Employee's estate or as otherwise directed in writing by Employee.
(c) Bonuses: In addition to the Base Compensation payable to
Employee pursuant to Section 3(a) above, Employee is entitled to a bonus of
Twenty-Five Thousand Dollars ($25,000) for services from the Effective Date
through December 31, 1999, which bonus will be paid when the Company pays
bonuses to other employees with respect to the year ended December 31, 1999. In
addition to the Base Compensation, Employee will be entitled to an annual bonus
for periods after January 1, 2000, with a target amount equal to not less than
fifty percent (50%) of the Base Compensation for such year based on the
Company's and Employee's achievement of performance goals reasonably established
by the Compensation Committee of the Company and, in the case of performance
goals established specifically for Employee, agreed to by Employee (the "Annual
Bonus"). The Company agrees that the Company-related performance goals for
Employee shall be substantially similar to those established for other members
of senior management.
(d) Expenses: The Company shall reimburse Employee for any and
all expenses reasonably incurred by employee incident to the performance of the
duties imposed upon Employee hereunder.
4. Duties, Extent of Services.
Employee is initially engaged as an employee of the Company,
and Employee shall be engaged as Executive Vice President and Chief Financial
Officer of the Company effective upon the effective date of the resignation of
Xxxxxx Xxxxx from such positions. As Executive Vice President and Chief
Financial Officer, Employee shall perform such duties and responsibilities as
are typically incident thereto and shall perform in a faithful and competent
manner such additional duties as may be reasonably assigned from time to time by
the Company. Throughout the term of this Agreement, Employee shall report to the
Chairman or Chief Executive Officer of the Company. Such duties shall be
performed on a full-time basis for the Company at the Company's offices in
Nashville, Tennessee. Employee may be required, from time to time, to perform
his duties temporarily hereunder at such other place or places as the Company
shall reasonably require, provided that such period does not exceed thirty (30)
consecutive days without Employee's consent and that during any such period
Employee is able to return to Nashville, Tennessee at the Company's expense for
weekends.
Employee shall devote all of Employee's business time,
attention, knowledge, and skill solely to the business and interest of the
Company, and the Company shall be entitled to all the benefits, profits, and
other issues arising from, or incident to, all work, services, and advice of
Employee.
5. Termination.
This Agreement may be terminated by the parties in the manners
specified below:
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(a) Termination without Cause. Either the Company or the
employee may terminate Employee's employment under this Agreement at any time
for any reason upon thirty (30) day's prior written notice to the other party.
(b) Termination for Cause. The Company may terminate this
Agreement on written notice at any time for "Cause". For purposes of this
Agreement, "Cause" shall mean: (i) Employee is convicted of, pleads guilty to,
or confesses to a felony or any crime involving any act of dishonesty, fraud,
misappropriation, embezzlement or moral turpitude, in which event the Company
may terminate this Agreement immediately, (ii) the misconduct or gross
negligence by Employee in connection with the performance of Employee's duties
hereunder, (iii) the engaging by Employee in any fraudulent, disloyal or
unprofessional conduct which results in an injury to the Company, its affiliates
or any of its or their centers, monetarily or otherwise, (iv) Employee breaches
any provision of Section 6 of this Agreement, or (v) the material failure by
Employee otherwise substantially to perform his duties with the Company (other
than any such failure resulting from the disability of Employee under Section
5(d)(i)) or the breach of any provision of this Agreement other than Section 6.
In the event of any termination for Cause pursuant to the provisions of (ii),
(iii), (iv) or (v) of this subsection, the Company shall give Employee written
notice prior to such termination detailing the specific acts, actions, failures,
or events upon which the forecast termination is based, and Employee shall have
fifteen (15) days after such written notice to cease such actions or otherwise
correct any such failure or breach. If Employee does not cease such action or
otherwise correct such failure or breach within such fifteen (15)-day time
period, or having once received such written notice and ceased such actions or
corrected such failure or breach, Employee at any time thereafter again so acts,
fails or breaches, the Company may terminate this Agreement immediately.
(c) Termination for Good Reason. Employee may terminate this
Agreement on written notice at any time for "Good Reason". For purposes of this
Agreement, "Good Reason" shall mean: (i) without the express written consent of
Employee, a material diminution of his position, duties, responsibilities and
status with the Company as in effect as of the Effective Date, a change in
Employee's reporting responsibilities, a material reduction of Employee's titles
or offices as in effect on the date of this Agreement, or the removal of
Employee from, or failure to re-elect Employee to, any position referred to in
Section 4 of this Agreement, except in connection with promotions to higher
office or except in connection with the termination of this Agreement for Cause;
(ii) the reduction of the Base Compensation; (iii) the requirement that Employee
relocate outside of the Nashville, Tennessee metropolitan area; (iv) the
material breach by the Company of any material provision of this Agreement,
which breach continues uncorrected and uncured for fifteen (15) days after
Employee gives notice of such breach to the Company; or (v) the termination of
this Agreement by written notice from Employee to the Company during the thirty
(30) day period immediately following the first anniversary of a Change in
Control (as defined below).
(d) Involuntary Termination. The employment of Employee
hereunder shall be automatically terminated by the death or disability of
Employee as outlined below.
(i) Disability. The Company may terminate this Agreement
at the time Employee shall have been Disabled for a continuous period of six (6)
months during any continuous twelve (12) month period. For purposes of this
Paragraph 5(d)(i), the term "Disabled" shall mean Employee's inability to
perform the essential functions of his duties, with or without reasonable
accommodation. During Employee's six month period of Disability, the
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Company agrees to continue to pay Employee's Base Compensation (less regular
withholdings for payroll or other taxes and other required or proper items, and
less proceeds from all disability insurance policies or plans provided or made
available by the Company). In the event of a termination of Employee on account
of Disability, the Company shall be obligated to pay Employee's Base
Compensation for a period of six (6) months following the effective date of
termination (less regular withholdings for payroll or other taxes and other
required or proper times, and less proceeds from all disability insurance
policies or plans provided or made available by the Company). In addition, any
provisions in the relevant stock option agreements notwithstanding, all
outstanding stock options granted to Employee by the Company shall vest
immediately upon termination pursuant to this Section 5(d)(i).
(ii) Death. In the event Employee shall die during the
term of this Agreement, this Agreement shall terminate and Employee's estate
shall receive the remainder of the Base Compensation set forth in Section 3(a)
hereof accrued to the last day of the month in which death occurs. In addition,
any provisions in the relevant stock option agreements notwithstanding, all
outstanding stock options granted to Employee by the Company shall vest
immediately upon termination pursuant to this Section 5(d)(i).
(e) Post-Termination Compensation. Except as provided in
Section 5(d) above, upon termination of this Agreement, the Company shall be
relieved of all of its obligations hereunder notwithstanding any period of time
remaining under the initial or any renewal term, subject to the following:
(i) Termination without Cause or with Good Reason. If the
Company terminates Employee's employment hereunder without Cause under Section
5(a) above or if Employee terminates Employee's employment hereunder with Good
Reason under Section 5(c) above, then Employee shall, after the effective date
of such termination, as Employee's sole and exclusive remedy, receive the Base
Compensation (as then in effect) for a period of twelve (12) months after the
termination date plus any unpaid bonus payable for the most recently completed
calendar year plus a portion of Employee's Annual Bonus equal to the target
percentage of Base Compensation (as then in effect) multiplied by a fraction,
the numerator of which is the number of months (or portions thereof) that have
elapsed in the then-current calendar year and the denominator of which is twelve
(12). If the Employee's employment is terminated by the Company without Cause or
by Employee for good reason, Employee shall be under no duty to seek or accept
other employment; but if he shall do so, any compensation he shall receive
therefrom shall not diminish the Company's obligation to make payments required
to the Employee hereunder.
(ii) Termination without Good Reason. In the event that
Employee terminates his or her employment under Section 5(a) above, the
Company's obligation to pay Employee's Base Compensation shall terminate as of
the date of termination.
(iii) Termination for Cause. In the event that the Company
terminates Employee's employment hereunder with Cause under Section 5(b) above,
then Employee shall, after the effective date of such termination, receive the
Base Compensation (as then in effect) for a period of one (1) month after the
termination date.
(iv) Termination following Change in Control. If, within
twelve (12) months following a Change in Control, either (A) the Company
terminates the employment
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of Employee hereunder without Cause under Section 5(a) above or (B) Employee
terminates his employment for Good Reason under Section 5(c) above (except for a
termination under clause (v) of Section 5(c)), then, in lieu of any other
compensation that may be specified herein, the Company shall pay Employee an
amount equal to (i) the Base Compensation (as then in effect) plus an amount of
Annual Bonus equal to the target percentage of Base Compensation (as then in
effect) multiplied by (ii) three (3). If Employee terminates his employment for
Good Reason under clause (v) of Section 5(c) above, then, in lieu of any other
compensation that may be specified herein, the Company shall pay Employee an
amount equal to (x) the Base Compensation (as then in effect) plus an amount of
Annual Bonus equal to the target percentage of Base Compensation (as then in
effect) multiplied by (y) two (2). The Company will make any payment due under
this clause (iv) in a single lump-sum payment not later than thirty (30) days
after termination. In the event any payment obligation under this Section 5(e)
arises, no compensation received from other employment (or otherwise) shall
reduce the Company's obligation to make the payment(s) described in this
paragraph.
(f) Change in Control. "Change in Control" means a change in
control of the Company of a nature that would be required to be reported
(assuming such event has not been "previously reported") in response to Item
1(a) of a Current Report on Form 8-K pursuant to Section 13 or 15(d) of the
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, a
Change in Control shall also be deemed to have occurred at such time as:
(i) Any "person" within the meaning of Section 14(d) of
the Exchange Act, other than the Company; a subsidiary, or any employee benefit
plan(s) sponsored by the Company or any Subsidiary, is or has become the
"beneficial owner," as defined in rule l3d-3 under the Exchange Act, directly or
indirectly, of 25% or more of the combined voting power of the outstanding
securities of the Company ordinarily having the right to vote at the election of
directors, or
(ii) Individuals who constitute the Board immediately
prior to any meeting of stockholders (the "Incumbent Board") have ceased for any
reason to constitute at least a majority thereof, provided that any person
becoming a director whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least three-quarters (3/4) of the
directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director without objection to such nomination) shall be, for
purposes of this Agreement, considered as though such person were a member of
the Incumbent Board; or
(iii) Upon approval by the Company's stockholders of a
reorganization, merger, share exchange or consolidation, other than one with
respect to which those persons who were the beneficial owners, immediately prior
to such reorganization, merger, share exchange or consolidation, of outstanding
securities of the Company ordinarily having the right to vote in the election of
directors own, immediately after such transaction, more than 75% of the
outstanding securities of the resulting corporation ordinarily having the right
to vote in the election of directors; or
(iv) Upon approval by the Company's stockholders of a
complete liquidation and dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the Company other than
to a Subsidiary.
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6. Nondisclosure, Confidentiality; Competition.
(a) Subject to Section 6(f) below, Employee agrees that,
during the term of this Agreement and of Employee's employment by the Company,
and for a period twelve (12) months after the termination of Employee's
employment with the Company, Employee will not in any manner, directly or
indirectly, by himself or in conjunction with any other person, (i) conduct any
of the activities or perform any of the responsibilities or duties that Employee
provided the Company during his employment by the Company for any business
entity that is competitive with the business of the Company or its affiliates or
(ii) establish or own any financial, beneficial or other interest in (other than
an interest consisting of less than one percent (1%) of a class of publicly
traded security), make any loan to or for the benefit of, or render any
managerial, marketing or other business advice, to any entity that is then
conducting activities that are competitive with those of the business of the
Company or its affiliates, in either case within a geographic territory defined
as the greater of (I) a seventy-five (75) mile radius of any renal dialysis
center, unit or facility owned or operated by the Company or an affiliate of the
Company (an "RCG Center"), or (II) the geographic area, as narrowly construed as
is practicable, from which the Company received patients at each of the RCG
Centers. For purposes of this Section, the "business of the Company or its
affiliates" shall mean owning or operating a renal dialysis center, unit or
facility, and providing practice management services to nephrologists.
(b) Subject to Section 6(f) below, Employee further agrees
that, for a period of three (3) years after the termination of Employee's
employment with the Company, Employee will keep confidential and not directly
divulge, or allow through a lack of reasonable care to be divulged to anyone, or
use or otherwise appropriate for Employee's own benefit or for the benefit of
others, any knowledge or information of a confidential nature with respect to
the Company's and its affiliates' current business, the Company itself, or any
of its affiliates, including all trade secrets, pricing information, marketing
information or technical information (hereinafter referred to as the
"Confidential Data"), except for (i) a disclosure that is required by law; or
(ii) information that has been made generally available to the public by the act
of one who has the right to disclose such information; or (iii) information that
has become part of the public domain through no fault of the Employee; and (iv)
was known to the Employee prior to June 1995. Employee hereby acknowledges and
agrees that the prohibitions against disclosure of Confidential Data recited
herein are in addition to, and not in lieu of, any rights or remedies which the
Company may have available pursuant to the laws of any jurisdiction or at common
law to prevent the disclosure of confidential information, and the enforcement
by the Company of its rights and remedies pursuant hereto shall not be construed
as a waiver of any other rights or available remedies which the Company may
possess in law or equity. Employee acknowledges that the Company has taken
reasonable and appropriate steps to ensure the confidentiality and
non-disclosure of all such Confidential Data. For purposes of this Section the
Company's and its affiliates' "current business" shall mean owning or opening a
renal dialysis center, unit or facility.
(c) Subject to Section 6(f) below, Employee further agrees
that, for a period of three (3) years after the termination of Employee's
employment with the Company, Employee will not, for his own benefit or the
benefit of others, solicit any person or entity that has or has had, or disrupt
or attempt to disrupt, any relationship, contractual or otherwise, with the
Company or an affiliate of the Company (including any patient, payor, physician,
provider, managed care organization or supplier) at any time during Employee's
employment with the Company, for the purpose of assisting, or creating such a
relationship for, any business entity
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that is competitive with the Company or an affiliate of the Company. For
purposes of this Section, a business entity is competitive with the Company or
an affiliate of the Company if it provides or offers any renal dialysis service
that is provided by the Company or an affiliate of the Company.
(d) Subject to Section 6(f) below, Employee further agrees
that, for a period of three (3) years after the termination of Employee's
employment with the Company, Employee shall not induce, nor attempt to induce,
any employee of the Company, or any of its affiliates, to terminate such
employee's association with the Company or any of its affiliates.
(e) These post-employment covenants are considered by the
parties hereto to be fair, reasonable and integral for the protection of the
Company. The parties mutually agree that if a violation of any of these
covenants occurs, such violation or any threatened violation will cause
irreparable injury to the Company and the remedy at law for any such violation
or threatened violation will be inadequate. The parties acknowledge that these
covenants will survive, and remain in effect and enforceable after, termination
of this Agreement.
(f) The Company agrees that the forgoing covenants in
paragraphs 6(a) through (d) shall be null and void as to any period following
termination of employment in the event such termination occurs within thirteen
(13) months following a Change in Control through either (A) a termination by
the Company without Cause under Section 5(a) above or (B) a resignation by
Employee for any reason.
(g) Employee agrees to indemnify and hold harmless the Company
from and against any and all claims, causes of action, damages and/or any other
losses suffered or incurred by the Company as a result of any breach or
purported breach by Employee of any agreement applicable to Employee which
existed prior to the time of the entering into of this Agreement. Such
obligations of Employee to indemnify and hold the Company harmless shall include
any and all costs of defense of any such claim or threatened claim, including
reasonable attorneys' fees.
7. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of Employee
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 7) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by Employee with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Employee shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by Employee
of all taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
(b) Subject to the provisions of Section 7(c), all
determinations required to be made under this Section 7, including whether and
when a Gross-Up Payment is required and
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the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by Ernst & Young LLP or such other
certified public accounting firm as may be designated by Employee (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and Employee within fifteen (15) business days of the receipt of
notice from Employee that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
in Control, Employee shall appoint another nationally recognized accounting firm
to make the determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 7, shall be paid by the Company to Employee
within five (5) days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Company and
Employee. It is possible (due to the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accounting Firm
hereunder) that Gross-Up Payments will not have been made by the Company which
it is ultimately determined should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. Consequently, in the event
that the Company exhausts its remedies pursuant to Section 7(c) and Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Employee.
(c) Employee shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten (10) business days after Employee is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. Employee
shall not pay such claim prior to the expiration of the thirty (30)-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies Employee in writing prior to the expiration of
such period that it desires to contest such claim, Employee shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall
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indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax
or income tax (including interest and penalties with respect thereto) imposed as
a result of such representation and payment of costs and expenses. Without
limitation of the foregoing provisions of this Section 7(c), the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct Employee to pay the tax claimed and xxx
for a refund or contest the claim in any permissible manner, and Employee agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs Employee
to pay such claim and xxx for a refund, the Company shall advance the amount of
such payment to Employee, on an interest-free basis and shall indemnify and hold
Employee harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of Employee with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
Employee shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Employee of an amount advanced by
the Company pursuant to Section 7(c), Employee becomes entitled to receive any
refund with respect to such claim, Employee shall (subject to the Company's
complying with the requirements of Section 7(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Employee of an amount
advanced by the Company pursuant to Section 7(c), a determination is made that
Employee shall not be entitled to any refund with respect to such claim and the
Company does not notify Employee in writing of its intent to contest such denial
of refund prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
8. Severability.
The parties hereto hereby expressly agree and contract that it
is not the intention of either party to violate any public policy, or any
statutory or common law, and that if any paragraph, sentence, clause or
combination of the same of this Agreement shall be in violation of the laws of
any state where applicable, such paragraph, sentence, clause or the combination
of the same shall be void in the jurisdictions where it is unlawful, and the
remainder thereof shall remain binding on the parties hereto. It is the
intention of the parties to make the covenants of this Agreement binding only to
the extent that they may be lawfully done under existing applicable laws. In the
event that any part of any term or covenant of this Agreement is determined by a
court of law or equity to be overly broad or otherwise unenforceable, the
parties hereto agree that such court shall be empowered to substitute, and it is
the intent of the parties hereto that such court substitute, a reasonably
judicially enforceable term or limitation in the place of such unenforceable
term or covenant, and that as so modified this Agreement shall be fully
enforceable.
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9. Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior understandings or agreements, and any
changes or additions hereto must be in writing and signed by both parties. If
there is any conflict between the terms of this Agreement and any stock option
agreement or other agreement between Employee and the Company (including any
agreement entered into after the date of this Agreement), then this Agreement
shall control unless there is specific reference to superseding this Agreement
in such other agreement.
10. Assignment.
(a) The rights and benefits of Employee under this Agreement,
other than accrued and unpaid amounts due under Section 3(a) hereof, are
personal to Employee and shall not be assignable.
(b) This Agreement may not be assigned by the Company except
to an affiliate of the Company, provided that such affiliate assumes the
Company's obligations under this Agreement; provided, further, that if the
Company shall merge or effect a consolidation or share exchange with or into, or
sell or otherwise transfer substantially all its assets to, another business
entity, the Company may assign its rights hereunder to that business entity
without the consent of the Employee provided that it causes such business entity
to assume the Company's obligations under this Agreement and provided, further,
that the provisions of Section 5 remain in full force and effect following such
assignment.
11. Notice.
The references to the notice periods of certain "days"
contained in this Agreement shall mean calendar days. Any notice provided for in
this Agreement shall be delivered to Employee at the most recent address of
Employee listed in the Company's then current employment records. Notice to the
Company shall be delivered to the following address: c/o Renal Care Group, Inc.,
0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Chief
Executive Officer.
12. Waiver.
The waiver by any party to this Agreement of a breach of any
of the provisions contained herein shall not operate or be construed as a waiver
of any subsequent breach.
13. Disputes and Governing Law.
The Company and Employee agree that any dispute arising in
connection with, or relating to, this Agreement or the termination of this
Agreement, to the maximum extent allowed by applicable law, shall be subject to
resolution through informal methods and, failing such efforts, through
arbitration. Either party may notify the other party of the existence of a
dispute by written notice to the address indicated above in Section 11. The
parties shall thereafter attempt in good faith to resolve their difference
within thirty (30) days after the receipt of such notice. If the dispute cannot
be resolved within such 30-day period, either party may file
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a written demand for arbitration with the other party. The arbitration shall
proceed in accordance with the terms of the Federal Arbitration Act and the
rules and procedures of the American Arbitration Association. A single
arbitrator shall be appointed through the American Arbitration Association's
procedures to resolve the dispute.
The parties agree that in the event arbitration is necessary,
the laws of the State of Tennessee and any applicable federal law shall apply.
The place of the arbitration shall be Nashville, Tennessee.
The award of the arbitrator shall be binding and conclusive
upon the parties. Either party shall have the right to have the award made the
judgment of a court of competent jurisdiction in the State of Tennessee.
In the event of a dispute arising under this Agreement, the
prevailing party shall be entitled to all reasonable attorneys' fees incurred in
connection with such dispute. The Company agrees, to the maximum extent
permitted by law and the Bylaws and Certificate of Incorporation of the Company,
to defend and indemnify the Employee against and to hold the Employee harmless
from any and all claims, suits, losses, liabilities, and expenses (including
disputes arising under this Agreement and including reasonable attorneys' fees
and payment of reasonable expenses incurred in defending against such claim or
suit as such expenses are incurred) asserted against the Employee for actions
taken or omitted to be taken by the Employee in good faith and within the scope
of his responsibilities as an officer or employee of the Company. If requested
by the Employee, the Company shall advance to the Employee, promptly following
the Company's receipt of any such request, any and all expenses for which
indemnification is available hereunder, subject to the requirements of
applicable law and the Company's Bylaws and Certificate of Incorporation.
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IN WITNESS WHEREOF, the Company and Employee have executed
this Agreement on the day and year first above written.
COMPANY:
RENAL CARE GROUP, INC.
By: /s/ Xxx X. Xxxxxx
---------------------------------------
Xxx X. Xxxxxx
President
[Corporate Seal]
EMPLOYEE:
/s/ R. Xxxx Xxxxxxx (Seal)
--------------------------------------
R. XXXX XXXXXXX
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