EMPLOYMENT AGREEMENT
This Agreement between EmCare Holdings, Inc., a Delaware corporation
(the "Company"), and Xx. Xxxxxxx X. Xxxxx, Xx. ("Executive") is hereby entered
into as of , 1997.
RECITALS:
The Company has entered into an agreement and plan of merger (the
"Merger Agreement") dated as of July , 1997 by and among the Company, Xxxxxxx
Inc., a Canadian corporation ("Xxxxxxx") and EHI Acquisition Corp., a
wholly-owned subsidiary of Xxxxxxx ("Acquisition").
Pursuant to the Merger Agreement, Acquisition will make a tender offer
to acquire all outstanding shares of common stock, par value $0.01 per share,
of the Company in accordance with the terms and subject to the conditions
provided for therein (the "Offer"). Subsequent to the Offer, Acquisition will
merge with and into the Company (the "Merger") and the Company will become a
wholly-owned indirect subsidiary of Xxxxxxx.
Executive is or will be employed by the Company in a confidential
relationship wherein Executive, in the course of his employment with the
Company, has and will become familiar with and aware of information as to the
specific manner of doing business and the customers of the Company, and its
subsidiaries and future plans with respect thereto, all of which will be
established and maintained at great expense to the Company and its
subsidiaries; this information is a trade secret and constitutes the valuable
goodwill of the Company and its subsidiaries.
Executive recognizes that the business of the Company and its
subsidiaries depends upon a number of trade secrets, including secret
techniques, methods and data. The protection of these trade secrets is of
critical importance to the Company and its subsidiaries.
The Company and its subsidiaries will sustain great loss and damage if
Executive should violate the provisions of paragraph 3 of this Agreement.
Further, monetary damages for such losses would be extremely difficult to
measure.
NOW THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each,
effective as of the time of the Merger, it is hereby agreed as follows:
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1. EMPLOYMENT AND DUTIES
(a) The Company hereby employs Executive as Chief Executive Officer of
Emcare Holdings, Inc. to perform the duties normally associated
therewith. Executive shall report directly to the Chief Executive
Officer or Chief Operating Officer of Xxxxxxx. Executive hereby
accepts this employment upon the terms and conditions herein contained
and agrees to devote his full time, attention and efforts to promote
and further the business and services of the Company. Executive shall
faithfully adhere to, execute and fulfill all policies established by
the Company.
(b) Executive shall perform such duties, assume such responsibilities and
devote such time and energy to the business of the Company as the
Chief Executive Officer or Chief Operating Officer of Xxxxxxx shall
from time to time require and shall not, during the term of his
employment hereunder, be engaged in any other business activity
pursued for gain, profit or other pecuniary advantage without the prior
approval of the Company.
However, the foregoing limitations shall not be construed as
prohibiting Executive from making personal investments in such form
and manner as will neither require his services in the operation or
affairs of the companies or enterprises in which such investments are
made nor violate the terms of paragraph 3 hereof. The Executive shall
not be prohibited from serving as a director of other entities
provided there is no conflict with the business of the Company or the
ability of the Executive to perform his duties hereunder subject in
any case to the approval of the Chief Executive Officer of Xxxxxxx,
not to be unreasonably withheld.
(c) All funds received by Executive on behalf of the Company, if any,
shall be held in trust for the Company and shall be delivered to the
Company as soon as possible.
2. COMPENSATION AND EXPENSE
For all services rendered by Executive to the Company, the Company
shall compensate the Executive as follows:
(a) BASE SALARY. The base salary payable to Executive shall be not less
than $325,000 per year payable in accordance with the Company's
customary pay practices.
(b) ANNUAL PERFORMANCE BONUS. Executive shall be eligible for an annual
bonus in the amount of $800,000 per year subject to the Company
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achieving earnings growth at the level agreed to by the Executive and
the Chief Executive Officer of Xxxxxxx. Executive shall remain
eligible for annual bonus for five years from the date hereof, or, if
earlier, until his employment with the Company has been terminated. The
annual bonus shall be paid to the Executive after each fiscal year at
such time as annual performance bonus would normally be paid to senior
executives of Xxxxxxx.
Should the Company, in any year, not achieve the specified earnings
target, but achieve 80% of the target, Executive shall be entitled to
receive 50% of the annual bonus plus a percentage of the balance equal
to the percentage of the target achieved between 80% and 100%. Should
the Executive remain employed by the Company for five years from the
date hereof and not have received the maximum bonus hereunder in each
of the five years, the Executive shall be eligible for an additional
bonus not to exceed the aggregate unpaid amounts, in accordance with
criteria agreed to by the Executive and the Chief Executive Officer of
Xxxxxxx.
(c) RETENTION BONUS. In order to induce Executive to remain in his
position with the Company and to accept the responsibilities arising
from the management of the Company following the Offer and the Merger,
the Company will pay or cause to be paid to Executive on execution of
this agreement, an amount in cash equal to $799,297.
Executive shall be entitled to receive a pro rata portion of the 1997
fiscal bonus to August 31, 1997, determined on a basis consistent,
with previous years, which bonus shall be payable at the time other
annual bonuses are paid to executives and shall not exceed $110,000.
(d) EXPENSES. Executive shall be entitled to reimbursement for expenses
incurred on behalf of the Company in the performance of his duties
hereunder, consistent with the Company's reimbursement policies.
(e) AUTOMOBILE ALLOWANCE. Executive shall receive an automobile allowance
in the amount of $1,172 per month and shall be reimbursed for the cost
of automobile insurance which is intended to cover all expenses
relating to Executive's automobile.
(f) DISABILITY. Executive shall be entitled to receive for a period of up
to six (6) months his base salary and a pro rata portion of his bonus
during such time as, because of illness or physical or mental
disability or other
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incapacity, he is unable to perform his duties under this Agreement.
Such amounts payable shall be offset by any amounts paid to Executive
under disability insurance policies maintained by the Company.
(g) STOCK OPTIONS. As soon as practicable following the date hereof, the
Company will cause Xxxxxxx to grant to Executive an option to purchase
30,000 Common Shares of Xxxxxxx at an exercise price equal to the fair
market value of such common stock at the time of the grant, such
options to vest consistent with the terms of the Xxxxxxx stock option
plan under which such options are issued, Annual grants to the
Executive shall be proposed to the compensation committee of Xxxxxxx'x
board of directors at levels consistent with other Xxxxxxx
executives.
(h) OTHER BENEFITS. Executive shall be entitled to participate in the
Company's employee benefit programs to the extent that his position,
title, and tenure make him eligible to participate therein, and
subject to and on a basis consistent with the terms, conditions and
overall administration of such programs, including, but not
necessarily limited to participation in the Company's 401(k) plan and
health, vision and dental coverage. In addition to the benefits
described above, Executive shall be entitled to the benefits set forth
on Annex A hereto.
3. NON-COMPETITION AGREEMENT: TRADE SECRETS
(a) Executive agrees that, for the greater of four years from the date
hereof and one year following termination of his employment with the
Company for any reason, he shall not, directly or indirectly, for
himself or on behalf of, or in conjunction with, any other person
company, partnership, corporation or business of whatever nature:
(i) knowingly call upon any past or present customer of the
Company or any of its subsidiaries (including any such customer
obtained by the Executive) for the purpose of soliciting or selling
any services or products in competition with the medical
transportation services and emergency department management services
business of the Company or any of its subsidiaries or affiliates;
(ii) knowingly call upon any employee of the Company or any or any
of its subsidiaries for the purpose or with the intent of enticing
them away from or out of the employ of the Company or any of its
subsidiaries for any reason whatsoever;
(iii) establish, enter into, be employed by or for, advise, consult
with or become an owner in or a part of, any company, partnership,
corporation or other business entity or venture, or in any way engage
in business for
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himself or for others, that competes with the Company or its
affiliates in the business of providing medical transportation
services or emergency department management services within the United
States of America or within 100 miles of any location in which the
Company or any of its subsidiaries conducts business; or
(iv) call upon any prospective acquisition candidates in the
medical transportation services or emergency department services
business on Executive's own behalf or on behalf of any competitor,
which candidate was either called upon by the Executive or for which
Executive made an acquisition analysis for the Company,
Ownership of not more than five percent of the voting stock of a
corporation whose stock is traded on a national securities exchange or
over-the-counter shall not of itself constitute a violation of this
paragraph 3(a).
(b) Executive agrees that he will not, during or after the term of his
employment with the Company, disclose or use for his personal benefit,
information relating to the customers or other trade secrets (whether
in existence or proposed) of the Company or any of its subsidiaries,
or any other confidential information of the Company or its
subsidiaries to any person, firm, partnership, corporation or business
for any reason or purpose whatsoever.
(c) Because of the difficulty of measuring economic losses to the Company
and its subsidiaries as a result of the breach of any of the foregoing
covenants, and because of the immediate and irreparable damage that
would be caused to the Company and its subsidiaries for which they may
have no other adequate remedy, Executive agrees that, in the event of
a breach by him of any of the foregoing covenants, the Company or any
of its subsidiaries may, in addition to obtaining any other remedy or
relief available to it, enforce the foregoing covenants, by all
equitable relief, including injunctions and restraining orders.
(d) The covenants in this paragraph 3 are severable and separate, and the
unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of
competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the
intention of the parties that such restrictions be enforced to the
fullest extent which the court deems reasonable, and this Agreement
shall thereby be reformed.
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(e) It is specifically agreed that the post-termination non-competition
period referred to in paragraph 3(a) shall be computed by excluding
from such computation any time during which Executive is in violation
of any provision of this paragraph 3 as determined by a final and
nonappealable decree of a court of competent jurisdiction.
4. RETURN OF COMPANY PROPERTY. All records, plans, memoranda, lists and
other properly delivered to Executive by or on behalf of the Company
or any of its subsidiaries or affiliates or by a customer of any of
them (including but not limited to, any such customers obtained by
Executive), and all records compiled by the Executive which pertain to
the business of the Company or any of its subsidiaries shall be and
remain the property of the Company or such subsidiary or affiliate, as
the case may be, and be subject at all times to its discretion and
control. Likewise, all correspondence with customers or
representatives, reports, records, charter, advertising materials, and
any data collected by Executive, or by or on behalf of the Company,
any of its respective subsidiaries or affiliates or any representative
of any of them shall be delivered promptly to the Company without
request by them upon termination of Executive's employment
5. INVENTIONS. Executive shall disclose promptly to the Company any and
all conceptions and ideas for inventions, improvements, discoveries
and works, whether or not patentable or copyrightable, which are
conceived or made by Executive solely or jointly with another during
the period of employment or within one (1) year thereafter and which
are related to the business or activities of the Company or any of its
subsidiaries or affiliates or which Executive conceives as a result of
his employment by the Company (collectively, "Proprietary Rights"),
and Executive hereby assigns and agrees to assign all his interests
therein to the Company or its nominee. All copyrightable Proprietary
Rights shall be considered to be "works made for hire". Whenever
requested to do so by the Company, Executive shall execute any and all
applications, assignments or other instruments and do such other acts
that the Company shall request to apply for and obtain Letters Patent
of the United States or any foreign country or to otherwise protect
the Company's interest therein. These obligations shall continue
beyond the termination of employment with respect to inventions,
improvements, discoveries and works, whether or not patentable or
copyrightable, conceived, made or acquired by Executive during the
period of employment or within one (1) year thereafter, and shall be
binding upon Executive's assigns, executors,
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administrators and other legal representatives. Notwithstanding the
provisions of this Paragraph 5, articles or other writings which are
written or co-written for inclusion in academic or other periodicals,
journals, monographs or professionals shall remain the property of
Executive and may be copyrighted by Executive or such publication.
6. TERM: TERMINATION: RIGHTS OF TERMINATION.
(a) The initial term of Executive's employment with the Company hereunder
shall, unless terminated as herein provided, continue for a term of
three (3) years ending on the third anniversary of the date of the
Merger. On the third anniversary of the date of the Merger, unless
either party has given prior written notice of nonrenewal at least 90
days prior to the date of such anniversary, the term of Executive's
employment with the Company shall automatically be renewed for an
additional three (3) year term commencing on such anniversary, on the
same terms and conditions contained herein, unless otherwise terminated
as herein provided. The Executive's employment with the Company may be
terminated in any one of the following ways;
(i) the death of Executive or the inability of Executive,
because of illness or physical or mental disability or other
incapacity which continues for a period in excess of six months, to
perform his duties under this Agreement shall terminate Executive's
employment.
(ii) the Company may terminate the Executive's employment following
ten-days' written notice to Executive for good cause, which includes
the following ("Good Cause"):
(A) Executive's willful and knowing material breach of
this Agreement which results in material detriment to the
Company;
(B) Executive's fraud or gross negligence with respect to
the business or affairs of the Company resulting in material
detriment to the Company or if Employee is convicted of a
felony involving fraud, dishonesty or moral turpitude;
(C) Executive's exclusion from participation in Medicare,
Medicaid or any other governmental third party reimbursement
program, for any reason, or if Executive has had material
civil money penalties or assessments imposed on him under any
federal or state law involving Medicare, Medicaid or any other
governmental third party reimbursement program;
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(D) alcohol or drug abuse, or sexual harassment by
Executive as determined by the final decision of a court of
competent jurisdiction which results in material detriment to
the Company;
(iii) Executive may terminate his employment following 30-days'
written notice to the Company for Good Reason. The Executive shall
have "Good Reason" to terminate employment if: (A) the Executive's
duties, responsibilities or authority as an executive or office to
which he has been appointed are materially reduced or diminished from
those in effect as of the commencement of his employment hereunder
without the Executive's consent; (B) the Executive's compensation or
benefits are reduced; (C) the Company requires that the Executive's
employment be based other than at Dallas, Texas without his consent;
(D) the Company materially breaches any of the provisions of this
Agreement; or (E) the failure of the Company to require a successor to
its business to assume this agreement.
(iv) At any time after the commencement of Executive's employment
with the Company, the Company or Executive may, without cause,
terminate the Executive's employment thirty days after written notice
is provided to the other party.
(b) Upon termination of Executive's employment pursuant to clause (i) of
paragraph 6(a), by Executive pursuant to clause (iii) of paragraph
6(a), or by the Company pursuant to clause (iv) of paragraph 6(a),
Executive or his heirs, as the case may be, shall be entitled to
receive (i) all cash compensation earned under this Agreement to the
date of termination, including the pro rata portion of any performance
bonus payable for the year during which the termination occurred plus
(ii) base compensation as in effect on the day prior to termination for
an additional period of one year plus and subject to any employee
contribution applicable to the Executive on the date of termination,
for a one year period following the date of termination the Company
shall continue to pay for the cost of the Executive's participation in
the Company's group life, disability, medical and dental insurance
plans provided that the Executive is entitled to continue such
participation under applicable state and federal law and plan terms.
(c) Upon termination of Executive's employment by the Company pursuant to
clause (ii) of paragraph 6(a), or by the Executive pursuant to clause
(iv) of paragraph 6(a), Executive shall be entitled to receive all
base cash compensation earned under this Agreement to the date of
termination. Such termination of the Executive's employment shall not
otherwise accelerate the payment date of any monies accrued or
accruing to the
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account of Executive as a result of any bonuses or other compensation,
nor shall termination vest in Executive any right in connection
therewith.
(d) If during the term of this agreement a Change of Control of the
Company occurs as a result of Xxxxxxx disposing of majority control of
the Company, and during the two (2) year period commencing on the
effective date of such Change of Control, the Executive's employment
is terminated by the Company other than for Good Cause, or by the
Executive for Good Reason, in addition to the benefits Executive is
eligible to receive under paragraph 6(b) above but excluding the
amount specified in 6(b)(ii), Executive shall be entitled to the
following benefits:
1. Any outstanding stock options, restricted stock, or other form
of stock-based grant or award previously granted to Executive by the
Company, to the extent vested in Executive as of the date of such
Termination of Employment, shall remain exercisable in accordance with
the terms of the plan.
2. For a two-year period following such termination of employment
the Executive shall not lose his eligibility for health, dental life,
or disability benefits under any Executive benefit plan, policy,
arrangement, or program (regardless of whether such program is
maintained for Executives in general, highly-compensated Executives
(as that term is defined in Section 414(q) of the Internal Revenue
Code of 1986, as amended (the "Code")), non-highly compensated
Executives, or for a select group of management Executives or
highly-compensated Executives (described in 29 CFR Section
2520.104-24)) at the same employee cost and benefit levels as prior to
the change of control. In the event that under the terms of such plan,
policy, arrangement, or program, the Executive's termination of
employment results in a loss of such coverage, the Company shall
immediately purchase comparable coverage for Executive for any portion
of the 24-month period so remaining. Following this period, Executive
shall be entitled to receive continuation coverage under COBRA,
treating the end of this period as a termination of Executive's
employment other than for gross misconduct.
3. Immediately following such Termination of Employment, the
Company shall pay to Executive an amount equal to two (2) times the
sum of:
(A) Executive's annual base rate of pay determined as of
the greater of (x) the year in which the termination of
employment occurs, or (y) the beginning of the calendar year
coinciding with or next preceding such Change in Control; plus
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(B) the greater of (x) the average of the last
performance bonuses paid to the Executive under paragraph 2(b)
of this Agreement prior to such Change in Control, or (y) the
average of the first three annual incentive bonuses paid to
Executive under paragraph 2(b) of this Agreement immediately
prior to such termination of employment.
Such amount shall be paid in cash to the Executive within 30
days of such termination of employment
4. If, in the written opinion of a national accounting firm
engaged by either the Company or the Executive for this purpose (at
the Company's expense), or if so alleged by the Internal Revenue
Service, the aggregate of the benefit payments hereunder (other than
under this subparagraph 6(c)(4)) would cause the payment of one or
more of such benefits to constitute an "excess parachute payment" as
defined in Section 280G(B) of the Code, then the Company will pay to
the Executive an additional amount in cash (the "Gross-Up Payment")
equal to the amount necessary to cause the net amount retained by the
Executive, after deduction of any (i) excise tax on the payments
hereunder (other than under this subparagraph 6(c)(4)), (ii) federal,
state or local income tax on the Gross-Up Payment, and (iii) excise
tax on the Gross-Up Payment, to be equal to the aggregate remuneration
the Executive would have received hereunder, excluding such Gross-Up
Payment (net of all federal, state and local excise and income taxes),
as if Sections 280G and 4999 of the Code (and any successor provisions
thereto) had not been enacted into law. The Gross-Up Payment provided
for in this subparagraph shall be made within thirty (30) days after
termination of Executive's employment, provided, however, that if the
amount of the payment cannot be finally determined at the time, the
Company shall pay to Executive an estimate as determined in good faith
by the Company of such payments (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the forty fifth
(45th) day after the Termination of Employment date.
5. For purposes of this Agreement, a "Change of Control" shall be
defined as (A) an event or series of events by which any "person" or
"group" (as such terms are defined in Sections 3(a)(9) and 13(d) of
the Securities Exchange Act of 1934, hereinafter known as the "Act"),
together with its or their "affiliates" and "associates" (as defined
in Rule 13d-3 of the Act), becomes the "Beneficial Owner" (as defined
in Rule 13d-3 of the Act modified to include, without regard to the
60-day period referred to in such Rule, all shares that such person or
group has the right to acquire pursuant to any agreement or
arrangement, or upon exercise of conversion rights, warrants or
options, or otherwise), directly or
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indirectly, of securities of the Company, having 51% or more of the
total number of votes entitled to be cast for the election of the
Board of Directors of the Company; (B) the sale or transfer of 50% or
more of the assets or earning power of the Company and its
subsidiaries (taken as a whole); or (C) at any time (i) the Company
shall consolidate with, or merge with, any other person and the
Company shall not be the continuing or surviving corporation, (ii) any
person shall consolidate with, or merge with the Company, and the
Company shall be the continuing or surviving corporation and in
connection therewith, all or part of the outstanding Company stock
shall be changed into or exchanged for stock or other securities of
any other person or cash or any other property, or (iii) the Company
shall be a party to a statutory share exchange with any other person.
Notwithstanding anything in the foregoing to the contrary, any events
occurring in connection with the stock of the Company becoming
publicly traded on a national exchange shall not constitute a "Change
in Control".
(e) In the event of termination of Executive's employment for any reason
provided in this paragraph 6, all rights and obligations of the
Company and Executive under this Agreement shall cease immediately,
except that Executives obligations under paragraphs l(c), 3, 4, 5 and
7 hereof shall survive such termination, and thereafter Executive
shall have the right to receive, and the Company shall be obligated to
pay, the compensation as set forth in paragraphs 6(b), 6(c) or 6(d),
as the case may be.
7. Representations of Executive. Executive has represented and hereby
represents and warrants to the Company that he is not subject to any
restriction or non-competition covenant in favor of a former employer
or any other person or entity, and that the execution of this
Agreement by Executive and his employment by the Company and the
performance of his duties hereunder will not violate or be a breach of
any agreement with a former employer or any other person or entity and
Executive agrees to indemnify the Company for any claim by any third
party that such third party may now have or may hereafter come to have
against the Company based upon or arising out of any non-competition
agreement or invention and secrecy agreement between Executive and
such third party.
8. Complete Agreement. There are no oral representations,
understandings of agreements with the Company or any of its officers,
directors or representatives covering the same subject matter as this
Agreement and this Agreement supersedes any prior agreement or
understanding between the Company and the Executive with respect to
his employment including without limitation that certain Employment
Agreement between the Company and the Executive dated February 5,
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1992. This Agreement is the final, complete and exclusive statement and
expression of this Agreement among the Company and Executive and of
all the terms of this Agreement, and it cannot be varied, contradicted
or supplemented by evidence of any prior or contemporaneous oral or
written agreements. This Agreement may not be later modified except by
a further writing signed by the parties, and no term of this Agreement
may be waived except by writing signed by the party waiving the
benefit of such terms.
9. NO WAIVER. No waiver by the parties hereto of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to
be a waiver of any subsequent default or breach of the same or any
other term, conditon or covenant contained herein.
10. ASSIGNMENT: BINDING EFFECT. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees therefore,
that he cannot assign all or any portion of this Agreement. Subject to
the preceding sentence, this Agreement shall be binding upon and inure
to the benefit of the parties thereto and their respective heirs,
successors and assigns. The Company agrees to require any purchaser,
successor or assigns to assume the obligations hereunder and to agree
to be bound by the terms hereof. Xxxxxxx Inc. has executed this
Agreement to guarantee performance by the Company.
11. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: c/x Xxxxxxx Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Executive Officer
Fax: 000-000-0000
To Executive: Xx. Xxxxxxx X. Xxxxx, Xx.
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Notice shall be deemed given and effective three (3) days after the
deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually
received. Either party may change the address for notice by notifying
the other party of such change in accordance with this paragraph 11.
12. SEVERABILITY: HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be
deemed valid and operative and, so far as is reasonable and possible,
effect shall be given to the intent manifested by the portion held
invalid or inoperative. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe,
interpret, define or limit the extent or intent of this Agreement or
of any part hereof.
13. MISCELLANEOUS. This Agreement shall in all respects be construed
according to the laws of the State of Texas. The parties agree that
any court proceeding shall be before a judge alone and waive trial by
jury. This Agreement may be executed in any one or more counterparts,
each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
EXECUTIVE:
-----------------------------------------
Xx. Xxxxxxx X. Xxxxx, Xx., Individually
EMCARE HOLDINGS INC.
By:
--------------------------------------
Name:
Title:
XXXXXXX INC.
By:
--------------------------------------
Name:
Title:
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ANNEX A
Other Benefits
1. Fees or dues reasonably incurred by Executive for country club and
athletic club membership.
2. Term and whole life insurance as presently in place.
3. Disability policy as presently in place.
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