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EXHIBIT 10.52
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "Amendment") is made and
entered into as of March 17, 1997, by and between The Heart Institute of Port
St. Lucie, Inc. (hereinafter referred to as "Employer"), and XXXXX X.
XXXXXXXXXX, M.D. (hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, Employer and Employee have entered into an Employment Agreement
(the "Agreement") dated January 1, 1996; and
WHEREAS, Employer and Employee desire to amend the Agreement by changing
the covenant not to compete to comply with revisions in the law of the State of
Florida pertaining to such covenants;
NOW THEREFORE, in consideration of the mutual benefits accruing to the
parties, Employer and Employee agree that Article XII of the Agreement is hereby
amended to read in its entirety as set forth below:
XII. COVENANT NOT TO COMPETE
Employee expressly covenants with the Employer as
follows:
During the employment period, if the Employee shall, for
any reason other than permanent retirement from the practice of
medicine, permanently or temporarily leave the employ of the
Employer, Employee hereby agrees, unconditionally, that he shall
not in any manner whatsoever, directly or indirectly, as partner,
employee, agent, principal, independent contractor, consultant,
owner, or in any other capacity whatsoever establish, maintain,
manage or occupy any office or premises for, and/or engage in the
practice of the medical specialties of cardiology, internal
medicine or any other type of medical specialty or medical
practice engaged in by the Employer, for a period of not less
than two (2) years the "Restricted Period") after termination of
employment, within an area of a radius of fifty (50) miles from
any office or offices of the Employer presently existing or
existing at the time of the termination of Employee's employment
(the "Restricted Area").
The Employer and the Employee agree that it is impossible
to determine with any reasonable accuracy the amount of damages
Employer would incur upon breach of this provision. Accordingly,
in the event Employee breaches this provision, the Employee does
hereby unconditionally covenant and agree with the Employer that
the Employee shall pay, forthwith, the sum of Three Hundred
Thousand Dollars ($300,000) as liquidated damages (the
"Liquidated Damages") to the Employer upon written notice and
demand, and in any event within three (3) days of the receipt of
said notice by the Employee.
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In the event Employee refuses to pay said sum or
unreasonably delays the payment of same, the Employer shall have
the unqualified option to xxx and recover from Employee the
aforesaid sum together with its reasonable attorney's fees and/or
obtain an injunction against the Employee to enforce the medical
practice prohibitions of this covenant, together with Employer's
reasonable attorney's fees. It is the express intent and purpose
of this provision that the Employee shall in no way compete with
the Employer in every particular as set forth herein.
Notwithstanding the above, the Employer, in lieu of accepting he
Liquidated Damages, shall have the right of injunctive relief.
Such injunction may, in the discretion of the court, be granted
without bond being required. If injunctive relief for any reason
whatsoever is not available, then the Liquidated Damages, shall
be paid as set forth above.
The Employee further acknowledges that the use of specific
patient lists or direct solicitation of existing patients shall
be presumed to be an irreparable injury to the Employer and may
be specifically enjoined.
In the event Employer brings a legal action or other
proceedings against Employee for enforcement of any provision of
this Agreement, the calculation of the non-compete period shall
not include the period of time commencing with the filing of
legal action or other proceeding to enforce the provisions or
provisions of this Agreement through the date of final judgment
or final resolution, including all appeals, if any, of such legal
action. The existence of any claim or cause of action by Employee
against the Employer predicated on this Employment Agreement
shall not constitute a defense to the enforcement by the Employer
of this covenant not to compete.
Employee hereby acknowledges that this covenant not to
compete is legally authorized under Section 542.335, Florida
Statutes, a copy of which is attached to this Amendment and made
a part hereof as Exhibit Number 1. The Employee hereby
acknowledges that he has read Section 542.335, understands its
meaning, and has had the legal significance of it explained to
him by an independent attorney of Employee's choosing. Employee
acknowledges that Employer has legitimate business interests to
justify the restrictions placed on him under this Agreement,
including without limitation:
(a) Employee possesses or will possess confidential business or
professional information pertaining to Employer and its
business, the use of which by Employee outside of his
employment relationship with Employer could cause
substantial harm to Employer and its business;
(b) Employer has or will have substantial relationships with
existing or prospective patients who utilize the services
of Employer and the physicians and staff employed by
Employer, which relationships could be
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substantially disrupted if Employee were to compete with
Employer in the Restricted Area during the Restricted
Period; and
(c) Employer has created patient goodwill in connection with
the conduct of its professional practice under its trade
name within the Restricted Area, which goodwill could be
substantially diluted if Employee were to compete with
Employer in the Restricted Area during the Restricted
Period.
Employee further acknowledges that the restrictions on his
activity as contained in this Agreement are legitimate and
reasonable, as to distance and monetary amount, are required for
the Employer's reasonable protection, and are a material
inducement to the Employer to enter into this Employment
Contract. Notwithstanding anything contained herein to the
contrary, the provisions contained in this Section XII shall
survive the expiration and term of this Agreement.
Employee further acknowledges that if enjoined from
practicing medicine during a reasonably limited time or within a
reasonably limited area, such restriction will not in any way
jeopardize the health and welfare of the Employee's patients
because the patients will be able to continue to receive proper
medical care and treatment from the Employer after the Employee
leaves, or from other physicians in the area practicing the same
type of medical specialty.
Employee agrees that Employer may assign this Agreement to
an entity that acquires or succeeds to the interests of Employer,
and in such event, the Employer's assignee or successor is
expressly authorized to enforce the provisions of this Section
XII.
IN WITNESS WHEREOF, the parties have executed this Amendment on the day
and year first above written.
EMPLOYER:
THE HEART INSTITUTE OF PORT ST. LUCIE, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
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EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxxxx
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XXXXX X. XXXXXXXXXX, M.D.
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