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EXHIBIT 10.72
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made this 28th day of
March, 1997, effective as of January 1, 1997, by and between XXXXXX X.
XXXXXXXX, residing at 00 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000
("Executive") and COMPREHENSIVE CARE CORPORATION, a Delaware corporation with
its principal offices located at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx xxx Xxx,
Xxxxxxxxxx 00000 ("Company").
W I T N E S S E T H
WHEREAS, Executive is currently acting as Interim Chief
Operating Officer of the Company and Interim President of Comprehensive
Behavioral Care, Inc. ("CBC"), a majority owned subsidiary of the Company;
WHEREAS, the Company desires to continue to employ Executive
as its Chief Operating Officer and as President and Chief Operating Officer of
CBC on the terms and conditions provided for herein;
WHEREAS, Executive has expertise and experience in providing
managed health care services; and
WHEREAS, Executive has made and is expected to continue to
make a major contribution to the profitability, growth and financial strength
of Company and CBC;
NOW, THEREFORE, it is mutually agreed by and between the
parties hereto as follows:
ARTICLE I
EMPLOYMENT
1.1 Duties. Subject to and upon the terms and conditions
of this Agreement, the Company hereby employs and agrees to continue the
employment of the Executive, and the Executive hereby accepts such continued
employment in his capacity as Chief Operating Officer of the Company and
President and Chief Operating Officer of CBC. Executive shall report to the
Chief Executive Officer of the Company and to the Board of Directors of the
Company, and in the case of CBC, to the Chairman of the Board of Directors of
CBC. The Executive agrees to devote his full business time to his employment
with the Company and CBC, to serve the Company and CBC faithfully and to the
best of his ability, and to perform such services and duties of an executive
nature in connection with the business, affairs and operations of the Company
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of CBC as may be reasonably and in good faith assigned or delegated to him from
time to time by or under the authority of the President/CEO of the Company, and
consistent with the position of Chief Operating Officer of the Company and
President and Chief Operating Officer of CBC.
1.2 Principal Base of Operations. Executive acknowledges
that the Company's present principal place of business is Corona del Mar,
California, and that the principal place of business of CBC is located in
Tampa, Florida. In addition, business operations of the Company and of CBC
are, have been, or are contemplated to be conducted in the states of New
Jersey, New York, Michigan, Texas, and the Commonwealth of Puerto Rico.
Executive shall undertake such travel and shall be in attendance at the
Company's principal executive offices in Corona del Mar, California and such
other locations where the business or operations of the Company and/or CBC are
located as may be reasonably necessary or required for Executive to perform his
duties hereunder.
ARTICLE II
COMPENSATION
2.1 Salary. Commencing on the effective date of this
Agreement and during the term of this Agreement, Executive shall receive a base
salary (the "Base Salary") at the rate of $175,000 per annum payable in equal
weekly increments or otherwise in accordance with regular payroll practices of
the Company. Executive may receive such other bonuses or additional
compensation as may be determined from time to time by the Board of Directors,
but in all events Executive will receive the bonus provided for in Section 2.3,
to the extent earned. The Company shall deduct from Executive's compensation
all federal, state and local taxes which it may now or may hereafter be
required to deduct.
As a one-time incentive to Executive for entering
into this Agreement, the Company shall pay to Executive a one-time bonus of
$45,000, which shall be paid as follows: the sum of $15,000 shall be paid to
Executive upon the execution of this Agreement, and the remainder of $30,000
shall be paid to Executive in nine consecutive installments of $3,333.33 each,
commencing April 1, 1997 and continuing on the first day of each of the eight
successive months thereafter. The Company shall deduct and withhold from the
initial payment and each monthly installment payment, all applicable federal
and state tax and withholding payments required to be withheld.
2.2 Benefits. During the term hereof, Executive shall be
provided with medical, health and long-term disability insurance benefits of
the same nature and type and in the same manner and to the same extent as
provided to other officers of the Company. Executive shall be entitled to
three weeks of paid vacation during each 12-month period of employment, to be
accrued in accordance with the Company's vacation policies, and to be taken at
such times as not to
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interfere with special projects then in process. Additionally, during the term
hereof, Executive shall be accorded such leave, holidays and other benefits as
generally made available to other officers of the Company and shall also be
eligible for those fringe benefits programs and stock option plans as are made
available to officers of the Company or of CBC. The Company shall reimburse
Executive for all necessary and reasonable business expenses incurred by
Executive while performing services under this Agreement, consistent with the
Company's expense reimbursement policies.
2.3 Bonus. In addition to the annual Base Salary,
Executive shall be entitled, during the term hereof, to receive a cash bonus as
provided in this Section 2.3. Executive's cash bonus shall be computed and
paid quarterly as herein provided. No bonus shall be earned or shall be
payable if the amount of the Company's quarterly operating revenues as reported
on a consolidated basis are less than $12.5 million and the amount of the
Company's earnings before taxes as a percentage of quarterly operating revenues
are less than 2.5%. With respect to each fiscal quarter during the term
hereof, commencing with the fiscal quarter ending February 28, 1997, provided
that both the quarterly operating revenues and earnings before taxes conditions
have been fulfilled for that quarter, there shall be paid to Executive, within
60 days following the end of the applicable fiscal quarter, an amount equal to
1.875% of the Company's earnings before taxes as computed for such fiscal
quarter. For the purpose of the foregoing, operating revenues shall be defined
as revenues from the Company's on-going operations as reported in the Company's
filings made with the Securities and Exchange Commission and earnings before
taxes shall be defined as earnings as determined in accordance with generally
accepted accounting principles before deduction of or provision for all
applicable taxes. Within 30 days following the end of each fiscal quarter, the
Company shall cause the Chief Financial Officer of the Company to prepare and
deliver to Executive a report setting forth the amount of quarterly bonus for
such quarter and the method of computation therefor.
2.4 Stock Options. (a) Upon the execution of this
Agreement, the stock option grant heretofore made by the Company to Executive
of options, on August 23, 1996, to purchase shares of the Company's Common
Stock under the Company's 1988 Incentive Stock Option Plan and Non-Statutory
Stock Option Plan (the "Plan") is hereby ratified and confirmed, as follows:
(i) an option to purchase 5,000 shares
of Common Stock at an exercise price of $7 7/8 per
share to be designated as a "non-incentive stock
option".
These options are subject to the terms of the Plan and the Company's standard
form of Stock Option Agreement. The Company shall evidence the grant of the
options to Executive by delivering to Executive, simultaneously with his
execution of this Agreement, the Stock Option Agreement, executed by a duly
authorized officer of the Company.
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(b) The Company hereby grants to Executive, stock options
to purchase an aggregate of 120,000 shares of the Company's Common Stock at an
exercise price of $11.375 per share in the Company's 1995 Incentive Plan, to be
vested and exercisable upon the following terms.
(i) a vested option to purchase 20,000
shares of Common Stock at an exercise price of
$11.375 per share to be designated as a "nonqualified
stock option".
(ii) Upon the Company first achieving
quarterly revenues from operations in any fiscal
quarter commencing with the fiscal quarter ending
February 28, 1997 in an amount equal to or greater
than $12.5 million and earnings before taxes in an
amount equal to or greater than 2.5% of such
quarterly operating revenues, stock options to
purchase 10,000 shares shall vest and thereafter be
exercisable following the occurrence of the vesting
condition at any time before December 31, 2007.
$12.5 million of operating revenues and $312,500 of
earnings before taxes are referred to as the "Level I
Targets". Options to purchase an additional 10,000
shares shall vest and thereafter be exercisable at
any time before December 31, 2007, on the further
condition that (i) the Company achieve not less than
the Level I Targets in each of the next two
successive fiscal quarters or (ii) the average of the
operating revenues and earnings before taxes for the
fiscal quarter with respect to which the stock
options in the first sentence of this Section 2.4(i)
vested and the next three immediately succeeding
fiscal quarters equal or exceed the Level I Targets
and, failing which, the option with respect to such
additional 10,000 shares options shall not vest or
become exercisable and shall lapse and terminate.
(iii) Upon the Company first achieving
quarterly revenues from operations in any fiscal
quarter commencing with the fiscal quarter ending
February 28, 1997 in an amount equal to or greater
than $20 million and earnings before taxes in an
amount equal to or greater than 4% of such quarterly
operating revenues, stock options to purchase 10,000
shares shall vest and thereafter be exercisable
following the occurrence of the vesting condition at
any time before December 31, 2007. $20 million of
operating revenues and $500,000 of earnings before
taxes are referred to as the "Level II Targets".
Options to purchase an additional 10,000 shares shall
vest and thereafter be exercisable at any time before
December 31, 2007, on the further condition that (i)
the Company achieve not less than the Level II
Targets in each of the next two successive fiscal
quarters or (ii) the average of the operating
revenues and earnings before taxes for the fiscal
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quarter with respect to which the stock options in
the first sentence of this Section 2.4(ii) vested and
the next three immediately succeeding fiscal quarters
equal or exceed the Level II Targets and, failing
which, the option with respect to such additional
10,000 shares options shall not vest or become
exercise and shall lapse and terminate.
(iv) Upon the Company first achieving
quarterly revenues from operations in any fiscal
quarter commencing with the fiscal quarter ending
February 28, 1997 in an amount equal to or greater
than $20 million and earnings before taxes in an
amount equal to or greater than 6% of such quarterly
operating revenues, stock options to purchase 10,000
shares shall vest and thereafter be exercisable
following the occurrence of the vesting condition at
any time before December 31, 2007. $20 million of
operating revenues and $1,000,000 of earnings before
taxes are referred to as the "Level III Targets".
Options to purchase an additional 10,000 shares shall
vest and thereafter be exercisable at any time before
December 31, 2007, on the further condition that (i)
the Company achieve not less than the Level III
Targets in each of the next two successive fiscal
quarters or (ii) the average of the operating
revenues and earnings before taxes for the fiscal
quarter with respect to which the stock options in
the first sentence of this Section 2.4(ii) vested and
the next three immediately succeeding fiscal quarters
equal or exceed the Level III Targets and, failing
which, the option with respect to such additional
10,000 shares options shall not vest or become
exercisable and shall lapse and terminate.
(v) Upon the Company first achieving
quarterly revenues from operations in any fiscal
quarter commencing with the fiscal quarter ending
February 28, 1997 in an amount equal to or greater
than $30 million and earnings before taxes in an
amount equal to or greater than 8.5% of such
quarterly operating revenues, stock options to
purchase 20,000 shares shall vest and thereafter be
exercisable at any time before December 31, 2007.
$30 million of operating revenues and $1,500,000 of
earnings before taxes are referred to as the "Level
IV Targets". Options to purchase an additional
20,000 shares shall vest and thereafter be
exercisable at any time before December 31, 2007, on
the further condition that (i) the Company achieve no
less than the Level IV Targets in each of the next
two successive fiscal quarters or (ii) the average of
the operating revenues and earnings before taxes for
the fiscal quarter with respect to which the stock
options in the first sentence of this Section 2.4(iv)
vested and the next three immediately succeeding
fiscal quarters equal or exceed the Level IV Targets
and, failing which, the option with respect to such
additional
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20,000 shares options shall not vest or become
exercisable and shall lapse and terminate.
(vi) Notwithstanding the above provisions
regarding the conditions for vesting, if the Company
or CBC become subject to a Transaction (as defined in
the next sentence), all stock options granted under
this Section 2.4(b) shall immediately vest. A
"Transaction" shall mean (A) the acquisition by any
person or entity (including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of
1934 ("Section 13(d)")) of beneficial ownership
(within the meaning of the rules promulgated by the
Securities and Exchange Commission under Section
13(d)) of, or voting control over, thirty percent
(30%) or more of the outstanding voting securities of
the Company (or any successor or surviving entity
resulting from a merger, consolidation or
reorganization), (B) the completion and consummation
of an agreement for a merger, consolidation or
reorganization involving the Company, unless the
holders of the outstanding voting securities of the
Company immediately before such transaction shall
continue (in substantially the same proportion) to
own at least seventy percent (70%) of the outstanding
voting securities of the surviving entity resulting
from such transaction, (C) the execution of an
agreement to sell or otherwise transfer all or
substantially all of the assets of the Company, (iv)
a complete liquidation or dissolution of the Company
or (v) the occurrence of a transaction described in
clauses (A), (B) or (C) with respect to CBC.
Anything to the contrary notwithstanding in clause
(A) of this subparagraph (vi), the Xxxxxxx Funds and
Dreyfus Fund, and their respective affiliates, as
defined in Rule 405 of the General Rules and
Regulations under the Securities Act of 1933, shall
be ex- cluded from the application of such clause.
(vii) For the purpose of this Section
2.4(b), fiscal quarterly operating revenues and
earnings before taxes shall have the same meaning as
in Section 2.4. All options granted to Executive
under this Section 2.4(b) shall be designated as
non-qualified stock options and shall be subject to
the terms of the Plan and the Stock Option Agreement.
The Company shall evidence the grant of the stock
options to Executive by delivering to Executive,
simultaneously with his execution of this Agreement,
the Stock Option Agreement, executed by a duly
authorized officer of the Company.
(c) The Company represents that options for the
125,000 shares granted to Executive are available for grant under the Plans.
The Company agrees to cause the stock options granted hereunder to be issued to
Executive in a manner that provides for both the grant and exercise thereof to
be exempt from Section 16(b) of the Securities Exchange Act of 1934, as
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amended. The Company represents that the option plan under which the options
referred to in this Paragraph 2.4 have been granted has been registered on Form
S-8 with the Securities and Exchange Commission. The Company shall use its
best efforts to maintain such Registration Statement current.
2.5 Excise Tax. If at any time, as a result of the
receipt by Executive of benefits under this Agreement, including but not
limited to the receipt of severance benefits, the vesting of options (including
the acceleration of the vesting of options) as a result of a Transaction (the
"Excise Tax Transaction"), Executive is subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, the Company will
pay to Executive an amount (the "Gross-up Amount") equal to the amount of
excise tax imposed on Executive plus the amount of federal and state income tax
imposed on the amounts payable to Executive under this Section 2.5, assuming
Executive is taxed at the highest stated tax rates applicable to Executive;
provided, however, that the total aggregate market capitalization value as of
the date of the Excise Tax Transaction is not less than an amount equal to the
number of shares of the Company's Common Stock issued and outstanding as of the
date of the Excise Tax Transaction multiplied by $20 per share.
2.6 Insurance and Indemnification. (a) During the term
of this Agreement and for a period of three years thereafter, the Company shall
maintain in full force and effect, at its sole cost and expense, director and
officer liability insurance coverage that covers Executive. Such coverage for
Executive shall be in an amount and on terms that are at least as favorable to
Executive as to any other officer or director of the Company.
(b) Simultaneously with the execution of this
Agreement, the Company will (i) enter into an indemnification agreement with
Executive in substantially the same form as the indemnification agreements
entered into with any other officer or director of the Company and (ii) amend
the Directors and Officers Trust entered into on February __, 1995 to include
Executive as an "Indemnitee" thereunder.
ARTICLE III
SEVERANCE
3.1 Severance Upon Termination for Cause. In the event
that Executive is terminated for reasons of cause as set forth in Paragraph 3.4
hereof, or in the event Executive shall die, become permanently disabled or
shall voluntarily terminate his employment, Executive shall not be entitled to
any severance or other payment from the Company except for compensation earned
to the date of termination, and any pro rata portion of any bonus accrued but
not paid through the date of termination. Executive acknowledges that, except
as specifically provided for herein with respect to the payment of severance
upon termination without cause, severance is a
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matter of discretion of the Company and no act or course of dealing by the
Company with other of its employees shall be deemed or construed to confer any
right or benefit upon Executive with respect to either the entitlement or
payment of severance.
3.2 Severance Upon Termination Without Cause. In the
event Executive's employment is terminated by the Company without cause as
provided for in Paragraph 3.4 hereof, then in such case, Executive shall be
entitled to the following severance benefits:
if termination by the Company shall occur prior to
the expiration of 24 months from the date hereof, Executive
shall be entitled to receive, as a severance benefit, an
amount equal to nine (9) months Base Salary from which the
Company shall deduct all applicable federal, state or local
employment and withholding taxes. Such severance payment
shall be made in accordance with the regular payroll practices
of the Company existing at the time of termination and shall
continue to be made for such nine month period irrespective of
whether or not Executive has obtained other or alternate
employment.
3.3 Special Severance Payment in the Event of Sale or
Merger of the Company. If, during the term hereof, and while Executive shall
continue to be employed by the Company, the Company (i) enters into an
agreement to merge with any other entity or sell all or substantially all of
its assets to any other entity, or (ii) enters into an agreement involving the
sale of its controlling interest in CBC, the sale by CBC of all or
substantially all of its assets, or the merger of CBC into and with another
entity in which CBC is not the survivor, or in which Comprehensive Care
Corporation is not the controlling shareholder (subparagraphs (i) and (ii)
collectively referred to as a "Special Severance Transaction"), then, in such
case, Executive shall, within 30 days following the completion of a Special
Severance Transaction, receive a special severance benefit equal to one (1)
year's annual base salary, unless Executive shall, in his sole discretion,
either within 90 days following or in connection with such Special Severance
Transaction, enter into an agreement pursuant to which his employment with the
Company shall continue for not less than 24 months following such Special
Severance Transaction, and which agreement provides for an annual salary and
bonus not less than Executive's prevailing salary at the time of such Special
Severance Transaction, and with substantially the same responsibilities as set
forth in this Agreement.
If, during the term hereof, and while Executive shall continue to be employed
by the Company, the Company (i) enters into an agreement to merge with any
other entity or (ii) enters into any agreement involving the sale of its
controlling interest in CBC ((i) and (ii) collectively being referred to as a
"Transaction"), then, in such case, Executive shall, within 30 days following
the completion of a Transaction, receive a special severance benefit equal to
one year's annual Base Salary unless Executive shall, either following or in
connection with such Transaction, enter into an agreement pursuant to which his
employment with the Company shall continue for not less than
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24 months following such Transaction, at an annual salary not less than
Executive's prevailing salary at the time of such Transaction.
3.4 Definition of "Cause". For all purposes of this
Agreement, "cause" shall constitute (i) the death of Executive, (ii) the
physical or mental disability of Executive which shall render Executive unable
to perform his usual and customary duties for two consecutive months or 60 days
in any 12 month period, (iii) written notice by the Company to Executive of a
breach or default in the performance by Executive of any of his material
obligations under this Agreement, and which breach or default is not cured
within 15 days following such notice to Executive specifying the breach or
default, (iv) the commission by Executive of any act resulting in or intending
to result in his personal gain or enrichment at the expense of the Company or
the commission by Executive of any felony or misdemeanor or act involving moral
turpitude.
ARTICLE IV
RESTRICTIONS
4.1 Non-Disclosure. The Executive shall not, at any time
during or after the termination of his employment hereunder, except when acting
on behalf of the Company, make use of or disclose to any person, corporation,
or other entity, for any purpose whatsoever, any trade secret or other
confidential information concerning the Company's business, finances, marketing
information, managed care business, plans and programs, psychiatric and
dependency operations, and information relating to any managed care,
capitation, sales or marketing programs of the Company (collectively referred
to as the "Proprietary Information"). For the purposes of this Agreement,
trade secrets and confidential information shall mean information disclosed to
the Executive or known by him solely as a consequence of his employment by the
Company, whether or not pursuant to this Agreement, and not generally known
(other than as disclosed by any person in breach of any obligation of
confidentiality to the Company) in the industry, concerning the business,
finances, methods, operations, marketing information, and information relating
to the sales and marketing of the Company. The foregoing is intended to be
confirmatory of the common law of the State of California relating to trade
secrets and confidential information as in effect on the date of this
Agreement.
4.2 Non-Competition. In the event of the termination of
employment with the Company by Executive, Executive agrees that he will not,
for a period of one year following such termination, solicit existing business
or potential business. In furtherance of the foregoing, Executive shall not
during the aforesaid period of non-competition, directly or indirectly, in
competition with the Company, solicit any management person who was employed by
the Company or solicit any provider, insurer or group through, from or with
which the Company transacted any material managed health care business. The
foregoing shall not be deemed or construed to prevent Executive from soliciting
any consultant or advisor to the Company for any
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project that Executive may participate in which is not in violation of this
Section 4.2. If it is determined that the duration of non-competition or any
other restriction contained in this paragraph is unenforceable, it is the
parties' intention that same shall not thereby be terminated but shall be
deemed amended to delete therefrom such provision or portion adjudicated to be
invalid or unenforceable or in the alternative the arbitrator may substitute a
term.
ARTICLE V
MISCELLANEOUS
5.1 Term. This Agreement shall be for a term of two
years commencing as of January 1, 1997 and terminating on December 31, 1998
unless sooner terminated as provided for herein.
5.2 Entire Agreement. This Agreement sets forth the
entire agreement between the parties and supersedes all prior agreements
between the parties, whether oral or written.
5.3 Severability. If any provision of this Agreement
shall be held invalid and unenforceable, the remainder of this Agreement shall
remain in full force and effect. If any provision is held invalid or
unenforceable with respect to particular circumstances, it shall remain in full
force and effect in all other circumstances.
5.4 Notice. All notices required to be given under the
terms of this Agreement shall be in writing and shall be deemed to have been
duly given only if delivered to the addressee in person or mailed by certified
mail, return receipt requested, as follows:
Company: Comprehensive Care Corporation
0000 Xxxxxxx Xxxxx - Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Executive Xxxxxx X. Xxxxxxxx, Ph.D.
00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
or to any such other address as the party to receive the notice shall advise by
due notice given in accordance with this paragraph.
5.5 Benefit. This Agreement shall inure to, and shall be
binding upon, the parties hereto, the successors and assigns of the Company,
and the heirs and personal representatives of the Executive.
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5.6 Waiver. The waiver by either party of any breach or
violation of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach of construction and validity.
5.7 Governing Law. This Agreement has been negotiated
and executed in the State of California, and California law shall govern its
construction and validity.
5.8 Dispute Resolution.
(a) Any controversy or claim arising out of or
relating to this Agreement, except any controversy or claim arising out of or
relating to Article IV hereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration shall be conducted by a single arbitrator. The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16,
and judgment upon the award entered by the arbitrator may be entered by any
court having jurisdiction thereof. The location of the arbitration and all
proceedings in connection therewith shall be in Orange County, California unless
otherwise agreed by the parties. As to any dispute, controversy or claim that
under the terms hereof is made subject to arbitration, no suit at law or in
equity based on such dispute, controversy or claim shall be instituted by either
party hereto, other than to compel arbitration proceedings or enforce the award
of the arbitrator, except that a party may seek to obtain a temporary
restraining order or injunction.
(b) The arbitrator shall (unless the arbitrator
otherwise determines) consider the time value of money in determining any
awards and may grant any relief deemed by the arbitrator to be just and
reasonable and within the scope of this Agreement, except equitable relief;
provided, however, that the arbitrator may not award punitive damages, and the
parties hereby irrevocably waive any claims to punitive damages except for
claims arising under Article IV hereof. All privileges under California and
federal law, including attorney-client and work-product privileges, shall be
preserved and protected to the same extent that such privileges would be
protected in a federal court proceeding applying California law. The
compensation for the service of the arbitrator and any expenses incurred shall
be paid equally by the parties to the arbitration.
5.9 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto. No change, addition or amendment shall
be made hereto, except by written agreement signed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
COMPREHENSIVE CARE CORPORATION
By: /s/ XXXXXX X. STREET
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Name: Xxxxxx X. Street
Title: Chairman, President and
Chief Executive Officer
/s/ XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX
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