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EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), is made this 2nd day of
December, 1996, by and between American HealthChoice, Inc. (AHC), a New York
corporation (the "Company"), with its principal offices at 0000 X. Xxxxxx Xxxx
Xxxx, Xxxxxx, Xxxxx 00000 and X. Xxxx York (the "Executive"), an individual.
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company to retain the services of the Executive in
the position set forth hereinbelow and to enter into a written agreement
embodying the terms of such employment; and
WHEREAS, the By-laws of the Company permit the Company to enter into
contracts for the employment of officers of the Company; and
WHEREAS, the Company wishes to assure itself of the services of the
Executive for the period provided in this Agreement, and the Executive wishes
to continue to serve in the employ of the Company in the capacity and on the
terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
SECTION 1.1. EMPLOYMENT. The Company hereby continues to employ the
Executive, and the Executive hereby agrees to such continued employment with
the Company as an employee of the Company, upon the terms and subject to the
conditions hereinafter set forth.
SECTION 1.2. DUTIES. The Executive shall serve as the Vice President of
Finance and Chief Financial Officer. The Executive shall devote substantially
all of his business time and energies to the business of the Company. The
Executive agrees to perform such services not inconsistent with his position as
shall from time to time be assigned to him by the Company's Board of Directors
or the President of the Company.
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ARTICLE II
TERM OF EMPLOYMENT
SECTION 2.1. TERM. The Executive shall be employed by the Company for a
period commencing on December 2, 1996 and, except as otherwise provided herein,
ending three (3) years from such date; provided, however, that unless the
Company shall have delivered to the Executive written notice of its intent, or
the Executive shall have delivered to the Company written notice of his intent,
not to renew this Agreement on or prior to December 2nd in any year, commencing
with December 2, 1996, the term of this Agreement shall be extended by twelve
months from the then effective expiration date. The period of the Executive's
employment hereunder, including any extension or extensions pursuant to the
foregoing sentence, is referred to hereinafter as the "Employment Term".
SECTION 2.2. TERMINATION. This Agreement, and the employment of the
Executive hereunder, shall terminate prior to the expiration of the Employment
Term in the following manner:
a. Retirement.
(1) This Agreement shall terminate automatically upon the
Executive's Retirement, as defined hereinafter.
(2) For purposes of this Agreement, "Retirement" means the
termination of the Executive's employment initiated by the Executive whereby the
Executive is entitled to receive an immediately payable benefit, including
an early retirement benefit, under the Company's retirement plan generally
applicable to its salaried employees or under any retirement arrangement
established with respect to the Executive with his consent, in either case,
whether or not the Executive commences to receive such benefit at the time of
such termination.
(3) Upon termination of the Executive's employment by
reason of Retirement, the Executive shall be entitled to benefits determined in
accordance with the Company's retirement, benefit and insurance programs in
effect at such time.
b. Termination for Cause.
(1) The Executive's employment under this Agreement may be
terminated for cause at any time, effective upon written notice after formal
action by the Board of Directors of the Company
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at a special meeting duly called for the purpose of considering the
termination of the Executive for cause and at said meeting the Board of
Directors decides to terminate for cause, as defined herein. The
Executive shall have the right to receive notice of and appear at such
meeting to respond to any allegations made against him concerning the
contemplated termination.
(2) As used in this Agreement, "cause" shall be deemed to
mean one or more of the following:
(a) The Executive's embezzlement or misappropriation
of funds;
(b) The Executive's conviction of a felony involving
moral turpitude;
(c) The Executive's commission of material acts of
dishonesty, fraud, or deceit;
(d) The Executive's breach of any material provision
of this Agreement;
(e) The Executive's habitual or willful neglect of
his duties;
(f) The Executive's breach of fiduciary duty to the
Company involving personal profit; or
(g) The Executive's material violation of any other
duty to the Company or its stockholders imposed by law or by the
Board of Directors.
(3) In the event that the Board of Directors acts to
terminate the Executive for cause in accordance with paragraph (1), the
Executive shall be paid all compensation and other sums due to him
through the date of termination, including, without limitation,
reimbursements for allowable expenses incurred by the Executive, but
shall not be entitled to receive any compensation or benefits
thereafter.
c. Termination Without Cause.
(1) The Company may, at any time, terminate this Agreement
without cause on sixty (60) days' written notice to the Executive.
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(2) As used in this Agreement, the phrase "termination
without cause" means termination of employment other than:
(a) Termination pursuant to Section 2.2.b. of this
Agreement; or
(b) Termination pursuant to Section 2.2.d. of this
Agreement; or
(c) The Executive's voluntary termination of his
employment pursuant to Section 2.2.a. or otherwise.
(3) If the Executive's employment with the Company is
terminated without cause, then;
(a) Where the termination without cause occurs
within twelve (12) months of the date of employment, the Company
will continue to pay as liquidated damages his then current Base
Salary (as defined herein) for the next ninety (90) days
immediately following the date of such termination (the
"Severance Period");
(b) If termination without cause occurs between
month 12 and 24 then liquidated damages will be prorated in
accordance with (a) and (c);
(c) Where the termination without cause occurs after
twenty four (24) months of the date of employment, the Company
will continue to pay as liquidated damages his then current Base
Salary for the next one hundred eighty (180) days immediately
following the date of such termination (the "Severance Period");
(4) If the Executive's employment with the Company is
terminated without cause:
(a) The Executive shall be deemed to be an
"Executive" of the Company for the applicable Severance Period
with respect to any health insurance plans maintained by the
Company in which the Executive is eligible and participating at
the time of such termination and the Executive shall be
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entitled to continued coverage, if applicable, during such
Severance Period; and
d. Termination Upon Death or Disability.
(1) If the Executive dies or becomes permanently disabled to
the extent that he is unable to perform his duties under this Agreement,
at such time as he is determined to be permanently disabled or upon
death, he shall be deemed terminated and he, his heirs, or assigns, as
applicable, shall receive an amount equal to one hundred percent (100%)
of his Base Salary for two (2) months, plus any bonus compensation to
which the Executive would be entitled, pro rated to the date of death or
permanent disability; provided, however, that the payment of such Base
Salary shall be reduced by an amount equal to the sum of all benefits
received by the Executive from (i) federal or state disability programs
or (ii) any private disability plan provided by the Company. Payment of
such sum shall be made in accordance with Section 3.1 hereof.
(2) For purposes of this Agreement, the term "permanently
disabled" shall mean the Executive's inability to perform services by
reason of illness or other incapacity for a period of more than two (2)
months, established by medical evidence satisfactory to the Company.
(3) All other benefits to which the Executive may be
entitled following the Executive's termination for death or disability
shall be determined in accordance with the plans, policies and practices
of the Company then in effect.
SECTION 2.3. OTHER OCCURRENCES UPON TERMINATION. Upon termination of
this Agreement:
a. The Company's obligation to provide the Executive with
compensation and benefits as provided herein shall discontinue at the
termination date of this Agreement except as otherwise required by law
or as herein set forth in this Section 2.
b. The Executive shall comply fully with the provisions of
Section 4.4.e. hereof, including, without limitation, the surrender to
the Company's designated agent of all property of the Company belonging
thereto that is in the possession, custody or control of the Executive
at the time of termination, including, but not limited
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to, keys, files, furnishings, reports, records, documents and the like;
and
c. With respect to any stock options, restricted stock,
incentive plans, deferred compensation arrangements or other plans or
programs in which the Executive is participating at the time of
termination of his employment, the Executive's rights and benefits under
each such plan shall be determined in accordance with the terms,
conditions, and limitations of the plan and any separate agreement
executed by the Executive which may then be in effect.
SECTION 2.4 MITIGATION OF AMOUNTS PAYABLE UPON TERMINATION. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 2 by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Section 2 be reduced by any
compensation earned by the Executive as the result of employment by another
employer after the date of the Executive's termination of employment, or
otherwise.
ARTICLE III
COMPENSATION AND BENEFITS
SECTION 2.1. BASE SALARY.
a. For all services rendered by the Executive during his
employment under this Agreement, the Company shall pay the Executive as
compensation a salary at the rate of $120,000.00 per year, increased
annually on December 2nd of each year, commencing December 2nd, 1996, by
the Salary Adjustment Amount (the salary payable in any calendar year,
including the applicable Salary Adjustment Amount is referred to herein
as the "Base Salary" for such calendar year). All taxes and
governmentally required withholdings shall be deducted in conformity
with applicable laws.
b. For purposes of this Agreement, the phrase "Salary
Adjustment Amount" means an amount equal to the sum of (i) the
percentage increase (if any) in the "Consumer Price Index for all Urban
Consumers" (the "Index") published by the Bureau of Labor Statistics of
the United States Department of Labor for the twelve month period ending
with the December immediately preceding such determination of Salary
Adjustment Amount, plus (ii) any additional increase in salary which the
Board of Directors of the
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Company may approve for the Executive. Appropriate adjustment shall be
promptly made in case there is a published amendment of the Index
figures upon which the computation is based. In the event the Index is
discontinued, the parties hereto shall accept comparable statistics on
the cost of living published by an agency of the United States or a
responsible financial periodical of recognized authority.
c. The Company shall pay the Executive as additional
compensation a motor vehicle allowance of $3,000.00 per year.
d. During the Employment Term, the Executive's salary shall
be reviewed at least annually. Such review shall be conducted by the
Board of Directors of the Company, or a committee designated by the
Board of Directors, and such Board or committee may increase, but not
decrease, said salary.
SECTION 3.2. BONUS. In addition to such compensation as is to be
payable to the Executive pursuant to the provisions of Section 3.1, the
Executive shall be entitled to receive bonuses defined as follows:
a. Signing: AHC will issue 1000 shares of ordinary stock
par value $0.001 as fully paid.
SECTION 3.3. STOCK OPTIONS.
a. The Company will grant to employee the following stock
options in recognition of performance achievement.
(i) on signing of employment contract the Company
will grant employee option to acquire 10,000
shares at $7.50 per share, such options are
irrevocable and exist up to 5 years and can only
be exercised after minimum of 12 months
employment.
(ii) on achievement of the following Corporate goals
in year 1, 2 and 3 while employed, the Company
will grant employee option to acquire 20,000
options in year 1 and 40,000 options in years 2
and 3 at $7.50 per share.
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Year 1 or 9/30/97 NPBT $3,250,000
Year 2 or 9/30/98 NPBT $7,500,000
Year 3 or 9/30/99 NPBT $17,500,000
SECTION 3.4. BENEFITS. In addition to, and not in lieu of, Base
Salary, bonus or other compensation payable to the Executive hereunder, the
Executive shall be entitled to the following benefits:
a. Employee Benefits. The Executive shall be entitled to
participate in the employee benefit programs generally available to
employees of the Company, and to receive such benefits for which his
level of employment makes him eligible, all in accordance with the
Company's policies as in effect from time to time during the Employment
Term.
b. Health Insurance. Health insurance will be paid by the
Company for the employee, spouse, and children living at home effective
with date of employment.
c. Vacations. The Executive shall be entitled to three (3)
weeks of vacation (pro rated for periods of less than 12 months), or
such greater length of time as may be approved from time to time by the
Board of Directors of the Company during each full year of his
employment hereunder, with full pay in accordance with the vacation
policy of the Company, such vacation to be taken by the Executive at
such time or times as are consistent with the reasonable business needs
of the Company. Vacation shall accrue as of the date hereof with
respect to the Company's calendar year 1996, and thereafter, any accrued
vacation time not used during the year in which it is available to be
taken will be lost.
d. Business Expenses. The Executive shall be reimbursed in
accordance with Company policies for any and all necessary and
reasonable business expenses incurred by the Executive during the
Employment Term.
e. Holidays. The Executive shall be entitled to such
holidays as the Board of Directors may approve for all employees of the
Company.
f. Sick Leave. The Executive shall be entitled to a
maximum of five (5) days paid sick leave per year because of sickness or
accident.
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g. Dues and Licenses. The Company will pay on behalf of the Executive
his annual licenses and dues to professional organizations such as
MGMA, AICPA, State Board of Accountancy, etc.
h. Continuing Professional Education. The Company will support the
Executive's annual continuing professional education (CPE)
requirements of forty (40) yours per year. Accordingly, the Company
will reimburse the Executive to attend such professional meetings and
seminars, to cover expenses for materials, course fees, travel,
lodging, meals, etc.
i. Relocation Allowance. The Company will reimburse the Executive for
his costs to relocate from San Antonio to Irving in an amount not to
exceed $2,000.00.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1. REDUCTION OF PAYMENTS. If any payment to or for the
benefit of the Executive under this Agreement, either alone or together with
other payments to or for the benefit of the Executive, would constitute a
"parachute payment" (as such term is defined in Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), the payments under this
Agreement shall be reduced to the largest amount that will minimize or
eliminate both the imposition of the excise tax imposed by Section 4999 of the
Code and the disallowance of deductions to the Company under Section 280G of
the Code of any such payments. The determination of any reduction in the
payments under this Agreement pursuant to this Section shall be made by the
Company's independent accountants.
SECTION 4.2. INDEMNIFICATION. The Company will indemnify the Executive
(and his legal representative or other successors) to the fullest extent
permitted (including payment of expenses in advance of final disposition of a
proceeding) by the laws of the jurisdiction of incorporation of the Company, as
in effect at the time of the subject act or omission, or by the Certificate of
incorporation and By-Laws of the Company, as in effect at such time or on the
effective date of this Agreement, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords or afforded
greatest protection to the Executive, and the Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers, and to the extent the
Company maintains such an insurance policy or policies, the Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the
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maximum extent of the coverage available for any Company officer or director
against all costs, charges and expenses whatsoever incurred or sustained by him
or his legal representatives at the time such costs, charges and expenses are
incurred or sustained, in connection with any action, suit or proceeding to
which he (or his legal representatives or other successors) may be made a party
by reason of his being or having been a director, officer or employee of the
Company, or any of its subsidiaries or his serving or having served any other
enterprise as a director, officer or employee at the request of the Company.
SECTION 4.3. COVENANT NOT TO COMPETE WITH THE COMPANY.
a. If this Agreement is terminated for any reason, the
Executive, for a period of one (1) year after the date of termination
(the "Noncompete Term"), shall not directly or indirectly own, manage,
operate or control, or be employed by or participate in or be connected
in any manner with the ownership, management, operation, or control of,
any business or type of business, located within a ten (10) mile radius
of any facility owned or operated by any member of the Company Group (as
defined below), which renders medical, chiropractic or physical therapy
services competitive with those of such member.
b. In addition, the Executive agrees that for the duration of
the Noncompete Term, he will not, either directly or indirectly: (i)
make any use of or make known to any competing person, firm, or
corporation the names or addresses of any potential or pending
acquisition and/or the names of the patients of any member of the
Company Group or any other information pertaining to said businesses,
acquisitions, and/or patients; (ii) call on, solicit or take away, or
attempt to call on, solicit or take away, any of the business,
acquisitions, and/or patients of any member of the Company Group with
whom the Executive became acquainted during his employment or
association with the Company or any other member of the Company Group,
for commercial or competitive purposes either for himself of for any
other person, firm, or corporation, or (iii) solicit or take away or
attempt to solicit or take away any person then employed (including any
employee who had been employed by the Company or any other member of the
Company Group within six (6) months prior to the time of the termination
of this Agreement) by the Company or any other member of the Company
Group, for purposes of employment by or any consulting relationship with
himself or any other person, firm or corporation.
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c. As used herein, the phrase "Company Group" means the Company,
and any entity that directly or indirectly controls, is controlled by,
or is under common control with, the Company, and for purposes of this
definition "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of voting
securities, by contract or otherwise.
d. Notwithstanding the provisions of paragraph a above this
Section 4.3, the Executive may invest in the securities of any
enterprise (but without otherwise participating in the activities of
such enterprise) if (i) such securities are listed on any national or
regional securities exchange or have been registered under Section 12(9)
of the Securities Exchange Act of 1934 and (ii) the Executive does not
beneficially own (as defined in Rule 1 3d-3 promulgated under the
Securities Exchange Act of 1934) in excess of 5% of the outstanding
capital stock of such enterprise.
e. The Executive agrees that if a court of competent
jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this Section 4.3 if overly
restrictive and unenforceable, the court may reduce or modify such
restrictions to those which it deems reasonable and enforceable under
the circumstances, and as so reduced or modified, the parties hereto
agree that if a court of competent jurisdiction determines that any
provision of this Section 4.3 is invalid or against public policy, the
remaining provisions of this Section 4.3 and the remainder of this
Agreement shall not be affected thereby, and shall remain in full force
and effect.
f. The Executive acknowledges that the business of the Company
and the other members of the Company Group is national in scope and that
the restrictions imposed by this Agreement are legitimate, reasonable
and necessary to protect the Company's and the other members of the
Company Group's investment in their respective businesses and the
goodwill thereof. The Executive acknowledges that the scope and duration
of the restrictions contained herein are reasonable in light of the time
that the Executive has been engaged in the business of the Company, the
Executive's reputation in the markets for the businesses of the Company
and the other members of the Company Group and the Executive's
relationship with the patients of the members of the Company Group. The
Executive further acknowledges that the restrictions contained herein
are not burdensome to the Executive in light of the consideration paid
therefor and the other
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opportunities that remain open to the Executive. Moreover, the
Executive acknowledges that he has other means available to him for the
pursuit of his livelihood.
g. The Executive acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
this Section 4.3 would be inadequate and, in recognition of this fact, the
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
SECTION 4.4 CONFIDENTIALITY; SPECIFIC PERFORMANCE.
a. The Executive will not at any time (whether during or after his
employment with the Company) disclose or use for his own benefit or purposes,
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any other member of the Company Group,
any Trade Secrets (as defined below) of the Company without first obtaining the
written consent of the Company.
b. The Executive will not at any time during his employment with
the Company or for a period of two (2) years after termination of his
employment, disclose or use for his own benefit or purposes or the benefit or
purposes of any other person, firm, partnership, joint venture, association,
corporation or other business organization, entity or
enterprise other than the Company and any other member of the Company Group,
any Confidential Information (as defined below) of the Company or any other
member of the Company Group which is disclosed to or learned by the Executive
during employment with the Company. The Executive acknowledges that
Confidential Information and materials developed by the Executive, or
Confidential Information and materials received by the Company in confidence
from third parties, are also included within the meaning and provisions of this
Section.
c. As used herein, "Trade Secrets" means the whole or any portion
or phase of technical information, design, process, procedure, formula or
improvement known or used by the Company or any other member of the Company
Group that is
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valuable and secret (in the sense that it is not generally known to competitors
of the Company). To the extent consistent with the foregoing, Trade Secrets
include (without limitation) the specialized information and technology that
provide any member of the Company Group with an advantage over competitors or
potential competitors in its industry.
d. As used herein, "Confidential Information" means, with respect
to any person, any data or information known by that person related to the
business of the person, other than Trade Secrets, that is of competitive
significance to the person and not generally known by or available to the public
or are maintained as confidential by such person. To the extent consistent with
the foregoing, "Confidential Information" includes (without limitation): patient
records; cost data (such as labor or material costs pertaining to services) of
the Company; the identity and location of vendors and the terms of sales
(including prices) negotiated with such vendors; data relating to sales - by
patient, by location, by service category, or by sales price; patient lists;
financial information that has not been released to the public; future business
plans, marketing strategies, or advertising campaigns; and personnel files.
e. The Executive agrees that upon termination of his employment
with the Company for any reason, he will return to the Company immediately all
memoranda, books, papers, plans, information, letters and other data, and all
copies thereof or therefrom in any way relating to the business of the Company
and any other member of the Company Group, except that he may retain personal
notes, notebooks and diaries. The Executive further agrees that he will not
retain or use for his account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the business
of the Company or any other member of the Company Group.
f. The Executive acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
this Section 4.4 would be inadequate and, in recognition of this fact, the
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall
be entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
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SECTION 4.5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
SECTION 4.6. ENTIRE AGREEMENT; AMENDMENTS; EFFECTIVENESS. This
Agreement shall supersede any and all existing employment, change in control or
severance agreements between the Executive and the Company or any of its
respective affiliates and contains the entire understanding of the parties with
respect to the employment of the Executive by the Company. There are no
restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter hereof other than those
expressly set forth herein. No provisions of this Agreement may be amended or
modified unless such amendment or modification is in writing and signed by each
of the parties hereto. THIS AGREEMENT AND ANY AMENDMENT HERETO SHALL NOT BE
EFFECTIVE UNLESS AND UNTIL SIGNED BY THE COMPANY AND THE EXECUTIVE.
SECTION 4.7. NO WAIVER. The failure of a party to insist upon
strict adherence to any term of this Agreement on any occasion shall not be
considered a waiver of such party's rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.
SECTION 4.8. SEVERABILITY. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
SECTION 4.9. SUCCESSORS. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amount would still be payable
to the Executive hereunder if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee or other designee
or, if there is no such designee, to the Executive's estate. This Agreement
shall not be assignable by the Executive.
SECTION 4.10. NOTICE. For the purposes of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when personally delivered or mailed
by United States registered or certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth in the
opening of this Agreement; provided that all notices to the Company shall be
directed to the
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attention of the President, or such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices
of change of address shall be effective only upon receipt.
SECTION 4.11. ARBITRATION.
a. Subject to the Company's right to seek injunctive relief
in court as provided in Sections 4.3 and 4.4, the parties hereby agree
to submit all controversies, claims and matters of difference in any way
related to this Agreement or the performance or breach of the whole or
any part hereof, to arbitration in Dallas, Texas, according to the rules
and practices of the American Arbitration Association from time to time
in force. Any such dispute shall be decided by three (3) arbitrators.
Each of the parties to the dispute shall appoint one arbitrator within
thirty (30) days of the submission of a notice of arbitration, and the
two party-appointed arbitrators shall appoint the third arbitrator
within thirty (30) days following the appointment of the last
party-appointed arbitrator. All decisions and awards by the arbitration
tribunal shall be made by majority vote. If one party fails to appoint
an arbitrator within the time allotted therefor, or the party-appointed
arbitrators cannot reach agreement on the third arbitrator within the
said thirty (30) day period, then the appointing authority for the
implementation of such procedures shall be the Senior Federal District
Judge sitting for the Northern District of Texas. If such rules and
practices shall conflict with the Texas Rules of Civil Procedure or any
other provisions of Texas law then in force, such Texas rules and
provisions shall govern. Arbitration of any such controversy, claims or
matter of difference shall be a condition precedent to any legal action
thereon, so, in the event that arbitration fails to settle any dispute
arising in connection with this Agreement, each of the parties hereto
agrees to submit to the jurisdiction of the courts of the State of Texas
in any action or proceeding arising out of or relating to this
Agreement. This submission and agreement to arbitration shall be
specifically enforceable.
b. Awards shall be final and binding on all parties to the
extent and in the manner provided by Texas law; provided that an
arbitration award shall not be binding on the Company to the extent such
award exceeds the maximum amount the Company would be required to pay
the Executive pursuant to the express terms of this Agreement. All
awards may be filed by any party with the Clerk of the District Court in
the County of Dallas, Texas and an appropriate judgment entered thereon
and execution issued therefor. At the
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election of any party said award may also be filed, and judgment entered
thereon and execution issued therefor, with the clerk of one or more
other courts, state or federal, having jurisdiction over the party
against whom such award is rendered or its property.
SECTION 4.12. HEADINGS. The headings contained in this Agreement are
for convenience only and shall in no manner be construed as a part of this
Agreement.
SECTION 4.13. ENFORCEMENT. In the event either party resorts to legal
action to enforce the terms and provisions of this Agreement, the prevailing
party shall be entitled to recover the costs of such action so incurred,
including, without limitation, reasonable attorneys' fees.
SECTION 4.14. COUNTERPARTS. This Agreement (and any written amendment
thereto) may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
SECTION 4.15. SURVIVAL OF THE EXECUTIVE'S OBLIGATIONS. The
Executive's obligations under this Agreement shall survive regardless of
whether the Executive's employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Executive, with or without cause.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
EXECUTIVE: COMPANY:
X. Xxxx York American HealthChoice, Inc.
/S/ X. XXXX YORK By: [SIG]
---------------------------- ----------------------------
President
and
AHC Management, Inc.
By: [SIG]
----------------------------
President
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