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EXHIBIT 10.3
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), is entered into this
10th day of February, 1997, by and between XXXXX X. XXXXX, M.D., an individual
resident of the State of Georgia (hereinafter referred to as "Executive"), and
PHYSICIANS' SPECIALTY CORP., a corporation organized under the laws of the
State of Delaware (hereinafter referred to as "Company") to amend, restate and
replace the agreement entered into November 26, 1996 (the "Prior Agreement");
W I T N E S S E T H:
WHEREAS, the parties wish to amend, restate and replace the Prior
Agreement in its entirety with this Agreement;
WHEREAS, Company is engaged in the business (the "Business") of
providing management and business services to, and acquiring assets of,
physician practices;
WHEREAS, the Board of Directors of Company (the "Board of Directors")
recognizes Executive's substantial skills and expertise in the Business and
desires to provide for the employment of Executive on the terms and conditions
herein provided;
WHEREAS, Executive is willing to commit himself to serve Company on the
terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, Company and Executive wish
to enter into an employment agreement on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
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SECTION 1. SCOPE OF EMPLOYMENT.
1.1 EMPLOYMENT. Subject to terms hereof, Company hereby agrees to the
employment of Executive during the "Term" (as defined in Section 2.1), and
Executive hereby accepts such employment. Executive shall hold the offices of
Chairman and President and, as such, shall perform the executive-level services
(collectively, "Services") described in Company's Bylaws and as delegated to him
by the Board of Directors. Such duties shall include, among others, initiating,
evaluating and consummating strategic acquisitions on behalf of Company. Company
agrees to nominate Executive for membership on the Board of Directors (and as
Chairman of the Board) for the duration of the Term, and, if Executive is
elected as a director, he shall be entitled to serve on the Compensation and
Executive Committees of the Board of Directors (if such committees are
established). Executive's serving on the Board of Directors shall be deemed to
be part of the "Services". Executive shall initially devote approximately fifty
percent (50%) of Executive's business time, energy and skill (subject to
increases as outlined in Section 3 as approved by the Company's Board of
Directors) to performing his obligations hereunder and shall perform his
obligations hereunder diligently, faithfully and to the best of his abilities.
1.2 PLACE OF PERFORMANCE. During the Term, Executive shall be based in
Atlanta, Georgia at the principal executive offices of Company, except for
reasonably required travel on business.
1.3 COMPLIANCE WITH POLICIES. Subject to the terms of this Agreement,
during the Term Executive shall comply in all material respects with all
policies and procedures applicable to senior executives of Company generally and
to Executive specifically.
SECTION 2. TERM; TERMINATION.
2.1 TERM. The initial term of Executive's employment under this
Agreement (the "Initial Term") shall be a five (5) year period commencing on the
date when the registration statement for the issuance of shares of common stock
of the Company is declared effective by the Securities and Exchange Commission
(the "Effective Date"). If the Effective Date shall not have occurred by March
31, 1997, either Executive or Company may terminate this Agreement on written
notice to the other. After the Initial Term, Executive's employment under this
Agreement shall automatically renew for successive additional one (1) year
("Renewal Terms") terms (the Initial Term and any Renewal Terms being
collectively referred to as the "Term"). The Term shall be subject to
termination in accordance with Section 2.2.
2.2 TERMINATION.
(a) DEATH. This Agreement shall automatically and immediately
terminate upon the death of Executive.
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(b) DISABILITY. This Agreement may be terminated by either
party hereto upon written notice to the other in the event Executive becomes
"Disabled" (as hereinafter defined). For purposes of this Agreement, "Disabled"
shall be defined as either: (a) the reasonable, good faith determination by an
independent physician selected by the Board of Directors of Company that due to
a mental or physical impairment or disability, Executive has been incapable or
unable, even with reasonable accommodations, to fully perform the material
duties performed by Executive for Company immediately prior to such disability
for a period of at least one hundred eighty (180) days in the aggregate
(although not necessarily consecutively) within any consecutive three hundred
sixty-five (365)-day period; or (b) a determination that Executive is disabled
pursuant to the terms of any long-term disability insurance policy which Company
or Executive has purchased and which covers Executive.
(c) CAUSE. In addition to any other rights or remedies
available to Company at law, in equity or pursuant hereto, Company may, in its
sole discretion, terminate Executive's employment for "Cause" (as hereinafter
defined) effective immediately upon delivery of written notice to Executive. For
purposes of this Agreement, "Cause" shall mean any of:
(i) the imposition by any governmental authority of
any material restriction or limitation on Executive's ability
to perform his services hereunder;
(ii) (A) Executive has committed an act constituting
fraud, deceit or intentional material misrepresentation with
respect to Company or any client, customer or supplier of
Company; (B) Executive has embezzled funds or assets from
Company or any client or customer of Company; or (C) Executive
has engaged in willful misconduct or gross negligence;
(iii) Executive's breach or default in the
performance of any material provision of this Agreement which
Executive has not cured or corrected to Company's reasonable
satisfaction within thirty (30) days after receiving notice of
such breach or default (provided that any breach by Executive
of any obligation under Section 5.4 shall be grounds for
immediate termination "For Cause" without any notice or right
to cure or correct); or
(iv) Executive's conduct is materially detrimental to
the reputation, character or standing of Company which
Executive has not cured or corrected to Company's reasonable
satisfaction within ten (10) days after receiving notice
thereof.
(d) DISCRETIONARY TERMINATION.
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(i)Either Company or Executive may terminate the Term
effective as of the end of the Initial Term or the
then-current Renewal Term by providing the other with written
notice of termination at least sixty (60) days prior to the
end of the Initial Term or then current Renewal Term, as the
case may be. In the event of Termination under this Section
2.2(d)(i), Executive shall not be entitled to any severance
benefit under Section 6.
(ii) The Company shall have the right to terminate
the Term and Executive's employment hereunder without cause at
any time upon notice to Executive. In such event, Executive
shall be entitled to the severance benefit provided in Section
6(b), unless such termination without cause follows a Change
of Control, in which event Executive shall be entitled to the
severance benefit provided in Section 6(c).
(E) CHANGE OF CONTROL. Executive may terminate the Term following a
Change of Control (as defined in Section 6(c)), by providing Company at least
thirty (30) days prior written notice of termination.
(F) GOOD REASON. Executive shall have the right to terminate this
Employment Agreement for "Good Reason." For purposes hereof, Good Reason shall
be limited to the repeated material breach by the Company of its material
obligations to Executive which the Company fails to correct or cure within a
period of forty-five (45) days after being provided with written notice by
Executive of such material breach.
SECTION 3. CASH COMPENSATION; EXPENSE.
3.1 BASE SALARY. Subject to the limitation set forth in Section 3.3,
Executive shall be paid a base salary (the "Base Salary") during the Term at an
initial rate of Three Hundred Fifty Thousand Dollars ($350,000) per twelve (12)
month period. The Base Salary shall be (a) payable in equal installments on the
schedule that Company may implement from time to time for general payroll
purposes, and (b) subject to any withholdings and deductions required by
applicable law. The $350,000 Base Salary assumes that Executive will devote
approximately fifty percent (50%) of his business time each week (2.5 days) to
performing the Services (as opposed to performing clinical work). If Executive,
with the approval of the Board of Directors, increases the proportion of
business time devoted to performing the Services, then subject to the limitation
in Section 3.3, his Base Salary shall be increased as follows:
Executive Work
Base Salary % Services Week Days
----------- ---------- ---------
$350,000 50% 2.5
$410,000 70% 3.5
$470,000 90% 4.5
$500,000 100% 5.0
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In the event Executive provides full time (100%) services to the Company and the
Company has achieved quarterly pre-tax income of $1.750 million, Executive's
Base Salary for full-time services will be increased to $600,000 per annum.
3.2 BONUS. During the Term, Executive shall be eligible to be
considered for a periodic bonus (the "Bonus") of up to 50% of his Base Salary
per annum, based on Company's meeting certain milestones relating to such
matters as practice acquisitions, consolidated operating income levels,
consummation of follow-on financings and management team development; provided,
however, that the Bonus shall be subject to the Compensation Committee of the
Board of Directors adopting and ratifying such a bonus program and approving the
periodic Bonus grants to Executive.
3.3 COMPENSATION LIMIT. Notwithstanding the foregoing, in the event
Executive receives compensation from New Atlanta Ear, Nose & Throat Associates,
P.C. ("NAENT") in excess of Nine Hundred Seventy Thousand Dollars ($970,000) in
any 12-month period commencing with the Effective Date or any anniversary of the
Effective Date, Executive's Base Salary for such 12-month period under Section
3.1 of this Agreement shall be reduced dollar for dollar in the amount of such
excess.
SECTION 4. ADDITIONAL EXECUTIVE BENEFITS.
4.1 BENEFIT PLANS. During the Term, Executive shall be entitled to
participate in the group medical, 401k and the other employee benefit plans
adopted by the Board of Directors (or appropriate committee thereof) for
participation by Executive subject to the terms and conditions of such plans
(collectively, the "Benefit Plans"). Company shall have the right to purchase in
Executive's name a "key man" life insurance policy naming Company as sole
beneficiary under the policy. Company shall be the sole owner of such policy.
4.2 VACATION. Executive shall be entitled to three (3) paid weeks of
vacation per year during the Term, to be accrued and taken in accordance with a
policy that is consistent with Company's normal vacation policy applicable to
senior executive employees.
5. NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION COVENANTS.
5.1 DEFINITIONS. For purposes of this Section 5, the following terms
shall have the following respective meanings:
(a) "Competitive Position" shall mean (i) the direct or
indirect equity ownership (excluding ownership of less than 5% of the
equity of an entity whose equity
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is listed on a major U.S. exchange or traded on the NASDAQ
over-the-counter market) or control of all or any portion of a
"Competitor" (as hereinafter defined), or (ii) any employment,
consulting, partnership, advisory, directorship, agency, promotional or
independent contractor arrangement between Executive and any Competitor
whereby Executive is required to perform services substantially similar
to those that he is to perform for Company hereunder. A Competitive
Position shall not include, however, Executive's employment by New
Atlanta Ear, Nose & Throat Associates, P.C. ("NAENT") to the extent his
services are limited to practicing medicine and administering NAENT's
practice as an employee of NAENT.
(b) "Competitor" shall refer to any person or entity engaged,
wholly or partly, in the Business.
(c) "Confidential Information" shall mean any and all
proprietary and confidential data or information of Company or any of
its affiliates, other than "Trade Secrets" (as hereinafter defined),
which is of tangible or intangible value to Company or any of its
affiliates and is not public information or is not generally known or
available to Company's competitors but is known only to Company or its
affiliates and their employees, independent contractors or agents to
whom it must be confided in order to apply it to the uses intended.
(d) "Restricted Territory" shall mean all areas within a
twenty (20) mile radius of the Company's principal office in Atlanta,
Georgia. The Parties intend for the "Restricted Territory" during the
entire Term to include a twenty (20) mile radius of all other United
States cities where Company is engaged in the Business, throughout
which territory the parties acknowledge Executive will be performing
his employment responsibilities on behalf of Company. As of the
Effective Date, those cities include Atlanta, Georgia. If applicable
law permits a deemed or automatic amendment to the definition of
"Restricted Territory," then as soon as Company begins to engage in the
Business in any additional city, the definition of "Restricted
Territory" under this Agreement shall be deemed automatically amended
to include the city limits of any such additional cities and a twenty
(20) mile radius of those cities. If applicable law does not permit a
deemed or automatic amendment to the definition of "Restricted
Territory" under those circumstances, then the Parties agree that when
Company begins to engage in Business in additional cities, they will
promptly execute amendments to this Agreement to include those
additional cities in the definition of "Restricted Territory."
(e) "Trade Secrets" shall mean all knowledge, data and
information of Company or any of its affiliates which is defined as a
"trade secret" under applicable law.
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(f) "Work Product" shall mean all work product, property,
data, documentation, "know-how", concepts, plans, inventions,
improvements, techniques, processes or information of any kind,
prepared, conceived, discovered, developed or created by Executive in
connection with the performance of his services hereunder.
5.2 ACKNOWLEDGMENTS. Executive hereby acknowledges and agrees that
during the term of this Agreement (i) Executive will frequently be exposed to
certain Trade Secrets and Confidential Information; (ii) Executive's
responsibilities on behalf of Company will extend to all geographical areas of
the Restricted Territory; and (iii) any competitive activity on Executive's part
during the Term, or any competitive activity on Executive's part in the
Restricted Territory for a reasonable period thereafter, would necessarily
involve Executive's use of Company's Trade Secrets and Confidential Information
and would unfairly threaten Company's legitimate business interests, including
its substantial investment in the proprietary aspects of its business and its
associated goodwill. Moreover, Executive acknowledges that, in the event of the
termination of this Agreement, Executive would have sufficient skills to find
alternative, commensurate work in his field of expertise that would not involve
a violation of any of the provisions of this Section 5. Therefore, Executive
acknowledges and agrees that it is reasonable for Company to require Executive
to abide by the covenants set forth in this Section 5. The parties acknowledge
and agree that if the nature of Executive's responsibilities for or on behalf of
Company or the geographical areas in which Executive must fulfill such
responsibilities materially change, the parties will execute appropriate
amendments to the scope of the covenants in this Section 5.
5.3 NONDISCLOSURE; OWNERSHIP OF PROPRIETARY PROPERTY.
(a) In recognition of Company's need to protect its legitimate
business interests, Executive hereby covenants and agrees that: (A)
with regard to each item constituting a Trade Secret, at all times
during which such item shall constitute a Trade Secret (before or after
the Term); and (B) with regard to any Confidential Information, at all
times during the term of this Agreement and for a period of three (3)
years following the expiration or termination of the Term for any
reason, Executive shall regard and treat each item constituting a Trade
Secret and all Confidential Information as strictly confidential and
wholly owned by Company and will not, for any reason, in any fashion,
either directly or indirectly, use, sell, lend, lease, distribute,
license, give, transfer, assign, show, disclose, disseminate,
reproduce, copy, misappropriate or otherwise communicate any such item
or information to any third party for any purpose other than in
connection with his performance of services for the Company or as
required by applicable law.
(b) Executive shall immediately notify Company of any intended
or unintended, unauthorized disclosure or use of any Trade Secrets or
Confidential Information by Executive or any other person or entity of
which Executive becomes
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aware. Executive shall cooperate fully with Company in the procurement
of any protection of Company's rights to or in any of the Trade Secrets
or Confidential Information.
(c) Immediately upon expiration or termination of the Term for
any reason, or if notice of termination is required hereunder, upon
receipt of such notice, or at any time after such termination or notice
upon the specific request of Company, Executive shall return to Company
all written or descriptive materials of any kind in Executive's
possession or to which Executive has access that constitute or contain
any Confidential Information or Trade Secrets, and the confidentiality
obligations described in this Agreement shall continue until their
expiration under the terms of this Agreement.
(d) To the greatest extent possible, any Work Product shall be
deemed to be "work made for hire" (as defined in the Copyright Act, 17
U.S.C.A. ss. 101 et seq., as amended) and owned exclusively by Company.
Executive hereby unconditionally and irrevocably transfers and assigns
to Company all rights, title and interest Executive currently has or in
the future may have, by operation of law or otherwise, in or to any
Work Product, including, without limitation, all patents, copyrights,
trademarks, service marks and other intellectual property rights.
Executive agrees to execute and deliver to Company any transfers,
assignments, documents or other instruments which Company may deem
necessary or appropriate to vest complete title and ownership of any
Work Product, and all rights therein, exclusively in Company.
5.4 NON-COMPETITION. In recognition of Company's need to protect its
legitimate business interests, Executive hereby covenants and agrees that during
the Term, Executive will not, either directly or indirectly, alone or in
conjunction with any other party, accept, enter into or take any action in
furtherance of a Competitive Position. Executive further agrees that for
eighteen (18) months following expiration or termination of the Term for any
reason other than termination by Executive for Good Reason, Executive will not,
either directly or indirectly, alone or in conjunction with any other party,
accept, enter into or take any action in furtherance of a Competitive Position
within the Restricted Territory (other than action to reject an offer of a
Competitive Position or to notify Company of the offer pursuant to the
requirements of the next sentence of this Section 5.4). Executive shall notify
Company promptly in writing if Executive receives an offer of a Competitive
Position within eighteen (18) months following expiration or termination of the
Term for any reason, and such notice shall describe all salient terms of such
offer.
5.5 NON-SOLICITATION OF CUSTOMERS. Executive hereby covenants and
agrees that (i) during the Term, Executive will not, either directly or
indirectly, alone or in conjunction with any other party, solicit, divert or
appropriate or attempt to solicit, divert or appropriate any medical practice
managed by Company (a "Managed Practice") or actively sought prospective Managed
Practice for the purpose of providing such Managed Practice or actively sought
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prospective Managed Practice with management services competitive with those
offered by Company; and (ii) for a period of two (2) years following expiration
or termination of the Term for any reason other than termination by Executive
for Good Reason, Executive will not, either directly or indirectly, alone or in
conjunction with a Competitor or any other party, solicit, divert or
appropriate, or attempt to solicit, divert or appropriate any Managed Practice
or actively sought prospective Managed Practice for the purpose of providing (or
having a Competitor or any other person provide) such Managed Practice or
actively sought prospective Managed Practice with management services
competitive with those offered by Company. Executive shall promptly notify
Company in writing if: (A) during the two (2) years following the expiration or
termination of the Term for any reason, Executive is contacted by any Managed
Practice or actively sought prospective Managed Practice with a request that
Executive provide Managed Practice with any management services; and (B)
provision of such services, as requested, would constitute a violation of
Executive's covenants in this Section 5. Such notice shall include all salient
information associated with such customer's request, including, without
limitation, the identity of such Managed Practice, the exact services or
products requested and the party or parties on behalf of such Managed Practice
who contacted Executive.
5.6 NONSOLICITATION OF COMPANY PERSONNEL. Executive hereby agrees that
during the Term, except to the extent that he is required to do so in connection
with his responsibilities hereunder, Executive will not, either directly or
indirectly, alone or in conjunction with any other party, solicit or attempt to
solicit any employee, consultant, contractor or other personnel of Company to
terminate, alter or lessen such party's affiliation with Company or to violate
the terms of any agreement or understanding between such party and Company.
Executive further agrees that during the two (2) year period following
expiration or termination of the Term for any reason other than termination by
Executive for Good Reason, Executive will not, either directly or indirectly,
alone or in conjunction with any other party, solicit or attempt to solicit any
"key" (as that term is hereinafter defined) employee, consultant, contractor or
other personnel of Company located in the Restricted Territory to terminate,
alter or lessen that party's affiliation with Company or to violate the terms of
any agreement or understanding between such party and Company. For purposes of
the preceding sentence "key" employees, consultants, contractors or other
personnel of Company are those with knowledge of or access to Company's Trade
Secrets or Confidential Information.
5.7 REMEDIES. Executive agrees that damages at law for Executive's
violation of any of the covenants in this Section 5 would not be an adequate or
proper remedy and that, should Executive violate or threaten to violate any of
the provisions of such covenants, Company or its successors or assigns shall be
entitled to obtain a temporary or permanent injunction against Executive in any
court having jurisdiction prohibiting any further violation of any such
covenants, in addition to any award or damages (compensatory, exemplary or
otherwise) for such violation.
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5.8 PARTIAL ENFORCEMENT. Company has attempted to limit the rights of
Executive to compete only to the extent necessary to protect Company from unfair
competition. Company, however, agrees that, if the scope of enforceability of
any of these restrictive covenants is in any way disputed at any time, a court
or other trier of fact may modify and enforce such covenant to the extent that
it believes to be reasonable under the circumstances existing at the time.
5.9 SURVIVAL. Notwithstanding any expiration or termination of this
Agreement, the provisions of this Section 5 shall survive and remain in full
force and effect, as shall any other provision hereof that, by its terms or
reasonable interpretation thereof, sets forth obligations that extend beyond the
termination of this Agreement.
SECTION 6. RIGHTS ON TERMINATION
(a) If Executive voluntarily resigns his employment or is
terminated for Cause, or dies or is terminated due to becoming
Disabled, Executive shall be entitled only to receive any salary and
bonus amounts that have accrued prior to the effective date of
termination of the Term (the "Termination Date").
(b) If Company terminates the Term pursuant to Section
2.2(d)(ii), or if Executive terminates the Term following a Change of
Control pursuant to Section 2.2(e), Executive shall be entitled to: (a)
all salary and bonus amounts accrued through the Termination Date, and
(b) payment, for a period of twelve (12) months following the
Termination Date, of an amount equal to: (i) Executive's base salary as
of the Termination Date (with such payments to be made at such times as
they would be made if Executive's employment continued for an
additional year) LESS (ii) any salary or other amounts that Executive
is paid by any other person during that twelve month period other than
salary or amounts paid to Executive by NAENT (and in the event
Executive does not increase his work time at NAENT, Executive hereby
agrees to take reasonably diligent action to secure employment as soon
as practicable after any such termination from Company and to otherwise
mitigate his losses resulting from the loss of salary from Company).
Executive's rights to any of the compensation or benefits identified in
the preceding sentence shall be subject to Executive's compliance in
all respects of each of Executive's obligations under this Agreement.
(c) In the event that Company (or Company's successor)
following a Change of Control (as defined below) terminates Executive's
employment other than pursuant to an express termination right under
Sections 2.2(a), (b) or (c) of this Agreement, Executive shall be
entitled to severance compensation in the form of a lump sum payment in
an amount equal to two (2) times the taxable compensation received by
Executive during the most recently concluded fiscal year of Company.
For purposes of
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this Agreement, "Change of Control" shall mean the acquisition by any
single person or entity or related persons or entities of more than
fifty percent (50%) of the outstanding and issued common stock of
Company following an initial public offering of Company's common stock.
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SECTION 7. MISCELLANEOUS.
7.1 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors,
representatives, heirs, and permitted assigns.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
7.3 HEADINGS. The titles, captions and headings contained in this
Agreement are inserted by convenience of reference only and are not intended to
be a part of or to affect in any way the meaning or interpretation of this
Agreement.
7.4 NOTICES.
(a) All notices, consents, requests and other communications hereunder
shall be in writing and shall be sent by hand delivery, by certified or
registered mail (return-receipt requested), by facsimile or by a recognized
national overnight courier service as set forth below:
If to Company: Physicians' Specialty Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
0000 XxxxxxxXxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Fax No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to Executive: Xxxxx X. Xxxxx, M.D.
0000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxxx, Esq.
Ellis, Funk, Xxxxxxxx, Xxxxxxxx & Dokson, P.C.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
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(b) Notices delivered pursuant to this Section 7.4(a) hereof shall be
deemed given: at the time delivered, if personally delivered, three (3) business
days after being deposited in the mail, if mailed; one (1) business day after
being sent, if faxed; and one (1) business day after timely delivery to the
courier, if by overnight courier service.
(c) Either party hereto may change the address to which notice is to be
sent by written notice to the other party hereto in accordance with this Section
7.4
7.5 COUNTERPARTS; FAX SIGNATURES. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute the same Agreement. Any signature page of any
such counterpart, or any electronic facsimile thereof, may be attached or
appended to any other counterpart to complete a fully executed counterpart of
this Agreement, and any telecopy or other facsimile transmission of any
signature shall be deemed an original and shall bind such party.
7.6 ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject matter
hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto. This Amended and Restated Agreement
amends, restates and replaces the Prior Agreement in its entirety.
7.7 SEVERABILITY. The unenforceability or invalidity of any provision
of this Agreement shall not affect the validity or enforceability of the
remaining provisions hereof, but such remaining provisions shall be construed
and interpreted in such a manner as to carry out fully the intent of the parties
hereto; provided, however, that should any judicial body interpreting this
Agreement deem any provision hereof to be unreasonably broad in time, territory,
scope or otherwise, it is the intent and desire of the parties hereto that such
judicial body, to the greatest extent possible, reduce the breadth of such
provision to the maximum legally allowable parameters rather than deeming such
provision totally unenforceable or invalid.
7.8 WAIVER. No waiver, termination or discharge of this Agreement, or
any of the terms or provisions hereof, shall be binding upon either party hereto
unless confirmed in writing. No waiver by either party hereto of any term or
provision of this Agreement or of any default hereunder shall affect such
party's right thereafter to enforce such term or provision or to exercise any
right or remedy in the event of any other default, whether or not similar.
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7.9 INTERPRETATION. Should a provision of this Agreement require
judicial interpretation, it is agreed that the judicial body interpreting or
construing the Agreement shall not apply the assumption that the terms hereof
shall be more strictly construed against one party by reason of the rule of
construction that an instrument is to be construed more strictly against the
party which itself or through its agents prepared the agreement, it being agreed
that all parties and/or their agents have participated in the preparation of
this Agreement equally.
7.10 APPLICABLE LAW. Should any provision of this Agreement, including,
without limitation, any provision relating to compensation, be found to be in
violation of any applicable law, rule or regulation, the parties hereto agree to
execute an amendment to this Agreement to bring such provision into compliance
with any such law, rule or regulation, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
"Company"
PHYSICIANS' SPECIALTY CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Its: Vice Chairman
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"Executive"
XXXXX X. XXXXX, M.D.
/s/ Xxxxx X. Xxxxx
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