Exhibit 10.52
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, entered into on
November 4, 1994 (the "Signing Date"), amended on February 24, 1995 and July 15,
1997, and dated as of the 1st day of July, 1994 (the "Effective Date"), between
DOCTORS HEALTH, INC. (formerly Doctors Health System, Inc.), a Maryland
corporation (the "Company") and XXXXXXX GOLD (the "Executive").
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BACKGROUND
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The Company is engaged, directly or through service contracts
with others, in the business of (i) negotiating contracts to provide health care
services and products, (ii) managing health care providers and (iii) providing
health care services and products (the "Business").
The Executive is experienced in creating new business
opportunities that take advantage of inefficiencies in existing markets,
managing health care organizations and in raising capital.
The Executive and the Company previously entered into an
Amended and Restated Employment Agreement dated February 24, 1995, a copy of
which is attached hereto (the "Prior Agreement"), and each desires to amend and
restate the Prior Agreement in its entirety to incorporate certain additional
matters.
The Company desires to hire Executive, and the Executive
desires to work for the Company, on the terms and conditions set forth in this
Agreement.
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT. (a) Effective upon the
Effective Date, the Company shall employ the Executive as its President and
Chief Executive Officer. In such capacities, the Executive shall have
responsibility and authority for directing and managing the operations of the
Company and its Subsidiaries within such guidelines, policies and directions as
the board of directors of the Company (the "Board") may from
time to time adopt. The Executive's duties shall include raising capital,
creating new business opportunities, creating the Company's infrastructure,
supervising xxxxxxxx and collections, engaging auditors, attorneys and other
consultants, negotiating managed care and other contracts, and implementing and
designing non-medical policies and procedures, in each case subject to the
guidelines and policies of the Board. The Executive shall perform his duties
faithfully and to the best of his abilities. The Executive shall also serve
during the Term as a director of the Company (subject to the power of the Board
and the Shareholders of the Company to remove him as set forth in the Company's
Bylaws), and shall serve during the Term as a director of all of the Company's
Subsidiaries (as defined in SECTION 5.2), all without any additional
compensation.
(b) The Executive shall devote his full working time and
creative energies to the performance of his duties hereunder and will at all
times devote such additional time and efforts as are reasonably sufficient for
fulfilling the significant responsibilities entrusted to him. So long as such
activities, in the aggregate, do not interfere with the performance by the
Executive of his duties hereunder: (i) the Executive shall be permitted a
reasonable amount of time to supervise his personal, passive, investments; (ii)
the Executive shall be permitted a reasonable amount of time to participate (as
board member, officer or volunteer) in civic, political and charitable
activities; (iii) the Executive shall be permitted to deliver lectures to and
teach at educational institutions and business organizations; and (iv) subject
to the provisions of SECTION 5 hereof, the Executive may serve as a director or
trustee of one or more corporations not affiliated with the Company.
1.2 PLACE OF EMPLOYMENT. The Executive's
principal place of employment shall be in the Baltimore, Maryland metropolitan
area, subject to such travel as may be reasonably required by his employment
pursuant to the terms hereof. The Executive shall not be required to relocate
outside of the Baltimore, Maryland metropolitan area during the Term unless the
Company provides relocation benefits acceptable to the Executive in his sole
discretion.
2. TERM OF EMPLOYMENT. The term of the Executive's employment
under this Agreement (the "Term") shall commence on the Effective Date and shall
end on April 1, 2000, unless sooner terminated, or later extended, as herein
provided. Not later than February 1, 2000 (and each February 1 of each calendar
year during any Extension Period (defined below)), the Company and the Executive
shall enter into good faith negotiations to determine whether and on what terms
to extend or renew this Agreement beyond April 1 of such calendar year. If by
October 15, 1999 (and October 15 of any calendar year occurring during an
Extension Period) either party gives written notice to the other of its desire
to terminate this Agreement as of April 1, then this Agreement shall so
terminate, and the Executive shall be permitted a reasonable
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amount of time during the balance of the Term within which to explore
alternative employment opportunities. If no such written notice to terminate is
given by either party by October 15, 1999 (or by October 15 of any calendar year
occurring during an Extension Period), then the Term shall, without further act
or deed, automatically be extended upon the same terms and conditions as
previously in effect, for an additional 12 month period, commencing on April 1
of the applicable calendar year and ending on March 31 of the immediately
following calendar year. Each such 12 month extension during the Term is
referred to herein as an "Extension Period", and shall constitute a part of the
Term of this Agreement for all purposes, including the provisions regarding
extensions contained in this Section 2.
3. COMPENSATION.
3.1 SALARY. As compensation for all services
to be rendered pursuant to this Agreement, the Company shall pay to the
Executive, during the Term, a "Base Salary" (as defined in this SECTION 3.1)
less such deductions as shall be required to be withheld by applicable laws and
regulations. The "Base Salary" from July 1, 1997 to December 31, 1997 shall be a
salary of $280,000 per annum, subject to upward adjustment as determined by the
Executive Comittee or the Board of Directors of the Company. The Base Salary
shall accrue from and after the Effective Date, and shall be payable in arrears
in equal monthly installments.
3.2 BONUS. The Executive shall be eligible to
receive an annual bonus based upon the extent to which the Executive's
performance meets or exceeds agreed upon performance standards or the Executive
otherwise performs in an exemplary manner, all in the sole discretion of the
Compensation Committee of the Board of Directors of the Company.
3.3 STOCK. The Executive holds 600,000
Shares of the Company's Class A Common Stock, all of which are vested in the
Executive and not subject to forfeiture. All Shares of the Company's Class A
Common Stock (the "Stock") held by the Executive hereunder is and shall remain
subject to the transfer restrictions and other protections as are set forth in
the Company's Amended and Restated Articles, By-laws, or in any Shareholder's
Agreement, and the certificates or other instruments representing such stock
shall bear or contain a legend or statement regarding such transfer
restrictions.
3.4. WITHHOLDING. Except for the payment
contemplated under SECTION 3.1(A), the Company is authorized to withhold from
the amount of any Salary and Bonuses and any other things of value paid to or
for the benefit of the Executive (other than transfers of Stock), all sums
authorized by the Executive or required to be withheld by law, court decree, or
executive order, including (but not limited to) such
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things as income taxes, employment taxes, and employee contributions to fringe
benefit plans sponsored by the Company.
3.5 PARTICIPATION IN EXECUTIVE BENEFIT PLANS.
The Executive shall be permitted during the Term, if and to the extent
eligible, to participate in any group life, hospitalization or disability
insurance plan, health program, automobile allowance, pension plan or similar
benefit plan of the Company which may be available to other comparable
executives or professional employees, including physicians, of the Company
generally on the same terms as such other executives.
3.6 VACATION. The Executive will receive at
least 4 weeks vacation per year, to be scheduled and taken at the Executive's
option at such times as his duties may permit. Should the Company's policy
provide for more vacation to comparable executives the Executive will be
accorded such higher vacation. Unused vacation time shall not be cumulated or
carried over nor shall the Executive receive any compensation for unused
vacation time.
3.7 EXPENSES. Subject to such policies as may
from time to time be established by the Board, the Company shall pay or
reimburse the Executive for all ordinary, necessary and reasonable expenses
(including, without limitation, travel, meetings, dues, subscriptions, fees,
educational expenses, computer equipment and the like) actually incurred or paid
by the Executive during the Term in the performance of the Executive's services
under this Agreement (including, without limitation, expenses incident to
attendance at board or management meetings of the Company, or its Subsidiaries
or Affiliates), upon presentation of expense statements or vouchers or such
other supporting information as the Board may require.
3.8 DEFERRED COMPENSATION. As soon as
practicable following execution of this Agreement, the Company shall pay the
Executive $75,000 in full satisfaction of all deferred compensation obligations
to him for services performed from the Signing Date to June 30, 1997.
4. TERMINATION.
4.1 TERMINATION UPON DEATH. If the Executive dies
during the Term, the Executive's employment shall terminate as of the date of
death of the Executive.
4.2 TERMINATION UPON DISABILITY.
Notwithstanding any other provision of this Agreement, if during the Term
the Executive becomes physically, mentally or emotionally disabled, whether
totally or partially, as determined by an independent qualified physician, so
that the Executive is, in the good faith determination
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of the Board, substantially unable to perform his services hereunder for (i) a
period of three consecutive months, or (ii) shorter periods aggregating three
months during any twelve month period, the Company may at any time after the
last day of the three consecutive months of disability or on the last day of the
shorter period aggregating three months of disability, by written notice to the
Executive, terminate the Executive's employment hereunder as of the date such
written notice becomes effective.
4.3 TERMINATION AT ELECTION OF COMPANY.
(a) Notwithstanding any other
provision of this Agreement, the Company may terminate the Executive's
employment hereunder at any time upon: (i) the continued failure or refusal by,
or manifest inability of, the Executive to perform his duties after reasonable
prior notice to the Executive; (ii) the Executive engaging in any acts or
omissions involving dishonesty or acts or omissions that demonstrate a lack of
integrity; (iii) the conviction of the Executive of a felony; (iv) the Executive
engaging in acts or omissions that demonstrably and materially injure the
business and affairs of the Company, monetarily or otherwise; and/or (v) any
knowing material misrepresentation made by the Executive to the Company or any
material breach by the Executive of his obligations hereunder.
(b) In addition to the Company's
right to terminate the Executive's employment pursuant to SECTION 4.3(A),
and notwithstanding any other provision of this Agreement, the Company may, for
any or for no reason, terminate the Executive's employment upon 60 days prior
written notice to the Executive.
4.4 TERMINATION BY THE EXECUTIVE.
(a) Provided that the Executive has
delivered to the Board at least sixty (60) days prior written notice setting
forth in reasonable detail any alleged material breach by the Company of this
Agreement or other acts or omissions engaged in by the Company constituting
"constructive termination" of the Executive's employment with the Company, which
breach, acts or omissions have not been cured by the Company as of the end of
such period to the reasonable satisfaction of the Executive, then,
notwithstanding any other provision of this Agreement, the Executive shall be
entitled to terminate his employment for such reasons, effective immediately
upon the delivery by the Executive to the Board of a notice to the effect that
such breach, acts or omissions have not been cured to the reasonable
satisfaction of the Executive; provided, however, that if such constructive
termination is caused by the Executive's incapacity or inability to serve due to
a disability of the type described in SECTION 4.2 above and the Company elects
to terminate the Executive pursuant to the provisions of SECTION 4.2, the
Executive shall, for purposes of this Agreement, be
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deemed to have been terminated pursuant to the provisions of SECTION 4.2 and not
of this SECTION 4.4.
(b) For purposes of this SECTION 4.4,
"constructive termination" shall be limited to those circumstances where (i)
the Company creates working conditions that a reasonable person in the
Executive's position would consider unreasonable or intolerable which is not
remedied by the Company within sixty (60) days after notice thereof given by the
Executive; and (ii) such working conditions are not generally applicable to
other executives of the Company.
4.5 COMPENSATION AND BENEFITS FOLLOWING
TERMINATION OF EMPLOYMENT.
(a) In the event of termination of
the Executive's employment for any reason other than a termination pursuant
to SECTION 4.3(B) or SECTION 4.4 (or a termination caused merely by the
expiration of the Term): (i) all compensation and other benefits payable or
provided hereunder shall cease as of the date of termination; (ii) Base Salary
(if any) then payable or accrued through the date of termination; (iii) all
accrued benefits (if any) then payable to the Executive pursuant to the terms of
any plans or arrangements referred to in SECTION 3.5 shall be paid to the
Executive (or to his heirs, legatees and/or legal representatives) through the
date of termination; and (iv) any shares of stock that remain unvested pursuant
to SECTION 3.3 shall immediately be forfeited to the Company.
(b) In the event of termination of the
Executive's employment pursuant to SECTION 4.3(B) or SECTION 4.4, the
Executive (or, in the event of the Executive's subsequent death or disability,
his heirs, legatees and/or legal representatives) shall receive, at the times
and as the same would have been payable hereunder if the Executive's employment
had not been so terminated, each of the following payments and benefits:
(i) all accrued benefits (if
any) then payable to the Executive pursuant to the terms of any plans or
arrangements referred to in SECTION 3.5; and
(ii) with respect to any periods
after June 30, 1996, 50% of the Base Salary which would have been due to the
Executive from July 1, 1996 through the remainder of the Term, at the times such
payments would otherwise be made, all as if this Agreement were still in effect.
(c) In the event of termination
under SECTION 4.2 (disability), the Executive or his legal representative, as
the case may be, shall, in
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addition to such other payments as may be due hereunder, be entitled to receive
the proceeds of any disability policies maintained by the Company and payable to
the Executive.
5. CERTAIN COVENANTS OF THE EXECUTIVE.
5.1 NECESSITY FOR COVENANTS. The Executive
acknowledges that (i) the Company, its Subsidiaries and its Affiliates (as
defined in SECTION 5.2) are engaged in the business, directly or through service
contracts with others, of providing primary and specialized medical and related
health care services and related products (the "Company Business"), and will in
the future be engaged in the Company Business; (ii) his work and providing
management services to health care entities for the Company and its Affiliates
will give him access to customers and suppliers of, and trade secrets of and
confidential information concerning, the Company, its Subsidiaries and its
Affiliates; and (iii) the agreements and covenants contained in this SECTION 5
are essential to protect the business and goodwill of the Company, its
Subsidiaries and its Affiliates. In order to induce the Company to enter into
this Agreement and pay the compensation and other benefits at the levels
requested by the Executive, the Executive enters into the following covenants:
5.2 DEFINITIONS.
(a) For purposes of SECTIONS 5.3
through 5.8 only, the term "Company" shall include the Company and all of the
Company's, Subsidiaries and Affiliates.
(b) "Provider" shall mean any health
care service provider or Affiliate thereof to whom the Company provided
management or other services.
(c) "Payor" means any insurer,
employer, health maintenance organization, preferred provider organization,
health benefit plan or other entity or organization to which, or to whose
members, insured's, employees, enrollees, beneficiaries or other persons
affiliated with it (collectively "Beneficiaries"), the Company provides services
or products.
(d) "Service Area" means the
geographic area in which the Company provides health care services and in
which the Beneficiaries of those services generally reside, which shall include
all areas within a 25 mile radius of the site of any Provider's office.
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(e) "Subsidiary" means any person or
entity in which the Company owns, beneficially or otherwise, an equity
interest of more than 50%.
(f) "Affiliate" means a Subsidiary of
the Company; a person or entity which is owned, controlled, or operated by
the Company; any person owning an equity interest in the Company; any person who
has appointed the Company as its exclusive agent for the provision of
professional services and the collection of revenues therefrom; and any partner,
member, employee, owner or agent of any Affiliate and any person or entity which
is under common ownership, control or operation with the specified person or
entity.
5.3 RESTRICTIONS. During the Term and,
unless the Executive's employment is terminated other than pursuant to
SECTIONS 4.3(B) or 4.4 hereof, for a period of twelve (12) months after the
Executive's employment hereunder is terminated (the "Termination Date") (the
"Restricted Period"), the Executive shall not, directly or indirectly, for
himself or on behalf of any other person, firm, corporation or other entity,
whether as a principal, agent, employee, stockholder, partner, officer, member,
director, sole proprietor, or otherwise:
(a) call upon or solicit any Provider
for the purpose of persuading the Provider to engage the Executive or any
other person, firm, corporation or other entity to provide services which are
the same or similar to those the Company provided to the Provider;
(b) call upon or solicit any Payor
for the purpose of persuading the Payor to engage any person or entity other
that the Company to provide health care services to the Payor with respect to
any of its Beneficiaries in the Service Area;
(c) solicit, participate in or promote
the solicitation of any person who was employed by the Company or a Provider at
any time during the twelve (12) months preceding the Termination Date to leave
the employ of the Company, or hire or engage any of those persons;
(d) make any disparaging remarks about
the Company's business, services or personnel;
(e) interfere in any way with the
Company's business, prospects or personnel; or
(f) become affiliated with or render
services to any person engaged in any business that competes with the Company
Business within the
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Service Area, directly or indirectly, in any capacity, including, without
limitation, as an individual, partner, shareholder, officer, director,
principal, agent, employee, trustee or consultant; provided, however, that the
Executive may own, directly or indirectly, solely as an investment, securities
which are publicly traded if the Executive (a) is not a controlling person of,
or a member of a group which controls, the issuer and (b) does not, directly or
indirectly, own 5% or more of any class of securities of the issuer.
5.4 TRADE SECRETS AND CONFIDENTIAL INFORMATION
5.4.1 TRADE SECRETS DEFINED. The term
"Trade Secrets," as used in this Agreement, includes, without limitation, (i)
all information concerning billing practices and procedures of the Company, (ii)
the rates and amounts that the Company pays to its personnel, (iii) information
about the Company's contracts with insurers, health maintenance organizations,
employers, and other payors, (iv) all formulae, compilations, programs, devices,
lists, methods, techniques or processes of the Company, and (v) all other
information of the Company that would be deemed to be "trade secrets" within the
meaning of the Maryland Uniform Trade Secrets Act (the "Act").
5.4.2 CONFIDENTIAL INFORMATION
DEFINED. Any other information not qualifying as a Trade Secret, but
relating to the business of the Company which is disclosed by the Company to the
Executive, or is discovered by the Executive in the course of employment, is
Confidential Information.
5.4.3 DUTY TO MAINTAIN SECRECY AND
CONFIDENTIALITY. During the Period of the Executive's employment with the
Company, the Executive shall maintain the secrecy and confidentiality of the
Trade Secrets and the Confidential Information and shall not (i) divulge,
furnish or make accessible to anyone or in any way or use, for his own benefit
or for the benefit of any other individual firm or entity (other than in the
ordinary course of the Company's business), any Trade Secret or Confidential
Information; (ii) take or permit any action to be taken which would reduce the
value of the Trade Secrets or Confidential information to the Company; or (iii)
otherwise misappropriate or suffer the misappropriation of the Trade Secrets or
the Confidential information, within the meaning of the Act. After Termination
Date, Executive shall continue to maintain the secrecy and confidentiality of
such information, but only to the extent that the Executive is prohibited from
directly or indirectly competing with Company pursuant to the provisions of
SECTION 5.3.
5.4.4 INFORMATION WHICH IS PUBLICLY
KNOWN. Notwithstanding anything herein to the contrary, the obligations of
secrecy and confidentiality set forth herein shall not apply to any information
which is now generally publicly known or which subsequently becomes generally
publicly known other than as
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a direct or indirect result of the breach of this Agreement by the Executive, or
which is required by law or order of any court to be disclosed.
5.5 PROPERTY OF THE COMPANY. All memoranda,
notes, lists, records and other documents or papers (and all copies thereof),
including but not limited to, such items stored in computer memories, on
microfiche or by any other means, made or compiled by or on behalf of the
Executive, or made available to the Executive concerning the Company Business,
are and shall be the property of the Company and shall be delivered to the
Company promptly upon the termination of the Executive's employment with the
Company or at any other time on request; provided however, that the Executive
may inspect during normal business hours such records as shall be necessary for
the purpose of assisting the Executive to file, or prepare for an audit of, his
personal income tax returns.
5.6 EXECUTIVE'S IDEAS, ETC. All
inventions, prototypes, discoveries, improvements, innovations and the
like ("Inventions") and all works of original authorship or images that are
fixed in any tangible medium of expression and all copies thereof ("Works")
which are designed, created or developed by Executive, solely or in conjunction
with others, in the course of performance of the Executive's duties which relate
to the Company Business, shall be made or conceived for the exclusive benefit of
and shall be the exclusive property of the Company. The Executive shall
immediately notify the Company upon the design, creation or development of all
Inventions and Works. At any time thereafter, the Executive, at the request and
expense of the Company, shall execute and deliver to the Company all documents
or instruments which may be necessary to secure or perfect the Company's title
to or interest in the Inventions and Works, including but not limited to
applications for letters of patent, and extensions, continuations or reissues
thereof, applications for copyrights and documents or instruments of assignment
or transfer. All Works are agreed and stipulated to be "works made for hire," as
that term is used and understood within the Copyright Act of 1976, as amended.
To the extent any Works are not deemed to be works made for hire as defined
above, and to the extent that title to or ownership of any Invention or Work and
all other rights therein are not otherwise vested exclusively in the Company,
the Executive shall, without further consideration but at the expense of the
Company, assign and transfer to the Company the Executive's entire right, title
and interest (including copyrights and patents) in or to those Inventions and
Works.
5.7 RIGHTS AND REMEDIES UPON BREACH. If the
Executive breaches, or threatens to commit a breach of, any of the provisions
of SECTIONS 5.1 through 5.6 (the "Restrictive Covenants"), the Company shall, in
addition to its right immediately to terminate this Agreement, have the right
and remedy (which right and remedy shall be independent of others and severally
enforceable, and which shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company
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under law or in equity) to have the Restrictive Covenants specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach or threatened breach could cause irreparable injury to the
Company or its Affiliates and that money damages may not provide adequate remedy
to the Company.
5.8 COVENANTS CURRENTLY BINDING EXECUTIVE.
The Executive warrants that his employment by the Company will not (a)
violate any non-disclosure agreements, covenants against competition, or other
restrictive covenants made by the Executive to or for the benefit of any
previous employer or partner, or (b) violate or constitute a breach or default
under, any statute, law, judgment, order, decree, writ, injunction, deed,
instrument, contract, lease, license or permit to which the Executive is a party
or by which the Executive is bound.
5.9 LITIGATION. There is no litigation,
proceeding or investigation of any nature (either civil or criminal) which is
pending or, to the best of the Executive's knowledge, threatened against or
affecting the Executive or which would adversely affect his ability to
substantially perform the duties herein.
5.10 REVIEW. The Executive has received or
been given the opportunity to review the provisions of this Agreement, and the
meaning and effect of each provision, with independent legal counsel of the
Executive's choosing.
5.11 SEVERABILITY OF COVENANTS. The Executive
acknowledges and agrees that the Restrictive Covenants are reasonable and valid
in geographical and temporal scope and in all respects. If any court determines
that any of the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
5.12 BLUE-PENCILING. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration or geographic scope of such provision,
such court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable and shall be enforced. If any such court declines to so
revise such covenant, the parties agree to negotiate in good faith a
modification that will make such duration or scope enforceable.
5.13 ENFORCEABILITY IN JURISDICTIONS. The
parties intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
such Covenants. If the courts of any one or more of such jurisdictions hold any
Restrictive Covenant unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the parties that such
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determination not bar or in any way affect the Company's right to the relief
provided above in the courts of any other jurisdiction within the geographical
scope of such Covenants, as to breaches of such Covenants in such other
respective jurisdictions, such Covenants as they relate to each jurisdiction
being, for this purpose, severable into diverse and independent covenants.
5.14 EXTENSION. If the Executive violates any
Restrictive Covenant, the Company shall not be deprived of the full benefit of
the period of the covenant. Accordingly, the duration of that covenant shall be
extended by the period of any violation of that covenant.
5.15 REMEDIES. The Company shall be entitled
to injunctive or other equitable relief because it will be caused irreparable
injury and damage by a breach of the provisions of any of the Restrictive
Covenants. The right to injunctive relief shall include the right to both
preliminary and permanent injunctions. The Company shall not be required to post
a bond or other similar assurance if it brings an action to enforce the
provisions of any of the Restrictive Covenants. The Company's right to equitable
relief shall not preclude any other rights or remedies which the Company may
have, all of which rights and remedies are cumulative.
6. DISPUTE RESOLUTION.
6.1 COSTS OF LITIGATION. If either party files suit
or brings an arbitration proceeding to enforce its rights under this Agreement,
the prevailing party shall be entitled to recover from the other party all
expenses incurred by it in preparing for and in trying the case, including, but
not limited to, investigative costs, court costs and reasonable attorney's fees.
6.2 CONSENT TO JURISDICTION. The parties
submit to the jurisdiction and venue of the courts of the State of Maryland.
6.3 NO JURY TRIAL. NEITHER PARTY SHALL ELECT A
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT.
6.4 ARBITRATION. Any dispute between the
Company and the Executive concerning any part of the Executive's compensation
arising under SECTION 3 or SECTION 4 hereof shall be resolved by binding
arbitration pursuant to the terms of SCHEDULE 6.4, attached hereto as a part
hereof.
7. OTHER PROVISIONS.
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7.1 NOTICES. Any notice or other communication
required or which may be given hereunder shall be in writing and shall be
delivered personally, telegraphed, telexed, sent by facsimile transmission or
sent by certified, registered or express mail, postage paid, and shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, four days after the date of mailing, as follows:
(i) if to the Company, to:
Doctors Health System, Inc.
00000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Chairman
with copy to:
Doctors Health System, Inc.
00000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Director of Legal Services
(ii) if to the Executive, to:
Xxxxxxx Gold
Xxx Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000-0000
Any party may by notice given in accordance with this Section
to the other party designate another address or person for receipt of notices
hereunder.
7.2 ENTIRE AGREEMENT. This Agreement contains
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings, written or oral,
with respect thereto, including the Prior Agreement.
7.3 WAIVERS AND AMENDMENTS. This Agreement may
be amended, modified, superseded, canceled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument signed by the
Executive and a duly authorized officer of the Company (each, in such capacity,
a party) or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in
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exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power or
privilege hereunder, nor any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
7.4 GOVERNING LAW. This Agreement has been
negotiated and is to be performed in the State of Maryland, and shall be
governed and construed in accordance with the laws of the State of Maryland
applicable to agreements made and to be performed entirely within such State.
7.5 COUNTERPARTS. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
7.6 CONFIDENTIALITY. Neither party shall
disclose the contents of this Agreement or of any other agreement they have
simultaneously entered into to any person, firm or entity, except the agents or
representatives of the parties, or except as required by law.
7.7 WORD FORMS. Whenever used herein, the
singular shall include the plural and the plural shall include the singular.
The use of any gender, tense or conjugation shall include all genders, tenses
and conjugations.
7.8 HEADINGS. The Section headings have been
included for convenience only, are not part of this Agreement, and are not to
be used to interpret any provision hereof.
7.9 BINDING EFFECT AND BENEFIT. This Agreement
shall be binding upon and inure to the benefit of the parties, their successors,
heirs, personal representatives and other legal representatives. This Agreement
may be assigned by the Company to any entity which buys substantially all of the
Company's assets. However, the Executive may not assign this Agreement without
the prior written consent of the Company.
7.10 SEPARABILITY. The covenants contained in
this Agreement are separable, and if any court of competent jurisdiction
declares any of them to be invalid or unenforceable, that declaration of
invalidity or unenforceability shall not affect the validity or enforceability
of any of the other covenants, each of which shall remain in full force and
effect.
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7.11 CONSENT OR APPROVAL. Whenever under the
terms of this Agreement the approval or consent of the Company is required or
the Company must make any determination, the Company, unless this Agreement
specifically requires otherwise, may not unreasonably withhold or delay that
consent or approval.
7.12 BACKGROUND. The Background is a part of this
Agreement.
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IN WITNESS WHEREOF, the parties, intending to be legally
bound, have executed this Agreement or caused it to be executed and attested by
their duly authorized officers as a document under seal on the day and year
first above written.
ATTEST/WITNESS: DOCTORS HEALTH SYSTEM, INC.
/s/ Xxxxxx Xxxx By: /s/ Xxxx Xxxxxx
___________________ _______________________(SEAL)
Assistant Secretary
EXECUTIVE:
/s/ Xxxxxx Xxxx /s/ Xxxxxxx Gold
___________________ _____________________________(SEAL)
Xxxxxxx Gold
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SCHEDULE 6.4
ARBITRATION PROCEDURE
1. INSTITUTION OF ARBITRATION PROCEEDING.
1.1. Any party to this Agreement (an "Initiating Party") may initiate
an arbitration proceeding (the "Proceeding") to resolve a dispute subject to
resolution under this Schedule (a "Dispute") by giving written notice (the
"Dispute Notice") to the other party (the "Responding Party") to such Dispute.
The Dispute Notice shall describe the substance of the Dispute with sufficient
specificity to give the Responding Party adequate notice of its nature. Unless
otherwise specified, time periods specified in this Schedule 6.4 shall be
calculated from the date of the Dispute Notice (the "Commencement Date").
2. SELECTION OF ARBITRAL PANEL.
2.1. The Arbitral Panel (the "Panel") shall consist of three
arbitrators, two of whom (the "Party Designated Arbitrators") shall be selected
by the parties pursuant to Section 2.2 hereof. The third arbitrator shall be a
"Neutral Arbitrator" selected by the Party Designated Arbitrators pursuant to
Section 2.3 hereof.
2.2. The Initiating Party shall designate its Party Designated
Arbitrator in the Dispute Notice. Within fifteen days of the Commencement Date,
the Responding Party shall designate its Party Designated Arbitrator.
2.3. Within forty-five days of the Commencement Date, the two Party
Designated Arbitrators shall agree upon and appoint a Neutral Arbitrator who
shall be an accountant and a partner in an international, "Big Six" accounting
firm.
2.4. Each party agrees promptly to disclose to the other party any
circumstances known to it which would cause reasonable doubt regarding the
impartiality of an individual under consideration or appointed as the Neutral
Arbitrator and any such individual shall also promptly disclose to the parties
any such circumstances.
2.5. During the process of selecting the Neutral Arbitrator and
thereafter during the course of this Proceeding, ex parte communications with
the Neutral Arbitrator or any individual under consideration as the Neutral
Arbitrator are prohibited and shall be disclosed by the party making any ex
parte communication, the Neutral Arbitrator or any individual under
consideration as a Neutral Arbitrator immediately upon discovery.
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3. PRE-HEARING PROCEDURES.
3.1. Within fifteen days of the appointment of the Neutral Arbitrator,
the Panel may convene a Pre-Hearing Conference to, inter alia, familiarize the
Neutral Arbitrator with the nature of the Dispute between the Parties, determine
the need for and the nature of discovery and establish a procedural schedule for
the further conduct of the Proceeding.
4. DISCOVERY.
4.1. Discovery, appropriately limited by the nature of the Dispute, is
expressly contemplated and permitted. However, the Parties acknowledge and agree
that one of the benefits of resolving Disputes through arbitration is the
opportunity reasonably to limit discovery. The Parties further agree that they
will endeavor to agree upon procedures and a schedule for discovery that will
result in a prompt and fair hearing under these procedures.
4.2. Discovery requests and responses need not be served upon the Panel
but the Panel shall promptly convene upon motion of either party to resolve
discovery disputes, if any.
4.3. Discovery will be completed within sixty days of the Pre-Hearing
Conference.
5. SUBMISSION OF EVIDENCE AND HEARING.
5.1. The Panel may receive evidence in the form of written statements
filed prior to Hearing for cross-examination on such statements or may receive
oral testimony at Hearing. Each party shall be entitled to submit rebuttal
testimony. The Panel may also permit opening and closing statements of counsel
at Hearing.
5.2. The Panel shall convene for Hearing the evidence and argument of
the parties at a time and place to be established by the Panel. The Hearing
shall be held no later than thirty days after the close of discovery or thirty
days after the Pre-Hearing Conference if there is no discovery.
5.3. At the Hearing, and for all other purposes related to the
Proceeding, the Initiating Party shall be deemed the party seeking affirmative
relief, shall go first and shall bear the burdens of proof and of persuasion.
5.4. The Hearing shall be transcribed.
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6. POST-HEARING PROCEDURES.
6.1. The Panel may request Post-Hearing briefs and, if it does so,
shall establish a schedule for submission of such briefs at the close of
Hearing.
6.2. Within thirty days of the later of the close of the Hearing or its
receipt of Post-Hearing briefs, the Panel shall issue a written Decision and
Award which shall include findings of fact and explain the reasons for the
Decision.
7. CONFIDENTIALITY.
7.1. Unless otherwise agreed, the Proceeding and all information and
documents relating to it shall be kept confidential by the Parties, the Panel,
witnesses and all other persons involved with the Proceeding. Specifically, but
without limitation, the Confidential Information of the parties shall be
safeguarded and maintained as confidential by all participants in the
Proceeding.
8. COSTS.
8.1. The Neutral Arbitrator's fees and expenses, and all expenses of
the Pre-Hearing Conference, Hearing or any other aspect of the Proceeding not
directly attributable to either party, such as the cost of transcription of
Panel Hearings and rental of Hearing rooms, shall be borne equally by the
parties.
8.2. The Panel shall in its Decision and Award determine whether and to
what extent either party is a prevailing party and entitled to an award of its
costs, including attorneys' fees.
9. MISCELLANEOUS.
9.1. The parties may agree at any time to depart from these procedures,
including the time periods herein established. Although not favored, the Panel
may also permit departures from these procedures and time periods absent
agreement of the parties to prevent a miscarriage of justice.
9.2. Until the Neutral Arbitrator is appointed, any issue relating to
the Proceeding that is not provided for in these procedures shall be governed by
the Commercial Arbitration Rules of the American Arbitration Association. Once
the Neutral Arbitrator is appointed, the Panel is empowered to resolve all
issues not contemplated by these procedures and upon which the parties cannot
agree.
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9.3. The Panel may grant any remedy or relief that it deems just and
equitable and within the scope of the agreement of the parties, including, but
not limited to, specific performance of a contract, injunctive relief or other
equitable relief.
9.4. These procedures contemplate a two-party Proceeding. If there are
more than two parties to a Proceeding, and they are unable by unanimous
agreement to align themselves as two parties, each party shall be entitled to
all the rights of a party hereunder, including specifically but without
limitation the right to appoint a Party Designated Arbitrator, and the Neutral
Arbitrator shall have a number of votes as to all matters decided by the Panel
equal to the sum of (i) the votes of all Party Designated Arbitrators, and (ii)
one.
9.5. The Panel may, in its discretion, convene and act by conference
call for all purposes other than taking oral testimony.
