PHYSICIAN EMPLOYMENT AGREEMENT
THIS PHYSICIAN EMPLOYMENT AGREEMENT (the "Agreement") dated as of
February 21, 1997 (the "Execution Date"), is entered into by and between , QPQ
CORPORATION, a Florida corporation and its successors and assigns (the
"Company") and XXXX X. XXXXXXX, M.D. (the "Physician").
PRELIMINARY STATEMENTS
1. Simultaneous with the execution and delivery of this Agreement,
QPQ Corporation, a Florida corporation, the Physician and Xxxx X. Xxxxxxx, M.D.,
P.A., a Florida professional association (the "PA") closed the transactions
memorialized by a Stock Purchase Agreement, dated as of the __ day of February,
1997 (the "Stock Purchase Agreement"). All capitalized terms not defined in this
Agreement shall have the meanings given them in the Asset Purchase Agreement.
2. The Company desires to employ the Physician and the Physician
desires to serve the Company, on the terms and subject to the conditions
contained in this Agreement.
In consideration of the parties' promises and mutual covenants in this
Agreement, the Company and the Physician agree as follows:
AGREEMENT
1. EMPLOYMENT. The Company employs the Physician and the Physician
accepts the employment upon this Agreement's terms and conditions.
2. TERM OF EMPLOYMENT. Unless terminated earlier under the provisions
of this Agreement, the initial term of employment of the Physician shall be for
a period of three (3) years (the "Term"), commencing on February __, 1997 (the
"Commencement Date") and expiring on January 31, 2001 (the "Expiration Date").
One Hundred Eighty (180) days prior to the expiration of the Term, Physician may
elect to extend the term for a period of two (2) years (the "Renewal Term") by
sending a written notice to Company. The Renewal shall be upon the same terms
and conditions as contained in this Agreement (except where otherwise specified
in this Agreement). Any written notice from Physician to the Company notifying
Company of the Physician's intent to extend the Term shall be a "Renewal
Notice".
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3. COMPENSATION. During the Term and Renewal Term, the Physician
shall be compensated as follows:
(a) SALARY COMPENSATION.
(i) BASE COMPENSATION. Provided that this Agreement has
not been terminated, the Company shall pay to the Physician as compensation for
the performance of his duties under this Agreement, base compensation at an
annual rate of: (i) One Hundred Thousand Dollars ($100,000.00) during the Term
and any Renewal Term. The Base Compensation may be adjusted as described on
Schedule 3(a)(i) attached hereto and incorporated herein by reference ("Adjusted
Compensation").
Physician Base Compensation or Adjusted Compensation shall be paid every other
Friday, in equal installments, or at more frequent intervals as the Board of
Directors may determine, subject to all applicable withholdings, set offs and
taxes.
(ii) INCENTIVE COMPENSATION. Provided that this Agreement
has not been terminated, during each year of the Term and any Renewal Term, the
Physician shall be entitled to receive the following sums (collectively, the
"Incentive Compensation"):
(a) Two Thousand Five Hundred Dollars ($2,500.00) for
every Ten Thousand Dollars ($10,000.00) of net revenues
derived from the Physician's provision of professional
services (the "Physician Services") at the Company's
Offices listed on Schedule 3(a)(ii) which net revenues are
in excess of the base net revenues derived from the
Physician Services at those PA Offices for the twelve (12)
months immediately preceding the Closing Date. Net
revenues are defined as cash collections of the Physician
and Base net revenues shall be equal to Two Hundred Sixty
Thousand Dollars ($260,000.00);
(b) In the event that net revenues derived from the
Physician's provision of professional services (the
"Physician Services") at the Company's Offices listed on
Schedule 3(a)(ii), equal or exceed Two Hundred Sixty
Thousand Dollars ($260,000.00) for the first twelve months
Physician is employed by the Company, Physician shall be
entitled to a one time bonus of Twenty Thousand Dollars
($20,000.00) within ninety (90) days after such net
revenues exceed Two Hundred Sixty Thousand Dollars
($260,000.00).
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All Incentive Compensation payable pursuant to this Agreement shall be paid to
Physician annually within ninety (90) days of the end of each calendar year
during the Term and any Renewal Term, subject to applicable withholdings,
insurance co-payments and other taxes. The Physician shall be entitled, upon
reasonable request to the Company, to be given access to records directly
related to the net revenues from the Physician Services.
(iii) RETIREMENT BONUS. Provided that this Agreement has
not been terminated, if during the Term, net revenues derived from Physician
Services exceed One Million Two Hundred Thousand Dollars ($1,200,000.00) and
Physician elects to extend the Term by sending a Renewal Notice to Company, at
the end of the Renewal Term Physician shall be entitled to a bonus of
Twenty-Five Thousand Dollars ($25,000.00) payable in cash.
(b) EMPLOYEE BENEFIT PLANS. The Physician shall be entitled to
participate in or benefit from the benefits that are afforded to other Company
employees. The Company retains the right to terminate or alter in its sole and
absolute discretion, any plans or policies from time to time. The Company's
existing benefit plans are described on Schedule 3(b), which benefits may be
altered or terminated by the Company at any time. However, the Company shall be
required to provide non-HMO health insurance for Physician and his wife.
(c) VACATION AND SICK DAYS. The Physician shall accrue five (5)
weeks paid vacation time during each 12 month calendar year commencing February
1, 1997. Vacation days shall be used within the contract year, and shall only be
used at the times and intervals mutually agreed upon between Physician and the
Company. The Physician shall not be entitled to any additional compensation for
unused vacation days. Additionally, any time spent by Physician on education,
through the attendance of lectures, seminars or other educational activities,
when Physician would otherwise be providing services to the Company shall be
considered vacation time.
(d) LICENSES, STAFF FEES AND PROFESSIONAL FEES. During the Term and
all Renewal Terms, the Company shall pay Physician's applicable hospital medical
staff fees and professional license fees which enable Physician to fulfill his
obligations under this Agreement.
(e) PROFESSIONAL LIABILITY INSURANCE. During the Term and all Renewal
Terms, the following will apply:
(i) the Company shall insure, at its cost, the Physician
under the Company's current professional liability policy written by PPTF
("Physicians, Insurance") in the amount of $500,000.00 for each claim and
$1,000,000.00 annual aggregate limit and the costs for such insurance shall be
borne by the Company;
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(ii) in the event the Company determines to provide
professional liability insurance for the Physician from other than Physicians'
Insurance, at its costs, the Company agrees to provide coverage limits no less
than as specified in subsection (i) above;
(iii) subject to Section 3(e)(vi), the Company may, in its
absolute sole discretion, with the consent of the Physician, at any time during
the Term and the Renewal Term, continue, modify, change or substitute the
malpractice insurance policy coverage for Physician and/or the Company for
Physician's provision of medical services while acting in the scope of his
employment pursuant to the terms and conditions of this Agreement which was
obtained pursuant to Company's obligations under this Agreement;
(iv) Physician shall immediately execute and deliver, in
strict accordance with Company's written instructions, all documents and
instruments necessary to effectuate the provisions of this Section; and,
(v) Physician agrees to act in full accordance with the
terms and conditions of any and all malpractice insurance policies, copies of
which shall be provided to the Physician.
(vi) subject to Section 3(e)(i) and (ii), Company will
obtain a continuous claims made professional liability insurance policy to cover
Physician pursuant to the terms of this Agreement. The Company shall, at the
Company's expense, continue to cover Physician for medical malpractice claims
arising out of his employment under this Agreement through a date four (4) years
from the date of termination by: (i) continuing the continuous claims made
professional liability insurance policy; (ii) purchasing a replacement
continuous claims made professional liability insurance policy with retroactive
coverage which does not create any lapse in coverage; or, (iii) purchasing
appropriate tail coverage to meet its obligation under this subparagraph.
(f) WITHHOLDINGS. The Company may withhold from any compensation or
other benefits payable under this Agreement, or arrange for the payment of, any
federal, state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
(g) MOVING. The Company shall pay for all costs and expenses
incurred by Physician for the moving of Physician's office from its current
location to Company's office in Aventura, Florida.
4. EMPLOYMENT DUTIES.
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(a) The Physician agrees during his employment under this Agreement
to: (i) provide medical services on behalf of the Company as a duly licensed
physician under the laws of the State of Florida; and (ii) perform any other
duties and assignments relating to the business of the Company, its affiliates
and subsidiaries, as the Company's Board of Directors or its delegatees directs,
provided further that those duties or assignments shall be reasonably related to
the Physician's expertise and experience ((i) and (ii) shall be collectively,
the "Physician Duties"). During the Term and Renewal Term, the Physician shall,
except during vacation periods, approved leaves and periods of illness, devote
his entire business time and attention to the performance of the Physician
Duties, consistent with his current schedule, under this Agreement and shall use
his best efforts, skills and abilities to perform his duties in accordance with
applicable laws which are brought to his attention by the Company and to promote
the Company's best interests.
(b) CALL. The Physician agrees and acknowledges that his services may
be necessary on evenings and weekends, and shall be available for weekday and
weekend call in accordance with the Company's reasonable call policies and
schedules.
(c) ACCESS TO RECORDS. Upon written request, and in accordance with
Title 42 of the United States Code, Section 1395(x)(v)(1)(I), as amended,
Physician agrees to make available to the Secretary of the United States
Department of Health and Human Services or the Comptroller General of the United
States, or any of their duly authorized representatives, this Agreement, all
documents and records necessary to certify the nature and extent of services
provided by Physician under this Agreement.
(d) REIMBURSEMENT OF EXPENSES. The Company agrees to pay for or
reimburse Physician for any reasonable business expenses, incurred by the
Physician and approved by the Company. In addition, the Company shall provide
Physician with a car allowance of Five Hundred Dollars ($500) per month, beeper,
cellular phone and pay for the following dues; AMA, FMA, DCMA.
(e) MISCELLANEOUS.
(i) The Physician further agrees and acknowledges that he
shall comply with and follow all written policies, standards, rules and
regulations established by the Company in performing the Physician Duties under
this Agreement, and agrees to be bound by and comply with the terms and
conditions of other agreements to which the Company is a party to, or to which
it may become a party to, with hospitals, ambulatory surgical centers, insurance
companies, third party payors and other providers of medical services in
connection with the provision of medical services.
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(ii) Without the Company's prior written consent (which
consent shall not be unreasonably withheld), the Physician shall not, during his
employment under this Agreement, render medical services, or any other related
services, for any other person or entity as an employee, agent, independent
contractor or otherwise.
(iii) Except as described in Schedule 4(e)(iii) (the
'Outside Services"), without the Company's prior written consent (which shall
not be unreasonably withheld), the Physician shall not, during his employment
under this Agreement, devote any time to consulting, lecturing, or engaging in
any other self-employment or employment activities. The Company consents to the
Physician's participation in the Outside Services, provided that: (a) the
Outside Services are not provided during the time period when the Physician's
services are required pursuant to this Agreement; and, (b) the Outside Services
do not affect, in any manner whatsoever, the Employee's ability to perform the
services required pursuant to this Agreement.
(iv) The Physician shall immediately notify the Company of
any and all incidents, unfavorable occurrences, notices or claims made arising
out of his services as soon as he becomes aware of this information and shall
cooperate in any investigation and in the defense of any incidents, unfavorable
occurrences, notices and claims.
5. DUTY TO ACCOUNT.
(a) Physician shall assign, account, and pay to the Company all
accounts receivable, compensation and any other form of remuneration due from or
paid by any source other than the Company attributable to medical services he
has rendered in his professional capacity on behalf of the Company under this
Agreement or sums which come into his possession which are attributable to the
services of other employees of the Company, (collectively the "Company
Receivables"), except as Company may otherwise agree in writing. Physician
appoints the Company as his attorney in fact to execute, deliver and/or endorse
checks, applications for payments, insurance claim forms or other instruments or
documents, convenient or required in the exclusive discretion of the Company to
fully collect, secure and realize all sums due to the Company in respect to
services provided under this Agreement. The power of attorney is coupled with an
interest, is irrevocable and shall survive the expiration or termination of this
Agreement for a time period without limitation. Disability insurance benefits
and medical expense reimbursements received by Physician pursuant to any formal
plan of the Company shall not be considered a Company Receivable for purposes of
this Section.
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(b) All Company Receivables shall be the sole property of the
Company. In no event shall Physician be entitled to any portion of the Company
Receivables, or the proceeds from Company Receivables, during the Term, any
Renewal Terms or after the termination of this Agreement, whether or not Company
Receivables may have been derived in any way from the performance of Physician
pursuant to the terms of this Agreement.
6. REPRESENTATIONS AND WARRANTIES. The Physician represents and
warrants to the Company as follows:
(a) Physician is a physician duly licensed to practice medicine under
the laws of the State of Florida;
(b) Physician has complied with all laws, rules and regulations
relating to the practice of medicine and is able to enter into and perform all
duties under this Agreement;
(c) Physician is not a party to or bound by any other agreement or
commitment, or subject to any restriction or agreement related to previous
employment or consultation containing confidentiality or non-compete covenants
or other relevant restrictions which may have a possible present or future
adverse affect on the Company or the Physician in the performance of his duties
under this Agreement; and,
(d) to his knowledge, Physician is in good physical and mental health
for his age and does not suffer from any illness or disability which could
prevent him from fulfilling his responsibilities under this Agreement; and,
(e) the Physician has never: (i) had his professional license, Drug
Enforcement Agency number, Medicare provider status or staff privileges at any
hospital or medical facility suspended, relinquished, terminated or revoked;
(ii) been reprimanded, sanctioned or disciplined by any licensing board or any
federal, state, or local society or agency, governmental body, hospital, third
party payor or specialty board; or, (iii) had a final judgment or settlement
without judgment entered against him in connection with a malpractice or similar
action for an amount in excess of Five Thousand Dollars ($5,000.00).
The Physician agrees to immediately notify the Company of any fact or
circumstance which occurs or is discovered during the Term and Renewal Term,
which in itself or with the passage of time and/or the combination with other
reasonably anticipated factors does render or will render any of these
representations and warranties to be untrue.
7. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. The Physician acknowledges that as a
result of the Physician's employment with the Company, the Physician has and
will necessarily become informed of, and have access to, certain valuable and
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confidential information of the Company, including, without limitation, trade
secrets, technical information, plans, lists of patients, data, records, fee
schedules, computer programs, manuals, processes, methods, intangible rights,
contracts, agreements, licenses, personnel information and the identity of
health care providers (collectively, the "Confidential Information"), and that
the Confidential Information, even though it may be contributed, developed or
acquired in whole or in part by the Physician, is the Company's exclusive
property to be held by the Physician in trust and solely for the Company's
benefit. Accordingly, except as required by law, the Physician shall not, at any
time, either during or subsequent to the Term and any Renewal Terms, use,
reveal, report, publish, copy, transcribe, transfer or otherwise disclose to any
person, corporation or other entity, any of the Confidential Information without
the prior written consent of the Company, except to officers and employees of
the Company and except for information which legally and legitimately is or
becomes of general public knowledge from authorized sources other than the
Physician.
(b) RETURN OF CONFIDENTIAL INFORMATION. Upon the termination of this
Agreement, the Physician shall promptly deliver to the Company all Company
property and possessions including all drawings, manuals, letters, notes,
notebooks, reports, copies, deliverable Confidential Information and all other
materials relating to the Company's business which are in the Physician's
possession or control.
8. NON-COMPETITION. Without the Company's prior written consent, which
may be withheld in its absolute sole discretion, Physician agrees that he will
not during the Term and the Renewal Term of his employment under this Agreement
and at any time within a one-year period from the date of termination of
employment pursuant to Section 10 of this Agreement anywhere within five (5)
miles from any location where the Physician provided the Physician either
directly or indirectly, on his own behalf or as a principal, partner,
stockholder, officer, employee, agent, consultant independent contractor,
director or trustee of any person, partnership, entity, firm or corporation:
(a) own, manage, operate, control or otherwise engage in a Competing
Business (as defined below), or receive any compensation in any capacity from
any Competing Business;
(b) other than as a patient himself or as the Company directs, have
any business relationship, in any capacity whatsoever, with any IPA, PHO, or any
other form of an integrated delivery system, competing medical practice or
medical services delivery system which is operated in or affiliated in any
manner with medical practices in the Restricted Area;
(c) attempt to solicit or solicit the patients or facilities
serviced by the Company to terminate, curtail or restrict their relationship
with the Company or attempt to provide or provide those patients or facilities
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with medical services previously furnished to them by the Physician while
employed by the Company during the Term and any Renewal Terms;
(d) otherwise divert or attempt to divert from the Company any
business or business opportunity whatsoever; or,
(e) attempt to solicit or solicit any person employed or contracted
by the Company, or any of their affiliates, to leave their employment or not
fulfill their contractual responsibility, whether or not the employment or
contracting is full-time or temporary, pursuant to a written or oral agreement,
or for a determined period or at will.
The term "Competing Business" shall mean any business which is
competitive with the Company, which is specifically agreed to by the parties to
be the management, provision and operation of medical services, including the
operation and management of a management services organization ("MSO") available
for contract to physicians, hospitals, healthcare facilities, integrated
delivery systems, PHOS, IPAs and physician networks; and, the acquisition and
operation of primary care and specialty physician offices.
In the event that the Company commits a breach of a material term of
this Agreement, the Stock Purchase Agreement or the Promissory Note dated
February 12, 1997 between the parties (after the Company has received at least
thirty (30) days written notice of that material breach and the Company has
failed to remedy that breach within the thirty day period) then Sections 8(a),
(b), (c) and (d) shall not apply.
9. REMEDIES. The Physician and the Company each acknowledge that: (i)
the services Physician will render under this Agreement are special and unique
and cannot be replaced by the Company; (ii) the event of a breach by the
Physician of the provisions of Sections 4(c), 5, 7, 8 or 11(a) will cause the
Company irreparable harm; and, (iii) monetary damages in an action at law would
not provide an adequate remedy in the event of a breach. Accordingly, the
Physician agrees that, in addition to any other remedies (legal, equitable or
otherwise) available to the Company, the Company may seek and obtain injunctive
relief against the breach or threatened breach of the provisions of Sections
4(c), 5, 7, 8 or 11(a) as well as all other rights and remedies available at law
and equity including, without limitation, the right to be indemnified by
Physician for all claims, damages, actions, suits whatsoever for a breach of
Sections 4(c), 5, 7, 8 or 11(a) and if the Company prevails in litigation
against the Physician, its reasonable attorneys' fees, expenses and costs
incurred in enforcing any provisions of Sections 4(c), 5, 7, 8 or 11(a), whether
or not litigation is instituted, and if instituted, at pre-trial, trial and
appellate levels. Nothing contained in this Section 9 shall be construed as
prohibiting the Company and all other injured parties from pursuing all other
remedies available to them for a breach or threatened breach of the provisions
of Sections 4(c), 5, 7, 8 or 11(a), including the recovery of compensatory and
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punitive damages from Physician. Physician further acknowledges and agrees that
the covenants contained in Sections 4(c), 5, 7, 8 or 11(a) are necessary for the
protection of the Company's legitimate business and professional duties, ethical
obligations and interests, and are reasonable in scope and content.
10. TERMINATION. This Agreement may be terminated prior to the
expiration of the Term described in Section 2, upon the occurrence of any of the
following events:
(a) DEATH. This Agreement will automatically terminate upon the
death of the Physician. The Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Physician's
beneficiary or beneficiaries from and after the date of the Physician's death,
other than as provided in Section 10(e).
(b) DISABILITY. This Agreement may be terminated at the Company's
option, exercisable in its absolute sole discretion, if the Physician shall
suffer a permanent disability. For the purposes of this Agreement, the term
"permanent disability" means the Physician's inability to perform his duties
under this Agreement for a period of any six (6) consecutive months due to
illness, accident or any other physical or mental Incapacity. The Company shall
have no further obligation under this Agreement to make any payments to, or
bestow any benefits on, the Physician from and after the date of termination
under this provision, other than as provided in Section 10(e).
(c) CAUSE. This Agreement may be terminated for cause at the
Company's option, at any time. Cause shall mean, for purposes of this Agreement,
the Physicians: (i) material breach of any provision of this Agreement; (ii)
willful refusal to perform any duty directed by the Company's Board of Directors
or a supervising officer, an executive of the Company or any authorized
delegates, which is reasonably within the scope of the Physician's duties; (iii)
misappropriation of assets or business opportunities of the Company for personal
or non-Company use; (iv) conviction of any criminal act except for a minor
traffic offense; (v) commission of fraud, embezzlement, or breach of trust
relating to or arising out of his relationship with the Company, its
subsidiaries and affiliates; (vi) revocation or suspension of Physician's
license to practice medicine under the laws of the State of Florida after appeal
rights have been exhausted (provided that a good faith and probable appeal has
been made); (vii) inability to obtain adequate professional liability coverage
in accordance with Section 3(e) of this Agreement due to the Physician's claims
history or fault; (viii) failure or inability to competently and adequately
perform his historic duties under this Agreement as determined by the Company's
Board of Directors, exercisable in its reasonable discretion; or, (ix)
Physician's breach of his obligations contained in Section 11(a) of this
Agreement. Prior to the Company's termination of this Agreement for cause under
Section 10(c), the Company shall first have provided Physician with at least
thirty (30) days prior written notice and Physician shall have not, within that
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thirty (30) days remedied, to the Company's reasonable satisfaction, the basis
of that termination. The Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Physician from
and after the date of the Physician's termination under this provision, other
than as provided in Section 10(e).
This Agreement may be terminated for cause at the Physician's option, for
the Company's failure to materially perform its obligations to the Physician
under this Agreement after the Company has received at least thirty (30) days
prior written notice of that material failure and the Company has failed within
that thirty (30) day period to remedy that substantial failure to the
Physician's reasonable satisfaction.
(d) VOLUNTARY. This Agreement may be terminated by the Physician by
sending writeen notice to the Company that Physician doen not elect to extend
the Term. The Company shall have no further obligation under this Agreement to
make any payments to, or bestow any benefits on, the Physician from and after
the date of termination of this Agreement under this provision, other than as
provided in Section 10(e).
(e) OBLIGATIONS. In the event of a termination under Sections 10(a),
(b), (c) or (d), the Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Physician from
and after the date of termination, other than payments or benefits accrued and
due and payable to Physician prior to the date of the termination. Physician
shall, upon Company's request and immediately upon notice, vacate all premises,
including all facilities serviced by the Company. Physician shall return all of
the property of the Company and its affiliates that is in his possession or
control.
11. MISCELLANEOUS.
(a) SUBSTANCE ABUSE POLICY. It is the Company's policy (the
"Policy") that none of its employees shall use or abuse any controlled
substances at any time (other than those medications lawfully prescribed by a
medical doctor in a reasonable diagnosis and which do not interfere with the
Employee's capacity to perform his or her obligations under this Agreement) or
be under the influence of alcohol or be affected by the use of alcohol during
the time period required to perform their duties and obligations under any
employment agreements. Company and Physician both acknowledge and agree that the
purpose of this Policy is for the benefit of the Company, the Physician and the
individuals whom they serve.
In compliance with this Policy, during the Term and any
Renewal Terms Physician agrees to submit to random drug testing immediately upon
the Company's request. Testing may include, but shall not be limited to, the
taking of blood and urine samples and utilization of gas chromatography. In the
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event that a positive test result is reached indicating a violation of the
Company's Policy, the Physician may, at his own expense and subject to the
supervision and approval of the Company of the manner and testing facilities
utilized, elect to have a second drug test performed, at a time which is no
longer than two days after the initial positive results were received by the
Company and the Employee. The Company may, in its sole and absolute discretion,
terminate the Physician for cause pursuant to Section 10(c) of this Agreement in
the event either: (i) a positive test result is received in the initial drug
test and the Physician fails to exercise his option for a second test in the
manner provided for in this Section; or, (ii) positive test results are received
from both tests. In the event that the second test result is negative, the
Company may, at any time, retest the Physician pursuant to the terms of this
Section.
(b) SURVIVAL. The provisions of Sections 6, 7, 8, 9, 10(d) and 11
shall survive the termination of this Agreement for a time period without
limitation.
(c) ENTIRE AGREEMENT; WAIVER. This Agreement contains the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties relating to this Agreement's
subject matter. This Agreement may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions shall be
binding unless in writing and signed by the party against whom it is sought to
be enforced; provided however, that Physician's compensation may be increased at
any time by the Company without in any way affecting any of the other terms and
conditions of this Agreement, which in all other respects shall remain in full
force and effect. Failure of a party to enforce one or more of the provisions of
this Agreement or to require at any time performance of any of the obligations
under this Agreement shall not be construed to be a waiver of any provisions by
a party nor to in any way affect the validity of this Agreement or a party's
right to enforce any provision of this Agreement, nor to preclude a party from
taking any other action at any time which it would legally be entitled to take.
(d) MERGERS AND CONSOLIDATION; SUCCESSORS AND ASSIGNS. Physician
shall not have the right to assign or delegate this personal service Agreement,
or any of his rights or obligations under this Agreement, without the Company's
consent. The preceding sentence shall not hinder the Physician's estate from
being entitled to receive all accrued and unpaid compensation and benefits due
to Physician at the time of his death. The Company may freely assign and
delegate all of its rights and duties under this Agreement. Additionally, the
parties each agree that upon the sale of all or substantially all of the assets,
business and goodwill of the Company to another company or any other entity, or
upon the merger or consolidation of the Company with another company or any
other entity, this Agreement shall inure to the benefit of, and be binding upon,
both Physician and the Company and any entity purchasing the assets, business
and goodwill, or surviving merger or consolidation.
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(e) ADDITIONAL ACTS. The Physician and the Company each agrees to
execute, acknowledge and deliver all further instruments, agreements or
documents and do all further acts that are necessary or expedient to carry out
this Agreement's intended purposes. Each party recognizes that time is of the
essence with respect to each of their obligations in this Agreement. Each party
agrees to act as soon as practicable in light of the particular circumstances
and use their best efforts in as timely a fashion as possible to maximize the
intended benefits of this Agreement.
(f) NOTICES. Whenever any notice, demand or request is required or
permitted under this Agreement, that notice, demand or request shall be either
hand-delivered in person or sent by United States Mail, registered or certified,
postage prepaid, or delivered via overnight courier to the addresses below or to
any other address that either party may specify by notice to the other party.
Neither party shall be obligated to send more than one notice to the other party
and no notice of a change of address shall be effective until received by the
other party. A notice shall be deemed received upon hand delivery, two business
days after posting in United States Mail or one business day after dispatch by
overnight courier.
To the Company: QPQ CORPORATION
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX
Xxxxxxxx Xxxxxxxx, C.E.O.
To the Physician: XXXX X. XXXXXXX, M.D.
0000 Xxxxxx Xxxxx Xxxxx
Xxx. 0000
Xxxxxxxx, XX. 00000
(g) HEADINGS. The headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
otherwise affect the construction of the terms or provisions of this Agreement.
References in this Agreement to Sections are to the sections of this Agreement.
(h) CONSTRUCTION. This Agreement shall be construed without regard
to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted, including any presumption of superior
knowledge or responsibility based upon a party's business or profession or any
professional training, experience, education or degrees of any member, agent,
officer or employee of any party. If any words in this Agreement have been
stricken out or otherwise eliminated (whether or not any other words or phrases
have been added) and the stricken words initialed by the party against whom the
words are construed, this Agreement shall be construed as if the words so
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stricken out or otherwise eliminated were never included in this Agreement and
no implication or inference shall be drawn from the fact that those words were
stricken out or otherwise eliminated.
(i) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(j) SEVERABILITY. The invalidity or unenforceability of any one or
more of the words, phrases, sentences, clauses, or sections contained in this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement or any part of any provision, all of which are
inserted conditionally on their being valid in law, and in the event that any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid or unenforceable, this Agreement shall
be construed as if such invalid or unenforceable word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted or shall be enforced as nearly as possible according to their
original terms and intent to eliminate any invalidity or unenforceability. If
any invalidity or unenforceability is caused by the length of any period of time
or the size of any area set forth in any part of this Agreement, the period of
time or area, or both, shall be considered to be reduced to a period or area
which would cure the invalidity or unenforceability.
(k) GOVERNING LAW. This Agreement is made and executed and shall be
governed by the laws of the State of Florida, without regard to its conflicts of
laws principles.
(1) NO THIRD PARTY BENEFICIARIES. All obligations of the Company
under this Agreement are imposed solely and exclusively for the benefit of
Physician, and no other person will have standing to enforce, be entitled to or
be deemed to be the beneficiary of any of these obligations.
(m) LITIGATION; PREVAILING PARTY. In the event of any arbitration or
litigation, including appeals, with regard to this Agreement, the prevailing
party shall be entitled to recover from the non-prevailing party all reasonable
fees, costs, and expenses of counsel (at pre-trial, trial and appellate levels).
(n) JURISDICTION; VENUE; INCONVENIENT FORUM; JURY TRIAL. ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED BY
ANY COURT IN RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS OF THE
STATE OF FLORIDA OR IN THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA IN DADE COUNTY, AND THE PARTIES ACCEPT THE EXCLUSIVE PERSONAL
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JURISDICTION OF THOSE COURTS FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING.
IN ADDITION, THE PARTIES KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY NOW OR LATER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED BY ANY COURT BROUGHT IN THE
STATE OF FLORIDA, AND FURTHER, KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE
ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE STATE OF FLORIDA
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY WAIVES ALL RIGHTS TO ANY
TRIAL BY JURY IN ALL LITIGATION RELATING TO OR ARISING OUT OF THIS AGREEMENT.
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Each of the parties have duly executed this Agreement as of the
Execution Date.
COMPANY:
QPQ CORPORATION, a Florida
Corporation
Date: February 21, 1997 By: /s/ Xxxxxxxx Xxxxxxxx
----------------- ----------------------------------
Xxxxxxxx Xxxxxxxx, Chairman & CEO
PHYSICIAN:
Date: February 21, 1997 /s/ Xxxx X. Xxxxxxx
----------------- ----------------------------------
Xxxx X. Xxxxxxx, M.D.
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SCHEDULE 3(A)(I)
----------------
ADJUSTMENT TO BASE COMPENSATION
XXXX X. XXXXXXX, M.D.
1. If Physician shall attain the one hundred percent (100%) of Physician's
Collections Productivity Target of $260,000, there shall be no adjustment
to Physician's Base Compensation.
2. This calculation and reduction, if any, shall be made on a noncumulative
basis and the Adjusted Compensation for purposes of this Section shall be
the Adjusted Compensation for that year without application of any prior
year Compensation Reduction. The application of this paragraph is
illustrated by the following example:
e.g. First Year Base Compensation = $100,000.00
----------------------------
Second Year = $234,000.00
-----------
(attain 90% of Collection Target
$260,000 x 90%)
Base Compensation: $100,000.00
Less: Compensation Reduction
($260,000 - 234,000 = $26,000
$26,000 x 40%) $(10,400.00)
------------
Base Compensation - Year 2 $ 89,600.00
===========
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