EXHIBIT 10.117
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED NAME AND LIKENESS AGREEMENT
This First Amendment ("Amendment") is made and entered into
effective as of October 1, 2001 (the "Effective Date") to the Third Amended and
Restated Name and Likeness Agreement referenced below by and between xxxxxx.xxx,
Inc., DBA Xx. Xxxx LifeCare Corporation ("Company" or "Employer") and C. Xxxxxxx
Xxxx, M.D., an individual ("Koop") (together the "Parties").
RECITALS
WHEREAS, the Parties had entered into a Third Amended and
Restated Name and Likeness Agreement on May 1, 2001 (the "Original Agreement");
and
WHEREAS, the Parties now want to amend the Original Agreement to
make such changes as are specifically covered herein and as specifically
identified in italics.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, and in
consideration of the mutual covenants and conditions herein set forth, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
Section 3(Z) is hereby deleted and revised to read in its entirety as
follows:
a $15,000 monthly consulting fee, payable on the fifteenth (15th) day of
each month, beginning on or about the fifteenth (15th) day after the Effective
Date. Said consulting fee shall terminate upon the death or incapacity of Koop.
The Parties acknowledge that the aforementioned salary represents a reduction
from said salary set forth in the Original Agreement. Said reduction shall be
deferred, and consequently accrued by Koop until Employer achieves cash flow
surplus on a pro-forma operating basis. Upon achieving said status, Employer
will revert Koop's salary to the amount set forth in the Original Agreement and
reimburse Koop the accrual over a three-month period, provided that said
reimbursement does not result in a monthly cash flow deficit by Employer. In the
event Employer cannot raise additional operating capital sufficient to continue
its business operations, Employer shall use its best efforts to reimburse the
aforementioned accrual to Koop. However, the Parties acknowledge that this
representation of "best efforts" does not amount to a promise or guarantee on
the part of Employer. The Parties further acknowledge that any and all
salary-related consideration referenced in Koop's Original Agreement and
otherwise, including but not limited to severance pay and vacation accrual,
shall be controlled and governed by the base salary amount referenced in the
Original Agreement. In the event of change of control on the part of Employer or
termination of Koop without cause or good reason, all accrued salary shall
become immediately due and payable to Koop.
**************
Except as set forth in this Amendment, the Original Agreement shall remain in
full force and effect and references in the Original Agreement to "this
Agreement", "hereunder", "herein", "hereof", and words of like effect shall mean
the Original Agreement as so amended by this Amendment.
This Amendment may be executed in one or more counterparts and/or by facsimile,
each of which shall be deemed an original and all of which signed counterparts,
taken together, shall constitute one instrument.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the Effective
Date referenced above.
C. Xxxxxxx Xxxx, M.D. Xx. Xxxx LifeCare Corporation
By: /s/ C. XXXXXXX XXXX By: /s/ XXXXXXXXXXX XXXXXXXX
-------------------------------- --------------------------------
Name: C. Xxxxxxx Xxxx, M.D. Name: Xxxxxxxxxxx Xxxxxxxx
Title: Vice President
