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EXHIBIT 10.9
PHYSICIAN EMPLOYMENT AGREEMENT
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THIS PHYSICIAN EMPLOYMENT AGREEMENT (the "Agreement") dated as of
April 10, 1997 (the "Execution Date"), is entered into by and between ARTHRITIS
AND RHEUMATIC DISEASE SPECIALITIES, INC., a Florida corporation and its
successors and assigns (the "Company") and XXXXXX XXXXXX, M.D. (the
"Physician").
PRELIMINARY STATEMENTS
1. Simultaneous with the execution and delivery of this
Agreement, ContinuCare Corporation, a Florida corporation and Sheridan
Healthcorp, Inc., a Florida corporation closed the transactions memorialized by
two Stock Purchase Agreements, dated as of April 10, 1997 (the "Stock Purchase
Agreements") whereby ContinuCare acquired all of the issued and outstanding
stock of Xxxxxx Xxxxxx, Inc. and Arthritis and Rheumatic Disease Specialties,
Inc. All capitalized terms not defined in this Agreement shall have the meanings
given them in the Stock Purchase Agreements.
2. Physician is currently employed by Arthritis and Rheumatic
Disease Specialties, Inc. pursuant to an Employment Agreement dated January 4,
1996. The Physician desires to terminate such Employment Agreement and to enter
this Employment Agreement.
3. 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 four (4) years (the "Term"), commencing on April 10,
1997 (the "Commencement Date") and expiring on March 31, 2001 (the "Expiration
Date"). One Hundred Eighty (180) days prior to the expiration of the Term, the
Company may elect, in its sole discretion, to extend the term for a period of
three years (the "First Renewal Term") by sending a written notice to the
Physician. One Hundred Eighty (180) days prior to the expiration of the First
Renewal Term and any Additional Renewal Terms (as defined below), the Company
may elect, in its sole discretion, to extend the term for consecutive three-year
periods (the "Additional Renewal Terms") by sending a written notice to
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the Physician. The First Renewal Term and the Additional Renewal Terms shall be
collectively the "Renewal Terms" and shall be upon the same terms and conditions
as contained in this Agreement (except where otherwise specified in this
Agreement). Any written notice from the Company to the Physician notifying
Physician of the Company's intent to extend the Term or any Renewal Terms shall
be a "Renewal Notice".
The Physician, in his sole discretion, may reject the Company's
election for any Renewal Terms, by sending a notice to the Company within twenty
(20) days of the Renewal Notice (a "Rejection Notice"). If the Physician rejects
an extension of the Term or any Renewal Terms, then this Agreement shall
terminate upon the Expiration Date of the Term or Renewal Term then in effect.
If the Physician fails to timely send the Company a Rejection Notice, then this
Agreement shall be extended for the First Renewal Term or any Additional Renewal
Term, as applicable.
3. COMPENSATION. During the Term and all Renewal Terms, 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) Four Hundred Fifty Thousand Dollars ($450,000.00) during the Term;
and, (ii) Five Hundred Thousand Dollars ($500,000.00) during any Renewal Terms.
The Physician shall be paid Base Compensation bi weekly in substantially equal
installments, or at more frequent intervals as the Board of Directors may
determine, subject to all applicable withholdings, set offs, and taxes.
(ii) REDUCTION OF BASE COMPENSATION. The Company acknowledges
that Physician serves, on the Company's behalf, as Medical Director of various
inpatient and outpatient hospital programs throughout the North Dade and South
Dade areas. In the event that all of these programs are terminated and a
replacement program or programs are not implemented by the Company within six
(6) months of the termination of all of these programs which generate at least
Two Hundred Thousand Dollars ($200,000.00) of revenue, Physician's current base
salary at the time the six (6) month period has elapsed shall be reduced an
amount equal such reduction but in no event shall such reduction be more than
Two Hundred Thousand Dollars ($200,000.00).
(iii) 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 fifty percent (50%) of earnings before
interest, taxes, depreciation and amortization ("EBITDA") derived from the
Physician's provision of professional services (the "Physician Services") at the
PA Offices listed on Schedule 3(a)(ii) which EBITDA is in excess of Three
Hundred Sixty Five Thousand Dollars ($365,000.00) derived from the Physician
Services at
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those PA Offices or any future offices opened by the Company where Physician
provides Physician Services. 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 all Renewal Terms, subject to
applicable withholdings, insurance copayments and other taxes. The Physician
shall be entitled, upon reasonable request to the Company, to be given access to
records directly related to the EBITDA from the Physician Services..
(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.
(c) VACATION AND SICK DAYS. The Physician shall accrue six (6) weeks
paid vacation time during each 12 month calendar year commencing April 10, 1997.
The Physician shall also accrue ten (10) paid sick days the contract year he is
employed under this Agreement. Vacation and sick days shall be used within the
contract year, and vacation days 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 and sick 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 PhyBician'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 Zurich-American
Insurance Company ("Physicians' Insurance") in the amount of $1,000,000.00 for
each claim and $3,000,000.00 annual aggregate limit and the costs for such
insurance shall be borne by the Company;
(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, at any time during the Term and all Renewal Terms,
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
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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.
4. EMPLOYMENT DUTIES.
(a) The Physician agrees during his employment under this
Agreement to: (i) serve, at the pleasure of the Company's Board of Directors, as
the Company's President; (ii) provide medical services on behalf of the Company
as a duly licensed physician under the laws of the State of Florida; (iii)
provide the Physician Services; and, (iv) 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), (ii), (iii) and (iv) shall be
collectively, the "Physician Duties"). During the Term and any Renewal Terms,
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 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.
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(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) ACTIVITIES. The Company agrees to pay for or reimburse
Physician for any reasonable business expenses including, without limited to a
car allowance of five hundred dollars ($500) per month, cellular phone, beeper
and other normal business expenses incurred by the Physician and approved by the
Company.
(e) MISCELLANEOUS. 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.
(i) 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.
(ii) Except as described in Schedule 4(e)(ii) (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.
(iii) 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
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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.
(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 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).
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The Physician agrees to immediately notify the Company of any
fact or circumstance which occurs or is discovered during the Term and any
Renewal Terms, 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
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: (i) during the Term and any Renewal Terms of his employment under this
Agreement and at any time within a two-year period from the date of termination
of employment pursuant to Section 10 of this Agreement anywhere within
twenty-five (25) miles from any location where the Physician provided medical
services (the "Restricted Area"); 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
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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
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 hospital-based medical services,
including pathology and rheumatology services for hospitals, ambulatory surgical
facilities and similar organizations; the management and organization of any
rheumatology networks; the provision of rheumatology services; 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 (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.
Notwithstanding anything contained in this Section 8, should the Company not
elect to extend the Term or any Renewal Term by sending Physician a Renewal
Notice as described in Section 2, then Sections B(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
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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
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 Physicianls: (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 duties under this Agreement as determined by the Company's Board of
Directors,
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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)(ii, vi or viii), the
Company shall first have provided Physician with at least thirty (30) days prior
written notice and Physician shall have not, within that 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 either party,
without cause, upon the following events: (i) by the Company by not electing to
extend the Term or any Renewal Terms as described in Section 2; or, (ii) by the
Physician by sending a Rejection Notice. 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
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and utilization of gas chromatography. In the 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.
(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.
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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: Arthritis and Rheumatic Disease Specialities, Inc.
000 XX 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxx Xxxxx, General Counsel
To the Physician: Xxxxxx Xxxxxx, M.D.
000 XX 000xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx Xxxxx, 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
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.
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(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
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:
ARTHRITIS AND RHEUMATIC
DISEASE SPECIALITIES, INC.,
a Florida corporation
By: /s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx, Executive Vice President
PHYSICIAN:
XXXXXX XXXXXX, M.D.
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx, M.D.
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