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EXHIBIT 10.15
February 17, 1999
Xx. Xxxx Xxxxxxxx
000 Xxxxxxx
Xxxxxx Xxxx, XX 00000
Dear Xxxx:
This letter sets forth the terms and conditions of the agreement (this
"Agreement") made as of the date hereof, by and between you and Medical
Alliance, Inc., a Texas corporation, its predecessors, affiliates, subsidiaries,
successor and assigns (collectively referred to hereinafter as "MAI").
Notwithstanding anything herein to the contrary, this Agreement shall only
become effective upon the consummation of a merger (the "Merger") of MAI with
and into Diagnostic Health Services, Inc., or any of its subsidiaries
(collectively, "DHS").
In consideration of the promises, covenants and obligations set forth
herein, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and agreed, you and MAI agree as follows:
1. Effective as of the closing of the Merger (the "Closing"), you
hereby agree that you will be deemed to have resigned as the
Chief Executive Officer of MAI, and you shall be deemed to have
accepted the position of President of the Office Division of MAI.
You shall remain employed as the President of the Office Division
of MAI for a six (6) month period immediately following the
Closing (the "Employment Term"). In addition, during the
Employment Term, you shall receive your current monthly salary of
$16,666.67 and all employee benefits (including, without
limitation, health, life and disability benefits, auto allowance
and expenses reimbursement) you currently receive under your
Employment Agreement with the Company, dated as of January 1,
1994, as amended (the "Employment Agreement"), and you will also
be entitled to receive two-weeks paid vacation.
2. For a two year period commencing immediately upon the expiration
of the Employment Term (the Severance Term"), you will receive
monthly payments, payable on the first day of each month, equal
to $16,666.67 for an aggregate of $400,000 (the "Severance
Payments"), subject to Item 9 below. During the Severance Term,
you agree that, to the extent you have time available, you will,
at MAI's request, assist MAI in such capacity as the Chief
Executive Officer of DHS may from time to time reasonably
request, and as mutually agreed to by you. In addition, during
the Severance Term, you shall receive all employee benefits
(including, without limitation) health, life and disability
benefits) you currently receive under the Employment
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Agreement, as if you continued to be employed by MAI (provided,
however, that if any employee benefit plan providing such
coverage excludes the continued participation of you or any of
your dependents or beneficiaries, then MAI shall arrange to
provide to you or such eligible dependents or beneficiaries
substantially similar benefits, at MAI's cost). In addition,
during the Severance Term, you shall be entitled to be reimbursed
for all expenses incurred by you on behalf of MAI, as requested
by MAI.
3. At the Closing, you will receive a xxxx of sale whereby MAI shall
transfer to you your current office couch, chairs, bookshelf,
coffee table, desk table, computer and facsimile machine at no
charge to you.
4. After the Closing, upon receipt of invoices from your counsel,
MAI shall pay to you up to $2,700 in legal fees you incur with
regard to the transactions contemplated by this Agreement.
5. You, for yourself, and for your heirs and assigns, do hereby
fully and finally release and covenant not to xxx XXX, its
officers, directors, employees, shareholders, agents, affiliates,
successors, predecessors and assigns (collectively referred to
hereinafter as the "Releasees"), from all claims, damages,
actions, liabilities, responsibilities, causes of action based on
or arising out of your employment relationship with MAI prior to
the date hereof. Notwithstanding the foregoing covenant not to
xxx, you shall be entitled to xxx XXX to enforce your rights and
benefits under this Agreement, and this Agreement shall not waive
or release any rights you may have to (i) non-forfeitable
benefits under any MAI benefit plans; (ii) convert any group
benefits under any MAI sponsored employee benefit plans to
individual coverage, to the extent any such plan allows such
conversion; or (iii) continue coverage under any MAI medical plan
pursuant to Part 6 of Title I of the Employee Retirement Income
Security of 1974, as amended. You covenant and warrant that you
are the holder of any such claim(s) and have not assigned to
transferred any such claim(s) or interest therein to any person
or entity.
6. MAI and you agree to submit to final and binding arbitration any
and all disputes, claims (whether in tort, contract, statutory,
or otherwise) and/or disagreements arising between them,
concerning the interpretation or application of this Agreement.
Such arbitration shall take place in Dallas, Texas, in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA"). MAI and you agree that a judgment of the
United States District Court for the Northern District of Texas,
Dallas Division may be entered upon the award made pursuant to
any such arbitration. MAI and you agree that this arbitration
provision has been included to rapidly and inexpensively resolve
any disputes between you and MAI, and that, this arbitration
provision shall be grounds for dismissal of any
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court action commenced by either party, other than
post-arbitration actions seeking to enforcement an arbitration
award.
7. MAI, on its behalf and on behalf of its affiliates, subsidiaries,
successors and assigns hereby release you from any and all claims
arising out of your employment with MAI prior to the date hereof,
and the performance of (or a failure to perform) your duties as
an employee of MAI prior to the date hereof.
8. If MAI issues a press release regarding any of the matters
described therein, MAI shall submit the form thereof to you for
comments, although no approval shall be required (it being the
intent of MAI to accommodate your comments to the extent
possible).
9. Reference is hereby made to the Agreement to Purchase Stock,
dated September 11, 1998 (the "Purchase Agreement"), by and among
you, MAI and Chase Bank of Texas, National Association ("Bank").
If, at the time of payment of any Severance Payment, the amount
owing under the Note (as defined in the Purchase Agreement) is
greater than the amount of the remaining Severance Payments
(including the Severance Payment which then is to be made), then
MAI shall pay such Severance Payment to Bank on behalf of you in
order to pay-down the Note, with such payment constituting a
payment to you of such Severance Payment. MAI agrees not to
voluntarily purchase any of the Pledged Stock (as defined in the
Purchase Agreement), as permitted in the last sentence of Section
1 of the Purchase Agreement, on or prior to March 1, 2000.
It is the desire and intent of you and MAI that the provisions of this
Agreement shall be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought. If
any one or more of the provisions contained in this Agreement is held to be
excessively broad as to duration, scope, activity or subject matter, to the
extent allowable by law such provisions will be construed by limiting and
reducing them as to be enforceable to the maximum extent compatible with
applicable law.
You further acknowledge and reaffirm that you are bound by the terms
and conditions of the nondisclosure of confidential information and
noncompetition provisions contained in the Employment Agreement (the
"Noncompetition and Confidentiality Provisions").
This Agreement is not to be construed as an admission of liability by
either you or MAI. Both you and MAI expressly deny any liability whatsoever to
the other, and this Agreement will not be offered or received in evidence in any
action or proceeding as an admission of liability or wrongdoing of any kind by
one of us against the other.
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You covenant and warrant that you have read and understand all of the
terms and conditions of the Agreement and that you are voluntarily entering into
this Agreement of your own free will. You also represent and acknowledge that
you have been advised by MAI, in writing through this Agreement, to consult with
an attorney of your choice prior to signing this Agreement.
This Agreement will be construed, interpreted and enforced in
accordance with the laws of the State of Texas.
This Agreement is the final and complete agreement between you and MAI
with respect to the subject matter hereof, and supersedes and replaces all other
agreements, arrangements or understandings between the parties whether oral or
written with respect to the subject matter hereof (including, without
limitation, the Employment Agreement), with the sole exception of the
Noncompetition and Confidentiality Provisions. No modifications, alterations or
amendments to this Agreement will be valid unless made in writing and signed by
you and MAI.
If you are in agreement with the terms and conditions set forth above,
please sign in the space provided below and return this letter to me. A copy of
this letter has been provided for your files. Once this Agreement has been
signed by both parties, you will have seven (7) days from the date of signature
to rescind this Agreement by written notice to MAI (if so rescinded, this
Agreement will become null and void).
MEDICAL ALLIANCE, INC.
By: /s/ X. XXXX
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Its: President and COO
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AGREED TO AND ACCEPTED
as of the date first set forth above
/s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
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