EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective as of the 28th day
of April 2003, by and between RENAL CARE GROUP, INC., a Delaware corporation
(the "Company"), and XXXX X. XXXXXXXX (hereinafter "Employee").
WITNESSETH:
WHEREAS, Employee is currently Executive Vice President and Chief
Operating Officer of the Company, and the Company desires to employ and retain
Employee to act as its Chief Executive Officer and President; and
WHEREAS, Employee desires to remain an employee of the Company on the
terms and conditions contained in this Agreement; and
NOW, THEREFORE, in consideration of the compensation payable to
Employee by the Company pursuant to this Agreement, and the mutual promises,
covenants, representations and warranties contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do agree as
follows:
1. Employment.
The Company employs Employee and Employee accepts employment
with the Company under the terms of this Agreement effective as of April 28,
2003 (the "Effective Date").
2. Term.
The term of this Agreement shall begin on the Effective Date
and shall continue for an initial term of approximately three years, ending on
April 30, 2006 (the "Initial Period"), subject to earlier termination by
Employee or the Company as hereinafter provided. Unless one party gives the
other notice of non-renewal not less than 60 days prior to the expiration of
the Initial Period or an additional term, this Agreement shall renew for
additional terms of 12 months each, subject to earlier termination as
hereinafter provided, on the same terms and conditions (subject to mutually
agreeable modifications, if any).
3. Compensation and Benefits.
(a) Base Compensation. The Company shall pay Employee a
base salary at an annual rate of $550,000 from the Effective Date through March
31, 2004 (the "Base Compensation"). Such Base Compensation may be adjusted as
provided herein. The Base Compensation is payable according to the pay periods
of the Company as may be in effect from time to time. Such payments will be
prorated for periods less than a full pay period. The Base Compensation will be
subject to withholding for federal, state and local payroll and all other taxes
or withholdings applicable to Employee. Any increases of the Base Compensation
will be at the discretion of the Company, provided that the Company may not
decrease the then current Base Compensation without the consent of Employee.
The Base Compensation and target percentage for the Annual Bonus (as defined
below) will be reviewed annually by the Compensation Committee of the Company.
(b) Benefits. During the term of this Agreement,
Employee shall also be entitled to participate in the insurance and other
fringe benefits made available generally to senior management employees of the
Company, as such benefits may be determined from time to time by the Company,
provided that Employee shall have at least four weeks of paid vacation time. In
addition, during the term of this Agreement, the Company will pay Employee an
amount equal to the greater of (1) the cost of the policy of whole life
insurance and long-term disability insurance maintained by Employee as a result
of his prior employment, or (2) the cost that would be incurred by the Company
if it provided to Employee term life insurance coverage of $2,000,000 on
Employee's life issued by the insurance company writing life insurance policies
on other senior executives of the Company.
(c) Bonuses. In addition to the Base Compensation,
Employee will be entitled to an annual bonus (the "Annual Bonus"), with a
target amount equal to 100% of the Base Compensation for such year. The actual
amount of the Annual Bonus paid will be determined based on the Company's and
Employee's achievement of performance goals reasonably established by the
Compensation Committee of the Company and, in the case of performance goals
established specifically for Employee, agreed to by Employee. The Company
agrees that the Company-related performance goals for Employee shall be
substantially similar to those established for other members of senior
management.
(d) Expenses. The Company shall reimburse Employee for
any and all expenses reasonably incurred by employee incident to the
performance of the duties imposed upon Employee hereunder.
(e) Stock Options. In addition to the compensation and
benefits described above, the Company will grant Employee options to purchase
200,000 shares of Common Stock of the Company. Such options will have an
exercise price equal to the closing price of a share of the Company's Common
Stock on the New York Stock Exchange on the Effective Date. The options granted
under this subsection (e) will vest as to 25% of the shares subject to such
option on each of the first, second, third and fourth anniversaries of such
date. These options will be subject to accelerated vesting in the event of a
change of control of the Company.
4. Duties, Extent of Services.
Employee is employed as Chief Executive Officer and President
of the Company. As such, Employee will perform such duties and responsibilities
as are typically incident thereto and will perform in a faithful and competent
manner such additional duties as may be reasonably assigned from time to time
by the Company. Throughout the term of this Agreement, Employee will report to
the Chairman of the Board of Directors of the Company. Employee's duties for
the Company will be performed on a full-time basis at the Company's corporate
offices in Nashville, Tennessee. Employee may be required, from time to time,
to perform his duties temporarily hereunder at such other place or places as
the Company shall reasonably require, provided that such period does not exceed
30 consecutive days without Employee's consent and that during any such period
Employee is able to return to Nashville, Tennessee at the Company's expense for
weekends.
Employee will devote all of Employee's business time,
attention, knowledge, and skill solely to the business and interest of the
Company, and the Company will be entitled to all the benefits, profits, and
other issues arising from, or incident to, all work, services, and advice of
Employee; provided, however, that the Company acknowledges and agrees that
Employee may continue to serve as a member of the boards of directors of other
companies on which Employee serves as of the Effective Date and may continue to
devote a reasonable amount of time to such service without violating the terms
of this Agreement.
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5. Termination.
This Agreement may be terminated by the parties in the
manners specified below:
(a) Termination without Cause. Either the Company or
Employee may terminate Employee's employment under this Agreement at any time
for any reason or no reason upon 30 days' prior written notice to the other
party.
(b) Termination for Cause. The Company may terminate
this Agreement on written notice at any time for "Cause". For purposes of this
Agreement, "Cause" means: (i) Employee is convicted of, pleads guilty to, or
confesses to a felony or any crime involving any act of dishonesty, fraud,
misappropriation, embezzlement or moral turpitude, in which event the Company
may terminate this Agreement immediately, (ii) the misconduct or gross
negligence by Employee in connection with the performance of Employee's duties
hereunder, (iii) the engaging by Employee in any fraudulent, disloyal or
unprofessional conduct which results in an injury to the Company, its
affiliates or any of its or their centers, monetarily or otherwise, (iv)
Employee breaches any provision of Section 6 of this Agreement, or (v) the
material failure by Employee otherwise substantially to perform his duties with
the Company (other than any such failure resulting from the disability of
Employee under Section 5(d)(i)) or the breach of any provision of this
Agreement other than Section 6. If the Company terminates this Agreement for
Cause pursuant to the provisions of (ii), (iii), (iv) or (v) of this subsection
(b), then the Company will give Employee written notice prior to such
termination detailing the specific acts, actions, failures, or events upon
which the forecast termination is based. Employee will have 15 days after such
written notice to cease such actions or otherwise correct any such failure or
breach. If Employee does not cease such action or otherwise correct such
failure or breach within such 15-day period, or having once received such
written notice and ceased such actions or corrected such failure or breach,
Employee at any time thereafter again so acts, fails or breaches, the Company
may terminate this Agreement immediately.
(c) Termination for Good Reason. Employee may terminate
this Agreement on written notice at any time for "Good Reason". For purposes of
this Agreement, "Good Reason" means: (i) without the express written consent of
Employee, a material diminution of his position, duties, responsibilities and
status with the Company as in effect as of the Effective Date, a change in
Employee's reporting responsibilities, a material reduction of Employee's
titles or offices as in effect on the date of this Agreement, or the removal of
Employee from, or failure to re-elect Employee to, any position referred to in
Section 4 of this Agreement, except in connection with the termination of this
Agreement for Cause; (ii) any reduction of the Base Compensation; (iii) the
requirement that Employee relocate outside of the Nashville, Tennessee
metropolitan area; (iv) the material breach by the Company of any material
provision of this Agreement, which breach continues uncorrected and uncured for
15 days after Employee gives notice of such breach to the Company; or (v) the
termination of this Agreement by written notice from Employee to the Company
during the 30-day period immediately following the first anniversary of a
Change in Control (as defined below).
(d) Involuntary Termination. The employment of Employee
hereunder will be automatically terminated by the death or disability of
Employee as outlined below.
(i) Disability. The Company may terminate this
Agreement at such time Employee as shall have been Disabled for a continuous
period of six months during any continuous 12-month period. For purposes of
this Paragraph 5(d)(i), the term "Disabled" means Employee's inability to
perform the essential functions of his duties, with or without reasonable
accommodation. During Employee's six-month period of Disability, the Company
will continue to pay Employee's Base
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Compensation (less regular withholdings for payroll or other taxes and other
required or proper items, and less proceeds from all disability insurance
policies or plans provided or made available by the Company). In the event of a
termination of Employee on account of Disability, the Company will pay
Employee's Base Compensation for a period of six months following the effective
date of termination (less regular withholdings for payroll or other taxes and
other required or proper times, and less proceeds from all disability insurance
policies or plans provided or made available by the Company). In addition, any
provisions in the relevant stock option agreements notwithstanding, all
outstanding stock options granted to Employee by the Company will vest
immediately upon termination pursuant to this Section 5(d)(i).
(ii) Death. If Employee dies during the term of
this Agreement, this Agreement shall terminate and Employee's estate shall
receive the remainder of the Base Compensation set forth in Section 3(a) hereof
accrued to the last day of the month in which death occurs. In addition, any
provisions in the relevant stock option agreements notwithstanding, all
outstanding stock options granted to Employee by the Company will vest
immediately upon termination pursuant to this Section 5(d)(i).
(e) Post-Termination Compensation. Except as provided in
Section 5(d) above, upon termination of this Agreement, the Company shall be
relieved of all of its obligations hereunder notwithstanding any period of time
remaining under the initial or any renewal term, subject to the following:
(i) Termination without Cause or with Good
Reason. If the Company terminates Employee's employment hereunder without Cause
under Section 5(a) above or if Employee terminates Employee's employment
hereunder with Good Reason under Section 5(c) above or if this Agreement
expires as a result of the Company's giving notice of non-renewal as
contemplated by Section 2 above, then the Company will pay to Employee, after
the effective date of such termination, as Employee's sole and exclusive
remedy, (A) an amount equal to (i) the Base Compensation (as then in effect)
plus an amount of Annual Bonus equal to the target percentage of Base
Compensation (as then in effect) multiplied by (ii) two (2), and (B) any unpaid
bonus payable for the most recently completed calendar year. If the Company
terminates Employee's employment without Cause or if Employee terminates
Employee's employment hereunder with good reason or if this Agreement expires
as a result of the Company's giving notice of non-renewal, Employee shall be
under no duty to seek or accept other employment; but if he shall do so, any
compensation he shall receive from such other employment will not diminish the
Company's obligation to make payments required to the Employee hereunder.
(ii) Termination without Good Reason. If
Employee terminates his employment under Section 5(a) above, then the Company's
obligation to pay Employee's Base Compensation will terminate as of the date of
termination.
(iii) Termination for Cause. If the Company
terminates Employee's employment with Cause under Section 5(b) above, then the
Company will pay Employee, after the effective date of such termination, the
Base Compensation (as then in effect) for a period of one month after the
termination date.
(iv) Termination following Change in Control.
If, within twelve (12) months following a Change in Control, either (A) the
Company terminates the employment of Employee hereunder without Cause under
Section 5(a) above or (B) Employee terminates his employment for Good Reason
under Section 5(c) above (except for a termination under clause (v) of Section
5(c)), then, in lieu of any other compensation that may be specified in this
Agreement, the Company will pay Employee an
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amount equal to (i) the Base Compensation (as then in effect) plus an amount of
Annual Bonus equal to the target percentage of Base Compensation (as then in
effect) multiplied by (ii) three (3). If Employee terminates his employment for
Good Reason under clause (v) of Section 5(c) above, then, in lieu of any other
compensation that may be specified herein, the Company will pay Employee an
amount equal to (x) the Base Compensation (as then in effect) plus an amount of
Annual Bonus equal to the target percentage of Base Compensation (as then in
effect) multiplied by (y) two (2). The Company will make any payment due under
this clause (iv) in a single lump-sum payment not later than 30 days after
termination. If any payment obligation under this Section 5(e) arises, no
compensation received from other employment (or otherwise) will reduce the
Company's obligation to make the payment(s) described in this paragraph.
(f) Change in Control. "Change in Control" means a
change in control of the Company of a nature that would be required to be
reported (assuming such event has not been "previously reported") in response
to Item 1(a) of a Current Report on Form 8-K pursuant to Section 13 or 15(d) of
the Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without
limitation, a Change in Control shall also be deemed to have occurred at such
time as:
(i) Any "person" within the meaning of Section
14(d) of the Exchange Act, other than the Company; a subsidiary, or any
employee benefit plan(s) sponsored by the Company or any Subsidiary, is or has
become the "beneficial owner," as defined in rule l3d-3 under the Exchange Act,
directly or indirectly, of 25% or more of the combined voting power of the
outstanding securities of the Company ordinarily having the right to vote at
the election of directors, or
(ii) Individuals who constitute the Board
immediately prior to any meeting of stockholders (the "Incumbent Board") have
ceased for any reason to constitute at least a majority thereof, provided that
any person becoming a director whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least three-quarters
(3/4) of the directors comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in which such person
is named as a nominee for director without objection to such nomination) will
be, for purposes of this Agreement, considered as though such person were a
member of the Incumbent Board; or
(iii) Upon approval by the Company's stockholders
of a reorganization, merger, share exchange or consolidation, other than a
reorganization, merger, share exchange or consolidation with respect to which
those persons who were the beneficial owners, immediately prior to such
reorganization, merger, share exchange or consolidation, of outstanding
securities of the Company ordinarily having the right to vote in the election
of directors own, immediately after such transaction, more than 75% of the
outstanding securities of the resulting corporation ordinarily having the right
to vote in the election of directors; or
(iv) Upon approval by the Company's stockholders
of a complete liquidation and dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the Company other than
to a Subsidiary.
6. Nondisclosure, Confidentiality; Competition.
(a) Subject to Section 6(f) below, Employee agrees that,
during the term of this Agreement and of Employee's employment by the Company,
and for a period 12 months after the termination of Employee's employment with
the Company, Employee will not in any manner, directly or indirectly, by
himself or in conjunction with any other person, (i) conduct any of the
activities or perform
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any of the responsibilities or duties that Employee provided the Company during
his employment by the Company for any business entity that is competitive with
the business of the Company or its affiliates or (ii) establish or own any
financial, beneficial or other interest in (other than an interest consisting
of less than one percent (1%) of a class of publicly traded security), make any
loan to or for the benefit of, or render any managerial, marketing or other
business advice, to any entity that is then conducting activities that are
competitive with those of the business of the Company or its affiliates, in
either case within a geographic territory defined as a 75-mile radius of any
renal dialysis center, unit or facility owned or operated by the Company or an
affiliate of the Company. For purposes of this Section, the "business of the
Company or its affiliates" means owning or operating a renal dialysis center,
unit or facility.
(b) Employee further agrees that, for a period of three
years after the termination of Employee's employment with the Company, Employee
will keep confidential and not directly divulge, or allow through a lack of
reasonable care to be divulged to anyone, or use or otherwise appropriate for
Employee's own benefit or for the benefit of others, any knowledge or
information of a confidential nature with respect to the Company's and its
affiliates' current business, the Company itself, or any of its affiliates,
including all trade secrets, pricing information, marketing information or
technical information (hereinafter referred to as the "Confidential Data"),
except for (i) a disclosure that is required by law; or (ii) information that
has been made generally available to the public by the act of one who has the
right to disclose such information; or (iii) information that has become part
of the public domain through no fault of Employee. Employee acknowledges and
agrees that the prohibitions against disclosure of Confidential Data recited
herein are in addition to, and not in lieu of, any rights or remedies the
Company may have available pursuant to the laws of any jurisdiction or at
common law to prevent the disclosure of confidential information, and the
enforcement by the Company of its rights and remedies pursuant hereto shall not
be construed as a waiver of any other rights or available remedies which the
Company may possess in law or equity. Employee acknowledges that the Company
has taken reasonable and appropriate steps to ensure the confidentiality and
non-disclosure of all such Confidential Data. For purposes of this Section the
Company's and its affiliates' "current business" means owning or operating a
renal dialysis center, unit or facility.
(c) Subject to Section 6(f) below, Employee further
agrees that, for a period of three years after the termination of Employee's
employment with the Company, Employee will not, for his own benefit or the
benefit of others, solicit any person or entity that has or has had, or disrupt
or attempt to disrupt, any relationship, contractual or otherwise, with the
Company or an affiliate of the Company (including any patient, payor,
physician, provider, managed care organization or supplier) at any time during
Employee's employment with the Company, for the purpose of assisting, or
creating such a relationship for, any business entity that is competitive with
the Company or an affiliate of the Company. For purposes of this Section, a
business entity is competitive with the Company or an affiliate of the Company
if it provides or offers any renal dialysis service that is provided by the
Company or an affiliate of the Company.
(d) Subject to Section 6(f) below, Employee further
agrees that, for a period of three years after the termination of Employee's
employment with the Company, Employee shall not induce, nor attempt to induce,
any employee of the Company, or any of its affiliates, to terminate such
employee's association with the Company or any of its affiliates.
(e) These post-employment covenants are considered by
the parties hereto to be fair, reasonable and integral for the protection of
the Company. The parties mutually agree that if a violation of any of these
covenants occurs, such violation or any threatened violation will cause
irreparable injury to the Company and the remedy at law for any such violation
or threatened violation will be inadequate.
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The parties acknowledge that these covenants will survive, and remain in effect
and enforceable after, termination of this Agreement.
(f) The Company agrees that the forgoing covenants in
subsections (a), (c) and (d) of this Section 6 shall be null and void as to any
period following termination of Employee's employment if such termination
occurs within 13 months following a Change in Control through either (A) a
termination by the Company without Cause under Section 5(a) above or (B) a
resignation by Employee for any reason.
(g) Employee agrees to indemnify and hold harmless the
Company from and against any and all claims, causes of action, damages and/or
any other losses suffered or incurred by the Company as a result of any breach
or purported breach by Employee of any agreement applicable to Employee which
existed prior to the time of the entering into of this Agreement. The
obligations of Employee to indemnify and hold the Company harmless include any
and all costs of defense of any such claim or threatened claim, including
reasonable attorneys' fees.
7. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, if any payment or distribution
by the Company to or for the benefit of Employee (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 7) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by
Employee with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Company will make an additional payment (a "Gross-Up
Payment") to Employee in an amount such that after payment by Employee of all
taxes (including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 7(c), all
determinations required to be made under this Section 7, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, will be made
by Ernst & Young LLP or such other certified public accounting firm as may be
designated by Employee (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Employee within 15 business
days of the receipt of notice from Employee that there has been a Payment, or
such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, Employee shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 7, shall be paid by the Company to Employee within five business days
of the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and Employee. It is possible
(due to the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder) that
Gross-Up Payments will not have been made by the Company which it is ultimately
determined should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. Consequently, if the Company
exhausts its remedies pursuant to Section 7(c) and Employee thereafter is
required to make a payment of any Excise
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Tax, the Accounting Firm shall determine the amount of the Underpayment that
has occurred and the Company will promptly pay any such Underpayment to or for
the benefit of Employee.
(c) Employee will notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than 10 business days after Employee
is informed in writing of such claim, and such notification will apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid. Employee will not pay such claim prior to the expiration
of the 30-day period following the date on which Employee gives such notice to
the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies Employee in
writing prior to the expiration of such period that it desires to contest such
claim, Employee will:
(i) Give the Company any information reasonably
requested by the Company relating to such claim,
(ii) Take such action in connection with
contesting such claim as the Company reasonably requests in writing from time
to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company,
(iii) Cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) Permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company will bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and will indemnify and hold Employee harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions
of this Section 7(c), the Company will control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct Employee to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Employee agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company may determine;
provided, however, that if the Company directs Employee to pay such claim and
xxx for a refund, the Company will advance the amount of such payment to
Employee, on an interest-free basis and will indemnify and hold Employee
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect to such advance;
provided, further, that any extension of the statute of limitations relating to
payment of taxes for the taxable year of Employee with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest will be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
Employee will be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Employee of an amount
advanced by the Company pursuant to Section 7(c), Employee becomes entitled to
receive any refund with respect to such claim,
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Employee will (subject to the Company's complying with the requirements of
Section 7(c)) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by Employee of an amount advanced by the Company pursuant to
Section 7(c), a determination is made that Employee is not entitled to any
refund with respect to such claim and the Company does not notify Employee in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance will be
forgiven and Employee shall not be required to repay and the amount of such
advance will offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
8. Severability.
The parties hereto hereby expressly agree and contract that
it is not the intention of either party to violate any public policy, or any
statutory or common law, and that if any paragraph, sentence, clause or
combination of the same of this Agreement will be in violation of the laws of
any state where applicable, such paragraph, sentence, clause or the combination
of the same will be void in the jurisdictions where it is unlawful, and the
remainder thereof shall remain binding on the parties hereto. It is the
intention of the parties to make the covenants of this Agreement binding only
to the extent that they may be lawfully done under existing applicable laws. In
the event that any part of any term or covenant of this Agreement is determined
by a court of law or equity to be overly broad or otherwise unenforceable, the
parties hereto agree that such court shall be empowered to substitute, and it
is the intent of the parties hereto that such court substitute, a reasonably
judicially enforceable term or limitation in the place of such unenforceable
term or covenant, and that as so modified this Agreement will be fully
enforceable.
9. Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior understandings or agreements, and any
changes or additions hereto must be in writing and signed by both parties. If
there is any conflict between the terms of this Agreement and any stock option
agreement or other agreement between Employee and the Company (including any
agreement entered into after the date of this Agreement), then this Agreement
will control unless there is specific reference to superseding this Agreement
in such other agreement or in this Agreement.
10. Assignment.
(a) The rights and benefits of Employee under this
Agreement, other than accrued and unpaid amounts due under Section 3(a) hereof,
are personal to Employee and are not assignable.
(b) This Agreement may not be assigned by the Company
except to an affiliate of the Company, provided that such affiliate assumes the
Company's obligations under this Agreement; provided, further, that if the
Company merges or effects a consolidation or share exchange with or into, or
sells or otherwise transfers substantially all its assets to, another business
entity, the Company may assign its rights hereunder to that business entity
without the consent of the Employee provided that it causes such business
entity to assume the Company's obligations under this Agreement and provided,
further, that the provisions of Section 5 remain in full force and effect
following such assignment.
11. Notice.
Unless otherwise specifically provided, references to notice
periods of a certain number of "days" contained in this Agreement are
references to calendar days. Any notice provided for in this
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Agreement shall be delivered to Employee at the most recent address of Employee
listed in the Company's then current employment records. Notice to the Company
shall be delivered to the following address: c/o Renal Care Group, Inc., 0000
Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: General
Counsel.
12. Waiver.
The waiver by any party to this Agreement of a breach of any
of the provisions contained herein will not operate or be construed as a waiver
of any subsequent breach.
13. Disputes and Governing Law.
The Company and Employee agree that any dispute arising in
connection with, or relating to, this Agreement or the termination of this
Agreement, to the maximum extent allowed by applicable law, will be subject to
resolution through informal methods and, failing such efforts, through
arbitration. Either party may notify the other party of the existence of a
dispute by written notice to the address indicated above in Section 11. The
parties will thereafter attempt in good faith to resolve their differences
within 30 days after the receipt of such notice. If the dispute cannot be
resolved within such 30-day period, either party may file a written demand for
arbitration with the other party. The arbitration shall proceed in accordance
with the terms of the Federal Arbitration Act and the Commercial Arbitration
Rules of the American Arbitration Association. A single arbitrator shall be
appointed through the American Arbitration Association's procedures to resolve
the dispute.
The parties agree that in the event arbitration is necessary,
the laws of the State of Tennessee and any applicable federal law shall apply.
The place of the arbitration shall be Nashville, Tennessee.
The award of the arbitrator shall be binding and conclusive
upon the parties. Either party shall have the right to have the award made the
judgment of a court of competent jurisdiction in the State of Tennessee.
In the event of a dispute arising under this Agreement, the
prevailing party shall be entitled to all reasonable attorneys' fees incurred
in connection with such dispute. The Company and Employee are parties to an
Indemnification Agreement effective as of August 13, 2002, which the parties
specifically ratify and confirm by this reference.
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IN WITNESS WHEREOF, the Company and Employee have executed
this Agreement on the day and year first above written.
COMPANY:
RENAL CARE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Title: Chairman
-------------------------------------
EMPLOYEE:
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
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