EXHIBIT 2.1
EMPLOYMENT AGREEMENT
BY AND BETWEEN
XXXXX X. XXXXX, M.D., P.C.,
MIOA ACQUISITION COMPANY V, INC.
AND
XXXXX X. XXXXX, M.D.
THIS EMPLOYMENT AGREEMENT (the "Agreement") is executed by and
between Xxxxx X. Xxxxx, M.D., P.C., a Virginia professional corporation (the
"Company"), MIOA Acquisition Company, V, Inc. ("Acquisition Corp"), a wholly
owned subsidiary of Medical Industries of America, Inc. ("MIOA"),and Xxxxx X.
Xxxxx, M.D. ("Physician") to be effective as of the Effective Date (hereinafter
the "Commencement Date") of that certain Merger Agreement by and between
Company, Physician, MIOA and Acquisition Corp (hereinafter the "Merger
Agreement").
WHEREAS, the Company is engaged in the practice of medicine
through physician employees (hereinafter referred to as the "Business"); and
WHEREAS, the Company anticipates merging with and into the
Acquisition Corp whereby Acquisition Corp shall be the surviving corporation in
accordance with the Merger Agreement; and
WHEREAS, the Company and upon effectiveness of the Merger, the
Acquisition Corp, desire to employ Physician and Physician desires to accept or
continue such employment during the term of this Agreement upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company, Acquisition Corp
and Physician agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND TITLE. As of the Commencement Date, the Company
employs Physician, and Physician accepts such employment, as President, Medical
Director and a Medical Doctor of the Company, all upon the terms and conditions
set forth herein.
1.2 DEVOTION TO EMPLOYMENT. During the term of this Agreement, Physician shall
faithfully devote his full time, attention, knowledge, energy and skills on
behalf of the Company and as MIOA may otherwise direct, and he shall not engage
in any other gainful employment; provided, however, that nothing contained
herein shall prohibit Physician from performing certain non-patient related
personal services outside his employment by the Company (e.g., speeches
involving honoraria or expert witness services involving expert witness fees) or
from having a financial interest or business arrangement with the facilities
identified in Exhibit "A" attached hereto.
1.3 SERVICES.
1.3.1 During the Term (as hereinafter defined) of this
Agreement, Physician shall at the direction of the Company's CEO and
Board of Directors make decisions about the day-to-day medical and
business operations of the Company.
1.3.2 Physician shall render professional medical services on behalf of
the Company in accordance with all federal, state, AMA and state
medical licensing board regulations, guidelines, practices and
policies, including such duties as may be assigned to him by the
policies committee of the Company whose written communications to
Physician are adopted by the Company as guidelines and incorporated
herein by reference.
1.3.3. Physician shall insure that all medical records,
including, without limitation, doctors notes, progress notes,
discharge notes, patient files, encounter tickets, documents and
reports relative to the Company's patients shall be properly
prepared, filed and maintained in such form as required by insurance
companies, Medicare, Medicaid and/or governmental agencies.
1.3.4. Physician shall also be responsible for managing and
supervising all medical personnel employed by the Company in
connection with the operation of the Company's Business wherever
located.
1.3.5. Physician agrees to assure a standard of medical care
that is consistent with the laws of State of Virginia and the
Federal government with the applicable contractual obligations of
the Company and the prevailing standards of medical practice and
care in the community.
1.3.6. Physician shall be responsible for all aspects of the
practice of medicine and the delivery of medical services for the
Company.
1.3.7. Physician shall assist the Company and MIOA in
expanding their businesses through internal growth as well as
through acquisitions.
1.4 OFFICE LOCATION. The principal place of employment and the
location of Physician's principal office shall be at 00 X. Xxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 (the "Office").
1.5 REPRESENTATIONS. Each party represents and warrants to the other
that he/it has full power and authority to enter into and perform this Agreement
and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Other than as provided
herein, each party represents that no consent or approval of any third party is
required for his/its execution, delivery and performance of this Agreement or
that all consents or approvals of any third party required for her/its
execution, delivery and performance of this Agreement have been obtained.
ARTICLE II
TERM
2.1 TERM. The term of Physician's employment hereunder (the "Term")
shall commence as of the Commencement Date and shall continue through the fourth
(4th) anniversary of the Commencement Date (the "Scheduled Termination Date")
unless renewed or earlier terminated pursuant to the provisions of this
Agreement. Unless sooner terminated as set forth herein, this Agreement shall be
automatically renewed after the original four (4) term for successive one (1)
year terms unless the party electing not to renew provides the other party with
written notice of such election at least one thirty (30) days prior to the
Scheduled Termination Date or the last day of the renewal term, as applicable.
ARTICLE III
COMPENSATION AND BENEFITS
3.1 BASE SALARY. As compensation for the services to be rendered by
Physician, the Company shall pay Physician, during the Term of this Agreement,
an annual base salary of Two Hundred Thousand Dollars ($200,000.00) provided
Company profits and cash flow are sufficient to pay such amount. Such base
salary shall accrue monthly (prorated for periods less than a month) and shall
be paid every two (2) weeks, in arrears.
3.2 INCENTIVE COMPENSATION. The Company shall also pay Physician during the term
of this Agreement annual incentive compensation. Such annual incentive
compensation shall be equal to a percentage of the Company's annual pre-tax net
income as determined as of December 31st of each year by the Company's
independent certified accountants based upon generally accepted accounting
principles ("Company Profits") as follows:
3.2.1 Ten (10) percent of Company Profits over $1,000,000.00 through
$1,500,000.00;
3.2.2 Fifteen (15) percent of Company Profits over $1,500,000.00
through $2,000,000.00;
3.2.3 Twenty (20) percent of Company Profits over $2,000,000.00
through $2,500,000.00;
3.2.4 Twenty-five (25) percent of Company Profits over
$2,500,000.00.
Such incentive compensation shall be paid on or before April 1 of
each year for the Company's immediately preceding fiscal year ending December
31st.
3.3 NONQUALIFIED STOCK OPTIONS. As approved by the stock option committee MIOA,
the Company may grant to Physician stock options to acquire MIOA's restricted
common stock.
3.4 BENEFITS. Physician shall be entitled, during the Term hereof, to the same
medical, hospital, pension, profit sharing, dental, disability and life
insurance coverage and benefits as are available to the Company's most senior
executive officers on the Effective Date. In addition, Physician shall be
entitled to such time off with pay for attendance at seminars, courses, meetings
and conventions as is authorized by the Company.
3.5 AUTOMOBILE. Physician, as a condition to his employment, shall provide an
automobile for use in the conduct of his duties on behalf of the Company, and
the Company shall pay to Physician a reasonable allowance determined by the
Company to defray the cost of insurance, gas, oil, repairs, maintenance and
other expenses incurred by Physician in connection with the operation of such
automobile. Any expenses in excess of such allowance shall be the responsibility
of the Physician. Physician shall be required to maintain written records of the
percentage of total miles for which Physician uses such automobile for business
purposes and for personal purposes, respectively.
3.6 WITHHOLDING. Any and all amounts payable under this Agreement, including,
without limitation, amounts payable under this Article III, which are subject to
withholding for such federal, state and local taxes as the Company, in its
reasonable judgment, determines to be required pursuant to any applicable law,
rule or regulation will be subject to the applicable withholding provisions.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 WORKING FACILITIES AND EXPENSES. Physician shall be furnished
with an office at the Office of the Company, or at such other location as agreed
to by Physician and the Company, and other working facilities and secretarial
and other assistance suitable to his position and reasonably required for the
performance of his duties hereunder. The Company shall reimburse Physician for
all of Physician's reasonable expenses incurred while employed and performing
his duties under and in accordance with the terms and conditions of this
Agreement, subject to Physician's full and appropriate documentation, including,
without limitation, receipts for all such expenses in the manner required
pursuant to Company's policies and procedures and the Internal Revenue Code of
1986, as amended (the "Code") and applicable regulations as are in effect from
time to time. Such reasonable expenses shall include, without limitation,
licensing costs, continuing medical education and certification costs and the
cost of such medical malpractice, health, life and disability insurance polices
as the parties shall mutually agree.
4.2 INSURANCE. The Company and MIOA may secure in their own names or
otherwise, and at their own expense, life, disability and other insurance
covering Physician or Physician and others, and Physician shall not have any
right, title or interest in or to such insurance other than as expressly
provided herein. Physician agrees to assist the Company and MIOA in procuring
such insurance by submitting to the usual and customary medical and other
examinations to be conducted by such physicians(s) as the Company, MIOA or such
insurance company may designate and by signing such applications and other
written instruments as may be required by any insurance company to which
application is made for such insurance.
ARTICLE V
ILLNESS OR INCAPACITY
5.1 RIGHT TO TERMINATE. If, during the Term of this Agreement,
Physician shall be unable to perform in all material respects his duties
hereunder for a period exceeding six (6) consecutive months by reason of illness
or incapacity, this Agreement may be terminated by the Company in its reasonable
discretion pursuant to Section 7.2 hereof.
5.2 RIGHT TO REPLACE. If Physician's illness or incapacity, whether
by physical or mental cause, renders him unable for a minimum period of thirty
(30) consecutive calendar days to carry out his duties and responsibilities as
set forth herein, the Company shall have the right to designate a person to
replace Physician temporarily in the capacity described in Article I hereof;
provided, however, that if Physician returns to work from such illness or
incapacity within the six (6) month period following his inability due to such
illness or incapacity, he shall be entitled to be reinstated in the capacity
described in Article I hereof with all rights, duties and privileges attendant
thereto.
5.3 RIGHTS PRIOR TO TERMINATION. Physician shall be entitled to his
full remuneration and benefits hereunder during such illness or incapacity
unless and until an election is made by the Company to terminate this Agreement
in accordance with the provisions of this Article.
5.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of this
Article V, the term "illness or incapacity" shall mean Physician's inability to
perform his duties hereunder substantially on a full-time basis due to physical
or mental illness as determined by a qualified, independent physician or
psychiatrist, as the case may be, selected by the Company.
ARTICLE VI
CONFIDENTIALITY
6.1 CONFIDENTIALITY. Physician shall not divulge, communicate, use
to the detriment of the Company, MIOA or any of its subsidiaries, or for the
benefit of any other business, firm, person, partnership or corporation, or
otherwise misuse, any "Confidential Information", pertaining to the Company,
MIOA or any of its subsidiaries including, without limitation, all (i) data or
trade secrets, including secret processes, formulas or other technical data;
(ii) production methods; (iii) patient and customer lists; (iv) personnel lists;
(v) proprietary information; (vi) financial or corporate records; (vii)
operational, sales, promotional and marketing methods and techniques; (viii)
development ideas, acquisition strategies and plans; (ix) financial information
and records; (x) "know-how" and methods of doing business; and (xi) computer
programs, including source codes and/or object codes and other proprietary,
competition-sensitive or technical information or secrets developed with or
without the help of Physician. Physician acknowledges that any such information
or data he may have acquired was received in confidence and by reason of his
relationship to the Company. Confidential Information, data or trade secrets
shall not include any information which: (a) at the time of disclosure is within
the public domain; (b) after disclosure becomes a part of the public domain or
generally known within the industry through no fault, act or failure to act,
error, effort or breach of this Agreement by Physician; (c) is known to the
recipient at the time of disclosure; (d) is subsequently discovered by Physician
independently of any disclosure by the Company or MIOA; (e) is required by
order, statute or regulation, of any governmental authority to be disclosed to
any federal or state agency, court or other body; or (f) is obtained from a
third party who has acquired a legal right to possess and disclose such
information.
6.2 NON-REMOVAL OF RECORDS. All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the Company which Physician shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Physician's employment with
the Company for any reason, shall not be removed from the Company's premises
without the Company's prior written consent or if in Physician's possession or
under his control shall be immediately returned to the Company.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. This Agreement and the employment of
Physician may be terminated by the Company "For Cause" under any one of the
following circumstances:
(a) Physician commits any material act of fraud, misappropriation
or theft against the Company or MIOA.
(b) Physician's default or breach of any material provision of
this Agreement including without limitation Physician's
failure to faithfully and diligently perform his duties
pursuant to this Agreement; provided, that Physician shall
not be in default or breach hereunder unless he shall have
failed to cure such default or breach within thirty (30)
days of written notice thereof by the Company to Physician.
Notwithstanding, Physician may be terminated pursuant to
this provision if he shall have duly received written
notice on at least two prior instances of the same or
substantially similar breach or default (whether or not
cured by Physician).
(c) Physician engages in gross misconduct or is grossly negligent
in the performance of his duties hereunder.
(d) Physician is convicted of or pleads guilty to a felony offense
which is directly related to his duties and responsibilities
to the Company or that might otherwise materially adversely
affect the Company or Physician's ability to carry out his
duties and responsibilities pursuant to this Agreement.
(e) The loss, or suspension for a period longer than six (6)
months of Physician's license to practice medicine in the
State of Virginia resulting from acts or omissions of
Physician.
(f) Physician not being insurable for professional liability
insurance as the result of acts or omissions on the part of
Physician.
(g) Physician's status as an approved medical provider under the
federal Medicare/Medicaid system being revoked, or suspended
for a period greater than three (3) months.
(h) Physician becoming chemically dependent (as hereinafter
defined) on alcohol or any drugs. Physician shall be
considered to have a "chemical dependency" or to be
"chemically dependent" on alcohol or any drugs if the
Board of Directors of MIOA, in its reasonable discretion,
believes that Physician may be chemically dependent and
requests that Physician submit to an independent medical or
psychological examination, the results of which confirm a
chemical dependency. Physician shall not be terminated for
chemical dependency if this is a first occurrence of
chemical dependency by Physician and Physician enters an
approved treatment program and successfully continues such
program through completion. If Physician refuses to submit
to an independent examination to determine chemical
dependency, or does not successfully complete the treatment
program, or if this is a second or subsequent occurrence of
a chemical dependency, the Company shall be entitled to
terminate this Agreement.
(i) At the election of Physician. and the Company refuses to
consent to such election.
(k) At the election of the Company if the Company sustains net
operating losses (as determined by its accountants ) for any
three (3) consecutive quarterly periods.
A termination For Cause under this Section 7.1 shall be effective
upon the date set forth in a written notice of termination delivered in
accordance with the notice provisions of this Agreement.
7.2 TERMINATION WITHOUT CAUSE. This Agreement and the employment of
the Physician may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto.
(b) At the election of the Company (which shall be done by its
giving not less than thirty (30) days written notice to
Physician) in the event of an illness or incapacity described
in Article V.
(c) Upon Physician's death.
(d) Upon the removal of Physician from the office of Medical
Director and President of the Company or in the event the
Company fails to afford Physician the power and authority
generally commensurate with the position and the duties
required hereunder.
(e) At the election of the Physician if the Company or MIOA
requires Physician to relocate his residence outside of
Staunton, Virginia.
A termination Without Cause under Section 7.2(b) hereof shall be
effective upon the date set forth in a written notice of termination delivered
in accordance with the notice provisions of such section. A termination Without
Cause under Section 7.2(a) hereof shall be automatically effective upon the date
of mutual agreement. A termination Without Cause under Sections 7.2(c) or (d)
hereof shall be effective upon the date such event takes place. A termination
Without Cause under Section 7.2(e) hereof shall be automatically effective upon
the date of Physician's election.
7.3 EFFECT OF TERMINATION FOR CAUSE. If Physician's employment
is terminated "For Cause":
(a) Physician shall be entitled to accrued base salary under
Section 3.1 hereof through the date of termination.
(b) Physician shall be entitled to receive all benefits as would
have been awarded under Section 3.4 hereof through the date of
termination, which benefits shall be awarded as and when the
same would have been awarded under the Agreement had it not
been terminated.
(c) Physician shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the
provisions of Sections 3.5 and 4.1 hereof.
(d) All unpaid incentive compensation and unvested stock options
under Sections 3.2 and 3.3 hereof, respectively, shall be
forfeited. This provision shall also include any "Options" as
that term is defined in those certain Non-qualified Stock
Option Trust dated __________, 1998 of which by virtue of an
addendum to same effective as of the Effective Date Physician
will become a beneficiary.
(e) Except as provided in Article X, this Agreement shall
thereupon terminate and cease to be of any further force or
effect.
7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Physician's
employment is terminated "Without Cause":
(a) Physician shall be entitled to accrued base salary under
Section 3.1 hereof through the date of termination.
(b) Physician shall be entitled to receive all benefits as would
have been awarded under Section 3.4 hereof through the date of
termination, which benefits shall be awarded as and when the
same would have been awarded under the Agreement had it not
been terminated.
(c) Physician shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the
provisions of Sections 3.5 and 4.1 hereof.
(d) Physician shall be entitled to receive all amounts of
incentive compensation as would have been payable under
Section 3.2 hereof through the original Term of this
Agreement, which amounts shall be paid as and when the same
would have been paid under the Agreement had it not been
terminated.
(e) All unvested stock options, if any, under Section 3.3 hereof
shall immediately vest in full.
(f) Physician shall be entitled to a lump sum severance payment in
an amount equal to one hundred twenty thousand dollars
($120,000.00).
(g) Except as provided in Article X, this Agreement shall
thereupon terminate and cease to be of any further force or
effect.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 NONCOMPETITION; CONFIDENTIALITY. As an inducement to the Company
to execute this Agreement and in order to preserve the goodwill associated with
the business of the Company and in addition to and not in limitation of any
covenants contained in any agreement executed and delivered herewith, Physician
hereby covenants and agrees as follows:
A. COVENANT NOT TO COMPETE. During the term of this Agreement
and for a period of two (2) years after its termination "For Cause", Physician
will not directly or indirectly:
(1) be employed by, engage in, continue in or carry
on any business which competes with the Business of the Company or any business
of the Acquisition Corp, MIOA or any of its subsidiaries that is substantially
similar thereto, including owning or controlling any financial interest in any
corporation, partnership, firm or other form of business organization which is
so engaged;
(2) be employed by, consult with, advise or assist
in any way, whether or not for consideration, any corporation, partnership, firm
or other business organization which is now or becomes a competitor of the
Company or the Acquisition Corp in any aspect with respect to the Business of
the Company or the Acquisition Corp, including, but not limited to, advertising
or otherwise endorsing the products of any such competitor; soliciting patients
and customers or otherwise serving as an intermediary for any such competitor;
loaning money or rendering any other form of financial assistance to or engaging
in any form of business transaction on other than on an arm's length basis with
any such competitor;
(3) offer employment to an employee of the Company,
MIOA or any of its subsidiaries, without the prior written consent of MIOA; or
(4) engage in any practice the purpose of which is
to evade the provisions of this covenant not to compete or to commit any act
which adversely affects the Company, the Acquisition Corp or their business;
provided, however, that the foregoing shall not prohibit the
ownership of securities of corporations which are listed on a national
securities exchange or traded in the national over-the-counter market in an
amount which shall not exceed 5% of the outstanding shares of any such
corporation. The parties agree that the geographic scope of this covenant not to
compete shall extend in an outward radius of 15 miles from any clinic, lab,
medical facility or any other business of the Company, Acquisition Corp or any
similar business of any other subsidiary of MIOA. The parties agree that the
Company or the Acquisition Corp, as the case may be, may sell, assign or
otherwise transfer this covenant not to compete, in whole or in part, to any
person, corporation, firm or entity that purchases all or part of the Company's,
or the Acquisition Corp's, business. In the event a court of competent
jurisdiction determines that the provisions of this covenant not to compete are
excessively broad as to duration, geographical scope or activity, it is
expressly agreed that this covenant not to compete shall be construed so that
the remaining provisions shall not be affected, but shall remain in full force
and effect, and any such over broad provisions shall be deemed, without further
action on the part of any person, to be modified, amended and/or limited, but
only to the extent necessary to render the same valid and enforceable in such
jurisdiction.
B. EQUITABLE RELIEF FOR VIOLATIONS. Physician agrees that the
provisions and restrictions contained in this Section are necessary to protect
the legitimate continuing interests of the Company and MIOA and that any
violation or breach of these provisions will result in irreparable injury to the
Company and MIOA for which a remedy at law would be inadequate and that, in
addition to any relief at law which may be available to the Company and/or MIOA
for such violation or breach and regardless of any other provision contained in
this Agreement, the Company and MIOA shall be entitled to injunctive and other
equitable relief as a court may grant after considering the intent of this
Section.
8.2 SEVERABILITY. If any covenant or provision contained in Article
VIII is determined to be void or unenforceable in whole or in part, it shall not
be deemed to affect or impair the validity of any other covenant or provision.
If, in any arbitration or judicial proceeding, a tribunal shall refuse to
enforce all of the separate covenants deemed included in this Article VIII, then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
ARTICLE IX
MISCELLANEOUS
9.1 NO WAIVERS. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
9.2 NOTICES. Any notice to be given to the Company and Physician
under the terms of this Agreement may be delivered personally, by telecopy,
telex or other form of written electronic transmission, or by registered or
certified mail, postage prepaid, and shall be addressed as follows:
IF TO THE COMPANY: 00 X. Xxxxxxxx Xxxxxx
Masonic Lodge, 2nd floor
Xxxxxxxx, XX 00000
WITH A COPY TO: Medical Industries of America, Inc.
0000 X. Xxxxxxxx Xxx., #000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, President
IF TO PHYSICIAN: Xxxxx X. Xxxxx, M.D.
00 X. Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, 0xx floor
Xxxxxxxx, XX 00000
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
9.3 SEVERABILITY. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
9.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
the successors, including the Acquisition Corp, and assigns of the Company,
including the survivor upon any merger, consolidation, share exchange or
combination of the Company with any other entity. Physician shall not have the
right to assign, delegate or otherwise transfer any duty or obligation to be
performed by him hereunder to any person or entity.
9.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Virginia without reference
to the conflict of law principles thereof.
9.7 SECTION HEADINGS. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
9.8 FURTHER ASSURANCES. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
9.9 GENDER. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "her" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
9.10 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which taken together shall be deemed one original.
ARTICLE X
SURVIVAL
10.1 SURVIVAL. The provisions of Articles VI, VII, VIII, and IX, of this
Agreement shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
MIAO ACQUISTION COMPANY V, INC. XXXXX X. XXXXX, M.D., P.C.
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXX X. XXXXX
Title: President
EMPLOYEE
/s/ XXXXX X. XXXXX M.D.
Xxxxx X. Xxxxx, M.D.
