1
Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of January 15, 1998, by and
between RENAL CARE GROUP, INC., a Delaware corporation (the "Company"), and
XXXXXXX XXXXX, M.D., Ph.D. (hereinafter "Employee"), and supersedes and replaces
that certain Employment Agreement between the parties hereto dated as of June
__, 1996.
WITNESSETH:
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, on the terms and conditions contained herein; 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.
Effective as of January 15, 1998 (the "Effective Date"), the Company
employs Employee and Employee accepts employment with the Company under the
terms of this Agreement.
2. Term.
This Agreement shall begin on the Effective Date, and shall continue
for an initial period of thirty-six (36) months from the Effective Date (the
"Initial Period"), subject to earlier termination by employee or the Company as
hereinafter provided. This Agreement shall renew for additional terms of twelve
(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 an annual
salary of Two Hundred Thousand Dollars ($200,000), as may be adjusted as
provided herein (the "Base Compensation"), payable according to the pay periods
of the Company as may be in effect from time to time. Such payments shall be
prorated for periods less than a full pay period. The Base Compensation shall 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
shall be at the discretion of the Company, provided that any decreases to the
then current Base Compensation shall require the consent of Employee.
(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 similar 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 (4) weeks of paid vacation time. In addition, during the term of
this Agreement, the Company will provide term life insurance coverage of One
Million Dollars ($1,000,000) on Employee's life with the death benefit to be
payable to Employee's estate or as otherwise directed in writing by Employee.
2
(c) Bonuses: In addition to the Base Compensation payable to
Employee pursuant to Section 3(a) above, from time to time Employee may be
entitled to an annual bonus as determined in the sole discretion of the Company.
(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.
4. Duties, Extent of Services:
Employee is engaged as Executive Vice President and Chief Medical
Officer and shall perform such duties and responsibilities as are typically
incident thereto, and shall perform in a faithful and competent manner such
additional duties as may be reasonably assigned from time to time by the
Company. Such duties shall be performed on a full-time basis for the Company at
the Company's 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 thirty (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 shall devote all of Employee's business time, attention,
knowledge, and skill solely to the business and interest of the Company, and the
Company shall be entitled to all the benefits, profits, and other issues arising
from, or incident to, all work, services, and advice of Employee.
5. Termination.
This Agreement may be terminated by the parties in the manners
specified below:
(a) Termination without Cause. Either the Company or the employee
may terminate Employee's employment under this Agreement at any time for any
reason upon thirty (30) day's 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" shall mean: (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 failure by Employee to otherwise substantially
perform his duties with the Company (other than any such failure resulting from
the disability of Employee under Section 5(c)(i)) or the breach of any provision
of this Agreement other than Section 6. In the event of any termination for
cause pursuant to the provisions of (ii), (iii), (iv) or (v) of this subsection,
the Company shall give Employee written notice prior to such termination
detailing the specific acts, actions, failures, or events upon which the
forecast termination is based, and Employee shall have fifteen (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 fifteen day time period, or having once
- 2 -
3
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) Involuntary Termination.
The employment of Employee hereunder shall be a
utomatically terminated by the death or disability of Employee as outlined
below.
(i) Disability. The Company may terminate this Agreement
at the time Employee shall have been Disabled for a continuous period of six (6)
months during any continuous twelve month period. For purposes of this Paragraph
5(c)(i), the term "Disabled" shall mean 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 agrees to continue
to pay Employee's Base 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 shall be obligated to 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 pursuant to a Company stock option plan shall vest immediately upon
termination pursuant to this Section 5(c)(i).
(ii) Death. In the event Employee shall die 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 pursuant to a Company stock option
plan shall vest immediately upon termination pursuant to this Section 5(c)(ii).
(d) Post-Termination Compensation. Except as provided in
Section 5(c) 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. In the event that the
Company terminates Employee's employment hereunder without Cause under Section
5(a) above, then Employee shall, after the effective date of such termination,
as Employee's sole and exclusive remedy, receive an amount equal to the annual
Base Compensation (as then in effect) for a period of twelve (12) months after
the termination date. If the Employee's employment is terminated by the Company
without Cause, the Employee shall be under no duty to seek or accept other
employment; but if he shall do so, any compensation he shall receive therefrom
shall not diminish the Company's obligation to make payments required to the
Employee hereunder In the event that Employee terminates his or her employment
under Section 5(a) above, the Company's obligation to pay Employee's Base
Compensation shall terminate as of the date of such termination.
(ii) Termination for Cause. In the event that the Company
terminates Employee's employment hereunder with Cause under Section 5(b) above,
then Employee shall, after the effective date of such termination, receive the
Base Compensation (as then in effect) for a period of one (1) month after the
termination date.
- 3 -
4
(iii) Termination following Change in Control. If within
twelve (12) months following a Change in Control (as defined below), either (A)
the Company terminates the employment of Employee hereunder without Cause under
Section 5(a) above or (B) Employee resigns from a declined reassignment of a job
that is not reasonably equivalent in responsibility or compensation or that is
not in the same geographic area, then, in lieu of any other compensation that
may be specified herein, Employee shall receive an amount equal to three (3)
multiplied by the Base Compensation (as then in effect) plus an amount of Annual
Bonus for the current year (the amount of Annual Bonus for the current year
shall be equal in amount to any Annual Bonus paid or to be paid to Employee in
connection with the Company's last completed fiscal year), payable by the
Company in a single lump-sum payment, to be paid not later than thirty (30) days
after termination. In the event such payment obligation arises, no compensation
received from other employment (or otherwise) shall reduce the obligation to
make the payment(s) described in this paragraph.
(e) 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 13d-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) shall 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 one with
respect to which those persons who were the beneficial owners, immediately prior
to such reorganization, merger, share exchange or consolidation, or 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.
- 4 -
5
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 twelve (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 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 the greater of (i) a
seventy-five (75) mile radius of any renal dialysis center, unit or facility
owned or operated by the Company or an affiliate of the Company (an "RCG
Center"), or (ii) the geographic area, as narrowly construed as is practicable,
from which the Company received patients at each of the RCG Centers. For
purposes of this Section, the "business of the Company or its affiliates" shall
mean owning or operating a renal dialysis center, unit or facility, and
providing practice management services to nephrologists. However, any Vanderbilt
Medical Center owned dialysis operation is excluded from this non-compete.
(b) Subject to Section 6(f) below, Employee further agrees that, for
a period of three (3) 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 the Employee; and (iv)
was known to the Employee prior to May 1, 1996. Employee hereby 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 which 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" shall mean owning or opening a
renal dialysis center, unit or facility.
(c) Subject to Section 6(f) below, Employee further agrees that,
for a period of three (3) 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.
- 5 -
6
(d) Subject to Section 6(f) below, Employee further agrees that,
for a period of three (3) 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. 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 paragraphs
6(a) through (d) shall be null and void as to any period following termination
of employment in the event such termination occurs within twelve (12) 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. Such
obligations of Employee to indemnify and hold the Company harmless shall 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, in the event it shall be determined that 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 Employee shall be entitled to receive an additional payment
(a "Gross-Up Payment") 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, shall 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.
- 6 -
7
Any Gross-Up Payment, as determined pursuant to this Section 7, shall be paid by
the Company to Employee within five 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, in the event that the Company exhausts its remedies
pursuant to Section 7(c) and Employee thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of Employee.
(c) Employee shall 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 ten business days after Employee is informed in
writing of such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. Employee shall not pay
such claim prior to the expiration of the 30-day period following the date on
which it 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 shall:
(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 shall reasonably request 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 shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall 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 shall control all
- 7 -
8
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
shall determine; provided, however, that if the Company directs Employee to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to Employee, on an interest-free basis and shall 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;
and further provided 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 shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
Employee shall 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, Employee shall (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 shall not be 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 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall 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 shall be in violation of the laws of any state where
applicable, such paragraph, sentence, clause or the combination of the same
shall 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 shall 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.
- 8 -
9
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 shall not be 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 shall
merge or effect a consolidation or share exchange with or into, or sell or
otherwise transfer 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.
11. Notice.
The references to the notice periods of certain "days" contained in
this Agreement shall mean calendar days. Any notice provided for in this
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: President.
12. Waiver.
The waiver by any party to this Agreement of a breach of any
of the provisions contained herein shall 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, shall 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 shall thereafter attempt in good faith to resolve their differences
within thirty (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 rules and
procedures 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 agrees, to the maximum extent
permitted by law and the Bylaws and Certificate of Incorporation of the Company,
to defend and indemnify the Employee against and to hold the Employee harmless
from any and all claims, suits, losses, liabilities, and expenses (including
disputes arising under this Agreement
- 9 -
10
and including reasonable attorneys' fees and payment of reasonable expenses
incurred in defending against such claim or suit as such expenses are incurred)
asserted against the Employee for actions taken or omitted to be taken by the
Employee in good faith and within the scope of his responsibilities as an
officer or employee of the Company. If requested by the Employee, the Company
shall advance to the Employee, promptly following the Company's receipt of any
such request, any and all expenses for which indemnification is available
hereunder, subject to the requirements of applicable law and the Company's
Bylaws and Certificate of Incorporation.
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/ Xxx X. Xxxxxx
-----------------------------------
Xxx X. Xxxxxx
President
[Corporate Seal]
EMPLOYEE:
/s/ Xxxxxxx Xxxxx (Seal)
-------------------------------
Xxxxxxx Xxxxx, M.D., Ph.D.
- 10 -
