FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10(K)
EXECUTION
COPY
FIRST
AMENDMENT TO
This
First Amendment to Employment Agreement (this "Amendment")
is entered into by and between Xxxxxxx X. Xxxxxxx (the "Executive")
and Dialysis Corporation of America, a Florida corporation (individually,
the "Company"
and collectively with the Executive, the "Parties"),
dated as of April 13, 2010, and effective as of the Effective Time (as
defined below), and hereby amends the Employment Agreement between the Parties
dated February 22, 2006, a copy of which is attached hereto as Exhibit A (the "Employment
Agreement").
WHEREAS,
substantially concurrently with the execution and delivery of this
Agreement, the Company, U.S. Renal Care, Inc., a Delaware corporation ("Parent"),
and Urchin Merger Sub, Inc., a Florida corporation ("Merger Sub"),
are entering into an Agreement and Plan of Merger, dated as of the date
hereof (as it may be amended or supplemented from time to time, the "Merger
Agreement"), which provides, among other things, for Merger Sub to
commence a tender offer, subject to the terms and conditions set forth therein,
for all of the issued and outstanding shares of common stock of the Company and
that, upon the terms and subject to the conditions therein, Merger Sub will
merge with and into the Company (the "Merger");
and
WHEREAS,
Executive is an executive officer of the Company and Parent and Merger
Sub desire to enter into this Amendment to, among other things, ensure that
Executive will be available to assist Parent with transitional matters following
the closing of the Merger; and
WHEREAS,
as a condition and
inducement to the willingness of Parent and Merger Sub to enter into the Merger Agreement, Parent and
Merger Sub have requested that Executive agree, and Executive has agreed, to enter into this
Amendment to be effective upon the closing of the Merger (the "Effective
Time");
and
WHEREAS,
the Parties desire to amend the Employment Agreement as set forth herein;
and
WHEREAS,
pursuant to Section 16 of the Employment Agreement, any provision of the
Employment Agreement may be amended or waived in a writing signed by the
Parties; and
NOW,
THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions set forth herein, the
Parties hereby agree as follows:
AGREEMENT
1. Effective
as of the Effective Time:
(a) Section
1.21 of the Employment Agreement is hereby deleted in its entirety and replaced
with the
following:
"Restricted
Period" shall mean the Term and for a period of two (2) years from the Date of
Termination for whatever reason or occurrence, provided in the event of any
violation of Section 8, the Restricted Period shall be extended by a period of
time equal to that period beginning when the violation commenced and ending when
the violation terminated."
(b) The
reference in Section 8.1 of the Employment Agreement to the phrase "the Company
within a twenty-five (25) mile radius of the Company's then facilities" in the
definition of "Restricted Activity" in Section 8.1 of the Employment Agreement
is hereby deleted and replaced with "the Company within a fifty (50) mile radius
of the Company's and its affiliates' current or future dialysis
facilities".
2. Except as
set forth herein, the Parties' rights under the Employment Agreement shall
remain unaffected and shall continue in full force and effect. This Amendment is
limited precisely as written and shall not be deemed to be an amendment to any
other term or condition of the Employment Agreement or waiver of any of the
Parties' rights under the Employment Agreement.
3. This
Amendment shall form a part of the Employment Agreement for all purposes, and
the Parties shall be bound hereby. From and after the execution of this
Amendment by the Parties, any reference to the Employment Agreement shall be
deemed a reference to the Employment Agreement as amended hereby (unless the
context specifically requires otherwise).
4. This
Amendment may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Amendment shall become effective when each Party shall
have received a counterpart hereof signed the other Party. Signatures to this
Amendment transmitted by facsimile transmission, by electronic mail in pdf form,
or by any other electronic means designed to preserve the original graphic and
pictorial appearance of a document, will be deemed to have the same effect as
physical delivery of the paper document bearing the original
signatures.
[Remainder
of Page Intentionally Left Blank]
-2-
IN
WITNESS WHEREOF, the Executive has signed this Amendment personally and the
Company has caused this Amendment to be executed by its duly authorized
representative.
| COMPANY: | |||
|
DIALYSIS CORPORATION OF
AMERICA
a Florida corporation
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | ||
| Title: | President and Chief Executive Officer | ||
| EXECUTIVE | ||
|
|
/s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx |
[Signature
Page to Amendment to Employment Agreement—Xxxxxxx]
