EXHIBIT 10.95
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 12th day of August, 1996 by and
between RAMSAY HEALTH CARE, INC., a Delaware corporation (the "Company"), and
XXXXXXX XXXXXXXX (the "Employee").
W I T N E S S E T H :
WHEREAS, the Employee has heretofore been employed by the
Company and the Company wishes to continue to retain the services of the
Employee, and the Employee wishes to continue to serve in the employ of the
Company, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto hereby agree as
follows:
1. Employment.
1.1 The Company agrees to employ the Employee, and the
Employee agrees to serve in the employ of the Company, for the term set forth in
Section 1.2, in the position and with the responsibilities, duties and authority
set forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement
(the "term of this Agreement") shall commence on the date hereof and shall
terminate on December 31, 1999, unless sooner terminated in accordance with this
Agreement.
2. Position; Duties.
2.1 During the term of this Agreement, the Employee shall
serve in the position of Executive Vice President of the Company and President
of the Behavioral Hospital Division of the Company. The Employee shall perform,
faithfully and diligently, such duties, and shall have such responsibilities,
appropriate to such positions, as shall be assigned to him from time to time by
the President and Chief Operating Officer of the Company. The Employee shall
report directly to the President and Chief Operating Officer of the Company. The
Employee shall devote his complete and undivided attention to the performance of
his duties and responsibilities hereunder during the normal working hours of
executive employees of the Company.
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2.2 The Employee covenants and agrees that during the term of
this Agreement he will not render professional services of any type for, to or
on behalf of any other individual, firm or corporation (other than an
educational or charitable entity) and will not engage, directly or indirectly,
in any activity competitive with the Company's business, whether alone or as a
partner, officer, director, employee, agent, consultant, shareholder, trustee,
fiduciary or other representative of any other individual, firm or corporation,
without the express prior written consent of the Company.
2.3 The Employee agrees to relocate from New Orleans,
Louisiana to Atlanta, Georgia as soon as possible in connection with the
establishment of a regional operations office for the Behavioral Hospital
Division of the Company in Atlanta.
3. Salary; Bonus; Stock Options.
3.1 (a) During the term of this Agreement, in consideration of
the performance by the Employee of the services set forth in Section 2 and his
observance of the other covenants set forth herein, the Company shall pay the
Employee, and the Employee shall accept, a base salary at the rate of $275,000
per annum, payable in accordance with the standard payroll practices of the
Company.
(b) The base salary set forth in Section 3.1(a) above
shall be adjusted annually (but not decreased) on each anniversary date of this
Agreement by multiplying such base salary by a fraction, the numerator of which
shall be the Consumer Price Index for the July preceding the month in which such
adjustment is to be made, and the denominator of which shall be the Consumer
Price Index for the previous July. For purposes hereof, "Consumer Price Index"
shall mean the "Consumer Price Index for all Urban Consumers, Urban Wage Earners
and Clerical Workers-U.S. City Average (1982-84=100)" issued monthly by the
Bureau of Labor Statistics of the United States Department of Labor, or any
successor index thereto appropriately adjusted. The Employee shall be entitled
to such additional increases in base salary as shall be awarded from time to
time by the Board of Directors of the Company in its sole discretion.
3.2 (a) In addition to the base salary provided for in Section
3.1, the Company shall pay to the Employee with respect to each fiscal year of
the Company (or portion thereof in the case of the fiscal years of the Company
in which the Employee's employment with the Company shall begin and shall
terminate) during the term of this Agreement, subject to the provisions of
Section 3.2(c) hereof, a bonus in an amount equal to two percent (2%) of any
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increase in "operating income" (as hereinafter defined) for such fiscal year (or
for such portion thereof) over the corresponding operating income for the
preceding fiscal year (or for such corresponding portion thereof).
(b) For purposes of this Section 3.2, "operating income"
shall mean income from operations (calculated in accordance with generally
accepted accounting principles), but excluding (i) income from any operations
over which the Employee has no administrative control; (ii) the amount of the
bonus determined in accordance with this Section 3.2; and (iii) any material
accounting adjustments relating to the period prior to June 30, 1993. The
foregoing shall be calculated on a "same store" basis.
(c) In the event of the termination of the employment of
the Employee pursuant to Section 6.3 (Due Cause) or Section 6.5 (Termination by
Employee) of this Agreement, the Employee shall not be entitled to a bonus for
the fiscal year of the Company in which such termination takes place. The
Employee shall not be entitled to a bonus for any fiscal year of the Company
subsequent to the fiscal year in which the termination of his employment takes
place.
(d) In addition to the bonus provided for in Section
3.2(a), the Company shall each year during the term of this Agreement pay the
Employee an additional bonus in such amount as shall be determined by the Board
of Directors of the Company, which bonus may be based in part on additional
activities of the Employee.
3.3 The Employee, or the Employee's estate, shall have the
right, upon written notice from the Employee, or the Employee's estate,
delivered to the Company at any time on or after the Effective Date (as
hereinafter defined) and until January 15, 2000 to surrender to the Company for
cancellation all or any of the options to purchase 124,830 shares of the common
stock of the Company ("Common Stock"), granted to the Employee on November 9,
1993, and, upon such surrender, the Company shall pay to the Employee in cash an
amount equal to the product of (x) $3.20436 multiplied by (y) the number of
shares of Common Stock underlying the options so surrendered (subject to
applicable Federal, state and local withholding). The reference in this
paragraph to "$3.20436" shall be appropriately adjusted for any stock split,
stock dividend or similar event affecting the Common Stock occurring after the
date hereof and on or prior to the date of surrender. As used herein, the term
"Effective Date" shall mean October 31, 1996.
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4. Expense Reimbursement. During the term of this Agreement,
the Company shall reimburse the Employee for all reasonable and necessary
out-of-pocket expenses incurred by him in connection with the performance of his
duties hereunder, upon the presentation of proper accounts therefor in
accordance with the Company's policies and annual budget parameters.
5. Benefits.
5.1 Benefit Plans. During the term of this Agreement, the
Employee will be eligible to participate in all employee benefit plans and
programs of the Company, including, without limitation, group life insurance,
disability, 401(k), group hospitalization, surgical and major medical insurance
plans of the Company, in accordance with the provisions of such plans and
programs as in effect from time to time.
5.2 Vacation and Sick Days. The Employee shall be entitled to
four weeks' paid vacation and to paid sick days, all in accordance with Company
policies in effect from time to time for its executive employees.
5.3 Relocation Allowance. In connection with the establishment
of a regional operations office for the Behavioral Hospital Division of the
Company in Atlanta, Georgia, the Company shall pay or reimburse the Employee for
reasonable moving expenses, up to $60,000, incurred by the Employee in moving
from New Orleans, Louisiana to Atlanta, Georgia (including costs of temporary
housing, realtor fees and equity shortfalls on the sale of the Employee's
current home and closing costs (exclusive of loan discount points) on the
purchase of the Employee's new home, as approved by the President and Chief
Operating Officer of the Company), subject to the presentation of proper
accounts therefor in accordance with the Company's policies.
5.4 Automobile. During the term of this Agreement, the Company
shall provide the Employee with an automobile and the Company shall pay or
reimburse the Employee for the costs associated with insuring, operating and
maintaining such automobile, consistent with past practice.
5.5 Split Dollar Life Insurance. In addition to any other
insurance which may now or hereafter be provided by the Company on the life of
the Employee under any group contract or otherwise, the Company shall, during
the term of this Agreement and thereafter as herein provided, pay premiums of up
to $50,000 per year (up to $150,000 in the aggregate over the three-year period
beginning with the date of the first premium payment under the Employment
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Agreement between the Employee and the Company dated October 2, 1993 the "1993
Employment Agreement") for a split-dollar life insurance policy on the life of
the Employee. Premiums shall be payable by the Company at a rate not greater
than $25,000 semi-annually. Such policy shall be owned by the Employee or by a
trust for the benefit of the Employee or members of the immediate family of the
Employee. The aggregate amount of premiums paid by the Company shall constitute
indebtedness of the Employee to the Company (i) to be forgiven and treated as a
bonus on (x) the fifth anniversary of the date that the Employee began
employment with the Company (the "Commencement Date"), if the Employee is
employed by the Company on such fifth anniversary, or (y) the date of
termination of employment of the Employee pursuant to Section 6.2 (Disability)
prior to the fifth anniversary of the Commencement Date, (ii) to be repaid by
the Employee if the employment of the Employee shall be terminated by the
Company pursuant to Section 6.3 (Due Cause) of this Agreement or by the Employee
other than pursuant to Section 6.2 (Disability) or 6.6 (Change in Control) of
this Agreement, if such termination occurs prior to the fifth anniversary of the
Commencement Date, on the date of termination of his employment with the
Company, and (iii) to be secured by the death benefit or cash value of such
policy as hereinafter set forth. The Employee or the trust, as the case may be,
will execute and deliver to the Company a collateral assignment of the policy on
a form approved by the insurance company issuing such policy. The Company will
be entitled to satisfy the indebtedness owed to it when and to the extent that
the policy is surrendered or the proceeds thereof are paid at death and the
Company shall release the collateral assignment pro tanto upon such
satisfaction.
In the event of termination of employment of the Employee
pursuant to Section 6.4 (Other Termination) or Section 6.6 (Change in Control)
of this Agreement, notwithstanding any provision of Section 6 of this Agreement
to the contrary, the Company shall continue to pay the premiums referred to
above, at the semiannual rate referred to above, until there shall have been
paid an aggregate of $150,000 in premiums subsequent to the Commencement Date.
The Employee agrees that (i) in the event of his death prior
to the fifth anniversary of the Commencement Date, the portion of such death
benefit equal to the aggregate amount of premiums paid by the Company prior to
his death shall be paid to the Company; (ii) neither the Company, the Employee
nor the trust shall terminate or surrender the policy or any part thereof or
withdraw from or be loaned any part of the cash value of such policy prior to
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the Company's receipt of payment of the aggregate amount of premiums paid by the
Company for such policy; (iii) neither the Employee nor the trust shall transfer
legal or beneficial ownership of the policy or use the policy as security for
any loan; and (iv) he shall, to the extent possible, take such action as is
necessary to cause: (a) the terms of the policy to satisfy the requirements of
this Section 5.5, (b) the issuer of the policy to pay the amounts in the manner
described above, and (c) the trust to satisfy and be bound by the provisions of
this Section 5.5.
The Company and the Employee shall enter into a Split Dollar
Agreement embodying the foregoing terms and other standard terms and conditions.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during
the term of this Agreement, the Company shall pay to the estate or other legal
representative of the Employee (a) the base salary provided for in Section 3
accrued to the date of death and not theretofore paid to the Employee and (b)
any bonus payable pursuant to Section 3.2. Rights and benefits of the estate or
other legal representative of the Employee under the benefit plans and programs
of the Company shall be determined in accordance with the provisions of such
plans and programs. Neither the estate or other legal representative of the
Employee nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 3.3, 5.5 and 6.7.
6.2 Disability. If, during the term of this Agreement, the
Employee shall become incapacitated by reason of sickness, accident or other
physical or mental disability and shall be unable to perform his normal duties
hereunder for a cumulative period of three (3) months in any period of six (6)
consecutive months, the employment of the Employee hereunder may be terminated
by the Company or the Employee. In the event of such termination, the Company
shall (a) pay to the Employee any bonus payable pursuant to Section 3.2 and (b)
continue to pay to the Employee the base salary provided for in Section 3 until
the first to occur of (i) the expiration of a period of six months from the date
of such termination, (ii) the commencement of payment of benefits to the
Employee under any disability plan or policy maintained by the Company or (iii)
the death of the Employee. Rights and benefits of the Employee under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 3.3, 5.5, 6.7, 7, 8, 9 and 10.
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6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the term of this Agreement for Due
Cause (as hereinafter defined). In the event of such termination, the Company
shall pay to the Employee (a) the base salary provided for in Section 3 accrued
to the date of such termination and not theretofore paid to the Employee and (b)
any bonus payable pursuant to Section 3.2(d). Rights and benefits of the
Employee under the benefit plans and programs of the Company shall be determined
in accordance with the provisions of such plans and programs. For purposes
hereof, "Due Cause" shall mean (a) the Employee's material breach, by willful
action or inaction, of any of the material provisions of this Agreement, or (b)
the Employee's conviction in a court of law of any felony, or of any crime or
offense concerning money or property of the Company. Neither the Employee nor
the Company shall have any further rights or obligations under this Agreement,
except as provided in Sections 3.3, 5.5, 6.7, 7, 8, 9 and 10.
6.4 Other Termination by the Company. The Company may
terminate the Employee's employment at any time for whatever reason it deems
appropriate or without reason. In the event of such termination, the Company
shall (a) pay to the Employee any bonus payable pursuant to Section 3.2 and (b)
continue to pay the base salary provided for in Section 3 (at the annual rate
then in effect) until December 31, 1999 or the death of the Employee, whichever
first occurs. Rights and benefits of the Employee under the benefit plans and
programs of the Company shall be determined in accordance with the provisions of
such plans and programs. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 3.3, 5.5, 6.7, 7, 8, 9 and 10.
6.5 Termination by the Employee. The Employee may terminate
his employment with the Company during the term of this Agreement upon six (6)
months' prior written notice to the Company. In the event of such termination,
the Company shall pay to the Employee (a) the base salary provided for in
Section 3 accrued to the date of termination and not theretofore paid to the
Employee and (b) any bonus payable pursuant to Section 3.2(d). Rights and
benefits of the Employee under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 3.3, 5.5, 7, 8,
9 and 10.
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6.6 Change in Control. If, within a period of six (6) months
following a change in control of the Company, the employment of the Employee
hereunder is terminated for any reason whatsoever, whether by the Employee or by
the Company, the Company shall pay to the Employee (a) any bonus payable to the
Employee pursuant to Section 3 and any amounts payable pursuant to Section 4 or
5 and (b) severance pay in an amount equal to (x) the greater of twelve (12)
months base salary or the base salary that would have been payable to the
Employee from the date of termination to December 31, 1999, if such termination
is by the Company, or (y) twelve (12) months' base salary if such termination is
by the Employee (in the case of both (x) and (y) at the highest annual rate in
effect during the one-year period ending on the date of termination of
employment). Such severance payment shall be made to the Employee in a cash lump
sum on the date of termination of employment. For purposes of this Agreement, a
change in control of the Company shall be deemed to have occurred if:
(A) a "person" (meaning an individual, a partnership, or other
group or association as defined in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934) acquires fifty percent (50%) or more of the combined
voting power of the outstanding securities of the Company having a right to vote
in elections of directors; or
(B) Continuing Directors (as hereinafter defined) shall for
any reason cease to constitute a majority of the Board of Directors of the
Company; or
(C) all or substantially all of the business of the Company is
disposed of by the Company to a party or parties other than a subsidiary or
other affiliate of the Company, in which the Company owns less than a majority
of the equity, pursuant to a partial or complete liquidation of the Company,
sale of assets (including stock of a subsidiary of the Company) or otherwise.
For purposes of this Agreement, the term "Continuing Director"
shall mean a member of the Board of Directors of the Company who either was a
member of the Board of Directors on the date hereof or who subsequently became a
Director and whose election was voted for by Ramsay Holdings HSA Limited
("RHHL") or by a Continuing Director with the acquiescence of RHHL. A Director
shall not be considered a Continuing Director for purposes of this Agreement if
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his election was voted for by RHHL, or by a Continuing Director with the
acquiescence of RHHL, (i) pursuant to an agreement with, or at the direction,
request or suggestion of, any individual, firm or corporation in connection with
the purchase or other acquisition or receipt by such individual, firm or
corporation of all or any shares of capital stock of the Company or (ii) in
anticipation of the sale or other disposition by RHHL of all or any of its
shares of capital stock of the Company.
6.7 Stock Options. In the event of termination of the
Employee's employment with the Company: (i) pursuant to Section 6.4 (Other
Termination) or 6.6 (Change in Control) of this Agreement, the Company shall
cause each stock option heretofore granted by the Company to the Employee to
become fully exercisable (and to remain exercisable until December 31, 1999 or
for the maximum period permitted by the plan or agreement pursuant to which such
option was granted) unless such action, in the opinion of counsel to the
Company, would violate, or adversely affect the status of such option or the
plan (if any) pursuant to which such option was granted under, Rule 16b-3 under
Section 16 of the Securities Exchange Act of 1934; and (ii) pursuant to Section
6.1 (Death), 6.2 (Disability), 6.4 (Other Termination) or 6.6 (Change in
Control) of this Agreement, the Company shall cause each stock option heretofore
granted by the Company to the Employee to become exercisable without regard to
the requirement that the closing price for the Common Stock as quoted on the
NASDAQ National Market System shall have equalled or exceeded $7.00 per share on
at least twenty (20) trading days subsequent to November 10, 1995.
7. Confidential Information.
7.1 The Employee shall, during the term of this Agreement and
at all times thereafter, treat as confidential and, except as required in the
performance of his duties and responsibilities under this Agreement, not
disclose, publish or otherwise make available to the public or to any
individual, firm or corporation any confidential material (as hereinafter
defined). The Employee agrees that all confidential material, together with all
notes and records of the Employee relating thereto, and all copies or facsimiles
thereof in the possession of the Employee, are the exclusive property of the
Company and the Employee agrees to return such material to the Company promptly
upon the termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material"
shall mean all information acquired by the Employee in the course of the
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Employee's employment with the Company in any way concerning the products,
projects, activities, business or affairs of the Company or the Company's
customers, including, without limitation, all information concerning trade
secrets and the products or projects of the Company and/or any improvements
therein, all sales and financial information concerning the Company, all
customer and supplier lists, all information concerning projects in research and
development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company which is furnished to the Employee by the
Company or any of its agents or customers, as such; provided, however, that the
term "confidential material" shall not include information which (a) becomes
generally available to the public other than as a result of a disclosure by the
Employee, (b) was available to the Employee on a non-confidential basis prior to
his employment with the Company or (c) becomes available to the Employee on a
non-confidential basis from a source other than the Company or any of its agents
or customers provided that such source is not bound by a confidentiality
agreement with the Company or any of such agents or customers.
8. Interference With the Company.
8.1 The Employee acknowledges that the services to be rendered
by him to the Company are of a special and unique character. The Employee agrees
that, in consideration of his employment hereunder, the Employee will not (a)
for a period of one year commencing on the date of termination of his employment
with the Company, (i) solicit or endeavor to solicit patient referrals, either
on his own account or for any person, firm, corporation or other organization,
from (x) any person, including any physician, clinical psychologist, social
worker or consultant to the Company, who, during the period of the Employee's
employment with the Company, made patient referrals to the Company, or (y) any
employee of the Company, or (ii) solicit or entice or endeavor to solicit or
entice away from the Company any person who was a director, officer, employee or
consultant of the Company, either on his own account or for any person, firm,
corporation or other organization, whether or not such person would commit any
breach of his contract of employment by reason of leaving the service of the
Company, and the Employee agrees not to employ, directly or indirectly, any
person who was a director, officer or employee of the Company or who by reason
of such position at any time is or may be likely to be in possession of any
confidential information or trade secrets relating to the businesses or products
of the Company or (b) at any time, take any action or make any statement the
effect of which would be, directly or indirectly, to impair the good will of the
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Company or the business reputation or good name of the Company or be otherwise
detrimental to the interests of the Company, including any action or statement
intended, directly or indirectly, to benefit a competitor of the Company.
8.2 The Employee and the Company agree that if, in any
proceeding, the court or other authority shall refuse to enforce the covenants
herein set forth because such covenants cover too extensive a geographic area or
too long a period of time, any such covenant shall be deemed appropriately
amended and modified in keeping with the intention of the parties to the maximum
extent permitted by law.
9. Inventions. Any and all inventions, innovations or
improvements ("inventions") made, developed or created by the Employee (whether
at the request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of his employment with the Company which may be directly or
indirectly useful in, or relate to, the business of the Company, shall be
promptly and fully disclosed by the Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee shall, at the request of the Company and without
any payment therefor, execute any documents necessary or advisable in the
opinion of the Company's counsel to direct issuance of patents or copyrights to
the Company with respect to such inventions as are to be the Company's exclusive
property as against the Employee or to vest in the Company title to such
inventions as against the Employee. The expense of securing any such patent or
copyright shall be borne by the Company.
10. Equitable Relief. In the event of a breach or threatened
breach by the Employee of any of the provisions of Sections 7, 8 or 9 of this
Agreement, the Employee hereby consents and agrees that the Company shall be
entitled to an injunction or similar equitable relief from any court of
competent jurisdiction restraining the Employee from committing or continuing
any such breach or threatened breach or granting specific performance of any act
required to be performed by the Employee under any of such provisions, without
the necessity of showing any actual damage or that money damages would not
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afford an adequate remedy and without the necessity of posting any bond or other
security. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity which it may have. For purposes
of Sections 7, 8, 9 and 10 of this Agreement, the term "Company" shall be deemed
to include the subsidiaries and affiliates of the Company.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, "the Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign
this Agreement or any part thereof without the prior written consent of a
majority of the Board of Directors of the Company; provided, however, that
nothing herein shall preclude one or more beneficiaries of the Employee from
receiving any amount that may be payable following the occurrence of his legal
incompetency or his death and shall not preclude the legal representative of his
estate from receiving such amount or from assigning any right hereunder to the
person or persons entitled thereto under his will or, in the case of intestacy,
to the person or persons entitled thereto under the laws of intestacy applicable
to his estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of Delaware applicable to contracts to be performed entirely within
such State. In the event that a court of any jurisdiction shall hold any of the
provisions of this Agreement to be wholly or partially unenforceable for any
reason, such determination shall not bar or in any way affect the Company's
right to relief as provided for herein in the courts of any other jurisdiction.
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Such provisions, as they relate to each jurisdiction, are, for this purpose,
severable into diverse and independent covenants. Service of process on the
parties hereto at the addresses set forth herein shall be deemed adequate
service of such process.
13. Entire Agreement. This Agreement contains all the
understandings and representations between the parties hereto pertaining to the
subject matter hereof and supersedes all undertakings and agreements, whether
oral or in writing, if any there be, previously entered into by them with
respect thereto, including without limitation the 1993 Employment Agreement, the
amendment to the Employment Agreement dated May 26, 1994 and the letter
agreement between the Employee and the Company dated June 3, 1994.
14. Amendment; Modification; Waiver. No provision of this
Agreement may be amended or modified unless such amendment or modification is
agreed to in writing and signed by the Employee and by a duly authorized
representative of the Company other than the Employee. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent time,
nor shall the failure of or delay by either party hereto in exercising any
right, power or privilege hereunder operate as a waiver thereof to preclude any
other or further exercise thereof or the exercise of any other such right, power
or privilege.
15. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall, except as provided in
Section 10, be settled by arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in the area where the Company then has
its principal place of business. The arbitration award may include an award of
attorneys' fees and costs.
16. Notices. Any notice to be given hereunder shall be in
writing and delivered personally or sent by certified mail, postage prepaid,
return receipt requested, addressed to the party concerned at the address
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indicated below or at such other address as such party may subsequently
designate by like notice:
If to the Company:
Ramsay Health Care, Inc.
One Poydras Plaza
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President
If to the Employee:
Xx. Xxxxxxx Xxxxxxxx
c/o Ramsay Health Care, Inc.
One Poydras Plaza
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
17. Severability. Should any provision of this Agreement be
held by a court or arbitration panel of competent jurisdiction to be enforceable
only if modified, such holding shall not affect the validity of the remainder of
this Agreement, the balance of which shall continue to be binding upon the
parties hereto with any such modification to become a part hereof and treated as
though originally set forth in this Agreement. The parties further agree that
any such court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
18. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation.
19. Survivorship. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
20. Titles. Titles of the sections of this Agreement are
intended solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any section.
* * *
16
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
RAMSAY HEALTH CARE, INC.
By
Xxxxxxx Xxxxxxxx
