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EXHIBIT 10.2
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is entered
into by and between U. S. Physical Therapy, Inc. a Nevada corporation
("Employer") and Xxx Xxxxxxxx ("Employee") as of February 21, 2001, and
supersedes that certain Employment Agreement between the parties effective May
18, 1994. Employer and Employee may be referred to herein collectively as the
"Parties" and individually as a "Party." For the purposes of this Agreement,
"Employer" includes U.S.P.T. Management, Inc.; for the purposes of Sections 11,
12, and 13 "Employer" shall include all subsidiaries and affiliates (as defined
under the Securities Exchange Act of 1934, as amended and regulations
promulgated thereunder)
Section 1. Term. Employer hereby continues the employment of
Employee and Employee hereby accepts continued employment with Employer for a
term (the "Term") of three (3) years beginning on the date of execution hereof
("Commencement Date") and continuing until February 21, 2004; provided, however,
that effective on the first and second anniversary of the date of this
Agreement, the Term shall automatically be extended for an additional year (up
to a maximum Term, with such extensions, of five (5) years) unless either party
notifies the other on or before such anniversary dates that such party has
elected not to extend the Term.
Section 2. Duties of Employee. Employee is engaged to serve as
President and Chief Executive Officer of Employer and to perform such duties and
responsibilities as are customarily performed by persons acting in such capacity
or such other duties as may be assigned by Employer from time to time. Employee
shall perform these duties in accordance with the policies and objectives
established by Employer's Board of Directors.
Section 3. Full-Time Employment. Employee shall devote
substantially all of his working time and talent to the business of Employer
during the term hereof and shall diligently and to the best of his ability
perform all duties incident to his employment hereunder, using his best efforts
to promote the interests of Employer.
Section 4. Position on the Board of Directors. Employer agrees to
use its best efforts to cause Employee to be elected to the Board of Directors
of Employer.
Section 5. Base Compensation. Subject to the terms and conditions
of this Agreement, as partial compensation for services rendered and Employee's
covenants and agreements under this Agreement, Employer shall pay to Employee a
base salary of TWO HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS ($250,000.00)
per year ("Base Compensation"), payable in equal semi-monthly installments on
the fifteenth (15th) and final days of each month during the term hereof. From
time to time (but at least once a year) Employer and Employee shall review
Employee's performance, and at that time Employer, in its
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sole discretion, shall determine whether Employee's Base Compensation should be
increased. At no time during the term hereof will Employee's Base Compensation
be decreased.
Section 6. Additional Compensation. Subject to the terms and
conditions of this Agreement, in addition to the Base Compensation, Employer may
provide incentive compensation in the form of cash bonuses. The amount of such
bonus is discretionary and will be determined by the Board of Directors of
Employer or a compensation committee thereof, taking into consideration any
factor as the Board of Directors or compensation committee deems relevant, but
the total amount of the cash bonuses shall not generally exceed thirty percent
(30%) of Employee's Base Compensation except in the case of extraordinary
results or performance.
Section 7. Business Expenses. Employer shall reimburse Employee for
business expenses directly and reasonably incurred in the performance of his
duties.
Section 8. Benefits and Plans. Employee shall be entitled to such
fringe benefits, including vacation, sick and personal leave, insurance (health,
disability and life) and stock options generally available to the executive
officers of Employer, and Employee shall be entitled to participate, subject to
all conditions of eligibility, in any employee benefit plans which may be
adopted by Employer, including without limitation, qualified retirement plan(s),
deferred compensation plans, and salary continuation, disability insurance,
hospitalization insurance, major medical insurance, medical reimbursement and
life insurance benefit plans. Also, Employer shall continue Employee's monthly
salary for a period of up to 90 continuous days during any period of Employee's
sickness or disability.
Section 9. Termination. This Agreement shall terminate prior to the
expiration of the term hereof upon the occurrence of any one of the following
events:
(a) Disability. In the event that Employee is unable fully
to perform his duties and responsibilities hereunder to the full extent
required by Employer by reason of illness, injury or incapacity for
ninety (90) consecutive days, this Agreement may be terminated by
Employer, and Employer shall have no further liability or obligation to
Employee for compensation or otherwise hereunder; provided, however,
that Employee shall continue to be compensated as provided in this
Agreement during such 90-day period and until termination under this
section, and provided further, that Employee will be entitled to receive
the benefits, rights and/or payments prescribed under any employee
benefit, bonus or stock option plan in which Employee was participating
at the time of such disability in accordance with the terms and
conditions of such plans and programs. In the event of any dispute under
this Section 9, Employee shall submit to a physical examination by a
licensed physician selected by Employer and reasonably acceptable to
Employee.
(b) Death. In the event that Employee dies during the term
hereof, Employer shall pay to his executors, legal representatives or
administrators an amount equal to one (1) year's base compensation set
forth in Section 5 hereof, and thereafter Employer shall have no further
liability or obligation hereunder to Employee's executors, legal
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representatives, administrators, heirs or assigns or any other person
claiming under or through Employee; provided, however, that Employee's
heirs, legal representatives or administrators will be entitled to
receive the benefits, rights and/or payments prescribed under any
employee benefit, bonus and/or stock option plans and programs in which
Employee was participating at the time of his death in accordance with
the terms and conditions of such plans and programs.
(c) Cause. Nothing in this Agreement shall be construed to
prevent its termination by Employer at any time for "cause". For
purposes of this Agreement, "cause" shall mean (i) the willful and
material failure of Employee to perform or observe (other than by reason
of disability as contemplated in paragraph 9(a)) any of the terms or
provisions of this Agreement, including the failure of Employee to
follow the reasonable written directions of Employer's Board of
Directors, (ii) dishonesty or misconduct on the part of Employee that is
or is reasonably likely to be damaging or detrimental to the business of
Employer, (iii) conviction of a crime involving moral turpitude, (iv)
habitual insobriety or failure to perform duties due to abuse of alcohol
or drugs, or (v) misappropriation of funds. Prior to terminating this
Agreement on account of Employee's failure to perform or observe any of
the terms and conditions of this Agreement (but not for any of the other
enumerated "causes" stated in (ii) through (v) above, Employer shall
give Employee thirty (30) days written notice and an opportunity to cure
such failure to the satisfaction of Employer. Upon termination for
cause, Employer shall pay to Employee all sums due to Employee through
the date of such termination. Following such a termination, Employer
shall have no further duty or obligation to Employee; provided, however,
that Employee shall continue to be bound by Sections 11 through 17.
Section 10. Special Benefits.
A. Special Benefit in the Event of a Change in Control. Employee
shall be entitled to a Change of Control benefit of $500,000 in the event of a
"Change in Control", defined as:
(a) The transfer or sale by Employer of all or substantially
all of the assets of Employer whether or not this Agreement is assigned or
transferred as a part of such sale;
(b) The transfer or sale of more than fifty percent (50%) of
the outstanding shares of Common Stock of Employer;
(c) A merger or consolidation involving Employer in a
transaction in which the shareholders of Employer immediately prior to the
merger or consolidation own less than fifty percent (50%) of the company
surviving the merger or consolidation; or
(d) The voluntary or involuntary dissolution of Employer.
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However, if a Change in Control occurs, the Term shall be modified to end one
year from the date the Change in Control occurs, regardless of the remaining
Term immediately prior to the Change of Control.
B. Special Benefit in the Event of Termination Without Cause or
Resignation for Good Cause. Employee shall be also be entitled to the special
benefit described below in the event of the occurrence of either of the
following events (individually or collectively, a "Termination Event"):
(a) The termination of employment of Employee by Employer
without "cause" as cause is defined in Section 9(c) hereof; or
(b) Employee resigns "for good reason" as defined in Section
10 F. hereof.
The special benefit payable upon the occurrence of a Termination Event shall be
the sum of the following components:
(a) Employee's Base Compensation then in effect for the
remainder of the Term; and
(b) The greater of (i) the bonus paid or payable to Employee
with respect to last fiscal year of Employer completed prior to the occurrence
of the Termination Event and (ii) the average of the bonuses paid to Employee
over the three fiscal years of Employer ending with last fiscal year of Employer
completed prior to the occurrence of the Termination Event; and
(c) Employee's accrued but unused vacation days.
If a Change in Control has occurred prior to a Termination Event, Employee shall
also be entitled to a benefit under this Section 10 B., with the reduced Term
described above.
C. The benefits described in Sections 10 A. and 10 B. shall each be
paid in a lump sum on or before thirty (30) days after the occurrence of the
Change in Control or the Termination Event, as the case may be. The benefits
payable under Section 10 B. shall be paid without any reduction for the fact
that the calculation of the benefit is determined with reference to amounts
(such as salary) that would normally be paid out over time.
D. In the event Employee's employment is terminated (whether by
Employer or Employee) as a result of a Termination Event, Employee shall be
entitled to such medical insurance benefits as he enjoyed prior to his
termination for the remainder of the Term and at the same cost to Employee of
such benefits as in effect prior to such termination.
E. If Employee's employment is terminated (whether by Employer or
Employee) as the result of a Termination Event within 12 months of a Change in
Control, the period after termination during which the obligations imposed by
Sections 11 and 12 remain in effect shall be reduced from two (2) years to one
(1) year. If Employee continues to be employed by Employer
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for more than one year after a Change in Control occurs, the obligations imposed
by Sections 11 and 12 shall remain in effect for the period after termination
stated therein. Employee shall be entitled to the Change in Control benefit
specified in Section 10 A. only if he remains an employee of Employer to the
date of consummation of the Change in Control, unless Employee is terminated
prior to such date pursuant to a Termination Event or as the result of
disability or death as provided in Sections 9(a) and 9(b). Should any special
benefits provided in this Section 10 become payable, the covenants contained in
Sections 11 through 17 hereof shall continue to apply except as otherwise
provided in this Section 10.
F. For purposes of this Agreement, "for good reason" means the
occurrence of any one or more of the following: (i) removal or other termination
of Employee as the President and/or Chief Executive of Employer, without
Employee's express written consent; (ii) a reduction of Employee's duties,
authority or responsibilities or the assignment to Employee of such reduced
duties, authority or responsibilities, in either case without Employee's express
written consent, (iii) a reduction by Employer in Employee's Base Compensation;
(iv) a material reduction by Employer in the kind or level of employee benefits,
including bonuses, to which Employee was entitled immediately prior to such
reduction with the result that Employee's overall benefits package is reduced;
(vi) Employer delivers a notice pursuant to Section 1 that it has elected not to
extend the Term for an additional year at the time stated therein; or (vii) the
relocation of Employee to a facility or a location more than 30 miles from
Employee's then present location without Employee's express written consent.
Section 11. Non-Competition. During the term and for a two (2) year
period following the termination of his employment under this Agreement for any
reason, Employee shall not, directly or indirectly, for himself or on behalf of
any other person or entity as an employee, employer, consultant, agent, lender,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, (i) invest, engage in, or permit his name
to be used in connection with any business that is in competition with Employer,
(ii) accept employment with or render services to a competitor of Employer, as a
director, officer, agent partner, employee or consultant, or (iii) solicit or
accept from any of the customers of Employer or from any person or entity whose
business Employer is soliciting, any business of the type which Employer is
engaged in or actively is preparing to engage in. Employee shall be prohibited
from engaging in the activities described above within fifty (50) miles of any
of Employer's rehabilitation clinic locations. Notwithstanding the foregoing,
Employee may own the voting common stock of any publicly held corporation so
long as it does not exceed more than five per cent (5%) of the outstanding stock
thereof.
Section 12. Non-Solicitation. During the term hereof and for a two
(2) year period following the termination of this Agreement for any reason,
Employee agrees not to, directly or indirectly, for himself or on behalf of any
other person or entity (a) solicit or induce, or attempt to solicit or induce,
any person employed by, or any agent of, Employer, to terminate employee's or
agent's relationship with Employer, nor (b) call on, solicit or divert, or
attempt to call on, solicit or divert any person, firm, corporation or other
entity who was or had been a customer or a patient referral source (including,
without limitation, any physician) of Employer who referred
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ten or more customers to Employer, who is a customer or a patient referral
source of Employer who has referred ten or more customers to Employer, or who is
a prospective customer or a patient referral source of Employer with whom
Employee had contact as an employee of Employer and who, within six months of
such solicitation, Employer was or is actively recruiting as a customer or
patient referral source.
Section 13. Confidential Information. Employee will not, during or
after the termination of this Agreement, disclose any trade secrets, customer
lists, customer mailing lists, prospective customer lists, lists of referral
sources or prospective referral sources, or pricing, marketing or advertising
plans or methods used by Employer (the "Confidential Information") to any
person, firm, corporation, association or other entity for any reason or purpose
whatsoever, nor shall Employee make use of the Confidential Information for his
own purposes or for the benefit of any person, firm, corporation or other entity
(except Employer) under any circumstances during or after the termination of
this Agreement. On demand of Employer, at any time, Employee shall immediately
deliver all printed or written Confidential Information to Employer. To the
extent that Employee's property does not contain Confidential Information,
Employee may remove all of Employee's property (such as computer software and
tapes) upon termination of this Agreement. Confidential Information does not
include information that (i) currently is generally available to or known by the
public or hereafter becomes generally available to or known by the public
through no fault of Employee, (ii) was already in the possession of Employee on
the date of inception of Employee's employment by Employer, or (iii) is obtained
by Employee from a third party who is under no obligation of confidence to
Employer.
Section 14. Reasonableness of Restrictions. Employee agrees that
(a) the covenants contained in Sections 11, 12 and 13 hereof are necessary for
the protection of Employer's business goodwill and trade secrets, (b) a portion
of the compensation paid to Employee under this Agreement is paid in
consideration of the covenants herein contained, the sufficiency of which
consideration is hereby acknowledged, and if the scope of any restriction
contained in Sections 11, 12 and 13 is too broad to permit enforcement of such
restriction to its full extent, then such restriction shall be enforced to the
maximum permitted by law, and the parties hereby consent that such scope may be
judicially modified accordingly in any proceeding brought to enforce such
restriction.
Section 15. Enforcement. Employee acknowledges Employee's employment
with Employer is special and unique in character and that Employee will acquire
special skill and training and gain special knowledge during Employee's
employment with Employer, that the restrictions contained in Sections 11, 12 and
13 hereof are reasonable and necessary to protect the legitimate interests of
Employer and its affiliates, that Employer would not have entered into this
Agreement in the absence of such restrictions, and that any violation of any
provision of those sections will result in irreparable injury to Employer.
Employee also acknowledges that Employer shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages as
well as an equitable accounting of all earnings, profits and other benefits
arising from any such violation, which rights shall be cumulative and in
addition to any
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other rights or remedies to which Employer may be entitled. The existence of any
claim or cause of action of Employee against Employer, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by Employer of these covenants.
Section 16. Copy of Covenants. Until the expiration of the
applicable restrictions, Employee will provide, and Employer similarly may
provide, a copy of the covenants contained in Sections 11, 12 and 13 of this
Agreement to any business or enterprise which Employee may (i) directly or
indirectly own, manage, operate, finance, join, control or participate in the
ownership, management operation, financing, or control of, (ii) serve as an
officer, director, employee, partner, principal, agent, representative,
consultant, lender or otherwise, or (iii) with which he may use or permit his
name to be used.
Section 17. Special Definition of Employer. For the purposes of
Sections 11 through 16 above, the definition of Employer shall include any
subsidiary or affiliate of Employer, including all affiliated physical therapy
partnerships of Employer.
Section 18. Certain Additional Payments.
(a) Notwithstanding anything in this Agreement to the
contrary, if it shall be determined that any payment or distribution by
Employer 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 18 (a "Payment")) would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") or any interest or penalties 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
(whether through withholding at the source or otherwise) 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), employment taxes
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 this Agreement, all
determinations required to be made under this Agreement, 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 the accounting firm providing audit
services to the Employer (the "Accounting Firm") which shall provide
detailed supporting calculations both to Employer 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 Employer. If the
Accounting Firm is serving as accountant or auditor for Employer,
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
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shall be borne solely by Employer. Any Gross-Up Payment, as determined
pursuant to this Agreement, shall be paid by Employer to Employee within
five days of the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by Employee, it
shall furnish Employee with a written opinion that failure to report the
Excise Tax on Employee's applicable federal income tax return would not
result in the imposition of negligence or similar penalty. Any
determination by the Accounting Firm shall be binding upon Employer and
Employee. As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by Employer should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that Employer exhausts its remedies pursuant to
the following provisions of this Agreement 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 Employer to or for the benefit of
Employee.
(c) Employee shall notify Employer in writing of any claim
by the Internal Revenue Service that, if successful, would require the
payment by Employer 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 Employer
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 Employer (or such shorter period ending on the date that
any payment of taxes with respect to such claim is due). If Employer
notifies Employee in writing prior to the expiration of such period that
it desires to contest such claim, Employee shall:
(i) give Employer any information reasonably
requested by Employer relating to such claim;
(ii) take such action in connection with contesting
such claim as Employer 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 Employer;
(iii) cooperate with Employer in good faith in order
to effectively contest such claim; and
(iv) permit Employer to participate in any
proceedings relating to such claim;
provided, however, that Employer 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,
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employment 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 Agreement, Employer shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct Employee to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner, and
Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as Employer shall determine; provided,
however, that if Employer directs Employee to pay such claim and xxx for
a refund, Employer 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, employment 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, Employer'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 Employer pursuant to the foregoing provisions of this Agreement,
Employee becomes entitled to receive any refund with respect to such
claim, Employee shall (subject to Employer complying with the
requirements of this Agreement) promptly pay to Employer 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 Employer pursuant to the foregoing provisions of this
Agreement, a determination is made that Employee shall not be entitled
to any refund with respect to such claim and Employer 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.
(e) If Employer is obligated to provide Employee with a
continuation of benefits hereunder, and the amount of such benefits or
the value of such benefit coverage (including without limitation any
insurance premiums paid by Employer to provided such benefits) is
subject to any income, employment or similar tax imposed by federal,
state or local law, or any interest or penalties with respect to such
tax (such tax or taxes, together with any such interest and penalties,
being hereafter collectively referred to as the "Income Tax") because
such benefits cannot be provided under a nondiscriminatory health plan
described in Section 105 of the Code or for any other reason, Employer
will
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pay to Employee an additional payment or payments (collectively, an
"Income Tax Payment"). The Income Tax Payment will be in an amount such
that, after payment by Employee of all taxes (including any interest or
penalties imposed with respect to such taxes), Employee retains an
amount of the Income Tax Payment equal to the Income Tax imposed with
respect to such continued benefits.
Section 19. Notices. Any notices to be given hereunder by either
Party to the other may be effected in writing either by personal delivery, via
telefacsimile or by mail, registered or certified, postage prepaid with return
receipt requested:
If to Employer: U.S. Physical Therapy, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a copy to: Xxxx X. Xxxxxx, Xx., Esq.
Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to Employee: Xxx Xxxxxxxx
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Mailed notices shall be addressed to the Parties at the addresses set forth
above, but each Party may change the address by written notice in accordance
with this Section 19. Notices delivered personally or by telefacsimile shall be
deemed communicated as of actual receipt mailed notices shall be deemed
communicated as of three days after mailing.
Section 20. Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of Employee by Employer, and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever.
Section 21. Headings. The headings or titles to sections in this
Agreement are intended solely for convenience and no provision of this Agreement
is to be construed by reference to the heading or title of any section.
Section 22. Amendment or Modification; Waiver. No provision of this
Agreement may be amended, modified or waived unless such amendment, modification
or waiver is authorized by Employer and is agreed to in writing, signed by
Employee and by an officer of Employer (other than Employee) thereunto duly
authorized. Except as otherwise specifically provided in this Agreement, no
waiver by any Party hereto of any breach by any 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 at any prior or
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subsequent time nor shall the receipt or acceptance of Employee's employment be
deemed a waiver of any condition or provision hereof.
Section 23. Assignability. Employee shall not assign, pledge or
encumber any interest in this Agreement or any part thereof without the express
written consent of Employer, this Agreement being personal to Employee. This
Agreement shall, however, inure to the benefit of Employee's estate, dependents,
beneficiaries and legal representatives. This Agreement shall not be assignable
by Employer without the written consent of Employee which will not be
unreasonably withheld. Subject to the terms of this Agreement, Employer may
merge or consolidate with or into, or transfer substantially all of its assets
to, another corporation or other form of business organization without
Employee's consent, and as a result of such merger, consolidation or transfer,
this Agreement shall bind the successor of Employer resulting from such merger,
consolidation or transfer. No such merger, consolidation or transfer, however,
shall relieve the Parties from liability and responsibility for the performance
of their respective duties and obligations hereunder.
Section 24. Governing Law. This Agreement shall be interpreted,
construed and governed by and in accordance with the internal substantive law of
the State of Texas.
Section 25. Severability. Each provision of this Agreement
constitutes a separate and distinct undertaking, covenant and/or provision
hereof. In the event that any provision of this Agreement shall finally be
determined to be unlawful, such provision shall be deemed severed from this
Agreement, but every other provision of this Agreement shall remain in full
force and effect, and in substitution for any such provision held unlawful,
there shall be substituted a provision of similar import reflecting the original
intent of the Parties hereto to the extent permissible under law.
EMPLOYER:
U.S. PHYSICAL THERAPY, INC.
By:/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Position: Vice Chairman
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EMPLOYEE:
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
00
