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EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), made and entered
into this 26th day of November, 1996, by and between XXXXX X. XXXXX, M.D.,
an individual resident of the State of Georgia (hereinafter referred to as
"Executive"), and PHYSICIANS' SPECIALTY CORP., a corporation organized under
the laws of the State of Delaware (hereinafter referred to as "Company");
W I T N E S S E T H:
WHEREAS, Company is engaged in the business (the "Business") of
providing management and business services to, and acquiring assets of,
physician practices;
WHEREAS, the Board of Directors of Company (the "Board of Directors")
recognizes Executive's substantial skills and expertise in the Business and
desires to provide for the employment of Executive on the terms and conditions
herein provided;
WHEREAS, Executive is willing to commit himself to serve Company on
the terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, Company and Executive wish
to enter into an employment agreement on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
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SECTION 1. SCOPE OF EMPLOYMENT.
1.1 EMPLOYMENT. Subject to terms hereof, Company hereby agrees to
the employment of Executive during the "Term" (as defined in Section 2.1), and
Executive hereby accepts such employment. Executive shall hold the offices of
Chairman and President and, as such, shall perform the executive-level services
(collectively, "Services") described in Company's Bylaws and as delegated to
him by the Board of Directors. Such duties shall include, among others,
initiating, evaluating and consummating strategic acquisitions on behalf of
Company. Company agrees to nominate Executive for membership on the Board of
Directors (and as Chairman of the Board) for the duration of the Term, and, if
Executive is elected as a director, he shall be entitled to serve on the
Compensation and Executive Committees of the Board of Directors (if such
committees are established). Executive's serving on the Board of Directors
shall be deemed to be part of the "Services". Executive shall initially devote
approximately fifty percent (50%) of Executive's business time, energy and
skill (subject to increases as outlined in Section 3 as approved by the
Company's Board of Directors) to performing his obligations hereunder and shall
perform his obligations hereunder diligently, faithfully and to the best of his
abilities.
1.2 PLACE OF PERFORMANCE. During the Term, Executive shall be
based in Atlanta, Georgia at the principal executive offices of Company, except
for reasonably required travel on business.
1.3 COMPLIANCE WITH POLICIES. Subject to the terms of this
Agreement, during the Term Executive shall comply in all material respects with
all policies and procedures applicable to senior executives of Company
generally and to Executive specifically.
SECTION 2. TERM; TERMINATION.
2.1 TERM. The initial term of Executive's employment under this
Agreement (the "Initial Term") shall be a five (5) year period commencing on
the date when the registration statement for the issuance of shares of common
stock of the Company is declared effective by the Securities and Exchange
Commission (the "Effective Date"). If the Effective Date shall not have
occurred by March 31, 1997, either Executive or Company may terminate this
Agreement on written notice to the other. After the Initial Term, Executive's
employment under this Agreement shall automatically renew for successive
additional one (1) year ("Renewal Terms") terms (the Initial Term and any
Renewal Terms being collectively referred to as the "Term"). The Term shall
be subject to termination in accordance with Section 2.2.
2.2 TERMINATION.
(a) DEATH. This Agreement shall automatically and
immediately terminate upon the death of Executive.
(b) DISABILITY. This Agreement may be terminated by
either party hereto upon written notice to the other in the event Executive
becomes "Disabled" (as hereinafter defined).
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For purposes of this Agreement, "Disabled" shall be defined as either: (a) the
reasonable, good faith determination by an independent physician selected by
the Board of Directors of Company that due to a mental or physical impairment
or disability, Executive has been incapable or unable, even with reasonable
accommodations, to fully perform the material duties performed by Executive for
Company immediately prior to such disability for a period of at least one
hundred eighty (180) days in the aggregate (although not necessarily
consecutively) within any consecutive three hundred sixty- five (365)-day
period; or (b) a determination that Executive is disabled pursuant to the terms
of any long-term disability insurance policy which Company or Executive has
purchased and which covers Executive.
(c) CAUSE. In addition to any other rights or remedies
available to Company at law, in equity or pursuant hereto, Company may, in its
sole discretion, terminate Executive's employment for "Cause" (as hereinafter
defined) effective immediately upon delivery of written notice to Executive.
For purposes of this Agreement, "Cause" shall mean any of:
(i) the imposition by any governmental authority
of any material restriction or limitation on Executive's ability to
perform his services hereunder;
(ii) (A) Executive has committed an act
constituting fraud, deceit or intentional material misrepresentation
with respect to Company or any client, customer or supplier of
Company; (B) Executive has embezzled funds or assets from Company or
any client or customer of Company; or (C) Executive has engaged in
willful misconduct or gross negligence;
(iii) Executive's breach or default in the
performance of any material provision of this Agreement which
Executive has not cured or corrected to Company's reasonable
satisfaction within thirty (30) days after receiving notice of such
breach or default (provided that any breach by Executive of any
obligation under Section 5.4 shall be grounds for immediate
termination "For Cause" without any notice or right to cure or
correct); or
(iv) Executive's conduct is materially detrimental
to the reputation, character or standing of Company which Executive
has not cured or corrected to Company's reasonable satisfaction within
ten (10) days after receiving notice thereof.
(d) DISCRETIONARY TERMINATION.
(i)Either Company or Executive may terminate the Term
effective as of the end of the Initial Term or the then-current
Renewal Term by providing the other with written notice of termination
at least sixty (60) days prior to the end of the Initial Term or then
current Renewal Term, as the case may be. In the event of Termination
under this Section 2.2(d)(i), Executive shall not be entitled to any
severance benefit under Section 6.
(ii) The Company shall have the right to terminate
the Term and Executive's employment hereunder without cause at any
time upon notice to
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Executive. In such event, Executive shall be entitled to the
severance benefit provided in Section 6(b), unless such termination
without cause follows a Change of Control, in which event Executive
shall be entitled to the severance benefit provided in Section 6(c).
(e) CHANGE OF CONTROL. Executive may terminate the Term following
a Change of Control (as defined in Section 6(c)), by providing Company at least
thirty (30) days prior written notice of termination.
(f) GOOD REASON. Executive shall have the right to terminate this
Employment Agreement for "Good Reason." For purposes hereof, Good Reason shall
be limited to the repeated material breach by the Company of its material
obligations to Executive which the Company fails to correct or cure within a
period of forty-five (45) days after being provided with written notice by
Executive of such material breach.
SECTION 3. CASH COMPENSATION; EXPENSE.
3.1 BASE SALARY. Executive shall be paid a base salary (the "Base
Salary") during the Term at an initial rate of Three Hundred Fifty Thousand
Dollars ($350,000) per twelve (12) month period. The Base Salary shall be (a)
payable in equal installments on the schedule that Company may implement from
time to time for general payroll purposes, and (b) subject to any withholdings
and deductions required by applicable law. The $350,000 Base Salary assumes
that Executive will devote approximately fifty percent (50%) of his business
time each week (2.5 days) to performing the Services (as opposed to performing
clinical work). If Executive, with the approval of the Board of Directors,
increases the proportion of business time devoted to performing the Services,
then his Base Salary shall be increased as follows:
Executive Work
Base Salary % Services Week Days
----------- ---------- ---------
$350,000 50% 2.5
$410,000 70% 3.5
$470,000 90% 4.5
$500,000 100% 5.0
In the event Executive provides full time (100%) services to the Company and
the Company has achieved quarterly pre-tax income of $1.750 million,
Executive's Base Salary for full-time services will be increased to $600,000
per annum.
3.2 BONUS. During the Term, Executive shall be eligible to be
considered for a periodic bonus (the "Bonus") of up to 50% of his Base Salary
per annum, based on Company's meeting certain milestones relating to such
matters as practice acquisitions, consolidated operating income levels,
consummation of follow-on financings and management team development;
provided, however, that the Bonus shall be subject to the Compensation
Committee of the Board of Directors adopting and ratifying such a bonus program
and approving
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the periodic Bonus grants to Executive.
SECTION 4. ADDITIONAL EXECUTIVE BENEFITS.
4.1 BENEFIT PLANS. During the Term, Executive shall be entitled
to participate in the group medical, 401k and the other employee benefit plans
adopted by the Board of Directors (or appropriate committee thereof) for
participation by Executive subject to the terms and conditions of such plans
(collectively, the "Benefit Plans"). Company shall have the right to purchase
in Executive's name a "key man" life insurance policy naming Company as sole
beneficiary under the policy. Company shall be the sole owner of such policy.
4.2 VACATION. Executive shall be entitled to three (3) paid weeks
of vacation per year during the Term, to be accrued and taken in accordance
with a policy that is consistent with Company's normal vacation policy
applicable to senior executive employees.
5. NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION COVENANTS.
5.1 DEFINITIONS. For purposes of this Section 5, the following
terms shall have the following respective meanings:
(a) "Competitive Position" shall mean (i) the direct or
indirect equity ownership (excluding ownership of less than 5% of the
equity of an entity whose equity is listed on a major U.S. exchange or
traded on the NASDAQ over-the-counter market) or control of all or any
portion of a "Competitor" (as hereinafter defined), or (ii) any
employment, consulting, partnership, advisory, directorship, agency,
promotional or independent contractor arrangement between Executive
and any Competitor whereby Executive is required to perform services
substantially similar to those that he is to perform for Company
hereunder. A Competitive Position shall not include, however,
Executive's employment by New Atlanta Ear, Nose & Throat Associates,
P.C. ("NAENT") to the extent his services are limited to practicing
medicine and administering NAENT's practice as an employee of NAENT.
(b) "Competitor" shall refer to any person or entity
engaged, wholly or partly, in the Business.
(c) "Confidential Information" shall mean any and all
proprietary and confidential data or information of Company or any of
its affiliates, other than "Trade Secrets" (as hereinafter defined),
which is of tangible or intangible value to Company or any of its
affiliates and is not public information or is not generally known or
available to Company's competitors but is known only to Company or its
affiliates and their employees, independent contractors or agents to
whom it must be confided in order to apply it to the uses intended.
(d) "Restricted Territory" shall mean all areas within
a twenty (20) mile radius
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of the Company's principal office in Atlanta, Georgia. The Parties
intend for the "Restricted Territory" during the entire Term to
include a twenty (20) mile radius of all other United States cities
where Company is engaged in the Business, throughout which territory
the parties acknowledge Executive will be performing his employment
responsibilities on behalf of Company. As of the Effective Date,
those cities include Atlanta, Georgia. If applicable law permits a
deemed or automatic amendment to the definition of Restricted
Territory," then as soon as Company begins to engage in the Business
in any additional city, the definition of "Restricted Territory" under
this Agreement shall be deemed automatically amended to include the
city limits of any such additional cities and a twenty (20) mile
radius of those cities. If applicable law does not permit a deemed or
automatic amendment to the definition of Restricted Territory" under
those circumstances, then the Parties agree that when Company begins
to engage in Business in additional cities, they will promptly execute
amendments to this Agreement to include those additional cities in the
definition of "Restricted Territory."
(e) "Trade Secrets" shall mean all knowledge, data and
information of Company or any of its affiliates which is defined as a
"trade secret" under applicable law.
(f) "Work Product" shall mean all work product, property,
data, documentation, "know-how", concepts, plans, inventions,
improvements, techniques, processes or information of any kind,
prepared, conceived, discovered, developed or created by Executive in
connection with the performance of his services hereunder.
5.2 ACKNOWLEDGMENTS. Executive hereby acknowledges and agrees
that during the term of this Agreement (i) Executive will frequently be exposed
to certain Trade Secrets and Confidential Information; (ii) Executive's
responsibilities on behalf of Company will extend to all geographical areas of
the Restricted Territory; and (iii) any competitive activity on Executive's
part during the Term, or any competitive activity on Executive's part in the
Restricted Territory for a reasonable period thereafter, would necessarily
involve Executive's use of Company's Trade Secrets and Confidential Information
and would unfairly threaten Company's legitimate business interests, including
its substantial investment in the proprietary aspects of its business and its
associated goodwill. Moreover, Executive acknowledges that, in the event of
the termination of this Agreement, Executive would have sufficient skills to
find alternative, commensurate work in his field of expertise that would not
involve a violation of any of the provisions of this Section 5. Therefore,
Executive acknowledges and agrees that it is reasonable for Company to require
Executive to abide by the covenants set forth in this Section 5. The parties
acknowledge and agree that if the nature of Executive's responsibilities for
or on behalf of Company or the geographical areas in which Executive must
fulfill such responsibilities materially change, the parties will execute
appropriate amendments to the scope of the covenants in this Section 5.
5.3 NONDISCLOSURE; OWNERSHIP OF PROPRIETARY PROPERTY.
(a) In recognition of Company's need to protect its
legitimate business interests, Executive hereby covenants and agrees
that: (A) with regard to each item constituting a Trade
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Secret, at all times during which such item shall constitute a Trade
Secret (before or after the Term); and (B) with regard to any
Confidential Information, at all times during the term of this
Agreement and for a period of three (3) years following the expiration
or termination of the Term for any reason, Executive shall regard and
treat each item constituting a Trade Secret and all Confidential
Information as strictly confidential and wholly owned by Company and
will not, for any reason, in any fashion, either directly or
indirectly, use, sell, lend, lease, distribute, license, give,
transfer, assign, show, disclose, disseminate, reproduce, copy,
misappropriate or otherwise communicate any such item or information
to any third party for any purpose other than in connection with his
performance of services for the Company or as required by applicable
law.
(b) Executive shall immediately notify Company of any
intended or unintended, unauthorized disclosure or use of any Trade
Secrets or Confidential Information by Executive or any other person
or entity of which Executive becomes aware. Executive shall cooperate
fully with Company in the procurement of any protection of Company's
rights to or in any of the Trade Secrets or Confidential Information.
(c) Immediately upon expiration or termination of the
Term for any reason, or if notice of termination is required
hereunder, upon receipt of such notice, or at any time after such
termination or notice upon the specific request of Company, Executive
shall return to Company all written or descriptive materials of any
kind in Executive's possession or to which Executive has access that
constitute or contain any Confidential Information or Trade Secrets,
and the confidentiality obligations described in this Agreement shall
continue until their expiration under the terms of this Agreement.
(d) To the greatest extent possible, any Work Product
shall be deemed to be "work made for hire" (as defined in the
Copyright Act, 17 U.S.C.A. Section 101 et seq., as amended) and owned
exclusively by Company. Executive hereby unconditionally and
irrevocably transfers and assigns to Company all rights, title and
interest Executive currently has or in the future may have, by
operation of law or otherwise, in or to any Work Product, including,
without limitation, all patents, copyrights, trademarks, service marks
and other intellectual property rights. Executive agrees to execute
and deliver to Company any transfers, assignments, documents or other
instruments which Company may deem necessary or appropriate to vest
complete title and ownership of any Work Product, and all rights
therein, exclusively in Company.
5.4 NON-COMPETITION. In recognition of Company's need to protect
its legitimate business interests, Executive hereby covenants and agrees that
during the Term, Executive will not, either directly or indirectly, alone or in
conjunction with any other party, accept, enter into or take any action in
furtherance of a Competitive Position. Executive further agrees that for
eighteen (18) months following expiration or termination of the Term for any
reason other than termination by Executive for Good Reason, Executive will not,
either directly or indirectly, alone or in conjunction with any other party,
accept, enter into or take any action in furtherance of a Competitive Position
within the Restricted Territory (other than action to reject an offer of a
Competitive Position or to notify Company of the offer pursuant to the
requirements of the next sentence of this Section 5.4). Executive shall notify
Company promptly in writing if Executive
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receives an offer of a Competitive Position within eighteen (18) months
following expiration or termination of the Term for any reason, and such notice
shall describe all salient terms of such offer.
5.5 NON-SOLICITATION OF CUSTOMERS. Executive hereby covenants and
agrees that (i) during the Term, Executive will not, either directly or
indirectly, alone or in conjunction with any other party, solicit, divert or
appropriate or attempt to solicit, divert or appropriate any medical practice
managed by Company (a "Managed Practice") or actively sought prospective
Managed Practice for the purpose of providing such Managed Practice or actively
sought prospective Managed Practice with management services competitive with
those offered by Company; and (ii) for a period of two (2) years following
expiration or termination of the Term for any reason other than termination by
Executive for Good Reason, Executive will not, either directly or indirectly,
alone or in conjunction with a Competitor or any other party, solicit, divert
or appropriate, or attempt to solicit, divert or appropriate any Managed
Practice or actively sought prospective Managed Practice for the purpose of
providing (or having a Competitor or any other person provide) such Managed
Practice or actively sought prospective Managed Practice with management
services competitive with those offered by Company. Executive shall promptly
notify Company in writing if: (A) during the two (2) years following the
expiration or termination of the Term for any reason, Executive is contacted by
any Managed Practice or actively sought prospective Managed Practice with a
request that Executive provide Managed Practice with any management services;
and (B) provision of such services, as requested, would constitute a violation
of Executive's covenants in this Section 5. Such notice shall include all
salient information associated with such customer's request, including, without
limitation, the identity of such Managed Practice, the exact services or
products requested and the party or parties on behalf of such Managed Practice
who contacted Executive.
5.6 NONSOLICITATION OF COMPANY PERSONNEL. Executive hereby agrees
that during the Term, except to the extent that he is required to do so in
connection with his responsibilities hereunder, Executive will not, either
directly or indirectly, alone or in conjunction with any other party, solicit
or attempt to solicit any employee, consultant, contractor or other personnel
of Company to terminate, alter or lessen such party's affiliation with Company
or to violate the terms of any agreement or understanding between such party
and Company. Executive further agrees that during the two (2) year period
following expiration or termination of the Term for any reason other than
termination by Executive for Good Reason, Executive will not, either directly
or indirectly, alone or in conjunction with any other party, solicit or attempt
to solicit any "key" (as that term is hereinafter defined) employee,
consultant, contractor or other personnel of Company located in the Restricted
Territory to terminate, alter or lessen that party's affiliation with Company
or to violate the terms of any agreement or understanding between such party
and Company. For purposes of the preceding sentence "key" employees,
consultants, contractors or other personnel of Company are those with knowledge
of or access to Company's Trade Secrets or Confidential Information.
5.7 REMEDIES. Executive agrees that damages at law for
Executive's violation of any of the covenants in this Section 5 would not be an
adequate or proper remedy and that, should Executive violate or threaten to
violate any of the provisions of such covenants, Company or its
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successors or assigns shall be entitled to obtain a temporary or permanent
injunction against Executive in any court having jurisdiction prohibiting any
further violation of any such covenants, in addition to any award or damages
(compensatory, exemplary or otherwise) for such violation.
5.8 PARTIAL ENFORCEMENT. Company has attempted to limit the
rights of Executive to compete only to the extent necessary to protect Company
from unfair competition. Company, however, agrees that, if the scope of
enforceability of any of these restrictive covenants is in any way disputed at
any time, a court or other trier of fact may modify and enforce such covenant
to the extent that it believes to be reasonable under the circumstances
existing at the time.
5.9 SURVIVAL. Notwithstanding any expiration or termination of
this Agreement, the provisions of this Section 5 shall survive and remain in
full force and effect, as shall any other provision hereof that, by its terms
or reasonable interpretation thereof, sets forth obligations that extend beyond
the termination of this Agreement.
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SECTION 6. RIGHTS ON TERMINATION
(a) If Executive voluntarily resigns his employment or is
terminated for Cause, or dies or is terminated due to becoming
Disabled, Executive shall be entitled only to receive any salary and
bonus amounts that have accrued prior to the effective date of
termination of the Term (the Termination Date).
(b) If Company terminates the Term pursuant to Section
2.2(d)(ii), or if Executive terminates the Term following a
Change of Control pursuant to Section 2.2(e), Executive shall be
entitled to: (a) all salary and bonus amounts accrued through the
Termination Date, and (b) payment, for a period of twelve (12) months
following the Termination Date, of an amount equal to: (i) Executive's
base salary as of the Termination Date (with such payments to be made
at such times as they would be made if Executive's employment continued
for an additional year) LESS (ii) any salary or other amounts that
Executive is paid by any other person during that twelve month period
other than salary or amounts paid to Executive by NAENT (and in the
event Executive does not increase his work time at NAENT, Executive
hereby agrees to take reasonably diligent action to secure employment
as soon as practicable after any such termination from Company and to
otherwise mitigate his losses resulting from the loss of salary from
Company). Executive's rights to any of the compensation or benefits
identified in the preceding sentence shall be subject to Executive's
compliance in all respects of each of Executive's obligations under
this Agreement.
(c) In the event that Company (or Company's successor)
following a Change of Control (as defined below) terminates
Executive's employment other than pursuant to an express termination
right under Sections 2.2(a), (b) or (c) of this Agreement, Executive
shall be entitled to severance compensation in the form of a lump sum
payment in an amount equal to two (2) times the taxable compensation
received by Executive during the most recently concluded fiscal year of
Company. For purposes of this Agreement, "Change of Control" shall mean
the acquisition by any single person or entity or related persons or
entities of more than fifty percent (50%) of the outstanding and issued
common stock of Company following an initial public offering of
Company's common stock.
SECTION 7. MISCELLANEOUS.
7.1 BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, representatives, heirs, and permitted assigns.
7.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
7.3 HEADINGS. The titles, captions and headings contained in this
Agreement are inserted by convenience of reference only and are not intended to
be a part of or to affect in any
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way the meaning or interpretation of this Agreement.
7.4 NOTICES.
(a) All notices, consents, requests and other communications
hereunder shall be in writing and shall be sent by hand delivery, by certified
or registered mail (return-receipt requested), by facsimile or by a recognized
national overnight courier service as set forth below:
If to Company: Physicians' Specialty Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
0000 XxxxxxxXxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Fax No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to Executive: Xxxxx X. Xxxxx, M.D.
0000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxxx, Esq.
Ellis, Funk, Xxxxxxxx, Xxxxxxxx &
Dokson, P.C.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
(b) Notices delivered pursuant to this Section 7.4(a) hereof shall
be deemed given: at the time delivered, if personally delivered, three (3)
business days after being deposited in the mail, if mailed; one (1) business
day after being sent, if faxed; and one (1) business day after timely delivery
to the courier, if by overnight courier service.
(c) Either party hereto may change the address to which notice is
to be sent by written notice to the other party hereto in accordance with this
Section 7.4
7.5 COUNTERPARTS; FAX SIGNATURES. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute the same Agreement. Any signature
page of any such counterpart, or any electronic facsimile thereof, may be
attached or appended to any other counterpart to complete a fully
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executed counterpart of this Agreement, and any telecopy or other facsimile
transmission of any signature shall be deemed an original and shall bind such
party.
7.6 ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the
subject matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements or agreements to the
contrary heretofore made. This Agreement may be modified only by a written
instrument signed by each of the parties hereto.
7.7 SEVERABILITY. The unenforceability or invalidity of any
provision of this Agreement shall not affect the validity or enforceability of
the remaining provisions hereof, but such remaining provisions shall be
construed and interpreted in such a manner as to carry out fully the intent of
the parties hereto; provided, however, that should any judicial body
interpreting this Agreement deem any provision hereof to be unreasonably broad
in time, territory, scope or otherwise, it is the intent and desire of the
parties hereto that such judicial body, to the greatest extent possible, reduce
the breadth of such provision to the maximum legally allowable parameters
rather than deeming such provision totally unenforceable or invalid.
7.8 WAIVER. No waiver, termination or discharge of this
Agreement, or any of the terms or provisions hereof, shall be binding upon
either party hereto unless confirmed in writing. No waiver by either party
hereto of any term or provision of this Agreement or of any default hereunder
shall affect such party's right thereafter to enforce such term or provision or
to exercise any right or remedy in the event of any other default, whether or
not similar.
7.9 INTERPRETATION. Should a provision of this Agreement require
judicial interpretation, it is agreed that the judicial body interpreting or
construing the Agreement shall not apply the assumption that the terms hereof
shall be more strictly construed against one party by reason of the rule of
construction that an instrument is to be construed more strictly against the
party which itself or through its agents prepared the agreement, it being
agreed that all parties and/or their agents have participated in the
preparation of this Agreement equally.
7.10 APPLICABLE LAW. Should any provision of this Agreement,
including, without limitation, any provision relating to compensation, be found
to be in violation of any applicable law, rule or regulation, the parties
hereto agree to execute an amendment to this Agreement to bring such provision
into compliance with any such law, rule or regulation, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
"Company"
PHYSICIANS' SPECIALTY CORP.
By:
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Name:
Its:
"Executive"
XXXXX X. XXXXX, M.D.
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