EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of
February 24, 1997, by and between PHP Healthcare Corporation, a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an
individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
"Employee").
WHEREAS, the Company and the Employee are parties to an
Employment Agreement dated as of March 1, 1992 (the "Old
Employment Agreement");
WHEREAS, the Company and the Employee desire to set forth
the terms and conditions of a change in status of the Employee;
WHEREAS, the Company recognizes that the Employee has
special skills, knowledge and expertise essential to the Company;
WHEREAS, the Company desires to continue to utilize the
Employee's special skills, knowledge and expertise, and Employee
desires to continue to assist the Company by making such skill,
knowledge and expertise available to the Company; and
WHEREAS, the Company and the Employee wish to address
certain matters arising out of the Employee's ownership of a
significant portion of the Company's common stock (the "Common
Stock") and a significant number of options to purchase Common
Stock.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual promises, agreements and covenants contained
herein, the parties hereto agree as follows:
Section 1. Termination of Old Employment Agreement; New
Employment.
1.01 Employment. As of January 31, 1997, the Employee
shall cease to be Chairman (and member) of the Board of Directors
and an executive officer of the Company and shall become a non-
executive employee of the Company in accordance with this Section
1. The Old Employment Agreement is hereby terminated.
1.02 Employment Term. The term for which the Employee
agrees to provide services and the Company agrees to pay for such
services under this Agreement (the "Employment Term" or the
"Term") shall be for a period beginning as of January 31, 1997
(the "Effective Date"), and ending on January 31, 1998 (the
"Termination Date"), unless earlier terminated as provided
herein.
1.03 Employment Obligations. The Employee shall
provide such advice, counseling, and other planning services to
the Company's management in respect of its government contracts
business, commercial operations, and prospects as reasonably
requested from time to time by the President of the Company (the
"Duties"); provided, however, that the Employee shall not be
required to submit any written reports. The Employee shall not
be based at the Company's executive offices in Reston, Virginia
and shall work instead at such office location as the Employee
designates to the Company.
1.04 Part Time Employment. The Employee shall be
available to perform the Duties for up to twenty (20) hours per
month, upon reasonable notice, and at mutually agreeable times
and places. Subject to the foregoing and Section 7 hereof, the
Employee may (i) serve on corporate, civic or charitable boards
or committees; (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions; (iii) manage
personal investments; and (iv) engage in any business, including,
but not limited to, a full-time employment or consulting
position.
Section 2. Payments to the Employee and to the Company
2.01 Payment to the Employee. In consideration for the
Employee's promises, agreements, and covenants contained herein,
and in lieu of any payment or claims that the Employee may have
with respect to (i) the Old Employment Agreement, (ii) any formal
and/or informal severance policy of the Company, and (iii) any
other right to receive payment from the Company related to his
former employment as Chairman, the Company agrees to the
following:
(a) One-time cash payment of Two Million Dollars
($2,000,000.00), such payment to be made on or before February
24, 1997.
(b) Assignment to Employee or his designee,
subject to the Company's retention of the cash surrender value
net of any loans, the rights under each of the life insurance
policies listed on Schedule 2.01(b).
2.02 Repurchase of Common Stock. The Company hereby
grants to the Employee the right to require the Company to
purchase up to 200,000 shares of the Employee's Common Stock (the
"Put Right"). The Put Right shall expire on April 30, 1997. In
consideration for the Employee's covenants in Section 3 and the
deliverance by Employee of up to 200,000 shares of the Company's
Common Stock to the Company, the Company agrees to purchase such
shares from the Employee, upon the exercise of the Employee of
the Put Right, at any time before April 30, 1997. The purchase
price per share for such shares shall be the average closing
price (as reported in the Wall Street Journal) of the Common
Stock of the Company on the New York Stock Exchange for 5 trading
days ending on the date preceding the date on which the Company
receives notice from the Employee that the Employee is exercising
the Put Right and the number of shares to be included in the Put
Right (the "Notice Date"). The closing of such purchase and sale
shall occur within 5 business days of the Notice Date. Employee
hereby represents and covenants that the Employee shall convey
such shares free and clear of any liens and encumbrances.
2.03 Payment for Noncompetition Agreement. In
consideration for the Employee's covenants set forth in Section 7
hereof, the Company agrees to pay the Employee $275,000, such
payment to be made upon the execution of this Agreement.
2.04 Salary and Benefits.
(a) In consideration of the performance by the
Employee of Employee's Duties during the Employment Term, the
Company will pay to the Employee during the Employment Term a
salary of $25,000 per annum (the "Salary").
(b) The Salary shall be payable in accordance
with the normal payroll practices of the Company then in effect
and subject to all applicable taxes required to be withheld by
the Company pursuant to federal, state or local law.
(c) The Employee and his wife shall be entitled
to continue during the Employment Term to participate at the
Company's expense in any Employee health and dental benefit plan
of the Company then in effect that the Company provided for the
Employee as of the date hereof.
(d) The Employee shall be entitled to receive
prompt reimbursement of all expenses reasonably incurred by him
in connection with the performance of his duties hereunder,
including, without limitation, expenses for meals, transportation
and lodging incurred by reason of Employee's travel directly
related to the performance of his duties hereunder.
(e) During the Term, the Employee shall receive,
as and when invoiced, an allowance of $75,000 to maintain an
office to perform his obligations hereunder.
2.05 Withholding. The Company shall have the right to
deduct from any amounts payable under this Agreement or otherwise
any taxes or other amounts required by law to be withheld.
Subject to the Company's rights in the preceding sentence,
Employee shall be solely responsible for income taxes imposed on
the Employee by reason of any cash or non-cash compensation and
benefits provided hereunder.
2.06 Repayment of Loans.
(a) Employee agrees to apply the appropriate
portion of the proceeds from any exercise of the Put Right
pursuant to Section 2.02 to repay in full to the Company (x)
$1,561,706.73, representing the total principal and accrued
interest as of the date hereof on Employee's indebtedness to the
Company under the Company's Senior Executive Loan Program, (y)
$744,547.00, representing the total net premiums in excess of
cash surrender value paid by the Company on split dollar life
insurance policies for the Executive (policies 2579829, 2660271,
5420954, 5421447 and 2668340 on Schedule 2.01(b) (the "Insurance
Loan")) and (z) any interest on the amounts stated in clauses (x)
and (y) above that accrues after the Effective Date until such
amounts are paid in full (the "Interest") ((x), (y) and (z)
collectively, the "Debt"). Any proceeds for the Put Right in
excess of the amount of the Debt shall be promptly paid to the
Employee.
(b) In the event that Employee does not exercise
the Put Right pursuant to Section 2.02, the Employee hereby
covenants and agrees that he will satisfy the Debt and the
Interest in full in cash no later than April 30, 1997.
(c) Upon complete satisfaction of the Debt and
the Interest, the Company shall release any and all liens that it
holds with respect to any of the Company's Common Stock owned by
Employee.
Section 3. Other Covenants with Respect to Securities.
3.01 Acquisitions, Dispositions and Other Activities.
Until the Standstill Termination Date (as hereinafter defined),
Employee and his wife, ▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the
"Restricted Persons") shall not, and shall not through their
Affiliates and associates, directly or indirectly, unless
specifically requested in writing in advance by the Company which
request shall be duly authorized by the Board of Directors of the
Company and which request shall be accompanied by evidence of
such authorization (it being understood that Restricted Persons
shall not, and shall not through their Affiliates and associates,
seek to have the Company or any of the Company's officers,
directors, representatives, trustees, employees, attorneys,
advisors, agents, Affiliates or associates make any such
request):
(A) acquire or seek to acquire, by purchase
or otherwise, ownership, including, Beneficial Ownership, of (i)
any Securities or (ii) any of the assets or businesses of the
Company, or direct or indirect rights or options to acquire such
ownership (other than the Common Stock underlying the options
currently owned by the Employee under the Company's 1986 stock
option plan);
(B) offer, seek or propose to enter into any
transaction of merger, consolidation, sale of substantial assets
or any other business combination involving the Company or any of
its Affiliates, whether or not any parties other than Restricted
Persons and their Affiliates and associates are involved;
(C) make, or in any way participate,
directly or indirectly, in any "solicitation" of "proxies" (as
such terms are defined or used in Regulation 14A under the
Exchange Act) or become a "participant" in any "election contest"
(as such terms are defined or used in Rule 14a-11 under the
Exchange Act) to vote, or seek to advise or influence any person
or entity with respect to the voting of, any voting Securities of
the Company or any of its Affiliates ("Voting Securities");
(D) initiate or propose any stockholder
proposals for submission to a vote of stockholders with respect
to the Company or any of its Affiliates, or propose any person
for election to the Board of Directors of the Company or any of
its Affiliates, or propose the removal of any member of the Board
of Directors of the Company or any of its Affiliates;
(E) otherwise seek to control the management
or policies of the Company or any of its Affiliates, including,
without limitation, taking any action to seek to obtain
representation on the Board of Directors of the Company or any of
its Affiliates (excluding his discussions in the ordinary course
with senior management of the Company);
(F) oppose, through any public means, any
duly authorized action or recommendation of the Board of
Directors of the Company;
(G) grant any proxy with respect to any
Voting Securities to any person not designated by the Company;
(H) deposit any Voting Securities in a
voting trust or subject any Voting Securities to any arrangement
or agreement with respect to the voting of such Voting Securities
or other agreement having similar effect;
(I) form, join or in any way intentionally
participate in a "group" (as such term is used in Section
13(d)(3) of the Securities Exchange Act of 1934 (the "Exchange
Act")) to take any actions otherwise prohibited by this Section
3.01 or Section 3.04;
(J) enter into any discussions,
negotiations, arrangements or understandings with any third party
with respect to any provision of this Section 3.01 or Section
3.04; or
(K) make any public announcement with respect to
any prohibited act under this Section 3.01 or Section 3.04
(except as required by law).
For the purposes of this Agreement, the "Standstill
Termination Date" shall mean the earlier of (i) January 31, 1999
or (ii) the date upon which there is a Change in Control (as
hereinafter defined).
For purposes of this Section 3, a "Change in Control" shall
mean:
(A) An acquisition (other than directly from the
Company) of any voting securities of the Company by any "Person"
(as the term "Person" is used for the purposes of Section 13(d)
or Section 14(d) of the Exchange Act) immediately after which
such Person has "Beneficial Ownership" (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of fifteen percent
(15%) or more of the combined voting power of the Company's then
outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a
Change in Control. The term "Person" for purposes of this
Section 3.01(A) shall not include the Employee or his Affiliates.
A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or trust forming part thereof) maintained
by (x) the Company or (y) any corporation or other Person of
which a majority of its voting power or its equity securities or
equity interest is owned directly or indirectly by the Company (a
"Subsidiary"), (ii) the Company or any Subsidiary, or (iii) any
Person in connection with (x) a "Non-Control Transaction" as
hereinafter defined) or (y) a transaction approved by the
Incumbent Board of Directors of the Company (as defined below) to
a Person which has Beneficial Ownership of less than 50% of the
Voting Securities of the Company after the consummation of such
transaction;
(B) The individuals who, as of February 1, 1997,
are members of the Boards of Directors (the "Incumbent Board"),
cease for any reason to constitute at least two-thirds of the
Board of Directors; provided, however, that if the election, or
nomination for election by the Company's stockholders, of any new
director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board;
provided, further, however, that no individual shall be
considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or
threatened election contest or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any Proxy
Contest; or
(C) Approval by stockholders of the Company
of:
(1) A merger, consolidation or
reorganization involving the Company, unless
(a) the stockholders of the Company
immediately before such merger, consolidation or reorganization
own, directly or indirectly, immediately following such merger,
consolidation or reorganization, at least two-thirds (66-2/3%) of
the combined voting power of the outstanding voting securities of
the corporation resulting from merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the
same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganizations;
(b) the individuals who were members of
the Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of
the board of directors of the Surviving Corporation; and
(c) no Person (other than the Company
or any Company Subsidiary, any employee benefit plan (or any
trust forming a part thereof) maintained by the Company, the
Surviving Corporation or any Subsidiary of the Company or the
Surviving Corporation, or any Person who, immediately prior to
such merger, consolidation or reorganization had Beneficial
Ownership of fifteen percent (15%) or more of the then
outstanding Voting Securities) has Beneficial Ownership of
fifteen percent (15%) or more of the combined voting power of the
Surviving Corporation's then outstanding Voting Securities, and
(d) a transaction described in clauses
(a) through (c) shall herein be referred to as a "Non-Control
Transaction";
(2) A complete liquidation or dissolution of
the Company; or
(3) An agreement for the sale or other
disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a Company
Subsidiary).
3.02 Voting of Common Stock. Until the Standstill
Termination Date, the Restricted Persons agree that in all
matters requiring a vote by the holders of the Common Stock
during the Term, the Restricted Persons will take such action as
may be required so that all shares of Common Stock Beneficially
Owned by them are voted, at their option, either (i) in
accordance with the recommendation of the Board of Directors of
the Company or (ii) pro rata in the same manner and proportion
that votes of the stockholders of the Company (other than the
Restricted Persons) have been cast. The Restricted Persons will
take all such action as is necessary during the Term to ensure
that they shall be present, in person or by proxy, at all
meetings of stockholders of the Company so that all Voting
Securities Beneficially Owned by the Restricted Persons shall be
counted for purposes of determining the presence of a quorum at
such meeting.
3.03 Restrictions on Transfer. Prior to November 1,
1997, the Restricted Persons shall not, directly or indirectly,
sell, lend, transfer or otherwise dispose of, offer to sell,
lend, transfer or otherwise dispose of or agree to sell, lend,
transfer or otherwise dispose of more than 200,000 shares of
Common Stock they own (in addition to any Common Stock sold to
the Company pursuant to the Put Right); provided, however, that
Restricted Persons may sell, lend, transfer or otherwise dispose
of such Common Stock of the Company in the event of (i) a Change
in Control (as defined above), (ii) an underwriting of at least
one million five hundred thousand (1,500,000) shares of the
Common Stock in which Restricted Persons are permitted to
participate pursuant to the terms of the Registration Rights
Agreement between Restricted Persons and the Company dated as of
February 24, 1997 or (iii) pursuant to a bona fide pledge of or
the granting of a security interest or any other lien or
encumbrance in such shares of Common Stock to a recognized
institutional lender to secure a bona fide loan. Until the
Standstill Termination Date, the Restricted Persons shall not,
directly or indirectly, sell, lend, transfer or otherwise dispose
of any of their shares of Common Stock of the Company (or agree
to do so) to any person which, to their knowledge and after
taking into account such sale, would Beneficially Own more than
one percent (1%) of the Company's Common Stock. The parties
agree that the three children of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and
any trust created on their behalf prior to January 31, 1997) are
excluded from the restrictions in this Section 3.03.
3.04 Dispositions. In order to assist the Employee in
disposing of his Securities in accordance with applicable law
consistent with the undertakings set forth in Section 3.01, the
Company shall simultaneously herewith enter into a Registration
Rights Agreement with the Employee in the form attached hereto as
Exhibit 3.04.
Section 4. Employment Termination. The employment of
the Employee by the Company pursuant to this Agreement shall
terminate upon the occurrence of any of the following:
(a) Expiration of the Employment Term;
(b) At the election of the Company by action of the
Board of Directors, for Cause, immediately upon written notice by
the Company to the Employee. For the purposes of this Section
4(b), Cause for termination shall be deemed to exist only if the
Employee (i) is convicted of a felony by a court of competent
jurisdiction in a matter relating to the performance of his
Duties hereunder or (ii) is adjudged by a court of competent
jurisdiction to be liable for gross negligence or willful
misconduct in the performance of his duties to the Company and
such adjudication is no longer subject to direct appeal; or
(c) Death or disability of the Employee. As used in
this Agreement, the term "Disability" shall mean the inability of
the Employee, due to a physical or mental condition, for a period
of six (6) consecutive months, to perform the services
contemplated under this Agreement. A determination of Disability
shall be made by a physician satisfactory to both the Employee
and the Company, which physician's determination as to disability
shall be made within ten days of the request therefor and shall
be binding on all parties; provided, however, that if the
Employee and the Company do not agree on a physician, the
Employee and the Company shall each select a physician and these
two together shall select a third physician, which third
physician's determination as to Disability shall be binding on
all parties.
Section 5. Effect of Termination.
5.01 Termination for Cause. In the event the
Employee's employment is terminated for Cause pursuant to Section
4(b), the Company shall pay to the Employee the pro rata Salary
and benefits otherwise payable to him under Section 2 through the
last day of his actual employment by the Company. Termination of
the Employee for Cause shall not affect any rights granted to
Employee hereunder other than Employee's right to receive salary
and benefits under Section 2.04 hereof.
5.02 Termination for Death or Disability. If the
Employee's employment is terminated by death or because of
Disability pursuant to Section 4(c), the Company shall pay to the
estate of the Employee or to the Employee, as the case may be, a
lump-sum payment equal to the remaining compensation which would
otherwise be payable to the Employee during the remainder of the
Term.
5.03 Cooperation. In the event of termination of this
Agreement for whatever reason (other than death), for a period of
one year thereafter, and upon reasonable written notice by the
Company, for reasonable amounts of time, and at mutually agreed
times and places, the Employee agrees to cooperate with the
Company and to be reasonably available to the Company with
respect to continuing and/or future matters arising out of this
Agreement or any other relationship with the Company, whether
such matters are business-related, legal or otherwise. With
respect to each written request by the Company for the Employee's
cooperation or availability under this Section 5.03, the Company
agrees to pay the Employee for each day the Employee actually
renders services to the Company pursuant to such request, $100
per hour, but in no case less than $1,000, and to reimburse the
Employee for the Employee's reasonable expenses (including
attorney's fees) incurred in complying with the terms of this
Section 5.03.
Section 6. Confidentiality. The Employee agrees and
understands that, in the Employee's position with the Company,
the Employee has been and may be from time to time exposed to and
receive information relating to the trade secrets, proprietary
information and confidential affairs of the Company (including,
without limitation, confidential information provided to the
Company by its clients, customers and third parties), including,
without limitation, business and marketing plans, strategies,
customer information, other information concerning the Company's
services, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information.
The Employee agrees that during the Employment Term and for one
year thereafter the Employee will keep such information
confidential and not disclose such information, either directly
or indirectly, to any third person or entity without the prior
written consent of the Company. This confidentiality covenant
has no geographical or territorial restriction. Upon termination
of this Agreement, the Employee will promptly supply to the
Company all property, keys, notes, memoranda, writings, lists,
files, reports, customer lists, correspondence, tapes, disks,
cards, surveys, maps, logs, machines, technical data or any other
tangible product or document which has been produced by, received
by or otherwise submitted to the Employee during or prior to the
Employment Term in connection with his services under this
Agreement.
Section 7. Covenant Not To Compete.
7.01 Non-Competition. During the Employment Term, the
Employee shall not directly or indirectly:
(a) as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer,
investor, lender, or in any other capacity whatsoever (other than
as the holder of not more than two percent (2%) of the total
outstanding stock of a publicly held company) own, manage,
operate, join, control, be employed by, or participate in the
ownership, management, operation or control of any Competing
Enterprise (as defined in Section 7.02 of this Agreement);
(b) recruit, solicit or induce, or attempt to
induce, any employee or employees of the Company (other than his
former secretary, ▇▇▇▇ ▇▇▇▇▇▇, and his son, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇)
to terminate their employment with, or otherwise cease their
relationship with, the Company;
(c) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of the
clients, customers or accounts, or prospective clients, customers
or accounts, of the Company which were contacted, solicited or
served by the Company while the Employee was employed by the
Company; or
(d) publish any statement or make any statement
(under circumstances reasonably likely to become public) critical
of the Company, or in any way adversely affecting or otherwise
maligning the reputation of the Company or any of its Affiliates.
7.02 Competing Enterprise. For purposes of Section
7.01 of this Agreement, the term "Competing Enterprise" shall
mean any person, corporation, partnership or other entity engaged
in any business (i) described in the Company's Annual Report to
Stockholders or in its Annual Report on Form 10-K for the
Company's most recent fiscal year, within the United States of
America or in the Republic of Vietnam and any adjacent countries,
in which the Company and its Affiliates has engaged or is then
engaged, (ii) under consideration by the Company and its
Affiliates as of the date hereof or during the Employment Term or
(iii) otherwise related, directly or indirectly, to the
healthcare field. Notwithstanding anything in this Section 7.02
to the contrary, the term "Competing Enterprise" shall not
include any person, or any corporation or other entity,
developing or operating assisted living facilities which are not
within 100 miles of any facility of the Company or a Subsidiary
on the Effective Date. The phrase "engaged in any business"
includes the conduct of business in any respect, including,
without limitation, sales presentations, entering into contracts,
and the billing or receipt of payment, services or goods, and in
regard to any person, including, without limitation, the United
States federal government, and any state government, and any
department or agency thereof.
7.03 Enforceability. If any restriction set forth in
Section 7.01 of this Agreement is found by any court of competent
jurisdiction to be unenforceable because it extends for too long
a period of time or over too great a range of activities or in
too broad a geographic area, it shall then be interpreted to
extend only over the maximum period of time, range of activities
or geographic area as to which it may be enforceable.
7.04 Essential Elements. It is understood by the
parties hereto that the covenants contained in this Section 7 are
essential elements of this Agreement and that, but for the
agreement of the Employee to comply with such covenants, the
Company would not have agreed to enter into this Agreement. The
Employee and the Company have independently consulted with their
respective counsel and have been advised concerning the
reasonableness and propriety of such covenants with specific
regard to the nature of the business conducted by the Company.
The Employee hereby agrees that all covenants contained in this
Section 7 are reasonable and valid and waives all defenses to the
strict enforcement hereof by the Company.
Section 8. Covenants of the Company Not to Disparage.
Except as required by law, the Company and the Employee shall
not, directly or indirectly, publish any statement or make any
statement critical of each other or in any way adversely
affecting or otherwise maligning the reputation of each other.
Section 9. D&O Insurance. The Company shall maintain
the Employee's coverage under the Company's then existing
directors' and officers' insurance policy to the same extent that
it maintains such insurance for the members of its Board of
Directors and Officers.
Section 10. Advancement of Expenses. The Company agrees
to advance expenses (including attorneys' fees) incurred by the
Employee in respect of any litigation or threatened litigation
involving the Employee in his capacity as a former director or
officer of the Company or its Affiliates (other than in any
matter in which the Company is the party opposed to the Employee
(other than a derivative action)). The Company's obligation
hereunder shall be to the fullest extent permitted by Delaware
law and the Company's Bylaws; provided, however, that no
advancement of expenses hereunder shall be made until the Company
has received an undertaking by the Employee to repay such amount
if it shall be ultimately determined that the Employee is not
entitled to be indemnified by the Company.
Section 11. Miscellaneous.
11.01 Section 16(a) Filing. The Employee shall
file one or more Form 4's promptly after execution of this
Agreement reflecting his termination as a director and an
executive officer, the sale of Common Stock in accordance with
Section 2.02 hereof, if any, and such information as a Form 5 may
require for the fiscal year ending April 30, 1997.
11.02 Specific Performance. The parties hereto
agree that irreparable harm would occur in the event that
Sections 3, 6 and 7 of this Agreement were not performed by the
Employee in accordance with their specific terms or conditions or
were otherwise breached and that money damages are an inadequate
remedy for breach of Sections 3, 6 and 7 hereof because of the
difficulty of ascertaining the amount of damage that will be
suffered by the Company in the event that Sections 3, 6 and 7
hereof are not performed in accordance with their terms or
conditions or are otherwise breached. Accordingly, the Employee
agrees that the Company shall be entitled to an injunction or
injunctions to prevent breaches of Sections 3, 6 and 7 hereof by
the Employee and to enforce specifically the terms and provisions
thereof in any court of the United States or in any state having
jurisdiction, this being in addition to any other remedy to which
it is entitled at law or in equity.
11.03 Legend Removal. The Company agrees that it
will, upon the presentation to its transfer agent of any
certificates representing shares of Common Stock held by the
Restricted Persons or their Affiliates which contain a legend,
replace the certificates representing such shares with new
certificates not containing any restrictive legends. Unless a
registration statement concerning such shares of Common Stock has
become effective, such presentation shall be accompanied by an
opinion of counsel reasonably acceptable to the Company that such
shares may be offered and sold without registration under the
Securities Act of 1933 and the basis therefor.
11.04 Entire Agreement. The parties acknowledge
and agree that this Agreement, together with the Registration
Rights Agreement and the stock option agreements under the
Company's 1986 stock option plan between the Company and the
Employee, constitute the complete agreement between them and that
no oral modification of this Agreement is permissible. The
parties further acknowledge and agree that this Agreement and the
terms contained herein supersede all previous contracts and
agreements between the parties other than such Registration
Rights Agreement and such stock option agreements and that all
previous contracts and agreements other than such Registration
Rights Agreement and such stock option agreements between the
parties shall become null and void upon execution of this
Agreement.
11.05 Amendment. This Agreement may not be
amended, modified, altered or supplemented, except upon the
execution and delivery of a written agreement executed by all of
the parties hereto.
11.06 Waiver. No provision of this Agreement shall
be waived except upon the execution and delivery of a written
instrument executed by the party to be charged with the waiver.
No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision
hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof.
11.07 Actions by the Company. Notwithstanding any
other provision of this Agreement, any amendment, modification,
alteration, supplement, assignment or waiver of this Agreement
that requires the written agreement or consent of the Company, or
action permitted or required by the Company pursuant to this
Agreement, shall be effective only following the review and
approval thereof by the Board.
11.08 Notices. All notices, requests, demands and
other communications required or permitted shall be made in
writing by hand-delivery, registered first-class mail, telex,
telecopier or air courier guaranteeing overnight delivery:
(a) If to the Company, to:
PHP Healthcare Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
PHP Healthcare Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
or to such other person or address as the Company shall furnish
to the Employee in writing;
(b) If to the Employee, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, Flyer & ▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other person or address as the Employee shall furnish
to the Company in writing. All such notices, requests, demands
and other communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight
delivery.
11.09 Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns;
provided, however, that neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by
the Employee or the Company (except by operation of law) without
the prior written consent of the other party.
11.10 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, such provision shall be interpreted to be
only so broad as is enforceable, and this Agreement shall be
deemed reformed on terms as substantially similar to the terms
hereof as are enforceable.
11.11 Headings. The headings of the sections of
this Agreement are inserted for convenience only and shall not
constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement.
11.12 Expenses. Each party shall pay all costs and
expenses incurred by it or on its behalf in connection with this
Agreement and the transactions contemplated hereby, including,
without limiting the generality of the foregoing, fees and
expenses of such party's own financial Employees, accountants and
counsel.
11.13 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Virginia without giving effect to conflict of law
rules.
11.14 Jurisdiction and Venue. Each of the parties
to this Agreement hereby (i) consents to personal jurisdiction in
any suit, claim, action or proceeding relating to or arising
under this Agreement which is brought in any state or federal
court in the Commonwealth of Virginia and (ii) waives any
objection such party may have to venue in any such Virginia court
or to any claim that any such Virginia court is an inconvenient
forum.
11.15 Interpretation of Agreement. This Agreement
has been negotiated at arm's length and between persons
sophisticated and knowledgeable in the matters dealt with in this
Agreement. Each party has been represented by experienced and
knowledgeable legal counsel. Accordingly, any rule of law or
legal decision that would require interpretation of any
ambiguities in this Agreement against the party that has drafted
it is not applicable and is waived.
11.16 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall constitute one
and the same instrument.
11.17 Survival. Notwithstanding the expiration of
the Employment Term, the covenants and other agreements made
herein shall survive, unless and until such covenants and
agreements are terminated in accordance with their terms as set
forth herein.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the day and year first above written.
PHP HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive V.P. & C.F.O.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
(as to Sections 3 and 11)