AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made and entered into as of July 1, 1996,
between, ProMedCo, Inc., a Texas corporation (the "Company"), and H. ▇▇▇▇▇ ▇▇▇▇▇
("Executive").
WHEREAS, Company and Executive were parties to that certain Employment
Agreement of July 1, 1994;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties agree as follows:
1. Employment. The Company hereby employs Executive, and Executive accepts
employment with the Company, under the terms and conditions set forth in this
Agreement for the period beginning on the date hereof and ending as provided in
paragraph 4 hereof (the "Employment Period"). The date on which Executive ceases
to be employed by the Company and/or its Subsidiaries (as defined below) or its
successors or assigns is referred to herein as the "Termination Date."
2. Position and Duties.
(a) During the Employment Period, Executive shall perform such
duties for the Company, its affiliates and its Subsidiaries as
the Company's Board of Directors (the "Board") may from time
to time direct. Executive shall serve as the Company's
President and Chief Executive Officer. Company agrees to
nominate Employee to the Board and to the Executive Committee
of the Board during the term of employment.
(b) Executive shall report to the Board, and shall devote his best
efforts and substantially his full business time and attention
(except for permitted vacation periods and reasonable periods
of illness or other incapacity) to the business and affairs of
the Company, its affiliates and its Subsidiaries
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
corporation of which the securities having at least 50% of the
voting power in electing directors are, at the time of
determination, owned by the Company, directly or through one
or more Subsidiaries.
(e) The Board shall not have the right to change the office and/or
duties of the Executive, including being the person primarily
responsible for interacting with the Board and implementing
its policy decisions, without Executive's express prior
written consent. Should another person be named to the
position of President, Company agrees to nominate Executive to
the position of Chairman and Chief Executive Officer, with the
current Chairman, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, being nominated
Chairman of the Executive Committee.
(f) Executive's principal place of employment shall be Fort Worth,
Texas during the term of this Agreement.
3. Compensation and Benefits.
(a) Executive's initial Base Salary (the "Base Salary") shall be
$325,000 per annum effective September 1, 1996. Thereafter,
the Base Salary shall be reviewed at least annually by the
Compensation Committee. However, the Base Salary shall be
subject to annual
increases of no less than the increase in the Consumer Price
Index for all goods and services, U.S. All City Average
Report, published by the United States Department of Labor for
the preceding 12 months. The Base Salary shall be payable in
regular installments in accordance with the Company's general
payroll practices.
(b) The Company shall reimburse Executive for all expenses
incurred by him in the course of performing his duties under
this Agreement, including travel, entertainment and other
business expenses.
(c) In addition to the Base Salary, Executive shall be entitled to a bonus
at the end of each calendar year ("Bonus"). Beginning with the first calendar
year following the Company's initial public offering, the Bonus will be based on
the relationship of the Adjusted Earnings Per Share ("AEPS") of the capital
stock of Company in a calendar year, or a portion thereof, to the Budgeted
Earnings Per Share ("BEPS") of the capital stock in its annual budget as adopted
and approved by the Board. For Bonus purposes, AEPS shall be defined as follows:
the reported earnings per share of Company adjusted (i) to eliminate the effects
of any changes in capital structure resulting in interest savings, additional
interest expense or other material non-recurring gains or charges, (ii) to
eliminate the effect of any extraordinary gains or losses, (iii) for any change
in consolidated average shares outstanding as a result of a sale by the Company
of equity securities, all to the extent not reflected in the Company's annual
budget; and (iv) to exclude corporate consolidation reserves expensed during the
year or taken into income from prior year reserves. The Bonus will typically be
structured such that a portion (the "Current Portion") will be payable after the
end of the fiscal year upon determination of the amount due with the remaining
balance (the " Deferred Portion") payable in equal amounts on January 15 of the
following three fiscal years (provided Executive is then currently employed by
the Company). The Current Portion, to the extent earned, shall be a minimum of
60% of Executive's Base Salary earned during the preceding calendar year. Any
amount earned in excess of 60% of Base Salary may be deferred, as described
above, at the discretion of the Compensation Committee. The total amount earned
shall be that percentage of the Base Salary earned by Executive for that fiscal
year determined under the Bonus schedule as set forth below.
Bonus
AEPS Earned
as % of Bonus as % of
BEPS Increment Base Sala[y
Below Threshold None
THRESHOLD 95% N/A 65%
96% 7.0% 72%
97% 7.0% 79%
98% 7.0% 86%
99% 7.0% 93%
TARGET BONUS 100% 7.0% 100%
("Target Bonus")
More than 100% 100% plus 3% for
each 1% of AEPS
achieved over 100%
of BEPS to maximum
of 120% Base Salary
(d) In addition to the Base Salary and any bonuses payable to
Executive pursuant to this paragraph, during the Employment
Period Executive shall be entitled to participate in all
benefit plans adopted by Company for all or a select group of
its employees, including:
(i) term life insurance of not less than two times Base
Salary, health insurance (including coverage for
Executive's wife and other legal dependents) and
Executive's individual disability insurance coverage
(regardless of whether commercial insurance is
available and with no coverage exclusions), with all
premiums paid by the Company. Total disability
coverage shall not be less than 60% of Executive's
Base Salary and Target Bonus.
(ii) participation in a stock option program with grants
as approved by the Option Committee from time to
time.
(iii) four weeks of vacation each year, but such time shall
not accrue or carry over.
(iv) Company shall pay for or reimburse Executive for any
and all expenses for personal financial and estate planning.
(v) Company shall provide Executive with an automobile for use in
connection with performance of his duties and for his personal use. Company
shall pay, or reimburse Executive for, any and all expenses for gas, insurance,
maintenance, and repairs incurred in connection with his use of the Company Car,
including personal use. The Company Car shall be of a quality commensurate with
employee's position with the Company and shall be replaced every three years by
Company with a comparable automobile. Whenever Executive's employment with
Company shall cease, for any reason, he shall at that time have the option, for
30 days following termination, to purchase the Company Car at a price equal to
the lower of (i) the book value of the Company Car reflected on the Employer's
financial accounting records as of the end of the month preceding such
termination, or (ii) the "loan value" of the Company Car listed in the N.A.D.A.
Official Used Car Guide for the month during which such termination occurs. The
right to purchase the Company Car in no way changes the Company's other
severance obligations set forth in this Agreement.
(vi) deposits to a deferred compensation plan to restore
benefits lost under the Company's 401(k) Plan due to
legislative limits.
4. Term and Termination Provisions.
(a) This Agreement shall continue for an initial period of five
years from the date hereof, unless otherwise terminated as
provided herein, provided that (i) the Employment Period shall
terminate prior to such date upon Executive's resignation,
death or permanent disability or incapacity (as determined by
the Board in its good faith judgment) and (ii) the Employment
Period may be terminated by the Company at any time prior to
such date For or Without Cause Cause (both as defined below).
Commencing 90 days prior to the second anniversary of this
Agreement (and thereafter commencing on each date
which is 39 months prior to the end of the then term) the
Company and Executive will negotiate in good faith for the
renewal of this Agreement for an additional term, with the
intent that this Agreement shall at all times have a remaining
term of at least 36 months. In the event (a) the Company
elects not to renew this Agreement or (b) the parties have
failed to enter into a renewal agreement by 36 months prior to
the end of the then term or extend the negotiation period, or
(c) the parties have failed to enter into a renewal agreement
by the end of the extended negotiation period, then the
Company shall be deemed to have terminated this Agreement
Without Cause.
(b) If the Employment Period is terminated by the Company Without
Cause, Executive shall be entitled to 36 months of Severance
Benefits as follows:
(i) Base Salary, as in effect immediately prior to the
Termination Date.
(ii) The average percentage of base salary of bonuses paid
during the prior three years applied to the Base
Salary as in effect immediately prior to the
Termination Date.
(iii) The Deferred Portion of all unpaid Bonus payments and
any other deferred compensation.
(iv) All benefits in effect at the Termination Date, including the
applicable benefits specified in Section 3 and further specifically including
(a) Company portion of FICA tax, (b) contributions to the Company 401(k) Plan,
as amended from time to time, based on the Executive's prior three-year average
employee deferral (as a percentage of Base Salary) times the actual Company
matching contribution for similarly situated employees during the period of
Severance Benefits, and (c) survivor benefits under any Company welfare plans,
as amended from time to time.
Any termination of the Employment Period by the
Company for any reason other than "Cause" ((as
defined in 4(e)) shall be deemed to be a termination
Without Cause. Additionally, the occurrence of any of
the following events shall entitle Executive to the
above Severance Benefits:
- The Executive's voluntary termination within 90
days after the failure for him to have been elected
to the Board and the Executive Committee of the
Board. Notwithstanding, after a "Change of Control"
((as defined in 4(f)), the preceding sentence shall
no longer apply.
- The Executive's voluntary termination within 90
days after the Company changes the Executive's
position or duties without first obtaining the
Executive's express written consent.
- The Executive's voluntary termination within 90
days after the failure for him to have been elected
Chairman and Chief Executive Officer immediately upon
the election of another person to the position of
President. Notwithstanding, after a "Change of
Control" ((as defined in Section 4(f)), the preceding
sentence shall no longer apply.
- The Executive's voluntary termination within 90
days after the Company changes the principal location
of the Executive's employment without first obtaining
the Executive's express written consent.
- The Executive's voluntary termination within 90
days after the Company's breach of any of its
obligations under this Agreement.
Severance Benefits are payable within 30 days of
Executive's Termination Date and consist of the
present value (the "present value" of such benefits
shall be determined using the interest rate for sixty
day certificates of deposit published in the Wall
Street Journal on Executive's Termination Date) of
the Severance Benefits outlined in this Section 4(b).
(c) The Employment Period shall terminate upon the death or total
disability of Executive. If terminated due to death, any payments due including
any deferred compensation and deferred Bonuses, shall be paid to the Executive's
estate within 30 days of the Termination Date. As a condition to any benefits
due to disability, the Company may require the Executive to submit to such
physical or mental evaluations and tests (at the expense of the Company) as the
Board deems appropriate. If the Employment Period is terminated due to total
disability, Executive shall receive all Base Salary, total Bonus (Current
Portion and Deferred Portion) and other applicable benefits payable to him under
Section 3, reduced by any disability benefits Executive receives under the
Company's benefit plans, for a period of 12 months from the Termination Date.
(d) If the Employment Period is terminated by the Company For Cause or is
terminated by Executive (other than for the reasons outlined in subsection (b)
above) or normal expiration of the Agreement by mutual agreement, then all Base
Salary, Bonus and other benefits shall cease as of the Termination Date. The
Executive shall be entitled to receive the total Bonus (Current Portion and
Deferred Portion) that would have been payable to him based upon year-to-date
results through the last complete month prior to the Termination Date. Such
Bonus shall be paid within 30 days after the Termination Date.
(e) For purposes of this Agreement, "Cause" shall mean (i) Executive's
gross neglect of duties, which gross neglect continues more than 10 days after
receiving written notice from the Board of the actions or in-actions
constituting the gross neglect, (ii) Executive's conviction of a felony, (iii)
Executive's dishonesty, embezzlement, or fraud committed in connection with his
employment with the Company resulting in substantial financial harm to the
Company, (iv) the issuance of any final order for Executive's removal as an
employee of the Company by any state or federal regulatory agency, (v)
Executive's violation of the non-competition provisions of Section 7 which
continues for more than 5 days after the Executive receives written notice from
the Board specifying those actions that constitute a violation of Section 7 and
what actions Executive must take in order to cure such violation, (vi)
Executive's material breach of any duty owed to the Company, including without
limitation the duty of loyalty, or (vii) any other material breach of this
Agreement, all of the above as determined solely by the Board of the Company.
Cause shall not include acts or failure to act if Executive has exercised
substantial efforts in good faith to perform the duties reasonably assigned or
appropriate to his position, as determined solely by the Board.
(f) If a "Change of Control" occurs and the Employment Period is
terminated or Executive voluntarily resigns within 12 months,
such termination shall constitute a termination Without Cause.
For this purpose, a "Change of Control" occurs when:
- any "Person" or "Group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934
("Exchange Act")), other than the Executive or the Founders
(▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, H. ▇▇▇▇▇ ▇▇▇▇▇, E. ▇▇▇▇▇▇ ▇▇▇▇▇▇, and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇), or an entity the majority of the voting
stock of which is owned or controlled by the Executive or the
Founders becomes the "beneficial owner" (within the meaning of
Rule 13d-3 and/or Rule 13d-5 under the Exchange Act, except
that a Person shall be deemed to have "beneficial ownership"
of all shares that such Person has the right to acquire
without condition, other than the passage of time, whether
such right is exercisable immediately or only after the
passage of time), directly or indirectly 30% or more of the
total voting power of the then outstanding voting stock of the
Company; or
- the Company consolidates with or merges into another Person
or conveys, transfers or leases all or substantially all of
its assets to any Person, or any corporation consolidates with
or merges into the Company pursuant to a transaction in which
the outstanding voting stock of the Company is changed into or
exchanged for cash, securities or other property, other than a
transaction between the Company and (i) an Affiliate of the
Company, or (ii) any other entity owned or controlled by the
Founders.
- Individuals who at the beginning of any period of two
consecutive calendar years constituted the Company's Board
(together with any new directors whose election by such Board
or whose nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds of the members
of the Board of Directors then still in office who either were
members of the Board at the beginning of such period or whose
election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the
members of the Board then in office.
In addition to the Severance Benefits provided in Section
4(b), if a Change of Control occurs, any unvested options will
vest immediately and Executive shall have 36 months to
exercise all options. Notwithstanding the 36 month exercise
period, the exercise of an option shall not be permitted more
than ten years after the date on which the option was granted.
(f) Any benefits which are subject to post-termination
continuation under COBRA, and which are provided by the
Company during the 36-month period, shall be deemed to be
provided as part of the continuation period available under
COBRA.
(g) If the Executive becomes entitled to any Severance Benefits under this
Section 4, it shall be a condition precedent to the obligation of the Company to
pay any such benefits that the Executive execute a general release, in form
acceptable to legal counsel of the Company, of any claims the Executive may have
against the Company (except for the Executive's claim for the Severance
Benefits) and/or any Affiliate of the Company, including, by way of example and
not limitation, any claims by Executive under any state age or employment
discrimination law; any federal claims under the Civil Rights Act of 1964, as
amended; the Age Discrimination in Employment Act, as amended; the Employee
Retirement Income Security Act of 1974, as amended; the Rehabilitation Act of
1973, as amended; the Americans with Disabilities Act of 1990, as amended; the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended; the Civil Rights Act of 1866, as amended; the Civil
Rights Act of 1871, as amended; any other claims of age, race,
sex, religious, national origin or handicap discrimination,
retaliation, claims or demands arising under either express or
implied contract, tort, public policy, the common law or any
federal, state or local statute, ordinance, regulation or
constitutional provision.
5. Confidential Information. The Executive acknowledges that the information,
observations and data obtained by him while employed by the Company concerning
the business or affairs of the Company, any of its affiliates or any Subsidiary
("Confidential Information") are the property of the Company or such affiliate
or Subsidiary, as the case may be. Therefore, Executive agrees not to disclose
to any unauthorized person or use for Executive's own account any Confidential
Information without the prior written consent of the Company, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public other than as a result of Executive's acts or omissions to
act. Executive shall deliver to the Company at the termination of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes and software and other documents and
data (and copies thereof) relating to the Confidential Information, Work Product
or the business of the Company, any of its affiliates or any Subsidiary which
Executive may then possess or have under his control.
6. Inventions and Patents. Executive agrees that all inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports, and
all similar or related information which relates to the Company's or any of its
Subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive while employed by the Company and/or its Subsidiaries ("Work
Product") belong to the Company or such Subsidiary. Executive will promptly
disclose such Work Product to the Board and perform all actions reasonably
requested by the Board (whether during or after the Employment Period) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
7. Non-Compete, Non-Solicitation.
(a) Executive acknowledges that in the course of his employment with the
Company he will become familiar with the information concerning the Company, its
affiliates, Subsidiaries and its predecessors and that his services have been
and will be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Employment Period and for the
period of two years thereafter, the Executive shall not directly or indirectly
own, manage, control, participate in, consult with, render services for, or in
any manner engage in any business competing with the business of the Company or
its Subsidiaries as such businesses exist or are in process on the date of the
termination of Executive's employment, within any geographic area in which the
Company, its affiliates or its Subsidiaries engage or plan to engage in such
businesses. Nothing herein shall prohibit Executive from being a passive owner
of not more than 3% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) During the non-compete Period, executive shall not directly or
indirectly through another entity (i) induce or attempt to
induce any employee of the Company, any of its affiliates or
any Subsidiary to leave the employ of the Company or such
affiliate or Subsidiary, or in any way interfere with the
relationship between the Company, any of its affiliates
or any Subsidiary and any employee thereof, (ii) hire any
person who was an employee of the Company, any of its
affiliates or any Subsidiary at any time during the Employment
Period, or (iii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company,
any of its affiliates or any subsidiary to cease doing
business with the Company or such affiliate or Subsidiary, or
in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the
Company, any of its affiliates or any Subsidiary.
(c) If Executive is terminated by the Company Without Cause or the
Company is liquidated, the Non-compete provisions of this
Agreement will also terminate upon the Termination Date.
8. Enforcement. If, at the time of enforcement of paragraph 5, 6 or 7 of this
Agreement, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area. Because Executive's services
are unique and because Executive has access to Confidential Information and Work
Product, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event of a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
9. Carryover of Nondeductible Compensation. If any compensation payable to
Executive under this Agreement would be nondeductible to the Company because it
exceeds the $1 million deduction limit under the Internal Revenue Code of 1986
("Code"), as amended (or such other amount to which the limit may be changed),
then such compensation in excess of the deduction limit shall accrue to the
following year or years and be paid to Executive (together with accrued interest
at the prime rate of the Company's primary lender, from time to time) in the
earliest year in which it can be paid and deducted by the Company.
Notwithstanding the preceding provisions of this Section 9, any amounts deferred
under this Section shall be deposited into a trust as provided in this Section 9
and paid from the trust in the earliest year in which it can be paid and
deducted by the Company.
Any amounts deferred pursuant to this Section 9 shall be deposited by the
Company into a trust established by the Company the assets of which are
dedicated to the payment of such deferred amounts to the Executive (such trust
to be established with (i) a Commercial bank in Fort Worth, Texas having both
trust powers and over $500 million net worth serving as trustee, (ii) terms that
are satisfactory to the Executive). The trustee of such trust shall then have
primary responsibility for paying such deferred amounts, but the Company shall
remain liable for any such deferred amounts for which the assets of the trust
are insufficient.
10. Optional Waiver of Parachute Payments. In the event that any payment or
benefit provided under this agreement or otherwise provided to Executive by or
on behalf of the Company would, in the opinion of counsel selected by the
Company and Executive, not be deemed to be deductible in whole or in part in the
calculation of the Federal income tax of the Company, or any other person making
such payment or providing such benefit, by reason of Section 28OG of the Code,
at Executive's sole discretion, Executive may waive the right to any payment or
benefit hereunder or may agree to reduce the aggregate payments or benefits
provided hereunder so that no portion of such amount which is paid to Executive
is not deductible for tax purposes by reason of Section 28OG of the Code. Any
such determination shall take into account that some or all of Executive's
entitlements may constitute reasonable compensation for
services rendered or to be rendered and, therefore, do not constitute "parachute
payments" or "excess parachute payments' within the meaning of Section 28OG of
the Code.
11. Acquisition of the Company. In the event the Company (i) merges, (ii)
consolidates, (iii) sells or leases substantially all of the assets of the
Company, or (iv) a like event occurs, the Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent as the Company
is required.
9. Executive Representation. Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by
Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which Executive is a party or by which he is bound, (ii) Executive is not a
party to or bound by an employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms.
10. Survival. Paragraphs 5, 6 and 7 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of the
Employment Period, unless such termination was Without Cause.
11. Notices. Any notice provided for in this Agreement shall be in writing and
shall be either personally delivered, or mailed by first class mail, return
receipt requested, to the recipient at the Address indicated below, or such
other address as may be provided in writing from time to time:
Notice to Executive: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Notices to Company ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
12. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Complete Agreement. This Agreement, those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may be related to the subject matter hereof in any way.
14. Counterparts. This Agreement may be executed in separate counterparts,
each of which is
deemed to be in an original and all of which taken together constitute one and
the same agreement.
15. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective
heirs, successors and assigns, except that Executive may not assign his rights
or delegate his obligations hereunder without the prior written consent of the
Company.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Texas, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Texas or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Texas. In furtherance of the
foregoing, the internal law of the State of Texas shall control the
interpretation and construction of this Agreement, even though under that
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
17. Amendment and Waiver. The provisions of this Agreement may be amended or
waived only with the prior written consent of the Company and Executive, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
18. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
19. No Strict Construction; Interpretation. The language used in this agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent and no rule of strict construction will be applied against any
person. The term "including" as used in this Agreement is used to list items by
way of example and shall not be deemed to constitute a limitation of any term or
provision contained herein. As used in this Agreement, the singular or plural
number shall be deemed to include the other whenever the context so requires.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
ProMedCo, Inc.
Compensation Committee
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
"Executive"
/s/ H. ▇▇▇▇▇ ▇▇▇▇▇
H. ▇▇▇▇▇ ▇▇▇▇▇