Executive Employment Agreement - InSight Health Services Corp. and E. Larry Atkins
EXECUTIVE EMPLOYMENT AGREEMENT
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AGREEMENT dated as of February 25, 1996, between INSIGHT HEALTH SERVICES
CORP., a Delaware corporation (the "Company"), and E. Larry Atkins (the
"Executive").
The Company wishes to employ the Executive, and the Executive wishes to
accept such employment, in each case, subject to the terms and conditions
hereof. Accordingly, the Company and the Executive hereby agree as follows:
I. TERM OF EMPLOYMENT
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The Executive is to be employed by the Company for rolling twelve (12)
month periods, whereby the Executive's term of employment is twelve (12) months
on a continuing basis.
II. EMPLOYMENT, DUTIES AND ACCEPTANCE
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SECTION 2.01 EMPLOYMENT BY COMPANY. The Company for itself and its
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affiliates, employs the Executive for the Term to render full-time services in
such capacities as the Boards of Directors of the Company and its affiliates may
assign and, in connection therewith, to perform such duties as are consistent
with the Executive's initial appointment and as the Board of Directors of the
Company shall reasonably direct. The Executive shall initially be appointed the
President and Chief Executive Officer of the Company. The Executive agrees to
perform such duties as are consistent with the duties normally pertaining to the
offices to which he has been elected or appointed, subject always to the
direction of the Company's Board of Directors. Subject to Section 5.01 hereof,
the Executive's expenditure of reasonable amounts of time for personal business,
charitable or professional activities will not be deemed a breach of his
undertaking to
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provide full-time services hereunder, provided that such activities do not
interfere materially with the Executive's rendering of such services.
SECTION 2.02 ACCEPTANCE OF EMPLOYMENT BY THE EXECUTIVE. The Executive
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accepts such employment and shall render the services required by this Agreement
to be rendered by him. The Executive shall also serve on request during all or
any part of the term of this Agreement as an officer of the Company and of any
of its affiliates without any compensation therefore other than specified in
this Agreement.
SECTION 2.03 PLACE OF EMPLOYMENT. The Executive's principal place of
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employment shall be the Company's corporate headquarters, currently located at
4440 Von Karman Avenue, Suite 320, Newport Beach, California. In the event that
the principal place of employment of the Executive is relocated to a site that
is more than 50 miles from the Executive's principal residence, the Company may
require the Executive to relocate his principal residence to within 50 miles of
such office. Notwithstanding the foregoing, the Executive acknowledges that the
duties to be performed by him hereunder are such that he may be required to
travel extensively both throughout the United States and abroad and, in some
cases, spend extended periods of time away from the Company's corporate
headquarters.
SECTION 2.04 RELOCATION. In the event that the Executive relocates his
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principal residence as contemplated by Section 2.03 hereof, the Company shall
provide him with an Executive Relocation Package as follows:
(a) Miscellaneous. The Company shall pay the Executive the sum of $25,000
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at any time at the request of the Executive.
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(b) Relocation Guideline. The Company shall use its best efforts to
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provide benefits to the Executive substantially equivalent to those set
forth in the Relocation Guideline attached hereto as Exhibit A.
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III. COMPENSATION
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SECTION 3.01 SALARY, BONUSES, LIFE INSURANCE. As compensation for all
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services to be rendered pursuant to this Agreement, the Company shall pay the
Executive, and the Executive shall accept, a salary of $246,400 per annum,
subject to adjustment in accordance with Section 3.02 hereof (as so adjusted,
the "Annual Salary"), payable in accordance with the payroll policies of the
Company as from time to time in effect, less such amounts as may be required to
be withheld by applicable federal, state and local law and regulations. In
addition to the Annual Salary, the Executive shall be eligible (no less
frequently than annually beginning for the fiscal year ending June 30, 1997) for
such bonuses, if any, as the Board of Directors of the Company may, from time to
time, in its sole discretion award. The Company shall purchase and maintain in
full force and effect at all times during the term of this Agreement a policy of
term insurance on the life of the Executive payable to such beneficiary or
beneficiaries as the Executive may designate in an amount equal to three times
the amount of the Annual Salary.
SECTION 3.02 ANNUAL REVIEW. Commencing with the first renewal period, if
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any, of the term of this Agreement and annually thereafter during the term of
this Agreement, the Annual Salary shall be reviewed by the President and/or the
Board of Directors of the Company and may be adjusted (but in no event to an
amount less than the Annual Salary
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then in effect) for the then upcoming year, if the Board of Directors of the
Company, in its sole discretion, determines that such adjustment is warranted.
SECTION 3.03 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive shall
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be entitled during the term of this Agreement, if and to the extent eligible, to
participate in any health, hospitalization or disability insurance plan, pension
plan or similar benefit plan of the Company, which may be available to senior
executives of the Company generally, on the same terms as such other executives.
SECTION 3.04 EXPENSES. Subject to such policies as may from time to time
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be established by the Company for senior executives of the Company generally,
the Company shall pay or reimburse the Executive for all reasonable business
expenses actually incurred or paid by the Executive during the term of this
Agreement in the performance of the Executive of services under this Agreement,
upon presentation of expense statements or vouchers or such other supporting
information as the Company may reasonably require.
SECTION 3.05 AUTOMOBILE. The Company shall arrange for and pay all costs
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of leasing and operating an automobile for use by the Executive. Such
automobile shall be of such make and model as the Company and the Executive
shall determine to be suitable for the Executive's position in the Company.
SECTION 3.06 VACATION. The Executive shall be entitled to three weeks of
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paid vacation per year during the term of this Agreement, which he may
accumulate up to six weeks, to be taken at a time or times which do not
unreasonably interfere with his duties hereunder.
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IV. TERMINATION
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SECTION 4.01 TERMINATION UPON DEATH. If the Executive dies during the
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term of this Agreement, this Agreement shall terminate as of the date of his
death.
SECTION 4.02 TERMINATION UPON DISABILITY. If during the term of this
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Agreement, the Executive becomes physically or mentally disabled, whether
totally or partially, so that he is unable substantially to perform his services
required by this Agreement to be rendered by him for (i) a period of three
consecutive months or (ii) for shorter periods aggregating three months during
any 12-month period, the Company may at any time after the last day of the three
consecutive months of disability or the day on which the shorter periods of
disability equal an aggregate of three months, by 30 days' written notice to the
Executive, terminate this Agreement and the Executive's employment hereunder.
Nothing in this Section 4.02 shall be deemed to extend the term of this
Agreement or of the Executive's employment hereunder.
SECTION 4.03 TERMINATION FOR CAUSE. If the Board of Directors of the
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Company determines that the Executive has neglected his duties hereunder, has
performed such duties negligently, is guilty of misconduct in connection with
performance of his duties hereunder, or has breached in any material respect any
affirmative or negative covenant or undertaking hereunder, or if the Executive
is convicted of any serious crime or offense, or fails or refuses to comply with
the oral or written policies or directives of the Company's Board of Directors
or President (unless such instructions represent an illegal act), the Company
may at any time thereafter (i) by written notice to the Executive, terminate the
Executive's right to enter the Company's premises, and such termination
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shall be effective as of the date notice is given and (ii) by 30 days' written
notice to the Executive, terminate this Agreement and the term of the
Executive's employment hereunder, and the Executive shall have no right to
receive any monetary compensation or benefit hereunder in respect of any period
after the effective date of such notice.
SECTION 4.04 TERMINATION IN DISCRETION OF COMPANY. If the Board of
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Directors of the Company determines in the reasonable exercise of its discretion
that, for reasons other than those specified in Section 4.03 hereof, severance
of the Executive from the Company is in the best interests of the Company, the
Company may, at any time thereafter, (i) terminate the Executive's right to
enter the premises of the Company by giving notice of such termination, and such
notice shall be effective as of the date notice is given and (ii) by 30 days'
written notice to the Executive terminate this Agreement and the term of the
Executive's employment hereunder, and the Executive thereafter shall have only
such rights to receive monetary compensation or benefits hereunder in respect of
any period after the effective date of termination as are provided in Section
4.06 hereof.
SECTION 4.05 VOLUNTARY TERMINATION DUE TO CHANGE OF CONTROL. If (a) the
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Company or its stockholders enter into an agreement to dispose of, whether by
sale, exchange, merger, consolidation, reorganization, dissolution or
liquidation (1) not less than 80% of the assets of the Company or (2) a portion
of the outstanding common stock such that one person or "group" (as defined by
the Securities and Exchange Commission) owns, of record or beneficially, not
less than 50% of the outstanding common stock; or (b) one person or "group" (as
defined by the Securities and Exchange Commission) acquires not less
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than 18% of the Post-Conversion Common Stock (defined below), the Executive
shall have the right, effective upon 90 days' written notice to the Company, to
terminate his employment with the Company, whereupon he shall become entitled to
receive compensation as provided in Section 4.06 hereof; provided, however, that
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this Section 4.05 shall not apply to conversion by GEMS of any Series A
Convertible Preferred Stock into common stock of the Company. "Post-Conversion
Common Stock" shall mean the outstanding common stock plus the common stock
issuable, at the time a determination is made, upon conversion of the
outstanding Series A Convertible Preferred Stock.
SECTION 4.06 COMPENSATION ON TERMINATION.
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(a) If the term of the Executive's employment hereunder is terminated
pursuant to Sections 4.02, 4.04 or 4.05 hereof, the Executive shall be entitled
to receive all compensation accrued and unpaid up to the effective date of
termination, plus additional compensation in an amount equal to 12 months of
compensation at the Annual Salary rate then in effect, less, in the case of
termination pursuant to said Section 4.02, the amount which the Executive is
entitled to receive under the terms of the Company's long-term disability
insurance policy for key executives as and if in effect at the time of
termination. Any payments made pursuant to this Section 4.06 shall be reduced
by such amounts as are required by law to be withheld or deducted.
(b) The compensation rights provided for him in this Section shall be the
Executive's sole and exclusive remedies in the event of a breach of this
Agreement by the Company, and the Executive shall not be entitled to any other
compensation, damages or relief.
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V. CERTAIN COVENANTS OF THE EXECUTIVE
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SECTION 5.01 COVENANTS AGAINST UNFAIR COMPETITION. The Executive
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acknowledges, that, as of the date hereof: (i) the principal business of the
Company and its affiliates is the development and operation, at times, together
with other healthcare providers, of outpatient facilities which provide
diagnostic services in the areas of general radiology, magnetic resonance
imaging (MRI), cardiology, and neurosciences utilizing the related equipment and
computer programs and "software" and various distribution methods and investment
structures (the "Company Business"); (ii) the Company Business is national and
international in scope; and (iii) the Executive's duties hereunder will bring
him into close contact with much confidential information not readily available
to the public, including without limitation, corporate, business and financial
plans, marketing strategy, the result of the Company's efforts in the areas of
product research, development and improvement, plans for future development and
other matters. In order, therefore, to induce the Company to enter into this
Agreement, the Executive covenants:
(a) Non-Compete. During the term of this Agreement (the "Restricted
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Period"), the Executive shall not anywhere in the world, directly or
indirectly, (i) engage in the Company Business for his own account; (ii)
enter the employment of, or render any services to, any person engaged in
such activities; and (iii) become interested in any person engaged in the
Company Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity; provided, however,
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that the Executive may own, directly or indirectly, solely as an
investment, securities
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of any person which are traded on any national securities exchange if the
Executive neither (x) is a controlling person of, or a member of a group
which controls, such person nor (y) owns, directly or indirectly, one or
more of any class of securities of such person.
(b) Confidential Information.
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(i) For purposes of this Agreement, "Confidential Information" shall
mean (i) all of the Company's financial statements and related financial
data and (ii) any other trade secrets, proprietary information or other
information relating to the Company Business, or of any customer or
supplier of the Company or any of its affiliates, that has not been
previously publicly released or widely disseminated to multiple parties in
the same or substantially the same form by duly authorized representatives
of the Company or any of its affiliates or known by the Executive prior to
the commencement of the Executive's employment by the Company. By way of
illustration, but not limitation, Confidential Information shall include
any and all customer lists (whether or not current), agreements with
customers (whether or not currently in effect or expired), standard forms
of customer agreements, data concerning customers, data concerning customer
service requirements, financial information concerning customers,
agreements with equipment manufacturers and other suppliers, trade secrets,
processes, ideas, inventions, improvements, know-how, techniques, drawings,
designs, original writings, software programs, plans, proposals, marketing
and sales plans, financial information concerning the Company and its
affiliates, cost or pricing information, blueprints, specifications,
promotional
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ideas, and all other concepts, information or ideas related to the present
or potential business of the Company or any of its affiliates.
(ii) The Executive agrees that, during and after employment by the
Company, without limitation as to duration except as hereinafter expressly
provided, he shall keep confidential and not (i) communicate or disclose to
any person any Confidential Information, or (ii) use or exploit in any
fashion any of such Confidential Information or permit the use or
exploitation in any fashion of any such Confidential Information by any
other person or entity; provided, however, that (a) the foregoing
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confidentiality restriction shall not apply in any particular circumstance
in which the Executive is required to disclose particular Confidential
Information pursuant to governmental process, as indicated in a written
opinion of counsel to the Executive reasonably satisfactory to the Company
which is delivered to the Company, and (b) the foregoing confidentiality
and exploitation restrictions shall not apply to any particular
Confidential Information if and to the extent that such information becomes
generally known and available to the public otherwise than in connection
with a disclosure or communication of such information by the Executive.
The Executive acknowledges and agrees that all Confidential Information,
and all copies thereof, are the sole and exclusive property of the Company.
The Executive agrees that, on the date of his termination of employment, he
shall have delivered to the Company all documents and materials in his
possession or under his control which constitute Confidential Information,
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including all copies thereof, and no copies thereof shall be retained by
the Executive.
(c) Property of the Company. All correspondence, memoranda, notes, lists,
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records, computer tapes, discs and design and other document and data
storage and retrieval materials (and all copies, compilations and summaries
thereof), and all other personal property, made or compiled by the
Executive, in whole or in part and alone or with others, or in any way
coming into his possession concerning the business or other affairs of the
Company or any of its affiliates, shall be the property of the Company or
any such affiliates, and no copies thereof shall be retained by the
Executive after termination thereof for any reason.
(d) Disclosure and Assignment of Rights. (i) The Executive shall promptly
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disclose and assign to the Company and its affiliates or its nominee(s), to
the maximum extent permitted by Section 2870 of the California Labor Code,
as it may be hereafter amended from time to time, all right, title and
interest of the Executive in and to any and all ideas, inventions,
discoveries, secret processes and methods and improvements, together with
any and all patents that may be issued thereon in the United States and in
all foreign countries, which the Executive may invent, develop or improve,
or cause to be invented, developed or improved, during the term of this
Agreement or, in the event that the Executive's employment is terminated
pursuant to the provisions of Section 4.03 hereof, during the 12-month
period commencing on the date of termination, which are (i) conceived and
developed during normal working hours, or (ii) which are related to the
scope of the
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Company's Business or are related to any work carried on by the Company or
are related to any projects specifically assigned to the Executive. As
used in this Agreement, the term "invent" includes "make,", "discover,"
"develop," "manufacture" or "produce," or any of them; "invention" includes
the phrase "any new or useful original art, machine, methods of
manufacture, process, composition of matter, design, or configuration of
any kind"; "improvement" includes "discovery" or "production"; and "patent"
includes "Letters Patent" and "all the extensions, renewals, modifications,
improvements and reissues" of such patents." (ii) The Executive shall
disclose immediately to duly authorized representatives of the Company any
ideas, inventions, discoveries, secret processes and methods and
improvements covered by the provisions of paragraph (i) above, and execute
all documents reasonably required in connection with the application for an
issuance of Letters Patent in the United States and in any foreign country
and the assignment thereof to the Company and its affiliates of its
nominee(s).
(e) No Solicitation of Customers or Employees. As provided above in
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subparagraph (b)(i), the Executive acknowledges and agrees that the
identity and location of the Company's customers and the positions, duties
and terms of employment of the Company's and its subsidiaries' employees
constitute Confidential Information of the Company. The Executive agrees
that during any period that the Executive is receiving compensation from
the Company pursuant to Section 4.06 hereof or for a period of twelve (12)
months after the Executive's termination of employment, whichever is later,
he shall not, directly or indirectly,
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solicit, entice, divert or otherwise contact or attempt to solicit, entice,
divert or otherwise contact any customer or employee of the Company, for
any provision of services which constitute Company Business.
SECTION 5.02 RIGHTS AND REMEDIES UPON BREACH. If the Executive breaches,
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or threatens to breach, in any material respect any of the provisions of Section
5.01 hereof (hereinafter referred to as the "Restrictive Covenants"), the
Company shall, in addition to all its other rights hereunder and under
applicable law and in equity, have the right and remedy, to have the Restrictive
Covenants specifically enforced by any court having jurisdiction, including,
without limitation, the granting of a preliminary injunction which may be
granted without the posting of a bond or other security, it being acknowledged
that any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company.
SECTION 5.03 WAIVER OF CERTAIN RIGHTS. Upon executing this Agreement, the
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Executive waives all rights under any agreement with American Health Services
Corp., a Delaware corporation ("AHS"), for payments or other benefits vesting
upon the occurrence of a merger or change of control resulting from the
consummation of that certain Agreement and Plan of Merger (the "Merger
Agreement") by and among the Company, AHS, Maxum Health Corp., a Delaware
corporation ("Maxum"), AHSC Acquisition Company, a Delaware corporation ("AHSC
Acquisition"), and MXHC Acquisition Company, a Delaware corporation ("MXHC
Acquisition"), pursuant to which AHSC Acquisition will merge into AHS, and MXHC
Acquisition will merge into Maxum (such transactions are hereinafter
collectively referred to as the "Merger").
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SECTION 5.04 SEVERABILITY OF COVENANTS. If any court of competent
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jurisdiction determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants
shall not thereby be affected and shall be given full effect, without regard to
the invalid portions.
SECTION 5.05 BLUE-PENCILING. If any court of competent jurisdiction
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construes any of the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration or geographic scope of such provision or
otherwise, such provision shall be deemed amended to the minimum extent required
to make it enforceable and, in its reduced form, such provision shall then be
enforceable and enforced.
SECTION 5.06 ENFORCEABILITY IN JURISDICTION. The parties hereto hereby
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confer jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Covenants. If the courts of
any one or more of such jurisdictions hold the Restrictive Covenants wholly
unenforceable by reason of their duration, geographic scope or otherwise, it is
the intention of the parties that such determination not bar or in any way
affect the Company's right to the relief provided herein in the courts of any
other jurisdiction within the geographical scope of such Covenants as to
breaches of such Covenants in such other jurisdiction, such Covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
VI. MISCELLANEOUS
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SECTION 6.01 NOTICES. Any notice or other communication required or which
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may be given hereunder shall be in writing and shall be delivered personally,
telegraphed,
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telexed or telecopied, or sent by certified, registered or express mail, postage
prepaid, and shall be deemed given when so delivered personally, telegraphed,
telexed or telecopied, or if mailed, two days after the date of mailing, as
follows:
(i) If to the Company, addressed it to at:
4440 Von Karman Avenue, Suite 320
Newport Beach, CA 92660
Attention: President
(ii) If to the Executive, addressed to him at such address as he shall
have filed with the Company for such purpose, or at such other address
as a party may from time to time specify by giving notice to the other
party.
SECTION 6.02 ENTIRE AGREEMENT. This Agreement contains the entire
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agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto,
including but not limited to any agreement between the Executive and AHS in
existence prior to the consummation of the Merger.
SECTION 6.03 WAIVERS AND AMENDMENTS. This Agreement may be amended,
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modified, superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by both
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
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SECTION 6.04 ASSIGNMENT. This Agreement is personal to the Executive, and
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the Executive's rights and obligations hereunder may not be assigned by the
Executive. The Company may assign this Agreement and its rights, together with
its obligations, hereunder (i) in connection with any sale, transfer or other
disposition of all or substantially all of its assets or business(es), whether
by merger, consolidation or otherwise; or (ii) to any wholly-owned subsidiary of
the Company, provided that the Company shall remain liable for all of its
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obligations under this Agreement.
SECTION 6.05 COUNTERPARTS. This Agreement may be executed in two
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 6.06 HEADINGS. The article and section headings in this Agreement
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are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 6.07 GENDER, NUMBER. Unless the context of this Agreement
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otherwise requires, words of any gender will be deemed to include each other
gender and words using the singular or plural number will also include the
plural or singular number, respectively.
SECTION 6.08 GOVERNING LAW. This Agreement shall be governed and
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interpreted in accordance with the laws of the State of California, without
giving effect to the provisions thereof relating to conflicts of law.
SECTION 6.10 JURISDICTION AND VENUE. Each party hereto hereby agrees that
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any proceeding relating to this Agreement shall be brought in an appropriate
court located in Orange County, California. Each party hereto hereby consents
to personal jurisdiction in
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any such action brought in any such court, consents to service of process by
registered mail made upon such party and such party's agent, and waives any
objection to venue in any such court or to any claim that such court is an
inconvenient forum.
SECTION 6.10 EFFECTIVE DATE. This Agreement shall be effective upon
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consummation of the Merger; provided, however, that Section 5.03 hereunder shall
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be effective immediately upon execution of this Agreement by all parties who are
signatories hereto.
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IN WITNESS WHEREOF, the parties have executed this Executive Employment
Agreement as of the date first above written.
INSIGHT HEALTH SERVICES CORP.
/s/ E. Larry Atkins By: /s/ Frank E. Egger
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E. Larry Atkins Frank E. Egger
Authorized Representative
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