EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of May 2, 2001, by and between BEHAVIORAL HEALTHCARE CORPORATION, a Delaware
corporation ("the Company"), and William P. Barnes, an individual ("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to enter into this Agreement with Employee
and to provide him with the benefits set forth herein in recognition of the
valuable services he will render to the Company, and for the purposes evidenced
herein;
WHEREAS, Employee is ready and willing to render the services provided
for, and on the terms and conditions set forth herein, and he is willing to
refrain from activities competitive with the business of the Company during the
term of this Agreement on the terms and conditions set forth herein;
WHEREAS, in serving as an employee of the Company, Employee will
participate in the use and development of confidential proprietary information
about the Company, its customers and suppliers, and the methods used by the
Company and its employees in competition with other companies, as to which the
Company desires to protect fully its rights;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee and Employee
accepts such employment with the Company, subject to the terms and conditions
set forth herein. Employee shall be employed as Senior Vice President and Chief
Financial Officer of the Company, shall perform all duties and services incident
to such position, and such other duties and services as may be prescribed by the
Bylaws of the Company or established by the Chairman of the Board of Directors
or Chief Executive Officer of the Company from time to time. During his
employment hereunder, Employee shall devote his best efforts and attention, on a
full-time basis, to the performance of the duties required of him as an employee
of the Company.
2. Principal Office. Employee's principal office and normal place
of work shall be at the Company's principal executive offices in Nashville,
Tennessee ("Principal Office").
3. Compensation.
(a). As compensation for services rendered by Employee
hereunder, Employee shall receive:
(1) Salary. An annual salary of $190,000.00, or
such higher salary as shall be approved by the Board of Directors of the
Company, which salary shall be payable in arrears in equal monthly installments,
plus insurance and other benefits equivalent to the benefits provided other
officers and key employees of the Company.
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(2) Bonus. Bonus compensation to be determined
in accordance with the terms and conditions established from time-to-time by the
Board of Directors of the Company.
(3) Fringe Benefits. Employee shall be entitled
during the term of this Agreement to such other benefits of employment with
Employer as are now or may hereafter be in effect for senior executives of
Employer with duties comparable to Employee including, without limitation, all
bonus, incentive and deferred compensation, pension, life and other insurance,
disability (insured and uninsured), medical and dental and other benefit plans
or programs, paid time off and stock option grants as approved by the Board of
Directors.
(4) Expenses. During the term of this Agreement,
Employer shall reimburse Employee promptly for all reasonable travel,
entertainment, parking, business meeting and similar expenditures in pursuance
and furtherance of Employer's business upon receipt of reasonable supporting
documentation as required by Employer's policies applicable to its officers and
other key employees generally.
(5) Withholdings. All amounts payable to
Employee hereunder shall be subject to such deductions or withholdings as are
required by law or the policies of the Employer or as may be authorized or
directed by Employee.
(b). Benefits Review. Prior to the end of each fiscal year
of the Company, the Board of Directors of the Company shall review Employee's
salary and benefits payable hereunder. Any increases in salary or changes in
fringe benefits determined by the Board of Directors of the Company at such
annual review shall become effective the following month unless otherwise
determined by the Company.
(c). Indemnification. This Agreement hereby incorporates
and makes a part of this agreement the Indemnification Agreement dated January
31, 2001 by and between Employee and the Company. The provisions and rights
guaranteed under that Agreement shall survive any termination of this Agreement.
4. Confidential Information and Trade Secrets.
(a). Trade Secrets. Employee recognizes that Employee's
position with the Company requires considerable responsibility and trust, and,
in reliance on Employee's loyalty, the Company may entrust Employee with highly
sensitive confidential, restricted and proprietary information involving Trade
Secrets and Confidential Information. For purposes of this Agreement, a "Trade
Secret" is any scientific or technical information, design, process, procedure,
formula or improvement that is valuable and not generally known to competitors
of the Company. "Confidential Information" is any data or information, other
than Trade Secrets, that is important, competitively sensitive, and not
generally known by the public, including, but not limited to, the Company's
business plan, acquisition targets, training manuals, product development plans,
pricing procedures, market strategies, internal performance statistics,
financial data, confidential personnel information concerning employees of the
Company, supplier data, operational or administrative plans, policy manuals, and
terms and conditions of contracts and agreements. The terms "Trade Secret" and
"Confidential Information" shall not apply to information which is (i) made
available to the general public without restriction by the Company, (ii)
obtained from a third party by Employee in the ordinary course of Employee's
employment by the Company, or (iii) required to be disclosed by Employee
pursuant to subpoena or other lawful process, provided that Employee notifies
the Company in a timely manner to allow the Company to appear to protect its
interests.
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(b). Non-disclosure. Except as required to perform
Employee's duties hereunder, Employee will not use or disclose any Trade Secrets
or Confidential Information of the Company during employment, or at any time
after termination of employment and prior to such time as they cease to be Trade
Secrets or Confidential Information through no act of Employee in violation of
this Agreement.
(c). Material Surrender. Upon termination of Employee's
employment with Company, Employee will surrender to the Company all files,
correspondence, memoranda, notes, records, manuals or other documents or data
pertaining to the Company's business or Employee's employment (including all
copies thereof) however prepared and whether maintained in paper or electronic
format. Employee will also leave with the Company all materials involving any
Trade Secrets or Confidential Information of the Company. All such information
and materials, whether or not made or developed by Employee, shall be the sole
and exclusive property of the Company, and Employee hereby assigns to the
Company all of Employee's right, title and interest in and to any and all of
such information and materials.
5. Covenants. Employee shall be subject to the following
covenants and obligations:
(a). Non-competition covenant. While employed by the
Company, Employee shall not compete or plan or prepare to compete with the
Company regarding any line of behavioral healthcare business then operated or
being developed by Company. Employee shall not compete with the Company for a
period of one (1) year following the termination of his employment, within
thirty (30) miles of any location where (i) the Company owned, operated or
managed that line of behavioral healthcare business either on the date his
employment terminates or at any time within the immediately preceding Fiscal
Year or (ii) the Board had approved the commencement of that line of behavioral
healthcare business and the location from which the Company would have operated
that line of behavioral healthcare business prior to his termination and
Employee had knowledge of said approval. This Section 5(a), however, shall not
apply if Employee's employment hereunder is terminated without cause pursuant to
Section 12(a) prior to the expiration of the Agreement.
(b). Non-solicitation covenant. Following the termination
of Employee's employment with the Company, for a period equal to the term of the
non-competition covenant under Section 5(a), Employee shall not hire, directly
or indirectly solicit the services of or otherwise induce or attempt to induce
any Company Employee to sever his/her employment relationship with the Company.
For purposes of this section "Company Employee" shall mean (i) any employee who
performs or performed (on the Termination Date or within the previous six (6)
months of such date) any of his/her services at the Principal Office and (ii)
any member of the senior management staff of any line of behavioral healthcare
business owned, operated or managed by the Company. Prior to the initiation of
any conduct prohibited under this Section, Employee may request that Company
waive application of this Section to said conduct. Granting of such request,
however, shall be at Company's sole discretion. This Section 5(b), however,
shall not apply if Employee's employment hereunder is terminated without cause
pursuant to Section 12(a) prior to the expiration of the Agreement.
(c). Scope and Duration; Severability. The Company and
Employee understand and agree that the scope and duration of the covenants
contained in this Section 5 are reasonable both in time and geographical area
and are fairly necessary to protect the business of the Company. Except as
otherwise stated herein, such covenants shall survive the termination of
Employee's employment. It is further agreed that such covenants shall be
regarded as divisible and shall be operative as to time and geographical area to
the extent that they may be made so and, if any part of such covenants is
declared invalid or unenforceable, the validity and enforceability of the
remainder shall not be affected.
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(d). Assignment. Employee agrees that the covenants
contained in this Section 5 shall inure to the benefit of any successor or
assign of the Company, with the same force and effect as if such covenant had
been made by Employee with such successor or assign.
6. Program Participation. Employee represents that he is, and
will for the term of this Agreement be eligible to participate in Medicare,
Medicaid, CHAMPUS, Tri-Care, and other federal health programs, and Employee
shall not have been sanctioned by the Health and Human services Office of the
Inspector General, Cumulative Sanctions Report, or excluded by the General
Services Administration, as set forth on the List of Excluded Providers [see
www.dhhs.gov/progorg/oig and www.arnet.gov/epis].
7. Specific Enforcement. Employee specifically acknowledges and
agrees that the restrictions set forth in Sections 4 and 5 hereof are reasonable
and necessary to protect the legitimate interests of the Company and that the
Company would not have entered into this Agreement in the absence of such
restrictions. Employee further acknowledges and agrees that any violation of the
provisions of Section 4 and 5 hereof will result in irreparable injury to the
Company, that the remedy at law for any violation or threatened violation of
such Sections will be inadequate and that in the event of any such breach, the
Company, in addition to any other remedies or damages available to it at law or
in equity, shall be entitled to temporary injunctive relief before trial from
any court of competent jurisdiction as a matter of course and to permanent
injunctive relief without the necessity of proving actual damages. The Company
shall also have available all remedies provided under state and federal
statutes, rules and regulations as well as any and all other remedies as may
otherwise be contractually or equitably available. In addition to any other
remedy herein granted or available to Company, either at law or in equity,
Employee shall forfeit and forever release any claim or right Employee may have
to any benefits remaining under this Agreement from the date Employee breached
section 5 of this Agreement.
8. Term. This Agreement shall continue for an initial period of
two (2) years from the date hereof ("Initial Term"), unless sooner terminated in
the manner set forth herein; provided, however, that following the Initial Term
this Agreement shall automatically renew at the end of the Initial Term for
additional terms of one (1) year unless either party gives notice of termination
to the other not later than thirty (30) days prior to any annual anniversary of
this Agreement (a "Notice of Non-renewal"). The date upon which this Agreement
and Employee's employment hereunder shall terminate, whether pursuant to the
terms of this Section or pursuant to any other provision of this Agreement shall
hereafter be referred to as the "Termination Date." Following the Termination
Date resulting from a Notice of Non-renewal, the Company shall have no further
obligation to Employee and Employee shall have no further rights or obligations
hereunder, except as set forth in Section 4 above (and, if the Notice of
Non-renewal is given by Employee, then also Section 5 above) and except for the
Company's obligation to continue to pay Employee, as severance compensation, his
salary and benefits in effect immediately prior to the Termination Date, set
forth in Section 3(a) of this Agreement, for two (2) years following the
Termination Date.
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9. Termination Upon Cessation of Company's Operations or Death of
the Employee. In the event the Company ceases its operations (other than
pursuant to a Change in Control as defined in Section 13) during the term of
this Agreement, this Agreement shall immediately terminate and neither the
Employee nor the Company shall have any further obligations hereunder, except
that the Company shall continue to be obligated under Section 3(a) hereof for
any compensation, unpaid salary, bonus, unreimbursed expenses owed to Employee
that have accrued but not been paid as of the Termination Date. In the event the
Employee dies during the term of this Agreement, this Agreement shall
immediately terminate and neither the Employee nor the Company shall have any
further obligations hereunder, except that the Company shall continue to pay
Employee's estate his salary and benefits, in effect immediately prior to the
Termination Date, set forth in Section 3(a) of this Agreement, for the remaining
term of this Agreement. In addition, in either case, any vested options or other
contractual rights to purchase securities of the Company held by Employee on the
Termination Date shall remain exercisable for a period of one hundred eighty
(180) days following the Termination Date.
10. Termination by Employee For Cause. Employee may terminate this
Agreement thirty (30) days after delivery to the Board of Directors of the
Company of written notice of his intent to terminate the Agreement, which notice
alleges the occurrence of: (a) a material diminution in the Employee's office,
duties or responsibilities, or (b) a material breach by the Company of this
Agreement. Notwithstanding the foregoing, however, the Employee shall not have
the ability to terminate this Agreement if the facts alleged in such written
notice have been cured prior to the expiration of such thirty (30) day notice
period. At the Termination Date, the Company shall have no further obligation to
Employee and Employee shall have no further rights or obligations hereunder,
except as set forth in Section 4 above, and except for the Company's obligation
to continue to pay Employee unpaid salary, bonus or unreimbursed expenses that
have accrued but have not been paid as of the Termination Date.
11. Termination by the Company for Cause. The Company shall have
the right at any time to terminate Employee's employment immediately for cause.
The term "Cause" shall mean (i) Employee's willful refusal to perform the
reasonable duties of Employee's office delegated under section 1 of this
Agreement (ii) Employee's conviction of any crime punishable as a felony or
involving moral turpitude or fraud, or (iii) Employee's change in status under
Section 6 of this Agreement. Employee's obligations under Sections 4 and 5
hereof shall survive the termination of the Agreement pursuant to this Section
11. In the event Employee's employment hereunder is terminated in accordance
with this Section, the Company shall have no further obligation to make any
payments to Employee hereunder except for compensation, unpaid salary, bonus or
unreimbursed expenses that have accrued but have not been paid as of the
Termination Date.
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12. Termination Without Cause.
(a) In the event that Employee is terminated by the
Company without cause during the term hereof (which shall not include a
termination pursuant to Sections 9, 10, 11, 13 or 14), the Company shall: (a)
pay Employee all bonuses and unreimbursed expenses owed to Employee that have
accrued but have not been paid as of the Termination Date; and (b) continue to
pay to Employee, as severance compensation, his salary and benefits, in effect
immediately prior to the Termination Date, set forth in Section 3(a) hereof,
for two (2) years following the Termination Date. In addition, any vested
options or other contractual rights to purchase securities of the Company held
by Employee on the Termination Date shall remain exercisable for a period of one
hundred and eighty (180) days following the Termination Date.
(b) In the event that Employee terminates his employment
with the Company without cause during the term hereof (which shall not include a
termination pursuant to Sections 9, 10, 11, 13 or 14), the Company shall only be
obligated to pay Employee any salary and unreimbursed expenses owed to Employee
that have accrued but have not been paid as of the Termination Date.
13. Termination Upon a Change in Control. Employee shall have the
unilateral right, to be exercised or not in his sole discretion, to terminate
this Agreement under this Section 13 within one hundred eighty (180) days after
a Change in Control (as such term is hereinafter defined). Notwithstanding any
statement contained in this Agreement to the contrary (other than in section
11), in the event of Employee's termination of employment for any reason within
one hundred eighty (180) days following a Change in Control, Employee shall be
entitled to the compensation and benefits described in Section 13(b)
(a) For purposes of this Agreement, a Change in Control
means the occurrence of any of the following events:
(1) An acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting Securities") by
any "Person" (as that term is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), immediately
after which such Person has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) 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 shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (1) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) the Company, or (B) any
corporation or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly or indirectly, by
the Company (for purposes of this definition, a "Subsidiary"), (2) the Company
or its Subsidiaries, or (3) any person in connection with a Non-Control
Transaction (as hereinafter defined);
(2) The individuals who, as of the date of this
Agreement, are members of the Company's Board of Directors (the "Incumbent
Board"), cease for any reason to constitute at least a majority of the members
of the Company's 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 a majority 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" (as
described in Rule 14a-ll promulgated under the
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Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Company's Board of Directors (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization involving the
Company, unless such merger, consolidation or reorganization
is a Non-Control Transaction. A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization of the
Company where:
a) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own
directly or indirectly immediately following such
merger, consolidation or reorganization, more than
fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their own
ownership of the Voting Securities immediately before
such merger, consolidation or reorganization; and
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 a majority of the
members of the board of directors of the Surviving
Corporation, or a corporation beneficially directly
or indirectly owning a majority of the Voting
Securities of the Surviving Corporation;
(ii) A complete liquidation or dissolution of the Company; or
(iii) An agreement for the sale or other disposition of all of the
assets of the Company to any Person (other than a transfer to
a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company which, by reducing
the number of Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and after such
share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
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(b) Compensation and benefits payable in circumstances
described in this Section 13 are as follows:
(1) Two (2) years of Employee's annual rate of
salary in effect immediately prior to the Change in Control.
(2) A bonus payment calculated at the annual
level that would be payable in the Company's fiscal year that includes the
Change in Control if standard annual targets were achieved, regardless of actual
performance levels.
(3) A cash payment equivalent in value to
participation in medical, life, disability and similar benefit plans that are
offered to similarly situated employees of the Company immediately prior to the
applicable Change in Control for Employee and his dependents. Length of
participation for purposes of this calculation shall be twenty-four (24) months.
(4) A cash payment equivalent in value to
participation in general and executive fringe benefits offered to similarly
situated executive employees immediately prior to the applicable Change in
Control, including, but not limited to, auto allowance, financial planning,
annual physical examination, payments for unreimbursed medical expenses. The
length of participation shall be twenty-four (24) months.
(5) Reasonable attorneys fees and costs incurred
in making a successful claim for compensation and benefits hereunder, including
all costs of arbitration, mediation, or litigation.
(6) Individual outplacement with a professional
outplacement.
(c) Schedule of Payments. The Company will make cash payments due
under this Section 13 in the manner described below following Employee's
termination of employment. All other amounts and allowances will be provided or
promptly paid upon submission of receipts or other evidence of expenses eligible
for reimbursement.
(1) All cash and benefits will be paid over
twenty-four (24) months, beginning on the first day of the month following
termination of employment.
(2) In the event of the death of Employee prior
to the payment of all cash due hereunder, all remaining payments may, at the
Company's sole discretion, be made in a single sum to the surviving spouse of
Employee. If Employee is not married at the time of death, such cash payments
may be made to Employee's estate.
14. Disability of Employee.
(a) In the event Employee becomes disabled during the
term of this Agreement, the Company will continue to pay the Employee according
to the compensation provisions of this Agreement during the period of his
disability, until such time as Employee's long term disability insurance
benefits become available. However, in the event the Employee is disabled for
more than six continuous months, the Company may terminate the employment of the
Employee. In this case, the compensation provided for under this Agreement will
cease, except for earned but unpaid Base Salary and Incentive Compensation
Awards that would be payable on a pro-rated basis for the year in which the
disability occurred.
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(b) During the period the Employee is receiving payments
of either regular compensation or disability insurance described in this
Agreement and as long as he is physically and mentally able to do so, the
Employee will furnish information and assistance to the Company and from time to
time will make himself available to the Company to undertake assignments
consistent with his prior position with the Company and his physical and mental
health. If the Company fails to make a payment or provide a benefit required as
part of the Agreement, the Employee's obligation to fulfill information and
assistance will end.
The term "Disability" shall mean the inability of Employee to perform
the duties of his employment due to physical or emotional incapacity or illness
(including, without limitation, alcohol or chemical dependency), where such
inability has continued or is expected to continue for more than 180 days in any
one (1) year period. In the event of a dispute, the determination of Disability
shall be made as follows: the Company and the Employee (or his executor or
personal representative, as the case may be) shall each appoint a physician
competent in the field of medicine to which such incapacity or illness relates,
and two physicians so selected shall select a third physician who shall be
similarly competent. The decision of a majority of such physicians as to the
Disability of Employee shall be binding on the parties hereto.
15. Assignment.
(a) The rights and benefits of Employee under this
Agreement, other than accrued and unpaid amounts due under Section 3(a) hereof,
are personal to him and shall not be assignable. Discharge of Employee's
undertakings in Section 4 hereof shall be an obligation of Employee's executors,
administrators, or other legal representatives or heirs.
(b) This Agreement may not be assigned by the Company
except to an affiliate of the Company, provided, however, that if the Company
shall merge or effect a share exchange with or into, or sell or otherwise
transfer substantially all its assets to, another corporation, the Company may
assign its rights hereunder to that corporation.
16. Notices. Any notice or other communications under this
Agreement shall be in writing, signed by the party making same, and shall be
delivered personally or sent by certified or registered mail, postage prepaid,
addressed as follows:
If to Employee: William P. Barnes
1537 Lost Hollow Circle
Brentwood, TN 37027
If to the Company: Behavioral Healthcare Corporation
Attention: Chairman of the Board
102 Woodmont Blvd. - Suite 500
Nashville, Tennessee 37205
or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date personally delivered or
mailed.
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17. Governing Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Tennessee, without giving
effect to the choice of law provisions of such State.
18. Arbitration. Any dispute among the parties hereto shall be
settled by arbitration in Nashville, Tennessee, in accordance with the then
applicable rules of the American Arbitration Association and judgment upon the
award rendered may be entered in any court having jurisdiction thereof. The
arbitrator shall award all costs, legal expenses and fees to the successful
party.
19. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid, but
if any one or more of the provisions contained in this Agreement shall be
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability for any such provisions in every other respect and
of the remaining provisions of this Agreement shall not be in any way impaired.
20. Modification. No waiver of modification of this Agreement or
of any covenant, condition, or limitation herein contained shall be valid unless
in writing and duly executed by the party to be charged therewith and no
evidence of any waiver or modification shall be offered or received in evidence
of any proceeding, arbitration or litigation between the parties hereunder,
unless such waiver or modification is in writing, duly executed as aforesaid and
the parties further agree that the provisions of this section may not be waived
except as herein set forth.
21. Entire Agreement. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter contained herein. There
are no restrictions, promises, covenants or undertakings, other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. This
Agreement may not be changed except by a writing executed by the parties.
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22. Employer Policies, Regulations and Guidelines for Employee.
Employer may issue policies, rules, regulations, guidelines, procedures or other
informational material, whether in the form of handbooks, memoranda, or
otherwise, relating to its employees. These materials are general guidelines for
Employee's information and shall not be construed to alter, modify or amend this
Agreement for any purpose whatsoever.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
day and year first above written.
BEHAVIORAL HEALTHCARE CORPORATION
By: /s/ David T. Vandewater
------------------------------
Title: Chairman
EMPLOYEE
/s/ William P. Barnes
----------------------------------
William P. Barnes
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