EXHIBIT 99.1
RESIGNATION AGREEMENT AND GENERAL RELEASE
This Resignation Agreement and General Release (this "Agreement") is
hereby entered into by and between Bruce Mogel, an individual (the "Executive"),
and Integrated Healthcare Holdings, Inc., a Nevada corporation (the "Company").
RECITALS
A. The Executive has been employed as Chief Executive Officer by the
Company pursuant to an Amended Employment Agreement dated November 15, 2007,
attached hereto as Exhibit A (the "Employment Agreement").
B. The Legal Affairs Committee of the Company's Board of Directors has
completed its investigation of various claims relative to Executive's alleged
misconduct. The investigation was prompted by a written demand (the "OC-PIN
Demand") made on the Company's Board of Directors by one of the Company's
shareholders: I.E., Orange County Physicians Investment Network, LLC ("OC-PIN").
The OC-PIN Demand, among other things, insisted that the Company discharge
Executive. OC-PIN issued this Demand in the midst of on-going litigation between
OC-PIN and OC-PIN managing member, Anil V. Shah, M.D., on the one hand, and the
Company, on the other (and after OC-PIN publicly announced its intent to take
control of the Company's Board as a means of avoiding a trial on the merits of
the Company's pending lawsuit against Dr. Shah), to ensure fairness and a
thorough vetting of OC-PIN's claims the Company's Legal Affairs Committee hired
an outside law firm - Paul, Hastings, Janofsky & Walker ("PHJW") - to give it
advice and logistical support in conducting this investigation. OC-PIN
thereafter filed a shareholder derivative action (the "OC-PIN Derivative
Action") against the Executive based, among other things, on the allegations of
the OC-PIN Demand. The OC-PIN Derivative Action is pending in the Superior Court
of California, County of Orange, and is captioned OC-PIN V. MOGEL, ET AL., case
no. 30-2008-00109286. Following the Legal Affairs Committee's collection and
review of all presently known information relative to the claims in the OC-PIN
Demand and the OC-PIN Derivative Action including, but not limited to, all
information produced by OC-PIN and its counsel (either voluntarily and or in
response to formal discovery served by the Company in the pending litigation),
and following the Legal Affairs Committee's collection and review of all of the
Company's and Executive's internally generated paper and electronic records
relative to the claims, the investigation has now been deemed complete. That is,
although the Company's Legal Affairs Committee reserves it right to re-open the
investigation in the event new or additional material information comes to
light, at this point the Legal Affairs Committee believes it now has sufficient
information to reasonably and prudently make recommendations to the Company's
full Board, and has received Board approval of the Committee's recommendations,
(1) in response to the OC-PIN Demand, (2) regarding the claims alleged in the
OC-PIN Derivative Action, and (3) in connection with the Company's decision to
enter into this Agreement.
C. The Executive and the Company, each represented by legal counsel of
their own choice, have independently determined that it is in their mutual best
interests that the Executive resign his employment with the Company and any of
its parents, direct or indirect subsidiaries, affiliates, divisions or related
entities on the terms and conditions set forth in this Agreement.
D. Nothing herein shall be construed as a finding of by the Company or the
Company's Legal Affairs Committee of Executive's commission of wrongdoing of any
sort. Similarly, nothing herein shall be deemed an admission of such wrongdoing
or of liability of any sort by Executive.
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AGREEMENT
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In consideration of the mutual promises contained herein and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. EFFECTIVE DATE. Except as otherwise provided herein, this Agreement
shall be effective on the eighth day after it has been executed by Executive
(the "Effective Date").
2. RESIGNATION. The Executive hereby voluntarily, unconditionally and
irrevocably resigns as an employee and officer of the Company and any of its
parents, direct or indirect subsidiaries, affiliates, divisions or related
entities (collectively referred to herein as "the Company and its Related
Entities"), effective as of 5:00 p.m. PST, on December 31, 2008 (the
"Resignation Date"). The Executive further voluntarily, unconditionally and
irrevocably resigns his position as a director of the Company and each of its
Related Entities, and all committees of the Board of Directors of the Company on
which he serves, effective immediately upon execution of the Agreement. The
Executive hereby also promises that, in conjunction with his resignation, he
will execute the Recertification attached as Exhibit B. The Company and the
Board of Directors of the Company hereby accept such resignations as of the
Resignation Date and execution date respectively.
3. CONSULTING SERVICES AFTER RESIGNATION OF EMPLOYMENT. The Executive and
the Company agree that for a period not to exceed four (4) months following the
Resignation Date ("Consulting Period"), the Executive will provide consulting
services to the Company, which shall include performing the functions of the
Company's Chief Executive Officer during such times as the Board of Directors
requests. Executive understands and agrees that his consulting services will be
provided to the Company on a full-time basis for the first month of the
Consulting Period. During the final three (3) months of the Consulting Period,
the Executive agrees to provide consulting services to the Company as needed by
the Company and for an average of two and one half (2 1/2) days per week. The
Executive and the Company agree that the Consulting Period may be terminated at
any time by the Company after the first month; however, it is understood and
agreed by the Executive and the Company that the Executive will be paid his
current monthly salary for the full four (4) month Consulting Period if the
Company terminates the Consulting Period prior to the expiration of the four (4)
months. In the discretion of the Board of Directors, the Executive may retain
the title of Chief Executive Officer while performing the functions of Chief
Executive Officer. The Company and the Executive further agree that during the
Consulting Period, the Executive may be invited to participate in meetings of
the Board of Directors; however, the Executive will not have voting rights at
such Board meetings. The Executive and the Company agree that, if the Company
determines in its reasonable discretion that Executive is an employee rather
than a consultant during all or any portion of the Consulting Period, the
Company has the right to report payments to Executive during such period on Form
W-2 and withhold all legally required taxes from such payments.
4. CONTINUATION OF BENEFITS AFTER RESIGNATION OF EMPLOYMENT. Except as
expressly provided in this Agreement or in the plan documents governing the
Company's employee benefit plans, after the Resignation Date, the Executive will
no longer be eligible for, receive, accrue, or participate in any other benefits
or benefit plans provided by the Company and its Related Entities, including,
without limitation, medical, dental and life insurance benefits, and Commerce's
401(k) retirement plan; provided, however, that nothing in this Agreement shall
waive the Executive's right to any vested amounts in the Company's 401(k)
retirement plan, which amounts shall be handled as provided in the plan.
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(a) MEDICAL AND DENTAL COVERAGE. The Company shall provide the Executive
with continuation coverage under the terms of current medical and dental
insurance plan for a period of twelve (12) months following the Resignation
Date. In the event the terms and conditions of the Company's insurance plans do
not allow for such continuation, the Company shall reimburse the Executive for
the reasonable costs of equivalent coverage for the same twelve (12) month
period, provided however, that such monthly reimbursement amount shall not
exceed 110% of the monthly amount the Company is paying for Executive's coverage
as of the Resignation Date. Thereafter, the Executive shall have the right to
continue such coverage at his own expense in accordance with the provisions of
COBRA.
(b) SALARY THROUGH RESIGNATION DATE. No later than one business day after
the Resignation Date, the Company shall pay the Executive the prorated portion
of his salary earned through the Resignation Date and all accrued but unused
vacation earned through the Resignation Date. If the Company makes payment as
referenced in this section, Executive will acknowledge and agree that he has
been paid for all earned wages and accrued vacation through the Resignation
Date.
(c) CORPORATE CREDIT CARD. The Executive shall continue to retain the
Company's corporate credit card for use during the Consulting Period. The terms
and conditions for use of the card, as well as reporting and expense
reimbursement requirements, shall be the same as those in effect prior to the
Resignation Date.
(d) AUTOMOBILE. During the Consulting Period, the Executive may continue
to use the BMW automobile provided to him by the Company and the Company agrees
to provide to the Executive an automobile and insurance allowance of $2,000 per
month. Prior to the conclusion of the Consulting Period, the Company shall make
a written demand on Larry Anderson that he transfer his ownership interest in
the automobile to the Company. Upon the conclusion of the Consulting Period, the
Company will transfer to the Executive its ownership interest in the automobile,
which will include whatever interest, if any, Larry Anderson transferred to the
Company. If the Executive refuses to accept title to the automobile as offered
pursuant to the terms of this Section, the Company shall retain the automobile.
(e) LAPTOP COMPUTER. At the conclusion of the Consulting Period, the
Executive will be allowed to retain for his personal use, the Apple laptop
computer purchased by the Company. The Executive understands that as a condition
for retaining the laptop for his personal use, at the conclusion of the
Consulting Period, the Executive will comply with the Company's policies and
practices regarding inspection of the laptop and removal of all proprietary and
confidential Company information.
(f) SPECIAL PAYMENTS. In return for the Executive's promises in this
Agreement, the Company shall provide to Executive eight (8) special payments of
$43,750, less any deductions required by law, which is equal to eight (8) months
of salary, after the termination of the four-month consulting period as outlined
in Section 3, above. The foregoing eight special payments will be paid monthly,
starting on the Company's first regular pay day following the date the
four-month Consulting Period expires. The payments shall be made, at the option
of the Executive, by checks mailed to the Executive or direct deposit to an
account specified by him.
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5. ACKNOWLEDGEMENT OF TOTAL COMPENSATION AND INDEBTEDNESS. The Executive
acknowledges and agrees that the cash payments under Sections 3 and 4 of this
Agreement extinguish any and all obligations for monies, or other compensation
or benefits that the Executive claims or could claim to have earned or claims or
could claim is owed to him as a result of his employment by the Company and its
Related Entities through the Resignation Date, under the Employment Agreement or
otherwise. Any bonus plans and any equity-based compensation plan, including
restricted stock agreements and stock option grant plans, are hereby cancelled
and will have no further force and effect. The Executive acknowledges and agrees
that the stock option grant for 600,000 shares approved by the Board of
Directors of the Company in August 2008 is hereby cancelled in its entirety as
of the Effective Date, including any vested and unvested portions of such option
grant.
6. TAX CONSEQUENCES. The Executive acknowledges that (a) the Company has
not made any representations to him about, and that he has not relied upon any
statement in this Agreement with respect to, any individual tax consequences
that may arise by virtue of any payment provided under this Agreement,
including, but not limited to, the applicability of Section 409A of the Internal
Revenue Code, and (b) he has or will consult with his own tax advisors as to any
such tax consequences.
7. STATUS OF RELATED AGREEMENTS.
(a) AGREEMENTS BETWEEN THE EXECUTIVE AND THE COMPANY. The Executive
and the Company agree that, in addition to this Agreement, the Employment
Agreement, attached hereto as Exhibit A is the only other executed agreement
between the Company and the Executive that relates to the terms and conditions
of Executive's employment with the Company.
(b) EMPLOYMENT AGREEMENT. The parties agree that the Employment
Agreement shall be terminated as of the Resignation Date. Notwithstanding the
termination of the Employment Agreement, the Executive acknowledges that the
duties and obligations set forth in Sections 7.7 through 9.2 of the Employment
Agreement extend beyond the Resignation Date. In the event that any provision of
this Agreement conflicts with Sections 7.7 through 9.2 of the Employment
Agreement, the terms and provisions of the section(s) providing the greatest
protection to the Company and its Related Entities shall control.
(c) INDEMNIFICATION. Notwithstanding the termination of the
Employment Agreement or any provision of this Agreement, the Executive and the
Company acknowledge and agree that the promise of indemnification contained in
Section 8 of the Employment Agreement shall remain in full force and effect in
accordance with its terms. In addition, nothing in this Agreement is intended to
modify, restrict, reduce, or eliminate any rights of indemnification that
Executive has under the Articles of Incorporation or By-laws of the Company or
under applicable law. Without limiting the generality of the foregoing, the
Company acknowledges its agreement to indemnify and advance fees to Executive in
connection with the OC PIN Derivative Action subject to the Company's
reservation of rights to require Executive to return all funds to the Company in
the event it is determined that the indemnification of Executive was
inappropriate.
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(d) D & O INSURANCE. The Company agrees that it shall take no action
to modify, restrict, reduce, or eliminate Executive's rights to coverage as may
or may not be provided under the terms and conditions of the Company's D&O
insurance policy.
8. RELEASE BY THE EXECUTIVE. Except as otherwise expressly provided in
this Agreement, the Executive, for himself and his heirs, executors,
administrators, assigns, affiliates, successors and agents (collectively, the
"Executive's Affiliates") hereby fully and without limitation releases and
forever discharges the Company and its Related Entities, and each of their
respective current agents, representatives, attorneys, investigators, officers,
directors, employees, affiliates, successors and assigns (collectively, the
"Company Releasees"), both individually and collectively, from any and all
rights, claims, demands, liabilities, actions, causes of action, damages,
losses, costs, expenses and compensation, of whatever nature whatsoever, known
or unknown, fixed or contingent, which the Executive or any of the Executive's
Affiliates has or may have or may claim to have against the Company Releasees by
reason of any matter, cause, or thing whatsoever, from the beginning of time to
the Effective Date ("Claims"), including, without limiting the generality of the
foregoing, any Claims arising out of, based upon, or relating to the
recruitment, hiring, employment, relocation, remuneration, investigation, or
termination of the Executive by any of the Company Releasees, the Executive's
tenure as an employee and/or an officer of any of the Company Releasees, any
agreement or compensation arrangement between the Executive and any of the
Company Releasees (including, without limitation, the Employment Agreement), or
any act or occurrence in connection with any actual, existing, proposed,
prospective or claimed ownership interest of any nature of the Executive or the
Executive's Affiliates in equity capital or rights in equity capital or other
securities of any of the Company Releasees, to the maximum extent permitted by
law. The Executive specifically and expressly releases any Claims arising out of
or based on: the California Fair Employment and Housing Act, as amended; Title
VII of the Civil Rights Act of 1964, as amended; the Americans With Disabilities
Act; the National Labor Relations Act, as amended; the Equal Pay Act; ERISA; any
provision of the California Labor Code; the California common law on fraud,
misrepresentation, negligence, defamation, infliction of emotional distress or
other tort, breach of contract or covenant, violation of public policy or
wrongful termination; state or federal wage and hour laws; or any other state or
federal law, rule, or regulation dealing with the employment relationship or
operating a publicly held business, provided, however, nothing contained in this
Section 8 or any other provision of this Agreement shall release or waive any
right that Executive has to (i) indemnification and/or reimbursement of expenses
by the Company with respect to which Executive may be eligible as provided in
Section 7(c), above, (ii) coverage under any D&O insurance policy as provided in
Section 7(d) above, (iii) any vested rights Executive has with respect to any
employee benefit plan sponsored by the Company, or (iv) to pursue any claims for
defamation or malicious prosecution.
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9. WAIVER OF CIVIL CODE SECTION 1542.
(a) The Executive understands and agrees that the release provided
herein extends to all Claims released above whether known or unknown, suspected
or unsuspected. The Executive expressly waives and relinquishes any and all
rights he may have under California Civil Code Section 1542, which provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
(b) The Executive expressly waives and releases any rights and
benefits, which he has or may have under any similar law or rule of any other
jurisdiction. It is the intention of each party through this Agreement to fully,
finally and forever settle and release the Claims as set forth above. In
furtherance of such intention, the release herein given shall be and remain in
effect as a full and complete release of such matters notwithstanding the
discovery of any additional Claims or facts relating thereto.
10. RELEASE OF FEDERAL AGE DISCRIMINATION CLAIMS BY THE EXECUTIVE. The
Executive hereby knowingly and voluntarily waives and releases all rights and
claims, known or unknown, arising under the Age Discrimination In Employment Act
of 1967, as amended, which he might otherwise have had against the Company or
any of the Company Releasees regarding any actions which occurred prior to the
Effective Date.
11. RIGHTS UNDER THE OLDER WORKERS BENEFIT PROTECTION ACT. In accordance
with the Older Workers Benefit Protection Act of 1990, the Executive hereby is
advised of the following:
(a) The Executive has the right to consult with an attorney before
signing this Agreement and is encouraged by the Company to do so;
(b) The Executive has twenty-one (21) days from his receipt of this
Agreement to consider it; and
(c) The Executive has seven (7) days after signing this Agreement to
revoke Sections 5, 8 and 10 of this Agreement (which must be revoked in their
entirety and as a group), and such Sections of this Agreement (as a group) will
not be effective until that revocation period has expired without exercise. The
Executive agrees that in order to exercise his right to revoke this Agreement
within such seven (7) day period, he must do so in a signed writing delivered to
the Company's General Counsel before the close of business on the seventh
calendar day after he signs this Agreement. If the Executive exercises his right
to revoke, he will not be entitled to the eight (8) months of special payments
and benefits provided in this Agreement.
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12. THE COMPANY'S REJECTION OF THE CLAIMS AND CAUSES OF ACTION IN OC-PIN
DEMAND AND OC-PIN DERIVATIVE ACTION. Following the investigation described in
Recital B, a thorough review of the information derived therefrom by the
Company's Legal Affairs Committee, and given Employee's resignation, the Company
has made a determination that it is not in the Company's interests to pursue any
of the claims or causes of action described in the OC-PIN Demand or OC PIN
Derivative Action. To this end, the Company previously moved for, and secured, a
judicial determination from the Orange County Superior Court under California
Corporations Code section 800 that there is no reasonable possibility that the
prosecution of such claims and causes of action will benefit the Company or its
shareholders. Further, the Company is presently seeking summary dismissal of the
claims and causes of action in OC-PIN's Demand and Derivative Action related to
Employee's alleged interference with the Company's past financing options. Based
upon the foregoing, the Company agrees that (i) it will continue to prosecute in
good faith the motion for summary judgment filed in OC-PIN Derivative Action,
(ii) it will seek dismissal of all remaining claims in the OC-PIN Derivative
Action in the event the Court lifts the current stay of such claims, and if, in
the Company's good faith determination, it concludes that such a motion is
tenable and appropriate, and (iii) it will not file any claims against Executive
unless facts or evidence not known at the time of the execution of this
Agreement provide a reasonable basis for the assertion of such claim.
13. NO FILINGS. The Executive represents that he has not filed any
lawsuits, claims, charges or complaints against the Company or the Company
Releasees with any local, state or federal agency or court from the beginning of
time to the date of execution of this Agreement; that he will not do so at any
time hereafter based upon events prior to the date of execution of this
Agreement; that he will not induce, encourage, solicit or assist any other
person or entity to file or pursue any proceeding of any kind against the
Company or the Company Releasees or voluntarily appear or invite a subpoena to
testify in any such legal proceeding; and that, if any such agency or court ever
assumes jurisdiction over any such lawsuit, claim, charge or complaint and/or
purports to bring any legal proceeding, in whole or in part, on behalf of the
Executive based upon events occurring prior to the execution of this Agreement,
the Executive will request such agency or court to withdraw from and/or to
dismiss the lawsuit, claim, charge or complaint with prejudice. It shall not be
a breach of this Section 13 for Executive to testify truthfully in any judicial
or administrative proceeding.
14. CONFIDENTIAL AND PROPRIETARY INFORMATION. The Executive acknowledges
that certain information, observations and data obtained by him during the
course of or related to his employment with the Company and its Related Entities
or during the Consulting Period (including, without limitation, projection
programs, business plans, business matrix programs (I.E., measurement of
business), strategic financial projections, certain financial information,
shareholder information, product design information, marketing plans or
proposals, personnel information, customer lists and other customer information)
are the sole property of the Company and its Related Entities and constitute
Confidential Information. The Executive represents and warrants that at the
termination of the Consulting Period, he will return all files, customer lists,
financial information and other property of the Company and its Related Entities
that are in the Executive's possession or control without retaining copies
thereof. The Executive agrees that he will not disclose to any person or use any
such information, observations or data without the written consent of the Board
of Directors of the Company. If the Executive is served with a deposition
subpoena or other legal process calling for the disclosure of such information,
or if he is contacted by any third person requesting such information, he will
notify the Company's General Counsel as soon as is reasonably practicable after
receiving notice and will cooperate with the Company and its Related Entities in
minimizing the disclosure thereof.
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15. REMEDIES. The Executive acknowledges that any unfair competition or
misuse of trade secret or Confidential Information belonging to the Company and
its Related Entities, or any violation of Sections 13 and 15 of this Agreement,
will result in irreparable harm to the Company and its Related Entities, and
therefore, the Company and its Related Entities shall, in addition to any other
remedies, be entitled to immediate injunctive relief. In addition, in the event
of a breach of any provision of the Agreement by the Executive, including any
undiscovered material violations of securities laws or accounting rules caused
by Executive directly or through his failure to discharge his duties as Chief
Executive Officer, the Executive shall forfeit, and the Company and its Related
Entities may, without excluding other remedies available to them, cease paying
any unpaid special payments, and the Company and its Related Entities shall be
entitled to an award in the amount of all special payments made under this
Agreement by the Company to the Executive..
16. COOPERATION CLAUSE. The Executive will cooperate and assist the
Company and the Company's attorneys in connection with pending litigation
against the Company or other pending legal proceedings involving the Company.
The Executive and the Company agree that the Company will issue the resignation
announcement attached hereto as Exhibit C. For so long as the Executive
maintains the title of Chief Executive Officer or performs the functions of that
position, he will execute all filings and certifications on behalf of the
Company required of the principal executive officer of the Company under
applicable federal and state laws and regulation (including without limitation
the Company's filings with the Securities and Exchange Commission and the
certifications required by Rules 13a-14(a) and (b) under the Securities Exchange
Act of 1934, as amended) provided that Executive in good faith agrees with the
content of such filings and certifications. The Executive also agrees to execute
all documents and instruments deemed necessary or appropriate by the Company to
effect a smooth and efficient conclusion of his employment and transition to the
successor Chief Executive Officer, including but not limited to agreements
terminating proxies and voting agreements granted to Executive by shareholders
of the Company as requested by the applicable shareholder(s). The Executive will
fully and promptly respond to reasonable inquiries from the Company and its
representatives relating to pending matters in which the Executive has been
involved.
17. NO FUTURE EMPLOYMENT. With the exception of the Consulting Period
detailed in Section 3 above, the Executive understands that his employment with
the Company and its Related Entities will irrevocably end as of the Resignation
Date and will not be resumed at any time in the future. The Executive agrees
that he will not apply for, seek or accept employment by the Company and its
Related Entities at any time, unless invited to do so by the Company and its
Related Entities.
18. NON-DISPARAGEMENT. The Executive agrees not to disparage or otherwise
publish or communicate derogatory statements about the Company and its Related
Entities and any director, officer or manager and/or the products and services
of these entities to any third party. It shall not be a breach of this Section
20 for the Executive to testify truthfully in any judicial or administrative
proceeding, or to make factually accurate statements in legal or public filings.
The Company and its officers and directors agree not to disparage or otherwise
publish or communicate derogatory statements about Executive. It shall not be a
breach of this Section 20 for the Executive or Company personnel to testify
truthfully in any judicial or administrative proceeding, or to make factually
accurate statements in legal or public filings.
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19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
20. WAIVER OF RIGHT TO JURY TRIAL. The Executive and the Company hereby
agree that all actions or proceedings arising directly or indirectly hereunder,
whether instituted by the Executive or the Company and its Related Entities,
shall be submitted to binding arbitration in the State of California, County of
Orange. The parties hereby waive trial by jury in connection with any future
dispute between them, any objection based on forum non conveniens, and any
objection to venue of any action instituted hereunder.
21. ATTORNEYS' FEES. Except as otherwise provided herein, in any action,
litigation or proceeding between the parties arising out of or in relation to
this Agreement, including any purported breach of this Agreement, the prevailing
party shall be entitled to an award of its costs and expenses, including
reasonable attorneys' fees.
22. NON-ADMISSION OF LIABILITY. The parties understand and agree that
neither the payment of any sum of money nor the execution of this Agreement by
the parties will constitute or be construed as an admission of any wrongdoing or
liability whatsoever by any party.
23. SEVERABILITY. If any one or more of the provisions contained herein
(or parts thereof), or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity
and enforceability of any such provision in every other respect and of the
remaining provisions hereof will not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to the
fullest extent permitted by law.
24. ENTIRE AGREEMENT. This Agreement, together with the attachments
hereto, represents the sole and entire agreement among the parties and, except
as expressly stated herein, supersedes all prior agreements, negotiations and
discussions among the parties with respect to the subject matters contained
herein.
25. WAIVER. No waiver by any party hereto at any time of any breach of, or
compliance with, any condition or provision of this Agreement to be performed by
any other party hereto may be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or at any prior or subsequent time.
26. AMENDMENT. This Agreement may be modified or amended only if such
modification or amendment is agreed to in writing and signed by duly authorized
representatives of the parties hereto, which writing expressly states the intent
of the parties to modify this Agreement.
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27. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original as against any
party that has signed it, but all of which together will constitute one and the
same instrument.
28. ASSIGNMENT. This Agreement inures to the benefit of and is binding
upon the Company and its successors and assigns, but the Executive's rights
under this Agreement are not assignable, except to his estate.
29. NOTICE. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) if personally delivered; (b) if sent by telecopy or facsimile
(except for legal process); or (c) if mailed by overnight or by first class,
certified or registered mail, postage prepaid, return receipt requested, and
properly addressed as follows:
If to the Executive: Bruce Mogel
________________________
________________________
Fax: ___________________
If to the Company: Integrated Healthcare Holdings, Inc.
1301 North Tustin Avenue
Santa Ana, California 92705
Attn: Scott Schoeffel, General Counsel
Fax: (714) _________________
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided above. Notice will conclusively be deemed to have been given
when personally delivered (including, but not limited to, by messenger or
courier); or if given by mail, on the third day after being sent by first class,
certified or registered mail; or if given by Federal Express or other similar
overnight service, on the date of delivery; or if given by telecopy or facsimile
machine during normal business hours on a business day, when confirmation of
transmission is indicated by the sender's machine; or if given by telecopy or
facsimile machine at any time other than during normal business hours on a
business day, the first business day following when confirmation of transmission
is indicated by the sender's machine. Notices, requests, demands and other
communications delivered to legal counsel of any party hereto, whether or not
such counsel shall consist of in-house or outside counsel, shall not constitute
duly given notice to any party hereto.
30. MISCELLANEOUS PROVISIONS.
(a) The parties represent that they have read this Agreement and
fully understand all of its terms; that they have conferred with their
attorneys, or have knowingly and voluntarily chosen not to confer with their
attorneys about this Agreement; that they have executed this Agreement without
coercion or duress of any kind; and that they understand any rights that they
have or may have and sign this Agreement with full knowledge of any such rights.
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(b) Both parties have participated in the drafting of this Agreement
with the assistance of counsel to the extent they desired. The language in all
parts of this Agreement must be in all cases construed simply according to its
fair meaning and not strictly for or against any party. Whenever the context
requires, all words used in the singular must be construed to have been used in
the plural, and vice versa, and each gender must include any other gender. The
captions of the Sections of this Agreement are for convenience only and must not
affect the construction or interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party
hereto is both a covenant and condition, and is a material consideration for the
other party's performance hereunder, and any breach thereof by the party will be
a material default hereunder. All rights, remedies, undertakings, obligations,
options, covenants, conditions and agreements contained in this Agreement are
cumulative and no one of them is exclusive of any other. Time is of the essence
in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or
promise made by any other party, or by the agent or attorney of any other party,
except for those in this Agreement, has been relied on by him or it in entering
into this Agreement.
(e) Each party understands that the facts with respect to which this
Agreement is entered into may be materially different from those the parties now
believe to be true. Except in the case where the existence of any additional or
different facts constitutes the breach of a representation or warranty, each
party accepts and assumes this risk and agrees that this Agreement and the
releases in it shall remain in full force and effect, and legally binding,
notwithstanding the discovery or existence of any additional or different facts,
or of any claims with respect to those facts.
(f) Unless expressly set forth otherwise, all references herein to a
"day" are deemed to be a reference to a calendar day. All references to
"business day" mean any day of the year other than a Saturday, Sunday or a
public or bank holiday in Orange County, California. Unless expressly stated
otherwise, cross-references herein refer to provisions within this Agreement and
are not references to the overall transaction or to any other document.
(g) Each party to this Agreement will cooperate fully in the
execution of any and all other documents and in the completion of any additional
actions that may be necessary or appropriate to give full force and effect to
the terms and intent of this Agreement.
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EACH OF THE PARTIES ACKNOWLEDGES THAT HE/IT HAS READ THIS AGREEMENT,
UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT, AND THAT IT INCLUDES A
WAIVER OF THE RIGHT TO A TRIAL BY JURY, AND, WITH RESPECT TO THE EXECUTIVE, HE
UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates indicated below.
"EXECUTIVE" /s/ Bruce Mogel
--------------------------------------------
BRUCE MOGEL
Dated: November 4, 2008
"COMPANY" INTEGRATED HEALTHCARE HOLDINGS, INC.,
a Nevada corporation
By: /s/ Maurice DeWald
----------------------------------------
Printed Name: Maurice DeWald
Title: Chairman of the Board
Dated: November 4, 2008
13