exv10w2



 





Exhibit 10.2




SECOND AMENDMENT TO EMPLOYMENT AGREEMENT




          THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is made effective as of
February 28, 2007 by and between United Surgical Partners International, Inc., a Delaware
corporation (the “Company”), and William H. Wilcox (the “Employee”).




W I T N E S S E T H




          WHEREAS, the Company and the Employee entered into an Employment Agreement dated November 15,
2002, as amended by that certain First Amendment to Employment Agreement, dated November 15, 2006
(as amended, the “Agreement”); and




          WHEREAS, the Company and the Employee wish to amend certain provisions of the Agreement,
effective as of the date set forth above.




          NOW, THEREFORE, in consideration of the Employee’s continued employment and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company
and the Employee agree as follows:




          1.      Recitals. The foregoing recitals are true and correct and are incorporated herein
by this reference.




          2.      Excise Tax. A new Section 11 is hereby added to the Agreement, to read in its
entirety as follows:





          “11. Excise Tax. If any of the payments or benefits due to
Employee under this Agreement would otherwise result in a liability for any
excise taxes pursuant to Internal Revenue Code (“Code”) Section 4999
(“Excise Tax”) (whether at the time of payment or upon a later IRS audit),
the Company and Employee agree to use commercially reasonable efforts to
restructure, in a manner reasonably acceptable to the Company and Employee,
such payments or benefits due to Employee so that such Excise Tax is
eliminated or minimized to the extent permitted by applicable law. If,
despite the use of commercially reasonable efforts, the Company and Employee
are unable, consistent with applicable law, to agree on the restructuring of
the payments or benefits due to Employee under this Agreement to eliminate
such Excise Tax consistent with legal requirements, the Company will
reimburse Employee for the amount of such Excise Tax plus all federal, state
and local taxes applicable to the Company’s payment of such Excise Tax,
including any additional taxes due under Section 4999 of the Code with
respect to payments made pursuant to this provision. Calculations for these
purposes will assume the highest marginal rate for individuals applicable at
the time of calculation. The intent of this section is that the Company
will pay Employee an additional amount (the “Gross-Up Payment”) such that
the net amount retained by Employee after deduction of (i) any Excise Tax
imposed on any such payment or benefit and (ii) any Excise Tax, federal,
state or local income, and/or payroll taxes imposed on the Gross-Up Payment,
will equal the amount of such payment or benefit reduced by all applicable
taxes on such amount other than the Excise Tax; provided, that the
Gross-Up payment will not include any additions to tax imposed on the
Employee by reason of Section 409A of the Code.”



 









 





          3.      Conflicting Terms & Survival of Agreement. Except as specifically set forth
herein, the Agreement shall remain in full force and effect. In the event the terms of this
Amendment shall conflict with the terms of the Agreement, the terms of this Amendment shall
control.




          4.      Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be deemed to be an original, and all of which together constitute one document.




          5.      Final Agreement. The Agreement, as amended by this Amendment, constitutes the
final agreement between the parties hereto and supercedes any prior or contemporaneous agreement or
representation, oral or written, among them with respect to the matters set forth in the Agreement
and this Amendment.




          6.      Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Texas, without reference to principles of conflict of laws.




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          IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
above.




	 	 	 	 	 
	 	UNITED SURGICAL PARTNERS INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Donald E. Steen
 	 
	 	 	Donald E. Steen 	 
	 	 	Chairman 	 
	 
	 	EMPLOYEE

 	 
	 	/s/ William H. Wilcox
 	 
	 	William H. Wilcox 	 
	 	 	 
	 




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