Nobilis Health Corp. - Exhibit 10.57 - Filed by newsfilecorp.com






FIRST AMENDMENT TO EMPLOYMENT AGREEMENT 

      
     THIS FIRST AMENDMENT (this
“Amendment”) to that certain Employment Agreement (the
“Original Agreement”) is effective as of January 6, 2016 (the
“Effective Date”) by and among Harry J. Fleming (the
“Executive”), Northstar Healthcare Acquisitions, L.L.C., a
Delaware limited liability company (the “Company”), and Nobilis
Health Corp. (formerly, Northstar Healthcare Inc.), a corporation incorporated
under the laws of British Columbia (the “Issuer”).

            WHEREAS,
the Company, the Issuer, and the Executive entered into the Original Agreement
dated April 30, 2015 (a copy of which is attached as Exhibit A), pursuant
to which the Executive assumed employment as the Company and the Issuer’s
Chairman; 

            WHEREAS,
on January 6, 2016, the Executive resigned as Chairman, concurrent with the
Company’s Board of Managers (the “Board”) and the Issuer’s Board
of Directors (the “Issuer Board”) appointing the Executive as
Chief Executive Officer (“CEO”); the Executive wishes to hereby
accept such appointment; 

            WHEREAS,
the Company and the Issuer’s Compensation Committee, in consultation with
outside executive compensation experts, reviewed and approved recommendations to
adjust the executive compensation terms as detailed in this Amendment; 

            WHEREAS,
the Board and the Issuer’s Board resolved, at its meeting on January 28, 2016,
that it was in the best interests of the shareholders to adopt the Compensation
Committee’s recommendations; and 

            WHEREAS,
the Company, the Issuer, and the Executive now wish to amend the Original
Agreement according to the following terms and conditions. 

            NOW,
THEREFORE, in consideration of the premise and the mutual promises set
forth below, the Company, the Issuer, and the Executive agree as follows: 

	1. 	
      Defined Terms. Defined terms used but not defined
      in this Amendment are as defined in the Original Agreement.

	 	 
	2. 	
      Amendment of Section 1: Section 1 of the Original
      Agreement is amended and restated in its entirety as
  follows:



“Position and Duties. Executive
shall serve as Chief Executive Officer of the Company and of the Issuer,
reporting to the Company’s Board of Managers (the “Board”) and the
Issuer’s Board of Directors (the “Issuer Board”). During the
Employment Period (as defined below) the Executive shall have such duties,
responsibilities and authority consistent with his position and as assigned by
the Board and/or the Issuer Board. The Executive further agrees to use his best
efforts to promote the interests of the Company and the Issuer and to devote his
full business time and energies to the business and affairs of the Company and
Issuer. The Executive shall work primarily from the Company’s corporate
headquarters in Houston, Texas, but shall be required to travel from time to
time as business necessity requires.” 

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	3. 	
      Amendment of Section 2: Section 2 of the Original
      Agreement is amended and restated in its entirety as
  follows:



“Term. The Executive’s
employment shall commence on January 6, 2016, and, unless earlier terminated as
provided herein, shall continue until the date that is three (3) years from
January 6, 2016 (the “Initial Term”). This Agreement shall
automatically renew for additional one (1) year terms unless written notice is
provided by either the Executive or the Company at least thirty (30) days prior
to the expiration of any term hereunder. The Initial Term and any renewal years
are the “Term”.” 

	4. 	
      Amendment of Section 4(a): Section 4(a) of the
      Original Agreement is amended and restated in its entirety as
    follows:



“(a)    
 Base Salary. As compensation for services rendered hereunder, the
Executive shall initially receive a salary of Five Hundred Thousand United
States Dollars ($500,000.00 USD) annually (the “Base Salary”),
which shall be paid in accordance with the Company’s then prevailing payroll
practices; provided that, the Base Salary shall be adjusted upwards
annually on or about each anniversary of this Amendment in an amount to be
determined by the Board at its discretion. The annualized amount of the Base
Salary is set forth herein as a matter of convenience and shall not be deemed or
interpreted as an agreement by the Company to employ the Executive for any
specific period of time.” 

	5. 	
      Amendment of Section 4(c): Section 4(c) of the
      Original Agreement is amended and restated in its entirety as
    follows:



“(c)    
 STIP. The Executive will be eligible to participate in the
Company’s short-term incentive plan for senior management (the
“STIP”) as approved by the Board. The Executive’s target annual
bonus under the STIP shall be ninety percent (90%) of his Base Salary. As
detailed in the Company’s STIP, in the event that the stated objectives are met,
Executive is eligible to receive up to one hundred eighty percent (180%) of the
target annual bonus under the STIP.” 

	6. 	
      Amendment of Section 4(g): Section 4(g) of the
      Original Agreement is amended as follows: (1) by deleting the words,
      “In order to preserve the Company’s ability to adequately fund stock
      option incentives, Executive agrees not to participate in the Company’s
      stock option plan and will instead” and replacing the deleted words
      with the following words: “Executive will”; and (2) by adding the
      following to the end of the section.



“As additional compensation the
Executive will participate in the Company’s Stock Option Plan. The Company will
issue to the Executive, pursuant to the terms of the Issuer’s Stock Option Plan,
Three Hundred Thousand (300,000) stock options (the “Options”). During the
Initial Term, the Company will issue additional options to the Executive on or
about the first, second, and third year anniversary of the issuance date in an
amount to be determined by the Board at its discretion. The strike price for the
option will be the lowest price permissible pursuant to both the Company’s Stock Option plan, as amended from
time to time, and the rules of the stock exchange upon which the Issuer’s Common
Shares are traded.” 

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	7. 	
      Amendment of Section 6: Section 6 of the Original
      Agreement is amended as follows: (1) by inserting after subsection 6(b)
      the following new subsection 6(c) and (2) by renumbering subsections
      6(c)-(d) as subsections 6(d)-(e).



“(c)    
 Non-Competition and Non-Solicitation. In consideration of the
obligations of the Company and the Issuer hereunder, the Executive shall not, in
any capacity, whether for his own account or for any other person or
organization, directly or indirectly, with or without compensation:

	 	i. 	
      during the Term and for a period following his
      termination of employment corresponding with the amount of severance
      payable under this Agreement (and not, for clarity, the time period over
      which such severance is paid) (A) own, operate, manage, or control, (B)
      serve as an officer, director, partner, employee, agent, consultant,
      advisor or developer or in any similar capacity to (C) have any financial
      interest in, or aid or assist anyone else in the conduct of an enterprise
      of, or (D) engage in any undertaking, provide services to, lend money or
      guarantee the obligations of, any person who carries on business that
      competes in any material respect with the business or any material part
      thereof, of the identification, development, acquisition, ownership,
      operation or management of ambulatory surgery centers carried on by the
      Company or any of its subsidiaries or affiliates (including the Issuer) on
      the date of termination or non-renewal or within the preceding six months
      of the applicable date in the United States or any other territory in
      which such business is carried on at such time, or call upon, solicit,
      divert, take away or attempt to solicit any of the customers or suppliers
      or any other business contacts of the Company any of its subsidiaries or
      affiliates;

	 	 	 
	 	ii. 	
      during the Term and for a period ending twelve (12)
      months following his termination of employment, solicit, offer to hire,
      entice away or in any manner persuade or attempt to persuade any officer,
      employee or agent of the Company, the Issuer (including any subsidiaries
      or affiliates thereof, including, without limitation, any physician
      limited partner or contract physician employed by or working at any of the
      ambulatory surgery centers owned (directly or indirectly) or managed by
      the Company) to discontinue his or her relationship with the Company, the
      Issuer or such subsidiaries or affiliates; or

	 	 	 
	 	iii. 	
      during the Term and for a period ending twelve (12)
      months following his termination of employment, solicit, divert or
      appropriate any customers, clients, vendors or distributors of the Company
      (including any subsidiaries or affiliates
thereof).



Notwithstanding anything to the
contrary contained herein, nothing in this Section 6(c) shall prohibit the
Executive from acquiring or holding not more than five percent (5%) of any class of
publicly traded securities or, following his termination of employment, serving
as an officer, director, partner, employee, agent, consultant or advisor of a
hospital that derives no more than 5% of its revenues from the operation and/or
management of an ambulatory surgery center or outpatient clinic; provided that
the Executive shall not serve in any such capacity if such service relates in
any material respect to the identification, development, acquisition, ownership,
operation or management of ambulatory surgery centers by such hospital. 

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For clarity and by way of example, if
the Executive is entitled to a severance payment equal to sixty (60) days’ Base
Salary, the Executive’s obligations not to compete pursuant to Section 6(c)
above shall extend for sixty (60) days following the date of termination. 

Notwithstanding the foregoing, this
Section 6(c) shall not be binding on the Executive if his employment is
terminated by the Company Without Cause, by the Executive for Good Reason, or
there is a Change in Control.” 

	8. 	
      New Section 9. The following new Section 9 is
      hereby added to the Original Agreement:



            “9.
Section 409A.

       
    (a)      The intent of the
parties is that payments and benefits under this Agreement comply with Internal
Revenue Code Section 409A and the regulations and guidance promulgated
thereunder (collectively “Code Section 409A”) and, accordingly, to
the maximum extent permitted, this Agreement shall be interpreted to be in
compliance therewith. In no event whatsoever shall the Company be liable for any
additional tax, interest or penalty that may be imposed on the Executive by Code
Section 409A or damages for failing to comply with Code Section 409A. 

      
     (b)      A termination of
employment shall not be deemed to have occurred for purposes of any provision of
this Agreement providing for the payment of any amount or benefit that
constitutes deferred compensation upon or following a termination of employment
unless such termination is also a “separation from service” within the meaning
of Code Section 409A and, for purposes of any such provision of this Agreement,
references to a “termination,” “termination of employment” or like terms shall
mean “separation from service.” Notwithstanding anything to the contrary in this
Agreement, if the Executive is deemed on the date of termination to be a
“specified employee” within the meaning of that term under Code Section
409A(a)(2)(B), then with regard to any payment or the provision of any benefit
that is considered deferred compensation under Code Section 409A payable on
account of a “separation from service,” such payment or benefit shall not be
made or provided until the date which is the earlier of (i) the expiration of
the six (6)-month period measured from the date of such “separation from
service” of the Employee, and (ii) the date of the Executive’s death, to the
extent required under Code Section 409A. Upon the expiration of the foregoing
delay period, all payments and benefits delayed pursuant to this Section 9(b)
(whether they would have otherwise been payable in a single sum or in
installments in the absence of such delay) shall be paid or reimbursed to the
Executive in a lump sum, and any remaining payments and benefits due
under this Agreement shall be paid or provided in accordance with the normal
payment dates specified for them herein. 

4 




            (c)       
To the extent that reimbursements or other in-kind benefits under this Agreement
constitute “nonqualified deferred compensation” for purposes of Code Section
409A, (A) all such expenses or other reimbursements hereunder shall be made on
or prior to the last day of the taxable year following the taxable year in which
such expenses were incurred by the Executive, (B) any right to such
reimbursement or in-kind benefits shall not be subject to liquidation or
exchange for another benefit, and (C) no such reimbursement, expenses eligible
for reimbursement, or in-kind benefits provided in any taxable year shall in any
way affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other taxable year. 

            (d)      
 For purposes of Code Section 409A, the Executive’s right to receive any
installment payments pursuant to this Agreement shall be treated as a right to
receive a series of separate and distinct payments. Whenever a payment under
this Agreement specifies a payment period with reference to a number of days,
the actual date of payment within the specified period shall be within the sole
discretion of the Company. 

            (e)      
 Subject to Section 9(b), payments to the Executive of compensation he is
entitled to receive pursuant to Section 5(c) as a result of a termination of
Executive’s employment without Cause or resignation for Good Reason shall be
paid to Executive on the same schedule such compensation would be paid as if
Executive had remained employed for the remainder of the Term.”

	9. 	
      No Further Changes. All other terms and conditions of the
      Original Agreement remain in full force and effect without modification or
      waiver.

	 	 
	10. 	
      General




	 	a. 	
      Governing Law. This Agreement shall be governed by
      the laws of the State of Texas, without regard to any conflicts of laws
      principles thereof that would call for the application of the laws of any
      other jurisdiction. Any action or proceeding seeking to enforce any
      provision of, or based on any right arising out of, this Amendment may be
      brought against either of the parties in the courts of the State of Texas,
      or if it has or can acquire jurisdiction, in the United States District
      Court for the Southern District of Texas and each of the parties hereby
      consents to the jurisdiction of such courts (and of the appropriate
      appellate courts) in any such action or proceeding and waives any
      objection to venue laid therein. Process in any action or proceeding
      referred to in the preceding sentence may be served on any party anywhere
      in the world, whether within or without the State of Texas.

	 	 	 
	 	b. 	
      Amendment: Waiver. This Amendment may be amended,
      modified, superseded, cancelled, renewed or extended, and the terms hereof
      may be waived, only by a written instrument executed by both of the
      parties hereto or, in the case of a waiver, by the party waiving
      compliance. The failure of either party at any time or times to require
      performance of any provision hereof shall in no manner affect the right at
      a later time to enforce the same. No waiver by either party of the breach
      of any term or covenant contained in this Amendment, whether by conduct or
      otherwise, in any one or more instances, shall be deemed to be, or construed as, a
      further or continuing waiver of any such breach, or a waiver of the breach
  of any other term or covenant contained in this Amendment.



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	 	c. 	
      Successors and Assigns. This Amendment shall be
      binding upon the Executive, without regard to the duration of his
      employment by the Company and the Issuer or reasons for the cessation of
      such employment, and inure to the benefit of his administrators,
      executors, heirs and assigns, although the obligations of the Executive
      are personal and may be performed only by him. This Amendment shall also
      be binding upon and inure to the benefit of the Company, the Issuer and
      their respective subsidiaries, successors and assigns, including any
      corporation with which or into which the Company or its successors may be
      merged or which may succeed to its assets or business.

	 	 	 
	 	d. 	
      Counterparts. This Amendment may be executed in
      multiple counterparts, each of which shall be considered to have the force
      and effect of an original.

	 	 	 
	 	e. 	
      Entire Amendment. Except for the Original
      Agreement which remains in full force and effect except as modified by
      this Amendment, this Amendment supersedes all prior agreements between the
      parties with respect to its subject matter and is intended (with the
      documents referred to herein) as a complete and exclusive statement of the
      terms of the agreement between the parties with respect thereto.

	 	 	 
	 	f. 	
      Severability. The invalidity of one or more of the
      words, phrases, sentences, clauses or sections contained herein shall not
      affect the enforceability of the remaining portions of this Amendment, or
      any part thereof, all of which are inserted conditionally on their being
      valid in law, and, in the event any one of the words, phrases, sentences,
      clauses or sections in this Amendment shall be declared invalid, this
      Amendment shall be construed as if such invalid word(s), phrase(s),
      sentence(s), clause(s) or section(s) had not been
  inserted.



[Signature Page Immediately Follows] 

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IN WITNESS WHEREOF, the parties have executed this Amendment as
of the Effective Date. 

 

NORTHSTAR HEALTHCARE ACQUISITIONS,
L.L.C. 

 

	 	By: 	/s/ Kenneth Klein 
	 	 	Name: Kenneth Klein
    
	 	  	Title: Chief Financial Officer
  


 

NOBILIS HEALTH CORP. 

 

	 	By: 	/s/ Steve Ozonian 
	 	  	Name: Steve Ozonian 
	 	 	Title: Director
  


 

EXECUTIVE 

 

	 	/s/
      Harry J. Fleming 
	 	Name: Harry J. Fleming 
	 	Address: 






EXHIBIT A 

APRIL 30, 2015 EMPLOYMENT AGREEMENT