exv10w2



 




Exhibit 10.2


EMPLOYMENT AGREEMENT




     This Employment Agreement (this “Agreement”) is entered into effective as of July 1,
2005, by and between United Surgical Partners International, Inc., a Delaware corporation (“USPI”),
and Mark C. Garvin (“Employee”), with reference to the following facts:



R E C I T A L S




     A. USPI desires to employ Employee in the capacities and on the terms and conditions
hereinafter set forth and Employee is willing to serve in such capacities and on such terms and
conditions.



     B. This Agreement shall replace any and all existing employment agreements and arrangements
between USPI and Employee as of the date hereof.



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained
herein, USPI and Employee mutually agree as follows:



A G R E E M E N T




     1. Employment. USPI hereby employs Employee as Senior Vice President and Chief
Operating Officer of USPI.



     2. Duties. Employee shall devote substantially all of his working time, energies and
skills to USPI’s business. Employee shall report to the Chief Executive Officer of USPI (the
“CEO”) and shall have such duties, responsibilities and authority as may be assigned to Employee by
the CEO. Employee agrees to serve USPI diligently and to the best of his/her ability.



     3. Compensation.



          (a) Base Salary. USPI shall pay Employee a base salary (“Base Salary”) at a rate of
$315,000 per year. In addition, the board of directors of USPI (the “Board”), or a committee
thereof, shall consider granting increases in such salary based on Employee’s performance and the
growth and/or profitability of USPI, but it shall have no obligation to grant any such increases in
compensation. Base Salary shall be payable in equal semi-monthly installments on the
15th day and the last working date of the month, or at such other times and in such
installments as is customary for all employees of USPI. All payments shall be subject to the
deduction of payroll taxes and similar assessments as required by law.




          (b) Performance Bonuses. In addition to the Base Salary, Employee shall be eligible
to participate in USPI’s bonus program, on such terms as the Board, or a committee thereof, shall,
from time to time, determine.




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     4. Expenses and Benefits. USPI agrees to provide Employee with the following
benefits:



          (a) Expense Reimbursements. Employee is authorized to incur reasonable expenses in
connection with the business of USPI, including expenses for entertainment, travel and similar
matters. USPI will reimburse Employee for such expenses upon presentation by Employee of such
documentation as USPI shall from time to time require.




          (b) Office Services. USPI will provide Employee with an administrative assistant and
reasonable office space and services.




          (c) Insurance. Major medical health insurance and disability insurance as currently
in place (as the same may be modified from time to time by USPI for its senior executives).




          (d) Employee Benefit Plans. Participation in any other employee benefit plans now
existing or hereafter adopted by USPI for its employees.




          (e) Other. Such items and benefits as USPI shall, from time to time, consider
necessary or appropriate to assist Employee in the performance of his/her duties.




          (f) Vacations. Employee shall be entitled (in addition to the usual public holidays)
to paid vacation in accordance with USPI policy, as it may be in effect from time to time.




     5. Term; Severance. The term of this Agreement shall be for a period of one year from
the date hereof and renewing automatically for successive one year periods thereafter; provided,
however, that either party may terminate this Agreement at any time upon at least 90 days prior
written notice. In the event of such termination by USPI, Employee shall be entitled to severance
pay equal to his/her annual Base Salary at the time of termination, plus USPI’s good faith estimate
of what Employee’s bonus would have been for the year in which the termination occurred, as
determined by USPI in its sole and absolute discretion based on all information available at such
time. Such severance pay shall be payable in monthly installments over a period of 12 months
following termination, and USPI shall continue the benefits set forth in Sections 4(c) and (d) for
the period during which such severance payments are to be made. In addition, this Agreement shall
terminate as provided for in Section 7 or upon the death of Employee, and no severance pay shall be
due in the event of such a termination.



     6. Disability.



     (a) In the event that Employee becomes Permanently Disabled (as hereinafter defined) during
the term of this Agreement, Employee shall continue in the employ of USPI but his/her compensation
hereunder shall be reduced to three-fourths of the Base Salary then in effect as set forth in
Section 3(a), commencing upon the determination of Employee’s Permanent Disability and continuing
thereafter until the first to occur of (i) 12 months or (ii) the death of Employee; and during such
period of time, Employee shall not be entitled to payment of



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expenses or benefits specified in Section 4 (except for reimbursement of expenses incurred by
Employee prior to becoming Permanently Disabled), except that USPI shall continue to provide
Employee with the insurance benefits specified in Section 4(c). The obligation of USPI for
continuation of three-fourths of Employee’s Base Salary shall be net of payments to Employee from
the disability insurance referred to in Section 4(c).




          For purposes of this Agreement, the terms “Permanent Disability” or “Permanently Disabled”
shall mean three months of substantially continuous disability. Disability shall be deemed
“substantially continuous“ if, as a practical matter, Employee, by reason of his/her mental or
physical health, is unable to sustain reasonably long periods of substantial performance of his/her
duties. Frequent long illnesses, though different from the preceding illness and though separated
by relatively short periods of performance, shall be deemed to be “substantially continuous.”
Disability shall be determined in good faith by the Board, whose decision shall be final and
binding upon Employee. Employee hereby consents to medical examinations by such physicians and
medical consultants as USPI shall, from time to time, require.




     7. Termination by USPI for Cause. USPI shall have the right to terminate Employee’s
employment under this Agreement for “Cause” by an affirmative vote to so terminate by not less than
75% of the members of the Board, in which event no compensation shall be paid or other benefits
furnished to Employee after termination for Cause. Termination for Cause shall be effective
immediately upon notice sent or given to Employee. For purposes of this Agreement, the term
“Cause” shall mean and be strictly limited to: (a) indictment for a crime constituting a felony
under state or federal law; (b) conviction of a crime constituting a misdemeanor and involving an
act of moral turpitude, including without limitation fraud, embezzlement and use of illegal drugs;
(c) commission of any material act of dishonesty against USPI; or (d) willful and material breach
of this Agreement by Employee.



     8. Non-Competition. Employee recognizes and understands that in performing the
responsibilities of his/her employment, he/she will occupy a position of fiduciary trust and
confidence, pursuant to which he/she will develop and acquire experience and knowledge with respect
to USPI’s business. It is the expressed intent and agreement of Employee and USPI that such
knowledge and experience shall be used exclusively in the furtherance of the interests of USPI and
not in any manner that would be detrimental to USPI’s interests. Employee further understands and
agrees that USPI conducts its business within a specialized market segment throughout the United
States and in portions of Europe, and that it would be detrimental to the interests of USPI if
Employee used the knowledge and experience which he/she currently possesses or which he/she
acquires pursuant to this employment hereunder for the purpose of directly or indirectly competing
with USPI, or for the purpose of aiding other persons or entities in so competing with USPI.
Employee therefore agrees that so long as he/she is employed by USPI and for an additional period
equal to one year following the later to occur of the date of termination or the date of the last
severance payment made pursuant to this Agreement, unless Employee first secures the written
consent of USPI, Employee will not directly or indirectly invest, engage or participate in or
become employed by any entity in direct or indirect competition with USPI’s business, which shall
include the ownership and/or operation of outpatient surgical centers and surgical specialty
hospitals in the United States and the



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ownership and/or operation of hospitals in the countries in Europe in which USPI owns or
operates hospitals as of the date of termination. These non-competition provisions shall not be
construed to prohibit Employee from being employed in the health care industry during the
applicable period, but rather to permit him to be so employed so long as such employment does not
involve Employee’s direct or indirect participation in a business which is the same or similar to
USPI’s business (as defined above). In the event that the provisions of this Section 8 should ever
be deemed to exceed the time or geographic limitations permitted by applicable laws, then such
provisions shall be reformed to the maximum time or geographic limitations permitted by applicable
law.




     9. Stock Options and Restricted Stock. In the event that (a) USPI elects to terminate
this Agreement pursuant to Section 5, (b) there is a “Change of Control Event” (as defined below)
or (c) USPI terminates Employee without the notice required under Section 5 or without Cause under
Section 7, then in each such event, all USPI stock options held by Employee and all restricted
stock awards made to him/her by USPI (including issued subject to forfeiture) shall thereupon
automatically be amended so as to (i) cause to vest, immediately prior to the date of such Change
in Control Event or such termination of employment, all then unvested stock options and restricted
stock awards, and (ii) provide Employee 90 days to exercise such options (or such greater period as
may be provided by the terms of such options). For purposes of the foregoing, the term “Change of
Control Event” shall mean (A) a consolidation or merger of USPI with or into any other corporation
(other than a merger which will result in the voting capital stock of USPI outstanding immediately
before the effective date of such consolidation or merger being converted into more than 50% of the
voting capital stock of the surviving entity outstanding immediately after such consolidation or
merger), (B) a sale of all or substantially all of the properties and assets of the Company as an
entirety in a single transaction or in a series or related transactions to any other “person” or
(C) the acquisition of “beneficial ownership” by any “person” or “group” of voting stock of the
Company representing more than 50% of the voting power of all outstanding shares of such voting
stock, whether by way of merger of consolidation or otherwise. As used herein, (x) the terms
“person” and “group” shall have the meanings set forth in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), whether or not applicable, (y) the term
“beneficial owner” shall have the meaning set forth in Rules 13d-3 and 13d-5 under the Exchange
Act, whether or not applicable, except that a person shall be deemed to have “beneficial ownership”
of all shares that any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time or upon the occurrence of certain events, and (z) any
“person” or “group” will be deemed to beneficially own any voting stock so long as such person or
group beneficially owns, directly or indirectly, in the aggregate a majority of the voting stock of
a registered holder of such voting stock.



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     10. General Provisions.



          (a) Notices. All notices required or permitted by this Agreement shall be in writing
and may be delivered in person or sent by regular, registered or certified mail or United States
Postal Service Express Mail, with postage prepaid, or by other courier service, or by facsimile
transmission, and shall be deemed sufficiently given if served in the manner specified in this
Section 10(a). The addresses and facsimile numbers set forth below shall be the parties addressed
and facsimile numbers for purposes for purposes of delivery or mailing of notices:




	 	 	 
	If to USPI:

	 	c/o United Surgical Partners International, Inc.
	 

	 	15305 Dallas Parkway, Suite 1600
	 

	 	Addison, Texas 75001
	 

	 	Attention: Chief Executive Officer
	 

	 	Fax No.: (972) 267-0084
	 
	 	 
	If to Employee:

	 	Mark C. Garvin
	 

	 	1345 Eagle Bend Drive

	 

	 	Southlake, Texas 76092





The parties may change addresses and facsimile numbers noted above through written notice in
compliance with this Section 10(a). Any notice sent by registered or certified mail, return
receipt requested, shall be deemed given when actually received by the addressee, as shown on the
receipt card which must be signed by a representative of the addressee. If sent by regular mail,
the notice shall be deemed given after the notice is addressed, mailed with postage prepaid and
when actually received by the addressee. Notices delivered by United States Express Mail or other
courier service shall be deemed given when actually received by the addressee as shown by the
signature of an authorized representative of the addressee on the log or other documentation
maintained by the United States Postal Service or courier to show proof of delivery. If any notice
is transmitted by facsimile transmission or similar means, the notice shall be deemed served or
delivered upon telephone confirmation of receipt of the transmission.




          (b) Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, excluding principles of conflict of laws.




     (c) Integration; Modification and Waiver. This Agreement constitutes the entire
understanding of the parties hereto relating to the subject matter hereof, supersedes any and all
other agreements, whether oral or in writing, between the parties hereto and their affiliates with
respect to the employment of Employee from and after the date hereof, and contains all covenants
and agreements between the parties hereto relating to such employment in any manner whatsoever;
provided, however, that except as expressly provided herein, this Agreement shall not affect any
stock option agreements, indemnity agreements or agreements relating to Employee’s purchase or
ownership of USPI securities to which Employee is now or hereafter a party, that arose prior to the
date of this Agreement. This Agreement shall



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not be amended, modified or revised in any respect, except by a writing signed by USPI and
Employee. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provision, whether or not similar, and no waiver shall constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the party making the
waiver.




          (d) Severability. If any provision of this Agreement shall be determined by a court
or governmental agency of competent jurisdiction to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect the remainder of this Agreement, which
shall remain in full force and effect and be enforced in accordance with its remaining enforceable
terms.




          (e) Assignment. Because of the personal nature of the services to be rendered
hereunder, the obligations of Employee under this Agreement may not be delegated or assigned in
whole or in part without the prior written consent of USPI (which consent may be withheld in its
sole discretion). However, subject to the foregoing limitation, this Agreement shall be binding
upon, and shall insure to the benefit of, the parties hereto and their respective heirs, devisees,
executors, administrators, trustees, legal representatives, successors, transferees and assigns.




          (f) Attorneys’ Fees. In any action or proceeding at law or in equity, including but
not limited to arbitration, brought to enforce or construe any provisions or rights under this
Agreement, the unsuccessful party or parties to such litigation or arbitration, as determined by
the appropriate court or arbitrator pursuant to a final judgment or decree, shall pay the
successful party or parties all costs, expenses and reasonable attorneys’ fees incurred by such
successful party or parties (including but not limited to such costs, expenses and fees in
connection with any appeals) and, if such successful party or parties shall recover judgment in any
such action or proceeding, such costs, expenses and attorneys’ fees shall be included as part of
such judgment.




          (g) Survival of Certain Provisions. The provisions of Sections 4(a) (as to expenses
incurred prior to termination), 5, 8 and 9 shall survive the expiration or other termination of
this Agreement.




          (h) Headings and Captions. Headings and captions are included in this Agreement for
purposes of convenience only and are not a part of this Agreement.




          (i) Miscellaneous. Any term used in the plural shall refer to all members of the
relevant class and any term used in the singular shall refer to any one or more of the members of
the relevant class. References in this Agreement to articles, sections, paragraphs and exhibits
are to articles, sections, paragraphs and exhibits to this Agreement. The terms “herein,”
“hereof,” “hereto,” “hereunder” and other terms similar to such terms refer to this Agreement as a
whole and not merely to the specific article, section, paragraph or clause where such terms may
appear.




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          (j) Counterparts and Facsimile Signatures. Separate copies of this Agreement may be
signed by the parties hereto, with the same effect as though all of the parties had signed one copy
of this Agreement. Signatures transmitted by facsimile shall be accepted as original signatures.




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     IN WITNESS WHEREOF, the undersigned have duly executed this Employment Agreement as of the
date first written above.



	 	 	 	 	 
	USPI:	 	UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By	 	/s/ William H. Wilcox
	 

	 	 	 	 
	 

	 	 	 	William H. Wilcox
	 

	 	 	 	President and Chief Executive Officer
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	EMPLOYEE:
	 	 	 	/s/ Mark C. Garvin
	 

	 	 	 	 
	 

	 	 	 	Mark C. Garvin







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