EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), made and entered into as
of September 27, 2004 (the "Effective Date"), is by and between HealthSouth
Corporation, a Delaware corporation ("Corporation"), and XXXX X. XXXX, an
individual resident of Texas (the "Executive").
RECITALS
The Corporation desires to employ the Executive as its President of
the Inpatient Division effective as of the Effective Date, and the Executive
desires to accept such employment effective as of the Effective Date, on the
terms and conditions set forth herein.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
Section 1. Employment. The Corporation hereby employs the Executive,
and the Executive hereby accepts employment, all on the terms and
conditions herein.
Section 2. Services; Extent of Services.
(a) Duties and Responsibilities. The Executive is hereby
employed as President of the Inpatient Division, the authority,
duties and responsibilities of which will be as follows: the
Executive will (i) manage, review and supervise the Inpatient
Division of the Corporation; (ii) report to Xxxxxxx X. Xxxx, Chief
Operating Officer of the Corporation; (iii) have the powers and
duties determined or directed by the Board of Directors, the Chief
Executive Officer, and the Chief Operating Officer; and (iv) comply
with the various policies, procedures and codes of conduct of the
Corporation in effect from time to time which apply to other
employees and executive officers.
(b) Full Business Attention. The Executive will devote his
full business attention and energies to the business of the
Corporation during the Term (as defined below) and will physically
report and will render all the Executive's services contemplated
hereunder to the Corporation at its offices in Birmingham, Alabama or
at any other location in which the Corporation is headquartered;
provided, however, that the foregoing requirement to render services
in Birmingham shall not apply when the Executive is traveling on
company business.
(c) Other Activities. Notwithstanding anything to the
contrary contained in Section 2(b), the Executive will be permitted
to engage in the following activities, provided that such activities
do not materially interfere or conflict with the Executive's duties
and responsibilities to the Corporation:
(i) the Executive may serve on the governing boards
of, or otherwise participate in, a reasonable number of
trade associations and charitable organizations whose
purposes are not inconsistent with the activities and the
image of the Corporation;
(ii) the Executive may engage in a reasonable
amount of charitable activities and community affairs; and
(iii) subject to the prior approval of the
Nominating / Corporate Governance Committee of the Board of
Directors of the Corporation, the Executive may serve on the
board of directors of up to one (1) business corporations or
other for-profit entities, provided that they do not
compete, directly or indirectly, with the Corporation.
Section 3. Compensation.
(a) Base Salary. In consideration of the services provided
hereunder, the Corporation shall pay the Executive during the Term a
salary of Two Hundred Eighty-Five Thousand and No/100 Dollars
($285,000.00) per year (the "Base Salary"). The Corporation shall pay
the Base Salary in arrears in equal installments in accordance with
the Corporation's payroll policy in effect from time to time for
other similarly-situated officers of the Corporation.
(b) Bonus. With respect to the year ending December 31,
2004, the Executive shall have a target annual bonus of 60% of the
Base Salary (the "2004 Target Bonus"). Payment of 60% of the 2004
Target Bonus (the "2004 EBITDA Portion") shall be contingent upon the
Corporation achieving an EBITDA target of $650 million for the year
ending December 31, 2004. The Executive shall earn between 0% and
200% of the 2004 EBITDA Portion based upon the Corporation's
achievement of EBITDA at levels set forth on Exhibit A attached
hereto. For example, the 2004 EBITDA Portion of the bonus for the
year ending December 31, 2004 shall not be earned unless the
Corporation achieves an EBITDA of at least $630 million. The Special
Committee of the Corporation's Board of Directors (the "Special
Committee") shall determine, in its sole discretion, the
Corporation's actual EBITDA for the year ending December 31, 2004.
Payment of the remaining 40% of the 2004 Target Bonus (the "Personal
Performance Portion") shall be contingent upon the Executive's
achievement of individual objectives to be established by the Chief
Executive Officer within thirty (30) days following the Effective
Date. The Executive shall earn between 0% and 100% of the Personal
Performance Portion based upon the degree to which the Chief
Executive Officer, in his sole discretion, determines that the
Executive satisfies the individual objectives established by the
Chief Executive Officer. With respect to each fiscal year after
December 31, 2004, the Executive shall have a target annual bonus
equal to 60% of the Base Salary. The Special Committee shall
establish, in its sole discretion, the performance and payment
conditions applicable to such annual bonuses.
(c) Benefits. During the Term, the Executive will be
entitled to the following benefits:
(i) Employee Benefit Plans. The Executive will be
entitled to participate in all employee benefit plans of the
Corporation (including incentive or equity compensation
plans) on such terms as are offered for the general benefit
of other similarly-situated officers of the Corporation,
subject to the provisions of such plans as may be in effect
from time to time.
(ii) Vacation; Sick Leave. The Executive will be
entitled to vacation and sick leave on such terms as are
offered for the benefit of other similarly-situated officers
of the Corporation.
(d) Expense Reimbursement. The Corporation shall reimburse
the Executive, in accordance with the Corporation's policies, for all
reasonable business expenses incurred by the Executive in connection
with the performance of the Executive's obligations hereunder.
(e) Taxes. All payments made by the Corporation under this
Agreement will be subject to withholding of such amounts as is
required pursuant to any applicable law or regulation.
(f) Equity Incentives. The Corporation agrees to provide the
Executive with equity incentives commensurate with the incentives
provided to similarly-situated officers of the Corporation, upon
terms no less favorable than those applicable to such
similarly-situated officers. The Corporation agrees that under the
Corporation's existing equity incentive program the Executive is
targeted to receive an annual grant of 30,000 shares of restricted
stock and an annual option to purchase 55,000 shares of the
Corporation's common stock, par value $0.01.
(g) Relocation Expenses. The Corporation shall reimburse the
Executive for the following expenses (to the extent they are
reasonable and appropriately documented) incurred by the Executive in
connection with such relocation:
(i) two house hunting trips for the purpose of
searching for a new primary residence;
(ii) temporary living and weekly commuting expenses
for a period of three (3) months from the Effective Date ;
(iii) transportation of household goods and
vehicles to a new primary residence;
(iv) storage of household goods for a period of
three (3) months from the Effective Date;
(v) closing costs, including legal fees, incurred
in connection with the purchase of the primary residence in
Birmingham, Alabama or surrounding communities; and
(vi) closing costs, including real estate agency
commissions relating to the sale of the Executive's primary
residence in Dallas, Texas.
Section 4. Term. The term of this Agreement will commence on the
Effective Date and will continue for a term of two (2) year following
the Effective Date (the "Term"), unless earlier terminated pursuant
to the provisions of Section 5 below.
Section 5. Termination of Employment.
(a) Termination by Corporation for Cause. The Executive's
employment by the Corporation will terminate immediately upon written
notice to the Executive if the Corporation elects to discharge the
Executive for Cause (as hereinafter defined). For purposes hereof,
"Cause" means:
(i) the Executive's act of fraud, misappropriation,
or embezzlement with respect to the Corporation;
(ii) the Executive's indictment for, conviction of,
or plea of guilt or no contest to, any felony;
(iii) the suspension or debarment of the Executive
or of the Corporation or any of its affiliated companies or
entities as a direct result of any act or omission of the
Executive in connection with his employment with the
Corporation from participation in any Federal or state
health care program;
(iv) the Executive's admission of liability of, or
finding of liability for, the violation of any "Securities
Laws" (as hereinafter defined). As used herein, the term
"Securities Laws" means any Federal or state law, rule or
regulation governing the issuance or exchange of
securities, including without limitation the Securities Act
of 1933, the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder;
(v) an indication any agency or instrumentality of
any state or the United States of America, including but
not limited to the United States Department of Justice, the
United States Securities and Exchange Commission or any
committee of the United States Congress that the Executive
is a target or subject of any investigation or proceeding
into the actions or inactions of the Executive
(collectively, the "Investigations");
(vi) the Executive's failure after reasonable prior
written notice to comply with any valid and legal directive
of the Chief Executive Officer, the Chief Operating Officer
or the Board of Directors of the Corporation; or
(vii) Other than as provided in Sections 5(a)(i) -
(vi) above, the Executive's material breach of any material
provision of this Agreement that is not remedied within
fifteen (15) days of the Executive being provided written
notice thereof from the Corporation.
Repeated breaches of a similar nature, such as the failure to report
to work, perform duties, or follow directions, all as provided
herein, shall not require additional notices as provided Section
5(a)(vi) or (vii).
(b) Termination by Corporation Without Cause. The
Corporation may terminate this Agreement Without Cause upon at least
thirty (30) days prior written notice to the Executive. Any
termination of this Agreement by the Corporation for a reason other
than for Cause shall be considered a termination Without Cause.
(c) Death or Disability. The Executive's employment by the
Corporation will immediately terminate upon the Executive's death
and, at the option of either the Executive or the Corporation,
exercisable upon written notice to the other party, may terminate
upon the Executive's Disability (as hereinafter defined). For
purposes of this Agreement, "Disability" will occur if (i) the
Executive becomes eligible for full benefits under a long-term
disability policy provided by the Corporation, if any, or (ii) the
Executive has been unable, due to physical or mental illness or
incapacity, to perform the essential duties of his employment with
reasonable accommodation for a continuous period of ninety (90) days
or an aggregate of one-hundred eighty (180) days during the Term.
(d) Termination by the Executive for Good Reason. The
Executive may terminate this Agreement at any time upon thirty (30)
days' prior written notice to the Corporation and the Corporation
fails to cure such event within such thirty-day period (any such
termination referenced in clauses (i)-(iii) below, constituting
termination for "Good Reason"):
(i) if the Corporation fails to make all or any
portion of any payment, or offer all or any portion any
benefits, required by Section 3 hereof when such payments or
benefits are due;
(ii) if the Corporation materially modifies the
senior management bonus plan or equity incentive plan such
that the targeted cash bonus levels and targeted incentive
compensation levels applicable to the Executive are
materially lower than those levels of other
similarly-situated executive officers of the Corporation;
and
(ii) except as otherwise set forth in clause (i)
above, if the Corporation materially breaches any of its
other duties or obligations hereunder.
(e) Termination by the Executive without Good Reason. The
Executive may terminate this Agreement without Good Reason upon at
least thirty (30) days prior written notice to the Corporation.
(f) Change in Control. The Executive may terminate this
Agreement within sixty (60) days following a "Change in Control" (as
hereinafter defined). For purposes of this Agreement, a "Change in
Control" will be deemed to have taken place if, whether in a single
transaction or a series of transactions:
(i) any person or entity, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, other than the Corporation, or any
employee benefit plan of the Corporation or any of its
subsidiaries, becomes the beneficial owner, directly or
indirectly, of the Corporation's securities having fifty
percent (50%) or more of the combined voting power of the
then outstanding securities of the Corporation that may be
cast for the election of directors of the Corporation or
otherwise has the ability to elect the directors of the
Corporation (other than as a result of the issuance of
securities initiated by the Corporation in the ordinary
course of business);
(ii) as the result of, or in connection with, any
cash tender or exchange offer, merger or other business
combination, or any combination of the foregoing
transactions, the holders of all the Corporation's
securities entitled to vote generally in the election of
directors of the Corporation immediately prior to such
transaction constitute, following such transaction, less
than a majority of the combined voting power of the
then-outstanding securities of the surviving entity (or in
the event each entity survives, the surviving entity that is
the parent entity) entitled to vote generally in the
election of the directors of such surviving entity (or in
the event each entity survives, the surviving entity that is
the parent entity) after such transactions; or
(iii) the Corporation sells, transfers or leases
all or substantially all of the assets or business or of the
Corporation and its subsidiaries, collectively, or of the
Inpatient Division of the Corporation.
Notwithstanding the foregoing, the occurrence of any of the following
events, by themselves, will not be deemed to constitute a "Change in
Control": (x) if, pursuant to or within the meaning of the United
States Bankruptcy Code or any other Federal or state law relating to
insolvency or relief of debtors, the Corporation (A) commences a
voluntary case or proceeding (and the Change of Control takes place
pursuant to such proceeding); or (B) consents to the entry of an
order for relief against it in an involuntary case (and the Change of
Control takes place pursuant to such proceeding); or (y) if any of
the events or transactions otherwise constituting a Change of Control
under this Section 5(f) shall not involve, at the time or within a
sixty (60) day period thereafter, a substantial diminishment in the
Executive's duties, authority or responsibilities as President of the
Inpatient Division so that they are no longer consistent with the
position of president of an Inpatient division of a public
corporation.
Section 6. Effect of Termination.
(a) Termination by the Corporation for Cause; Termination by
the Executive Without Good Reason. Upon termination of this Agreement
(i) by the Corporation for Cause pursuant to Section 5(a) above, or
(ii) by the Executive Without Good Reason pursuant to Section 5(e)
above, the Executive will be entitled to receive (i) Base Salary and
bonus payments, payments in respect of accrued but unpaid vacation
and reimbursement for business expenses, in each case due, accrued or
payable as of the date of such termination, and (ii) such vested
stock options and other benefits as the Executive may be entitled to
receive under any stock option or other employee benefit plan, but
will not be entitled to receive the Severance Payment (as defined in
Section 6(c) below).
(b) Other Termination. Upon termination of this Agreement
(i) by the Corporation Without Cause pursuant to Section 5(b) above
(including termination Without Cause following a Change in Control),
(ii) by the Executive within sixty (60) days following a Change in
Control pursuant to Section 5(f) above, (iii) by the Corporation or
the Executive as the result of the death or Disability of the
Executive pursuant to Section 5(c) above, or (iv) by the Executive
for Good Reason pursuant to Section 5(d) above, the Executive will be
entitled to receive (1) Base Salary and any outstanding bonus
payments, payments in respect of accrued but unpaid vacation and
reimbursement for business expenses, in each case due, accrued or
payable as of the date of such termination), (2) such vested stock
options and other benefits as Executive may be entitled to receive
under any equity incentive plan or any other stock option or other
employee benefit plan and (3) the Severance Payment (as determined
pursuant to Section 6(c) below), which Severance Payment will be
payable in full by the Corporation within fifteen (15) business days
of the date of such termination.
(c) Severance Payment. For purposes of this Agreement,
"Severance Payment" means:
(i) in the event of any termination by the
Corporation Without Cause pursuant to Section 5(b) above
(including termination Without Cause following a Change in
Control), for a period of twelve (12) months following the
date of termination, an amount equal to the sum of (A) the
Executive's Base Salary and (B) the cost of maintaining,
pursuant to the provisions of COBRA (as hereinafter
defined), the health insurance benefits that were supplied
by the Corporation to the Executive immediately prior to the
termination of his employment relationship with the
Corporation (the "Cost of Health Benefits"). As used herein,
the term "COBRA" means the Consolidated Omnibus Budget
Reconciliation Act;
(ii) in the event of any termination by the
Executive for Good Reason pursuant to Section 5(d), or in
the event of a termination by Executive within sixty (60)
days following a Change in Control, for a period of twelve
(12) months following the date of termination, an amount
equal to the sum of (A) the Executive's Base Salary and (B)
the Cost of Health Benefits;
(iii) in the event of any termination by the
Corporation or the Executive as the result of the death of
the Executive pursuant to Section 5(c) above, an amount
equal to the Executive's Base Salary for a period equal to
three (3) full months; and
(iii) in the event of any termination by the
Corporation or the Executive as the result of the Disability
of the Executive pursuant to Section 5(c) above, an amount
equal to the Executive's Base Salary for the period
beginning on the termination date and ending on the earlier
of (A) the date the Executive becomes eligible to receive
Disability benefits under the Corporation's long-term
disability benefit policy and (B) the termination date of
this Agreement.
Notwithstanding any provision of this Agreement to the contrary, the
Severance Payment is subject to forfeiture for material violations of
Sections 8 or 9 of this Agreement. The amount of Severance Payment to
be forfeited shall be prorated based upon the date of the violation.
Section 7. Miscellaneous.
(a) Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be
deemed to have been duly given when (i) delivered by hand (with
written confirmation of receipt), (ii) sent by facsimile with
confirmation of transmission by the transmitting equipment, (iii)
received by the addressee, if sent by certified mail, return receipt
requested, or (iv) received by the addressee, if sent by a nationally
recognized overnight delivery service, return receipt requested, in
each case to the appropriate addresses, or facsimile numbers set
forth below (or to such other addresses, or facsimile numbers as a
party may designate by notice to the other parties):
the Executive: Xxxx X. Xxxx
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
the Corporation: HealthSouth Corporation
0 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to: HealthSouth Corporation
0 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
(b) Power and Authority. Each party warrants and represents
that it has full power and authority to enter into and perform this
Agreement, and the person signing this Agreement on behalf of such
party has been properly authorized and empowered to enter into this
Agreement.
(c) Remedies. The rights and remedies of the parties to this
Agreement are cumulative and not alternative.
(d) Waiver. No failure to exercise, and no delay in
exercising, on the part of either party, any privilege, any power or
any right hereunder will operate as a waiver thereof, nor will any
single or partial exercise of any privilege, right or power hereunder
preclude further exercise of any other privilege, right or power
hereunder.
(e) Entire Agreement and Modification. This Agreement
constitutes the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior
agreements, whether written or oral, between the parties with respect
to its subject matter and constitutes a complete and exclusive
statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended
except by a written agreement signed by the party to be charged with
the amendment.
(f) Assignment. This Agreement may not be assigned by any
party hereto without the prior written consent of the non-assigning
party; provided, however, that the Corporation may assign this
Agreement without the consent of the Executive in connection with any
transaction which constitutes a Change of Control. Subject to the
foregoing, this Agreement will be binding upon and shall inure to the
benefit of (i) in the case of the Executive, his heirs, executors,
administrators and legal representatives, and (ii) in the case of the
Corporation, its permitted successors and assigns.
(g) Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement will remain in full force and
effect. The parties further agree that if any provision contained
herein is, to any extent, held invalid or unenforceable in any
respect under the laws governing this Agreement, they shall take any
actions necessary to render the remaining provisions of this
Agreement valid and enforceable to the fullest extent permitted by
law and, to the extent necessary, shall amend or otherwise modify
this Agreement to replace any provision contained herein that is held
invalid or unenforceable with a valid and enforceable provision
giving effect to the intent of the parties.
(h) Section Headings, Construction. The headings of Sections
in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used
in this Agreement will be construed to be of such gender or number as
the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms. The
language used in the Agreement will be construed, in all cases,
according to its fair meaning, and not for or against any party
hereto. The parties acknowledge that each party has reviewed this
Agreement and that rules of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be
available in the interpretation of this Agreement.
(i) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Alabama,
without regard to the conflict of law provisions thereof.
(j) Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
(k) Attorneys' Fees. The parties agree that in the event it
becomes necessary to seek judicial remedies for the breach or
threatened breach of this Agreement, the prevailing party will be
entitled, in addition to all other remedies, to recover from the
non-prevailing party all costs of such judicial action, including but
not limited to, costs of investigation and defense and reasonable
attorneys' fees and expenses, and also including all such expenses
related to any appeal.
(l) Further Assurances. Each party hereto shall perform such
further acts and execute and deliver such further documents as may be
reasonably necessary to carry out the provisions of this Agreement.
(m) No Third Party Beneficiary. This Agreement shall not
confer any rights or remedies upon any person or entity other than
the parties hereto and their respective successors and assigns.
Section 8. Non-Competition.
(a) The Executive acknowledges and recognizes the
highly-competitive nature of the business conducted by the
Corporation and its subsidiaries and affiliates and accordingly
agrees that, in consideration of this Agreement and the premises
contained herein, he shall not, for his own benefit or for the
benefit of any other person or entity other than the Corporation,
during the period commencing on the Effective Date hereof and
terminating on the first anniversary of the expiration or termination
of the Term hereof for any reason whatsoever:
(i) actively engage in contacting, soliciting or
servicing any person or entity that was a customer or
prospective customer of the Corporation or any of its
subsidiaries or affiliates at any time during the Term
hereof (a prospective customer being one to which the
Corporation had made a written financial proposal within
twelve (12) months prior to the time of the termination of
the Term); or
(ii) hire, retain or engage as a director, officer,
employee, consultant, agent or in any other capacity any
person or persons who are employed by the Corporation or who
were at any time (within a period of six (6) months
immediately prior to the date of the termination of the
Term) employed by the Corporation or otherwise interfere
with the relationship between such persons and the
Corporation.
(b) The Executive understands that the foregoing
restrictions may limit his ability to earn a similar amount of money
in a business similar to the business of the Corporation or its
subsidiaries or affiliates, but he nevertheless believes that he has
received and will receive sufficient consideration and other benefits
as an employee of the Corporation and as otherwise provided hereunder
to clearly justify such restrictions which, in any event (given his
education, skills and ability), the Executive does not believe would
prevent his from earning a living.
(c) It is agreed that the Executive's services hereunder are
special, unique, unusual and extraordinary giving them peculiar
value, the loss of which cannot be reasonably or adequately
compensated for by damages, and in the event of the Executive's
breach of this Section, the Corporation shall be entitled to
equitable relief by way of injunction or otherwise. If the period of
time or area herein specified should be adjudged unreasonable in any
court proceeding, then the period of time shall be reduced by such
number of months or the area shall be reduced by elimination of such
portion thereof as deemed unreasonable, so that this covenant may be
enforced during such period of time and in such areas as is adjudged
to be reasonable.
Section 9. Confidential Information.
(a) The Executive acknowledges that during the Term he will
have access to and may obtain, develop, or learn of Confidential
Information (as defined below).
(b) The Executive agrees that he shall hold such
Confidential Information in strictest confidence and that the
Executive shall not at any time, during or at any time during the
twenty-four (24) month period following the end of the Term, in any
manner, either directly or indirectly, use (for his own benefit or
otherwise), divulge, disclose or communicate to any unauthorized
person or entity in any manner whatsoever any Confidential
Information.
(c) Under this Agreement, the term "Confidential
Information" shall include, but not be limited to, any of the
following information relating to the Corporation or its affiliates
learned by the Executive during the Term or as a result of his
employment with the Corporation:
(i) information regarding the Corporation's
business proposals, manner of the Corporation's operations,
and methods of selling or pricing any products or services;
(ii) the identity of persons or entities (including
physicians and vendors) actually conducting or considering
conducting business with the Corporation, and any
information in any form relating to such persons or entities
and their relationship or dealings with the Corporation or
its affiliates;
(iii) any trade secret or confidential information
of or concerning any business operation or business
relationship;
(iv) computer databases, software programs and
information relating to the nature of the hardware or
software and how said hardware or software are used in
combination or alone; and
(v) any other trade secret or information of a
confidential or proprietary nature.
(d) During the Term, the Executive shall use, divulge,
disclose or communicate Confidential Information only in the scope of
his employment with the Corporation and only as expressly directed or
permitted by the Corporation. The Executive shall not, at any time
following the expiration or termination of this Agreement for any
reason whatsoever, use, divulge, disclose or communicate for any
purpose any Confidential Information. The Executive shall not make or
use any notes or memoranda relating to any Confidential Information
except for the benefit of the Corporation, and will, at the
Corporation's request, return each original and every copy of any and
all notes, memoranda, correspondence, diagrams or other records, in
written or other form, that he may at any time have within his
possession or control that contain any Confidential Information.
(e) Except as provided for herein below, the Executive
agrees that he will treat the terms of this Agreement as
confidential, and shall not directly or indirectly disclose them in
any manner except: (i) as mutually agreed upon in writing by the
parties to this Agreement; (ii) in legal documents filed with the
court or any arbitrator in any action to enforce the terms of this
Agreement; (iii) pursuant to a valid order or regulation; (iv) as
otherwise required by law or regulation; or (v) to his attorney,
financial advisors, accountant, and/or spouse, provided that prior to
any such disclosure, that individual must agree to treat as
confidential all information disclosed.
(f) It is agreed that in the event of the Executive's breach
of this Section, the Corporation shall be entitled to equitable
relief by way of injunction or otherwise.
(g) Notwithstanding the foregoing, Confidential Information
shall not include information which has come within the public domain
through no fault of or action by the Executive or which has become
rightfully available to the Executive on a non-confidential basis
from any third party, the disclosure of which to the Executive does
not violate any contractual or legal obligation such third party has
to the Corporation or its affiliates with respect to such
Confidential Information.
Section 10. Proprietary Developments.
(a) Any and all inventions, products, discoveries,
improvements, processes, methods, computer software programs, models,
techniques, or formulae (collectively, hereinafter referred to as
"Developments"), made, developed, or created by the Executive (alone
or in conjunction with others, during regular work hours or
otherwise) during the Term, which may be directly or indirectly
useful in, or relate to, the business conducted or to be conducted by
the Corporation will be promptly disclosed by the Executive to the
Corporation and shall be the Corporation's exclusive property. The
term "Developments" shall not be deemed to include inventions,
products, discoveries, improvements, processes, methods, computer
software programs, models, techniques, or formulae which were in the
possession of the Executive prior to the Term. The Executive hereby
transfers and assigns to the Corporation all proprietary rights which
the Executive may have or acquire in any Developments and the
Executive waives any other special right which the Executive may have
or accrue therein. The Executive agrees to execute any documents and
to take any actions that may be required, in the reasonable
determination of the Corporation's counsel, to effect and confirm
such assignment, transfer and waiver.
(b) The Executive will execute any documents necessary or
advisable, in the reasonable determination of the Corporation's
counsel, to direct the issuance of patents, trademarks, or copyrights
to the Corporation with respect to such Developments as are to be the
Corporation's exclusive property or to vest in the Corporation title
to such Developments; provided, however, that the expense of securing
any patent, trademark or copyright shall be borne by the Corporation.
(c) The parties agree that Developments shall constitute
Confidential Information.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE(S)]
IN WITNESS WHEREOF, the undersigned parties have caused this
Agreement to be executed by themselves or by their duly authorized
representatives as of the day and date first written above.
THE CORPORATION:
HealthSouth Corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Executive Vice President, General
Counsel and Secretary
THE EXECUTIVE:
/s/ Xxxx X. Xxxx
------------------------------------
XXXX X. XXXX
