HEALTHSPRING, INC. EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS
AGREEMENT is made as of this 29th day of December, 2006 (the “Effective Date”)
between HealthSpring, Inc., a Delaware corporation (the “Company”), and Xxxxxx X. Coil
(“Executive”). In consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive hereby accepts
employment with the Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the Effective Date and ending as provided in paragraph 4 hereof (the
“Employment Period”).
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Executive Vice President —
Chief Operating Officer of the Company and shall have the normal duties, responsibilities, functions
and authority of an executive officer of the Company, subject to the power and authority of the
Company’s Chief Executive Officer to expand or limit such duties, responsibilities, functions and
authority. During the Employment Period, Executive shall render such administrative, financial and
other executive and managerial services to the Company and its Subsidiaries (as defined below)
which are consistent with Executive’s position as the Board or Chief Executive Officer may from
time to time reasonably direct.
(b) During the Employment Period, Executive shall report to the Company’s Chief Executive
Officer and shall devote his full business time and attention (except for permitted vacation
periods and reasonable periods of illness or other incapacity) to the business and affairs of the
Company and its Subsidiaries. Executive shall perform his duties, responsibilities and functions
to the Company and its Subsidiaries hereunder in good faith in a diligent, trustworthy and
professional manner and shall comply with the Company’s and its Subsidiaries’ policies and
procedures in all material respects. During the Employment Period, Executive shall not serve as an
officer or director of, or otherwise perform services for compensation for, any other entity
without the prior written consent of the Board (which shall not be unreasonably withheld,
conditioned or delayed); provided that Executive may participate on boards of
charitable entities or other civic entities so long as such service does not materially interfere
with Executive’s duties under this Agreement.
(c) For purposes of this Agreement, “Subsidiaries” shall mean any corporation or other
entity of which the securities or other ownership interests having the voting power to elect a
majority of the board of directors or other governing body are, at the time of determination, owned
by the Company, directly or through one or more Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Executive’s base salary shall be $400,000 per annum or such
higher rate as the Board may determine from time to time (as adjusted from time to time, the
“Base Salary”), which salary shall be payable by the Company or one of its Subsidiaries in
regular installments in accordance with such entity’s general payroll practices (in effect from
time to time). In addition, during the Employment Period, Executive shall be entitled to
participate in all of the Company’s employee benefit programs for which senior executive employees
of the Company and its Subsidiaries are generally eligible. During the Employment Period,
Executive shall also be entitled to five weeks of paid vacation each calendar year in accordance
with the Company’s policies, which if not taken during any year may not be carried forward, other
than with respect to one week per year, to any subsequent calendar year and no compensation shall
be payable in lieu thereof. The Company or one of its affiliates or Subsidiaries shall obtain and
maintain customary directors’ and officers’ liability insurance coverage covering Executive on
terms reasonably satisfactory to the Board.
(b) In addition to the Base Salary, Executive shall be eligible for an annual bonus in an
amount up to 75% of the Base Salary then in effect following the end of each fiscal year of the
Company, beginning with the fiscal year ending December 31, 2007, based upon the achievement by
Executive and the Company and its Subsidiaries of budgetary and other objectives set by the
Compensation Committee of the Board. Such bonus shall be paid on or before March 31 of the
following year.
(c) During the Employment Period, the Company or one of its Subsidiaries shall reimburse
Executive for all reasonable business expenses incurred by him in the course of performing his
duties and responsibilities under this Agreement which are consistent with the Company’s and its
Subsidiaries’ policies in effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company’s and its Subsidiaries’ requirements with respect to
reporting and documentation of such expenses.
(d) All amounts payable to Executive as compensation hereunder shall be subject to all
required and customary withholding by the Company.
4. Term.
(a) The Employment Period will continue until (i) Executive’s resignation, Disability (as
defined in paragraph 4(f) below) or death, or (ii) the Board decides to terminate
Executive’s employment with or without Cause (as defined in paragraph 4(e) below). Except
as otherwise provided herein, any termination of the Employment Period by the Company shall be
effective as specified in a written notice from the Company to Executive.
(b) If the Employment Period is terminated by the Company without Cause or upon Executive’s
resignation with Good Reason (as defined in paragraph 4(g) below), Executive shall be
entitled to (x) continue to receive his Base Salary payable in regular installments and (y)
continue to participate in employee benefit programs for senior executive employees (other than
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bonus and incentive compensation plans), at the Company’s cost, to the extent permitted under
the terms of such programs and under applicable law, as special severance payments from the
date of termination for a period of twelve months thereafter (the “Severance Period”) if
and only if Executive has executed and delivered to the Company the General Release substantially
in form and substance as set forth in Exhibit A attached hereto and the General Release has
become effective, and only so long as Executive has not revoked or breached the provisions of the
General Release or breached the provisions of paragraphs 5, 6 or 7 hereof
and does not apply for unemployment compensation chargeable to the Company or any Subsidiary during
the Severance Period, and Executive shall not be entitled to any other salary, compensation or
benefits after termination of the Employment Period, except as specifically provided for in the
Company’s employee benefit plans or as otherwise expressly required by applicable law. The amounts
payable pursuant to the first sentence of this paragraph 4(b) shall be reduced by the
amount of any compensation Executive receives with respect to any other employment during the
Severance Period; provided that Executive shall have no duty or obligation to seek other employment
during the Severance Period or otherwise mitigate damages hereunder. Upon request from time to
time, Executive shall furnish the Company with a true and complete certificate specifying any such
compensation earned or received by him during the Severance Period. In the event that, within
twelve months of the Effective Date, there is a Sale of the Company (as defined below), and within
twelve months of the Sale of the Company the Employment Period is terminated by the Company (or its
successor) without Cause or upon Executive’s resignation for Good Reason, in lieu of the special
severance payments described above, Executive shall be entitled to a lump sum payment in an amount
equal to two times his Base Salary in effect as of the date of termination. In the event the
receipt of amounts payable pursuant to this paragraph 4(b) within six months of the date of
the Executive’s termination would cause the Executive to be subject to tax under Section 409A of
the Internal Revenue Code of 1986, as amended, then payment of such amounts shall be delayed until
the date that is six months following Executive’s termination date. For purposes of this
Agreement, “Sale of the Company” shall mean the sale of the Company to an Independent Third
Party or group of Independent Third Parties pursuant to which such party or parties acquire (y) 50%
or more of the common stock of the Company (“Common Stock”) outstanding at the time of such
transaction or series of transactions or (z) all or substantially all of the Company’s assets
determined on a consolidated basis. For purposes of this Agreement, “Independent Third
Party” shall mean any person who, immediately prior to the contemplated transaction, does not
own in excess of 5% of the Common Stock on a fully-diluted basis (a “5% Owner”), who is not
controlling, controlled by or under common control with any such 5% Owner and who is not the spouse
or descendant (by birth or adoption) of any such 5% Owner or a trust for the benefit of such 5%
Owner and/or such other persons.
(c) If the Employment Period is terminated by the Company for Cause or is terminated pursuant
to clause (a)(i) above (other than termination by Executive with Good Reason), Executive shall only
be entitled to receive his Base Salary through the date of termination and shall not be entitled to
any other salary, compensation or benefits from the Company or any of its Subsidiaries thereafter,
except as otherwise specifically provided for under the Company’s employee benefit plans or as
otherwise expressly required by applicable law.
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(d) Except as otherwise expressly provided herein, all of Executive’s rights to salary,
bonuses, employee benefits and other compensation hereunder which would have accrued or become
payable after the termination of the Employment Period shall cease upon such
termination, other than those expressly required under applicable law (such as COBRA). The
Company may offset any amounts Executive owes the Company or any of its Subsidiaries against any
amounts the Company or any of its Subsidiaries owes Executive hereunder.
(e) For purposes of this Agreement, “Cause” shall mean with respect to Executive one
or more of the following: (i) the conviction of a felony or other crime involving moral turpitude
or the commission of any other act or omission involving material dishonesty or fraud with respect
to the Company or any of its Subsidiaries, (ii) reporting to work under the influence of illegal
drugs, the use of illegal drugs (whether or not at the workplace) or other repeated conduct causing
the Company or any of its Subsidiaries substantial public disgrace or disrepute or substantial
economic harm, which is not cured within 20 days following written notice thereof to the Executive,
(iii) material and repeated failure to perform his duties as reasonably directed by the Board or
the Company’s Chief Executive Officer, which is not cured within 20 days following written notice
thereof to the Executive, (iv) breach of fiduciary duty or engaging in gross negligence or willful
misconduct with respect to the Company or any of its Subsidiaries or (v) any other material breach
of this Agreement which is not cured within 20 days after written notice thereof to Executive.
(f) For purposes of this Agreement, “Disability” shall mean the disability of
Executive caused by any physical or mental injury, illness or incapacity as a result of which
Executive is unable to effectively perform or fails to perform the essential functions of
Executive’s duties for 90 consecutive days or 120 days during any 12-month period.
(g) For purposes of this Agreement, “Good Reason” shall mean if Executive resigns from
employment with the Company and its Subsidiaries prior to the end of the Employment Period as a
result of one or more of the following reasons: (i) the Company reduces the amount of the Base
Salary, (ii) the Company materially reduces his responsibilities, in each case which is not cured
within 20 days after written notice thereof to the Company, (iii) the relocation of the Company’s
principal executive offices and/or the location at which Executive provides services pursuant to
this Agreement to a location outside the metropolitan Nashville, Tennessee area, or (iv) the
Company’s material breach of this Agreement; provided that written notice of Executive’s
resignation for Good Reason must be delivered to the Company within 45 days after the occurrence of
any such event in order for Executive’s resignation with Good Reason to be effective hereunder.
5. Confidential Information.
(a) Executive acknowledges that the information, observations and data (including trade
secrets) obtained by him while employed by the Company and its Subsidiaries concerning the business
or affairs of the Company or any Subsidiary (“Confidential Information”) are the property
of the Company or such Subsidiary. Therefore, Executive agrees that, except as set forth in, and
pursuant to, this paragraph 5(a), he shall not disclose to any unauthorized person or
entity or use for his own purposes any Confidential Information or any confidential or proprietary
information of other persons or entities in the possession of the
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Company and its Subsidiaries
(“Third Party Information”), without the prior written consent of the Board, unless and to
the extent that the Confidential Information or Third Party Information
becomes generally known to and available for use by the public other than as a result of
Executive’s acts or omissions. In the event that Executive is requested or required (by oral
question or request for information or documents in any legal proceeding, interrogatory, subpoena,
civil investigative demand, or similar process) to disclose any Confidential Information, such
Executive shall notify the Company promptly of the request or requirement so that the Company may
seek an appropriate protective order or waive compliance with the provisions of this Section. If,
in the absence of a protective order or the receipt of a waiver hereunder, Executive is, on the
advice of counsel, compelled to disclose any Confidential Information to any tribunal, such
Executive may disclose the Confidential Information to the tribunal; provided that such disclosing
Executive shall use his best efforts to assist the Company to obtain, at the request of the Company
(and at the Company’s sole expense), an order or other assurance that confidential treatment shall
be accorded to such portion of the Confidential Information required to be disclosed as the Company
shall designate. Executive shall deliver to the Company at the termination of the Employment
Period, or at any other time the Company may request, all memoranda, notes, plans, records,
reports, computer files, disks and tapes, printouts and software and other documents and data (and
copies thereof) embodying or relating to Third Party Information, Confidential Information, Work
Product (as defined below) or the business of the Company or any of its Subsidiaries which he may
then possess or have under his control.
(b) Executive shall be prohibited from using or disclosing any confidential information or
trade secrets that Executive may have learned through any prior employment. If at any time during
this employment with the Company or any Subsidiary, Executive believes he is being asked to engage
in work that will, or will be likely to, jeopardize any confidentiality or other obligations
Executive may have to former employers, Executive shall immediately advise the Chief Executive
Officer so that Executive’s duties can be modified appropriately. Executive represents and
warrants to the Company that Executive took nothing with him which belonged to any former employer
when Executive left his prior position and that Executive has nothing that contains any information
which belongs to any former employer. If at any time Executive discovers this is incorrect,
Executive shall promptly return any such materials to Executive’s former employer. The Company
does not want any such materials, and Executive shall not be permitted to use or refer to any such
materials in the performance of Executive’s duties hereunder.
6. Intellectual Property, Inventions and Patents. Executive acknowledges that all
discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports, patent applications, copyrightable work and mask work
(whether or not including any Confidential Information) and all registrations or applications
related thereto, all other proprietary information and all similar or related information (whether
or not patentable) which relate to the Company’s or any of its Subsidiaries’ actual or anticipated
business, research and development or existing or future products or services and which are
conceived, developed or made by Executive (whether alone or jointly with others) while employed by
the Company and its Subsidiaries, whether before or after the date of this Agreement (“Work
Product”), belong to the Company or such Subsidiary. Executive shall promptly disclose all
patentable inventions and other material Work Product to the
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Board and, at the Company’s expense,
perform all actions reasonably requested by the Board (whether during or after the Employment
Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments). Executive
acknowledges that all Work Product shall be deemed to constitute “works made for hire” under the
U.S. Copyright Act of 1976, as amended.
In accordance with Title 19, Section 805 of the Delaware Code, Executive is hereby advised
that this paragraph 6 regarding the Company’s and its Subsidiaries’ ownership of Work
Product does not apply to any invention for which no equipment, supplies, facilities or trade
secret information of the Company or any Subsidiary was used and which was developed entirely on
Executive’s own time, unless (i) the invention relates to the business of the Company or any
Subsidiary or to the Company’s or any Subsidiaries’ actual or demonstrably anticipated research or
development or (ii) the invention results from any work performed by Executive for the Company or
any Subsidiary.
7. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to Executive hereunder, Executive
acknowledges that during the course of his employment with the Company and its Subsidiaries he
shall become familiar with the Company’s and its Subsidiaries’ trade secrets and with other
Confidential Information concerning the Company and its predecessors and Subsidiaries and that his
services have been and shall continue to be of special, unique and extraordinary value to the
Company and its Subsidiaries, and therefore Executive agrees that, during the Employment Period and
for twelve months thereafter (the “Noncompete Period”), he shall not directly or indirectly
own any interest in, manage, control, participate in, consult with, render services for, be
employed in an executive, managerial or administrative capacity by, or in any manner engage in any
business within the United States engaging in the businesses of the Company or its Subsidiaries, as
such businesses exist during the Employment Period or, as of the date of termination or expiration
of the Employment Period, are contemplated to exist during the twelve-month period following the
date of termination or expiration of the Employment Period (the “Restricted Business”).
Nothing herein shall prohibit Executive from (i) being a passive owner of not more than 2% of the
outstanding stock of any class of a corporation which is publicly traded, so long as Executive has
no active participation in the business of such corporation or (ii) becoming employed, engaged,
associated or otherwise participating with a separately managed division or Subsidiary of a
competitive business that does not engage in the Restricted Business (provided that services are
provided only to such division or Subsidiary).
(b) During the Noncompete Period, Executive shall not directly or indirectly through another
person or entity (i) induce or attempt to induce any employee of the Company or any Subsidiary to
leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship
between the Company or any Subsidiary and any employee thereof, (ii) hire any person who was an
employee of the Company or any Subsidiary at any time during the 18-month period immediately prior
to the termination of the Employment Period or (iii) induce or attempt to induce any customer,
supplier, licensee, licensor, franchisee or other business relation of the Company or any
Subsidiary to cease doing business with the Company or such Subsidiary, or in any way interfere
with the relationship between any such customer, supplier, licensee or
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business relation and the
Company or any Subsidiary (including, without limitation, making any negative or disparaging
statements or communications regarding the Company or its
Subsidiaries). Notwithstanding the foregoing, nothing in this Agreement shall prohibit
Executive from employing an individual (i) with the consent of the Company or (ii) who responded to
general solicitations in publications or on websites, or through the use of search firms, so long
as such general solicitations or search firm activities are not targeted specifically at an
employee of the Company or any of its Subsidiaries. In addition, nothing in this Agreement will
prohibit the making of any truthful statements made by any Person in response to a lawful subpoena
or legal proceeding or to enforce such Person’s rights under this Agreement, or any other agreement
between Executive, the Company and its Subsidiaries.
8. Enforcement. If, at the time of enforcement of paragraph 5, 6 or
7 of this Agreement, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for the stated period,
scope or area and that the court shall be allowed to revise the restrictions contained herein to
cover the maximum period, scope and area permitted by law. Because Executive’s services are unique
and because Executive has access to Confidential Information and Work Product, the parties hereto
agree that the Company and its Subsidiaries would suffer irreparable harm from a breach of
paragraph 5, 6 or 7 by Executive and that money damages would not be an
adequate remedy for any such breach of this Agreement. Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns, in addition to other
rights and remedies existing in their favor, shall be entitled to specific performance and/or
injunctive or other equitable relief from a court of competent jurisdiction in order to enforce, or
prevent any violations of, the provisions hereof (without posting a bond or other security). In
addition, in the event of a breach or violation by Executive of paragraph 7, the Noncompete
Period shall be automatically extended by the amount of time between the initial occurrence of the
breach or violation and when such breach or violation has been duly cured. Executive acknowledges
that the restrictions contained in paragraph 7 are reasonable and that he has reviewed the
provisions of this Agreement with his legal counsel.
9. Executive’s Representations. Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by Executive do not and
shall not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which he is bound, (ii)
Executive is not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the execution and
delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation
of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and
represents that he has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and conditions contained
herein. The Company hereby represents and warrants to Executive that (i) the execution, delivery
and performance of this Agreement by the Company do not and shall not conflict with, breach,
violate or cause a default under any contract, agreement, instrument, order, judgment or decree to
which the Company is a party or by which it is bound and (ii) upon the execution and delivery of
this Agreement by Executive, this Agreement shall be the valid and binding obligation of the
Company, enforceable in accordance with its terms.
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10. Survival. Paragraphs 4 through 24, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the expiration or termination
of the Employment Period.
11. Notices. Any notice provided for in this Agreement shall be in writing and shall
be either personally delivered, sent by reputable overnight courier service or mailed by first
class mail, return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
Xxxxxx X. Coil
Notices to the Company:
HealthSpring, Inc.
00 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
00 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered, sent or mailed.
12. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement or any action in any other jurisdiction, but this
Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or representations by or
among the parties, written or oral, which may have related to the subject matter hereof.
14. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
15. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
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16. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective heirs, successors and
assigns,
except that Executive may not assign his rights or delegate his duties or obligations
hereunder without the prior written consent of the Company.
17. Choice of Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
18. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company (as approved by the Board) and Executive, and no
course of conduct or course of dealing or failure or delay by any party hereto in enforcing or
exercising any of the provisions of this Agreement (including, without limitation, the Company’s
right to terminate the Employment Period for any reason) shall affect the validity, binding effect
or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.
19. Insurance. The Company may, at its discretion, apply for and procure in its own
name and for its own benefit life and/or disability insurance on Executive in any amount or amounts
considered advisable. Executive agrees to reasonably cooperate in any medical or other
examination, supply any information reasonably requested and execute and deliver any applications
or other instruments in writing as may be reasonably necessary to obtain and constitute such
insurance. Executive hereby represents that he has no reason to believe that his life is not
insurable at rates now prevailing for healthy men of his age.
20. Indemnification and Reimbursement of Payments on Behalf of Executive. The Company
and its Subsidiaries shall be entitled to deduct or withhold from any amounts owing from the
Company or any of its Subsidiaries to Executive any federal, state, local or foreign withholding
taxes, excise tax, or employment taxes (“Taxes”) imposed with respect to Executive’s
compensation (including, without limitation, wages, bonuses, dividends, the receipt or exercise of
equity options and/or the receipt or vesting of restricted equity). In the event the Company or
any of its Subsidiaries does not make such deductions or withholdings, Executive shall indemnify
the Company and its Subsidiaries for any amounts paid with respect to any such Taxes.
21. Consent to Jurisdiction. EACH OF THE PARTIES HERETO SUBMITS TO THE JURISDICTION
OF ANY STATE OR FEDERAL COURT SITTING IN NASHVILLE, TENNESSEE, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN AND AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH
OF THE PARTIES HERETO WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF ANY ACTION OR
PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY OR OTHER SECURITY THAT MIGHT BE REQUIRED OF ANY
OTHER PARTY WITH RESPECT THERETO. ANY PARTY MAY MAKE SERVICE ON ANY OTHER PARTY BY SENDING OR
DELIVERING A COPY OF THE PROCESS
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(I) TO THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER
PROVIDED
FOR THE GIVING OF NOTICES IN PARAGRAPH 11 ABOVE, OR (II) TO THE PARTY TO BE SERVED IN CARE OF
SUCH PARTY’S REGISTERED AGENT IN THE MANNER PROVIDED FOR THE GIVING OF NOTICES IN PARAGRAPH 11
ABOVE. NOTHING IN THIS PARAGRAPH 21 HOWEVER SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. EACH PARTY AGREES THAT A FINAL JUDGMENT (AFTER
GIVING EFFECT TO ANY TIMELY APPEALS) IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE CONCLUSIVE AND
MAY BE ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
22. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE
PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL),
EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING
TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
23. Executive’s Cooperation. During the Employment Period and thereafter, Executive
shall reasonably cooperate with the Company and its Subsidiaries in any internal investigation, any
administrative, regulatory or judicial investigation or proceeding or any dispute with a third
party as reasonably requested by the Company (including, without limitation, Executive being
available to the Company upon reasonable notice and at reasonable times for interviews and factual
investigations, appearing at the Company’s request upon reasonable notice and at reasonable times
to give testimony without requiring service of a subpoena or other legal process, delivering to the
Company requested information and relevant documents which are or may come into Executive’s
possession, all at times and on schedules that are reasonably consistent with Executive’s other
permitted activities and commitments). In the event the Company requests Executive’s cooperation
in accordance with this paragraph, the Company shall (i) reimburse Executive for all reasonable
travel expenses and other reasonable out-of-pocket expenses (including lodging and meals) upon
submission of receipts and (ii) reimburse Executive for all reasonable fees and expenses, including
without limitation all attorneys fees and expenses, incurred by Executive in connection with any
such investigation or proceeding. Notwithstanding anything contained herein to the contrary,
Executive shall not be required to cooperate or assist the Company in any such investigation or
proceeding in the event that (i) legal counsel to Executive advises him that a reasonable
likelihood exists of a conflict of interest between the Company and its Affiliates and Executive or
(ii) cooperation with the Company could incriminate the Executive or adversely affect the defense
by Executive of any investigation, claim or proceeding.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| HEALTHSPRING, INC. | ||||||
| Xxxxxxx X. Xxxxxx, President and Chief Executive Officer | ||||||
| Xxxxxx X. Coil | ||||||
D-1
Exhibit A
GENERAL RELEASE
I, , in consideration of and subject to the performance by HealthSpring, Inc., a
Delaware corporation (together with its Subsidiaries, the “Company”), of its obligations
under the Amended and Restated Employment Agreement, dated as of , 2006 (the
“Agreement”), do hereby release and forever discharge as of the date hereof the Company and
its affiliates and all present and former directors, officers, agents, representatives, employees,
successors and assigns of the Company and its affiliates and the Company’s direct or indirect
owners (collectively, the “Released Parties”) to the extent provided below.
| 1. | I understand that any payments or benefits paid or granted to me under paragraph 4(b) of the Agreement represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I will not receive the payments and benefits specified in paragraph 4(b) of the Agreement unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter or breach this General Release. Such payments and benefits will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates. I also acknowledge and represent that I have received all payments and benefits that I am entitled to receive (as of the date hereof) by virtue of any employment by the Company. | |
| 2. | Except as provided in paragraph 4 below and except for the provisions of my Employment Agreement which expressly survive the termination of my employment with the Company, I knowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever discharge the Company and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, crossclaims, counterclaims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date this General Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, which arise out of or are connected with my employment with, or my separation or termination from, the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common |
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| law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”). | ||
| 3. | I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 2 above. | |
| 4. | I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company in compliance with the terms of the Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967). | |
| 5. | In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company would not have agreed to the terms of the Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company, or in the event I should seek to recover against the Company in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims. I further agree that I am not aware of any pending charge or complaint of the type described in paragraph 2 as of the execution of this General Release. | |
| 6. | I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or myself of any improper or unlawful conduct. | |
| 7. | I agree that I will forfeit all amounts payable by the Company pursuant to the Agreement if I challenge the validity of this General Release. I also agree that if I violate this General Release by suing the Company or the other Released Parties, I will pay all costs and expenses of defending against the suit incurred by the Released Parties, including reasonable attorneys’ fees, and return all payments received by me pursuant to the Agreement. | |
| 8. | I agree that this General Release is confidential and agree not to disclose any information regarding the terms of this General Release, except to my immediate family and any tax, legal or other counsel I have consulted regarding the meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone. Notwithstanding anything herein to the contrary, each of the parties (and each |
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| affiliate and person acting on behalf of any such party) agree that each party (and each employee, representative, and other agent of such party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this transaction contemplated in the Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to such party or such person relating to such tax treatment and tax structure, except to the extent necessary to comply with any applicable federal or state securities laws. This authorization is not intended to permit disclosure of any other information including (without limitation) (i) any portion of any materials to the extent not related to the tax treatment or tax structure of this transaction, (ii) the identities of participants or potential participants in the Agreement, (iii) any financial information (except to the extent such information is related to the tax treatment or tax structure of this transaction), or (iv) any other term or detail not relevant to the tax treatment or the tax structure of this transaction. | ||
| 9. | Any non-disclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the National Association of Securities Dealers, Inc. (NASD), any other self-regulatory organization or governmental entity. | |
| 10. | I agree to reasonably cooperate with the Company in any internal investigation, any administrative, regulatory, or judicial proceeding or any dispute with a third party on the terms and subject to the limitations set forth in paragraph 24 of the Agreement. | |
| 11. | I agree not to disparage the Company, its past and present investors, officers, directors or employees or its affiliates and to keep all confidential and proprietary information about the past or present business affairs of the Company and its affiliates confidential in accordance with the terms of the Agreement unless a prior written release from the Company is obtained. I further agree that as of the date hereof, I have returned to the Company any and all property, tangible or intangible, relating to its business, which I possessed or had control over at any time (including, but not limited to, company-provided credit cards, building or office access cards, keys, computer equipment, manuals, files, documents, records, software, customer data base and other data) and that I shall not retain any copies, compilations, extracts, excerpts, summaries or other notes of any such manuals, files, documents, records, software, customer data base or other data. | |
| 12. | Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect (i) any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof, (ii) any rights or obligations under applicable law which cannot be waived or released pursuant to an agreement, (iii) any rights to payments or benefits under paragraph 4(b) of the Agreement, (iv) my rights of indemnification and directors and officers insurance coverage to which I may be entitled solely with regards to my service as an officer or director of the Company; (v) my rights with regard to accrued benefits under any employee benefit plan, policy or arrangement maintained by the Company or |
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| under COBRA; and (vi) my rights as a stockholder or other equityholder of the Company and/or its affiliates. | ||
| 13. | Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. |
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
| (a) | I HAVE READ IT CAREFULLY; | |
| (b) | I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED; | |
| (c) | I VOLUNTARILY CONSENT TO EVERYTHING IN IT; | |
| (d) | I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION; | |
| (e) | I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON [ , ] TO CONSIDER IT AND THE CHANGES MADE SINCE THE [ , ] VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD; | |
| (f) | THE CHANGES TO THE AGREEMENT SINCE [ , ] EITHER ARE NOT MATERIAL OR WERE MADE AT MY REQUEST. | |
| (g) | I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED; | |
| (h) | I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND |
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| (i) | I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME. |
DATE:
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ExA-5
