EXHIBIT 10.1
CHANGE IN CONTROL SEVERANCE AGREEMENT
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THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") dated as
of August 17, 2004 (the "Effective Date") is entered by and between Xxxxxx
Xxxxxxx ("Executive") and First Health Group Corp., a Delaware corporation
(the "Company").
RECITALS:
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A. It is expected that the Company from time to time will consider
the possibility of an acquisition by another company or other change of
control. The Board of Directors of the Company (the "Board") recognizes
that such consideration can be a distraction to the Executive and can cause
the Executive to consider alternative employment opportunities. The Board
has determined that it is in the best interests of the Company and its
shareholders to assure that the Company will have the continued dedication
and objectivity of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the Company.
B. The Board believes that it is in the best interests of the
Company and its shareholders to provide the Executive with an incentive to
continue his employment and to motivate the Executive to maximize the value
of the Company upon a Change of Control for the benefit of its shareholders.
C. The Board believes that it is imperative to provide the
Executive with severance benefits upon the Executive's termination of
employment following a Change of Control that provides the Executive with
enhanced financial security and provides incentive and encouragement to the
Executive to remain with the Company notwithstanding the possibility of a
Change of Control.
D. The Company desires to provide additional inducement for
Executive to continue to remain in the employ of the Company.
AGREEMENT
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The Company and Executive hereby agree as follows:
1. Certain Defined Terms. In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "Affiliate" shall mean a domestic or foreign business
entity controlled by, controlling, under common control with, or in a
joint venture with, the applicable person or entity.
(b) "Base Salary" shall mean the Executive's base salary,
exclusive of bonus at the relevant time; provided, however, if the
Executive is terminating employment because of a reduction in base
salary under clause (i) of the definition of Good Reason, then Base
Salary shall mean the Executive's base salary as in effect immediately
prior to such reduction.
(c) "Benefits" shall mean medical, dental, prescription drug,
vision and group term life plans as are established by the Company and
as in effect from time to time applicable to executives of the Company.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall mean Executive's:
(i) Fraud, misappropriation, embezzlement, or other act
of material misconduct against the Company or any of its
Affiliates;
(ii) Substantial and willful failure to perform specific
and lawful directives of the Board, as reasonably determined by
the Board;
(iii) Willful and knowing violation of any rules or
regulations of any governmental or regulatory body, which is
materially injurious to the financial condition of the Company;
(iv) Willful violation of the Company's policies or
standards including without limitation, Corporate Compliance
standards, confidentiality and nondisclosure; or
(v) Conviction of or plea of guilty or nolo contendere
to a felony.
(f) "Change in Control" shall mean the occurrence of any of
the following events:
(i) The acquisition, directly or indirectly, by any
"person" or "group" (as those terms are defined in
Sections 3(a)(9), 13(d), and 14(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") and the rules thereunder) of
"beneficial ownership" (as determined pursuant to Rule 13d-3 under
the Exchange Act) of securities entitled to vote generally in the
election of directors ("voting securities") of the Company that
represent 50% or more of the combined voting power of the
Company's then outstanding voting securities, other than
(A) an acquisition by a trustee or other
fiduciary holding securities under any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company or by
any employee benefit plan (or related trust) sponsored
or maintained by the Company or any person controlled by
the Company, or
(B) an acquisition of voting securities by the
Company or a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the
same proportions as their ownership of the stock of the
Company, or
(C) an acquisition of voting securities
pursuant to a transaction described in clause (ii) below
that would not be a Change in Control under clause (ii);
Notwithstanding the foregoing, neither of the following events
shall constitute an "acquisition" by any person or group for purposes of
this clause (i): an acquisition of the Company's securities by the Company
which causes the Company's voting securities beneficially owned by a person
or group to represent 50% or more of the combined voting power of the
Company's then outstanding voting securities; provided, however, that if a
person or group shall become the beneficial owner of 50% or more of the
combined voting power of the Company's then outstanding voting securities by
reason of share acquisitions by the Company as described above and shall,
after such share acquisitions by the Company, become the beneficial owner of
any additional voting securities of the Company, then such acquisition shall
constitute a Change in Control;
(ii) the consummation by the Company (whether directly
involving the Company or indirectly involving the Company through
one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination, (y) a sale or other
disposition of all or substantially all of the Company's assets or
(z) the acquisition of assets or stock of another entity, in each
case, other than a transaction
(A) which results in the Company's voting
securities outstanding immediately before the
transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities
of the Company or the person that, as a result of the
transaction, controls, directly or indirectly, the
Company or owns, directly or indirectly, all or
substantially all of the Company's assets or otherwise
succeeds to the business of the Company (the Company or
such person, the "Successor Entity")) directly or
indirectly, at least 50% of the combined voting power of
the Successor Entity's outstanding voting securities
immediately after the transaction, and
(B) after which no person or group
beneficially owns voting securities representing 50% or
more of the combined voting power of the Successor
Entity; provided, however, that no person or group shall
be treated for purposes of this clause (B) as
beneficially owning 50% or more of combined voting power
of the Successor Entity solely as a result of the voting
power held in the Company prior to the consummation of
the transaction; or
(iii) shareholder approval of a liquidation or
dissolution of the Company.
For purposes of clause (i) above, the calculation of voting power
shall be made as if the date of the acquisition were a record date for a
vote of the Company's shareholders, and for purposes of clause (ii) above,
the calculation of voting power shall be made as if the Closing Date were a
record date for a vote of the Company's shareholders.
(g) "Closing Date" shall mean the effective date of a Change
in Control.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(i) "Common Stock" shall mean the Company's Common Stock, par
value $0.01 per share.
(j) "Employment Agreement" shall mean that certain amended
and restated employment agreement entered into by and between Executive
and the Company dated August 17, 2004, as such agreement may be amended
from time to time.
(k) "Exercise Price" shall mean the exercise price per share
of Common Stock subject to an Option.
(l) "Good Reason" shall mean any of the following events
which is not cured by the Company within 15 days after written notice
thereof is provided to the Company by Executive: (i) a reduction in
the aggregate amount of Executive's Base Salary or bonus opportunity by
more than 5%; (ii) a material adverse change in Executive's duties,
responsibilities, perquisites or authority without Executive's consent;
or (iii) an involuntary relocation of Executive's principal place of
business to a location more than 30 miles from Executive's current
principal place of business. Executive must provide the Company with
notice of "Good Reason" within 30 days after an event has occurred that
Executive has Good Reason to terminate employment. If Executive does
not provide written notice within 30 days of such event, the Executive
will be deemed to have consented to the event and such event will no
longer constitute Good Reason for purposes of this Agreement.
(m) "Option" shall mean an option to purchase shares of
Common Stock granted by the Company to Executive.
2. Term of Agreement. This Agreement shall terminate upon the date
that all obligations of the parties hereto with respect to this Agreement
have been satisfied.
3. Severance Payment. In lieu of any severance payments Executive
may be entitled to receive under the Employment Agreement or any other
severance program of the Company, in the event Executive's employment with
the Company is terminated by the Company other than for Cause or by the
Executive for Good Reason during the period beginning on the Closing Date
and ending on the second anniversary thereof, then subject to the terms and
conditions set forth in this Section 3, the Executive shall be entitled to
receive and the Company shall pay the Executive the following:
(a) an amount equal to three times Base Salary, payable in
twenty-four equal monthly installments in accordance with the Company's
normal payroll practices;
(b) continuation of Benefits upon the same terms as active
employees of the Company for a period equal to the lesser of (i)
twenty-four months, or (ii) the date Executive becomes entitled to
receive Benefits under any subsequent employer's benefit and/or welfare
plans, with such Benefit continuation being provided concurrent with
and not in addition to any continuation coverage which is required by
law;
(c) up to $10,000 of outplacement assistance; and
(d) vesting of each Option the Exercise Price of which is
less than the fair market value of the underlying Common Stock.
Executive's entitlements under this Section 3 and the Company's
obligations to make such payments, provide such Benefits or vest the Options
are subject to the Executive's execution and enforceability of a General
Release of Claims in substantially the form attached as Exhibit A and
Executive's compliance with the terms of Sections 6, 7 and 8 hereof. The
amounts payable under this Section 3 shall be reduced by any amounts to
which Executive may become entitled pursuant to any severance, separation,
notice or termination payments on account of his or her employment or
termination of employment with the Company, including, any payments required
to be paid under any Federal, state or local law (except unemployment
benefits payable in accordance with state law, payment pursuant to any
employee benefit plan of the Company subject to the Employee Retirement
Income Security Act of 1974, as amended, exercise of Options, or payment for
unpaid Base Salary, bonus or unused but accrued vacation).
If Executive's employment with the Company is terminated by reason
of death, disability or for Cause, Executive shall not be entitled to any
severance under the terms of this Agreement. In such circumstances
severance, if any will be paid in accordance with the Employment Agreement.
4. Stay Bonus. In the event that:
(a) Executive continues his employment with the Company
through the earlier of July 31, 2005 or the Closing Date, or
(b) Executive's employment is terminated by the Company
without Cause prior to the earlier of July 31, 2005 or the Closing
Date, or
(c) Executive terminates his employment with the Company for
Good Reason.
The Company shall pay to Executive a lump-sum cash bonus (the
"Stay Bonus") equal to his Base Salary. The Stay Bonus shall be payable by
the Company to Executive on the earlier of (i) the first payroll of the
Company following July 31, 2005 or (ii) within 30 days following the Closing
Date.
5. Parachute Payments.
(a) If it is determined (as hereafter provided) that
Executive would be subject to the excise tax imposed by Code Section
4999 to which Executive would not have been subject but for any payment
(collectively a "Payment") occurring pursuant to the terms of this
Agreement or otherwise upon a Change in Control (a "Parachute Tax"),
then Executive shall be entitled to receive an additional payment or
payments (a "Gross-Up Payment") in an amount such that, after payment
by Executive of all taxes (including any Parachute Tax) imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the Parachute Tax imposed upon the Payment.
(b) Subject to the provisions of Section 5(a) hereof, all
determinations required to be made under this Section 5, including
whether a Parachute Tax is payable by Executive and the amount of such
Parachute Tax and whether a Gross-Up Payment is required and the amount
of such Gross-Up Payment, shall be made by the nationally recognized
firm of certified public accountants (the "Accounting Firm") selected
by the Audit Committee of the Board in existence immediately prior to
the Change in Control. For purposes of making the calculations
required by this Section, the Accounting Firm may make reasonable
assumptions and approximations concerning applicable taxes and may rely
on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code, provided that the Accounting Firm's
determinations must be made with substantial authority (within the
meaning of Section 6662 of the Code) and provided, however, that
Executive shall be assumed to pay federal, state and local income taxes
at the highest marginal bracket. The Accounting Firm shall be directed
by the Company or Executive to submit its preliminary determination and
detailed supporting calculations to both the Company and Executive
within 15 calendar days after the determination date, if applicable,
and any other such time or times as may be requested by the Company or
Executive. If the Accounting Firm determines that any Parachute Tax is
payable by Executive, the Company shall pay the required Gross-Up
Payment to, or for the benefit of, Executive within five business days
after receipt of such determination and calculations. If the
Accounting Firm determines that no Parachute Tax is payable by
Executive, it shall, at the same time as it makes such determination,
furnish Executive with an opinion that he has substantial authority not
to report any Parachute Tax on his federal tax return. Any good faith
determination by the Accounting Firm as to the amount of the Gross-Up
Payment shall be binding upon the Company and Executive absent a
contrary determination by the Internal Revenue Service or a court of
competent jurisdiction; provided, however, that no such determination
shall eliminate or reduce the Company's obligation to provide any
Gross-Up Payments that shall be due as a result of such contrary
determination. As a result of the uncertainty in the application of
Code Section 4999 at the time of any determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments that will not
have been made by the Company should have been made (an
"Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts or fails to pursue
its remedies pursuant to Section 5(f) hereof and Executive thereafter
is required to make a payment of any Parachute Tax, Executive shall
direct the Accounting Firm to determine the amount of the Underpayment
that has occurred and to submit its determination and detailed
supporting calculations to both the Company and Executive as promptly
as possible. Any such Underpayment shall be promptly paid by the
Company to, or for the benefit of, Executive within five business days
after receipt of such determination and calculations.
(c) The Company and Executive shall each provide the
Accounting Firm access to and copies of any books, records and
documents in the possession of the Company or Executive, as the case
may be, reasonably requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with the preparation
and issuance of the determination contemplated by Section 5(b) hereof.
(d) The Federal tax returns filed by Executive (or any filing
made by a consolidated tax group which includes the Company) shall be
prepared and filed on a basis consistent with the determination of the
Accounting Firm with respect to the Parachute Tax payable by Executive.
Executive shall make proper payment of the amount of any Parachute Tax,
and at the request of the Company, provide to the Company true and
correct copies (with any amendments) of his federal income tax return
as filed with the Internal Revenue Service, and such other documents
reasonably requested by the Company, evidencing such payment. If prior
to the filing of Executive's federal income tax return, the Accounting
Firm determines in good faith that the amount of the Gross-Up Payment
should be reduced, Executive shall within five business days pay to the
Company the amount of such reduction.
(e) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations
contemplated by Sections 5(b) and (d) hereof shall be borne by the
Company. If such fees and expenses are initially advanced by
Executive, the Company shall reimburse Executive the full amount of
such fees and expenses within five business days after receipt from
Executive of a statement therefor and reasonable evidence of his
payment thereof.
(f) In the event that the Internal Revenue Service claims
that any payment or benefit received under this Agreement constitutes
an "excess parachute payment" within the meaning of Code Section
280G(b)(1), Executive shall notify the Company in writing of such
claim. Such notification shall be given as soon as practicable but not
later than 10 business days after Executive is informed in writing of
such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. Executive
shall not pay such claim prior to the expiration of the 30 day period
following the date on which Executive gives such notice to the Company
(or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies Executive
in writing prior to the expiration of such period that it desires to
contest such claim, Executive shall (i) give the Company any
information reasonably requested by the Company relating to such claim;
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company
and reasonably satisfactory to Executive; (iii) cooperate with the
Company in good faith in order to effectively contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay
directly all costs and expenses (including, but not limited to,
additional interest and penalties and related legal, consulting or
other similar fees) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for and
against any Parachute Tax or income tax or other tax (including
interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses.
(g) The Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct Executive to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner and
Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided,
however, that if the Company directs Executive to pay such claim and
xxx for a refund, the Company shall advance the amount of such payment
to Executive on an interest-free basis, and shall indemnify and hold
Executive harmless, on an after tax basis, from any Parachute Tax (or
other tax including interest and penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and provided, further, that if
Executive is required to extend the statue of limitations to enable the
Company to contest such claim, Executive may limit this extension
solely to such contested amount. The Company's control of the contest
shall be limited to issues with respect to which a corporate deduction
would be disallowed pursuant to Code Section 280G and Executive shall
be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
In addition, no position may be taken nor any final resolution be
agreed to by the Company without Executive's consent if such position
or resolution could reasonably be expected to adversely affect
Executive unrelated to matters covered hereto.
(h) If, after the receipt by Executive of an amount advanced
by the Company in connection with the contest of the Parachute Tax
claim, Executive receives any refund with respect to such claim,
Executive shall promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes
applicable thereto); provided, however, if the amount of that refund
exceeds the amount advanced by the Company Executive may retain such
excess. If, after the receipt by Executive of an amount advanced by
the Company in connection with a Parachute Tax claim, a determination
is made that Executive shall not be entitled to any refund with respect
to such claim and the Company does not notify Executive in writing of
its intent to contest the denial of such refund prior to the expiration
of 30 days after such determination such advance shall be deemed to be
in consideration for services rendered after the Executive's
termination of employment.
6. Confidentiality. Executive agrees not to directly or
indirectly use or disclose, for the benefit of any person, firm or entity
other than the Company or its Affiliates, the "Confidential Business
Information" of the Company. Confidential Business Information means
information or material which is not generally available to or used by
others or the utility or value of which is not generally known or recognized
as a standard practice, whether or not the underlying details are in the
public domain, including but not limited to its computerized and manual
systems, procedures, reports, client lists, review criteria and methods,
financial methods and practices, plans, pricing and marketing techniques as
well as information regarding the Company's and its Affiliate's past,
present and prospective clients and their particular needs and requirements,
and their own confidential information.
7. Restrictive Covenant. During Executive's employment and for a
period of twelve months from the date of termination of Executive's
employment, Executive will not directly or indirectly, within the United
States or in any foreign market in which Executive was engaged in activities
on behalf of the Company or its Affiliates, own, engage in or participate
in, in any way, any business which is similar to or competitive with any
actual or planned business activity engaged in or planned by the Company or
its Affiliates at the time Executive's employment was terminated. However,
this Agreement shall not prohibit ownership of up to 2% of the shares of
stock of any such corporation whose stock is listed on a national securities
exchange or is traded in the over-the-counter market.
Executive will promptly notify Company of any business with whom
Executive is associated or in which has an ownership interest during the
twelve months following his termination and will provide Company with a
description of Executive's duties or interests.
For a period of twelve months following termination of employment,
Executive will not directly or indirectly, for the purpose of selling
services and/or products provided or planned by the Company or any Affiliate
at the time the Executive's employment was terminated, call upon, solicit or
divert any actual customer or prospective customer of the Company or any
Affiliate, unless employed by Company to do so. An actual customer, for
purposes of this Section, is any customer to whom the Company or any
Affiliate provided services and/or products within one year prior to
Executive's termination of employment. A prospective customer, for purposes
of this Section, is any prospective customer to whom the Company or any
Affiliate sought to provide services and/or products within one year prior
to the date of Executive's termination of employment and Executive has had
actual knowledge of or had access to such information, or was involved in
such solicitation.
8. Non-Solicitation of Employees. Executive further agrees that
for a period of twelve months from the date of Executive's termination of
employment Executive shall not directly or indirectly solicit or hire any
person who is or was an employee of any of the Company or any Affiliate at
any time during the twelve months prior to Executive's termination of
employment.
9. Remedies. In the event Executive breaches or threatens to
breach Sections 6, 7 or 8 of this Agreement, in addition to other remedies
it may have, the Company shall be entitled to temporary injunctive relief
without being required to post a bond and permanent injunctive relief
without the necessity of proving actual damages. Executive acknowledges
that the Company's remedy at law is inadequate and that the Company will
suffer irreparable injury if such conduct is not prohibited. In addition to
injunctive relief and other remedies and damages, in the event Executive
breaches Sections 6, 7 or 8 of this Agreement, the Executive shall be
required to repay all amounts paid to Executive pursuant to Section 3(a) and
the Company shall no longer be required to make any further payments or
continue any Benefits under Section 3 as liquidated damages. The Company
may elect to seek one or more remedies on a case-by-case basis in its sole
discretion. Failure to seek any or all remedies in one case does not
restrict the Company from seeking any remedies in another situation.
Executive acknowledges that the liquidated damages shall be in addition to,
and not exclusive of, any and all other rights and remedies the Company may
exercise or be entitled to exercise under the law.
Executive further agrees that the covenants contained in Sections
6, 7 and 8 shall be construed as separate and independent of other
provisions of this Agreement and the existence of any claim by Executive
against the Company shall not constitute a defense to the enforcement by the
Company of either of these Sections.
10. Amendment to Employment Agreement. Except as provided in this
Section 10, this Agreement amends the Employment Agreement with respect to
obligations of the Company and rights of the Executive in the event of
termination of the Executive's employment following a Change in Control as
defined herein. In all other respects, including termination of the
Executive's employment prior to a Change in Control, the Employment
Agreement shall remain in effect.
11. Successors and Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or
otherwise, including, without limitation, any successor due to a Change
in Control) to the business or assets of the Company, by agreement in
form and substance reasonably satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to
the same extent the Company would be required to perform if no such
succession had taken place; provided that no such express agreement
should be required to the extent such obligation continuous with the
Corporation or its successor by operation of law. This Agreement will
be binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any persons
directly or indirectly acquiring the business or assets of the Company
in a transaction constituting a Change in Control (and such successor
shall thereafter be deemed the "Company" for the purpose of this
Agreement), but will not otherwise be assignable, transferable or
delegable by the Company.
(b) This Agreement will inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign,
transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 11(a) and 11(b).
Without limiting the generality or effect of the foregoing, Executive's
right to receive payments hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive's will or
by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 11(c), the
Company shall have no liability to pay any amount so attempted to be
assigned, transferred or delegated.
12. Notices. For all purposes of this Agreement, all
communications, including without limitation notices, consents, requests or
approvals, required or permitted to be given hereunder will be in writing
and will be deemed to have been duly given when hand delivered or dispatched
by electronic facsimile transmission (with receipt thereof orally
confirmed), or five business days after having been mailed by United States
registered or certified mail, return receipt requested, postage prepaid, or
three business days after having been sent by a nationally recognized
overnight courier service such as FedEx, UPS, or DHL, addressed to the
Company (to the attention of the Secretary of the Company) at its principal
executive office and to Executive at his principal residence, or to such
other address as any party may have furnished to the other in writing and in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
13. Validity. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement
and the application of such provision to any other person or circumstances
will not be affected, and the provision so held to be invalid, unenforceable
or otherwise illegal will be reformed to the extent (and only to the extent)
necessary to make it enforceable, valid or legal.
14. Governing Law; Jurisdiction. The laws of the State of
Illinois shall govern the interpretation, validity and performance of the
terms of this Agreement, regardless of the law that might be applied under
principles of conflicts of law. Any suit, action or proceeding against
Executive, with respect to this Agreement, or any judgment entered by any
court in respect of any of such suit, action or proceeding, may be brought
in any court of competent jurisdiction in the State of Illinois, and
Executive hereby submits to the jurisdiction of such courts for the purpose
of any such suit, action, proceeding or judgment.
15. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be performed
by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
This Agreement and the Employment Agreement constitute the entire agreement
of the parties with respect to the subject matter hereof and supersedes any
and all prior agreements of the parties with respect to such subject matter.
No agreements or representations, oral or otherwise, expressed or implied
with respect to the subject matter hereof have been made by either party,
which are not set forth expressly in this Agreement. References to Sections
are to references to Sections of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Change in Control
Severance Agreement to be duly executed and delivered as of the date first
above written.
FIRST HEALTH GROUP CORP.
By: /s/ Xxxxx X. Xxxxx
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Title: Chairman of the Board
EXECUTIVE
/s/ Xxxxxx Xxxxxxx
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