Exhibit 10.2
THIS EMPLOYMENT AGREEMENT dated as
of February 1st, 2006 (the "Agreement"), is by and between Healthways, Inc., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company desires
that the Executive serve or continue to serve as Executive Vice President / CIO and the
Executive desires to hold such position under the terms and conditions of this Agreement;
and
WHEREAS, the parties desire to
enter into this Agreement setting forth the terms and conditions of the employment
relationship of the Executive with the Company.
NOW, THEREFORE, intending to
be legally bound hereby, the parties agree as follows:
| I. |
EMPLOYMENT. The Company hereby employs the Executive and the Executive
hereby accepts employment with the Company, upon the terms and subject to the
conditions set forth herein. |
| II. |
TERM. Subject to termination as stated in Section VI, the term of
employment of the Executive pursuant to this Agreement (as the same may be
extended, the “Term”) shall commence on February 1st, 2006
(the “Effective Date”), and shall have a continuous term of two (2)
years thereafter. |
| III. |
POSITION. During the Term, the Executive shall serve as Executive Vice
President / CIO of the Company performing duties commensurate with the position
and such additional duties as the Company shall determine. If asked, the
Executive agrees to serve, without any additional compensation, as a director on
the Board of Directors of the Company (the “Board”) and/or the board
of directors of any subsidiary of the Company, and/or in one or more officer
positions with the Company and/or any subsidiary of the Company. If the
Executive’s employment is terminated for any reason, whether such
termination is voluntary or involuntary, the Executive shall resign as a
director and officer of the Company (and any of its subsidiaries), such
resignation to be effective no later than the date of termination of the
Executive’s employment with the Company. |
| IV. |
DUTIES. During the Term, the Executive shall devote his full time and
attention during normal business hours to the business and affairs of the
Company; provided, however, that it shall not be a violation of
this Agreement for the Executive with the approval of the Company to devote
reasonable periods of time to charitable and community activities and industry
or professional activities, and/or to manage personal investments, so long as
such activities do not interfere with the performance of the Executive’s
responsibilities under this Agreement. |
| A. |
Base Salary. The Executive’s initial base salary as of the Effective
Date is $330,000. Effective September 1 of each calendar year after the
Effective Date during the Term of this Agreement, upon the recommendation of the
Chief Executive Officer (“CEO”), the Board (or a committee of the
Board) shall review the Executive’s base salary and may increase such
amount if and as it may deem advisable. Such initial base salary, as it may be
increased during the Term, is defined as the “Base Salary.” The Base
Salary shall be payable in substantially equal installments in accordance with
the Company’s normal payroll practices, and is subject to all proper taxes
and withholding. The Base Salary rate at which the Executive is being
compensated on the Date of Termination (as defined below) shall be the Base
Salary rate used in determining all severance amounts payable to the Executive
hereunder. |
| B. |
Bonus Plan. Such bonus, if any, as shall be determined upon the
recommendation of the CEO by the Board (or any designated Committee of the Board
comprised solely of independent directors), shall be paid in accordance with the
terms and conditions of the bonus plan established for the Company (“Bonus
Plan”). |
| C. |
Long Term Incentive Awards. During the Term, upon the recommendation of
the CEO, the Board (or any designated committee of the Board comprised solely of
independent directors) will consider, in its sole discretion, long term
incentive awards to the Executive pursuant to the Company’s equity
incentive plans. |
| D. |
Vacation. During each calendar year of this Agreement, the Executive
shall be entitled to vacation in accordance with Company policy in effect from
time to time, but in any event not less than four (4) weeks per calendar year. |
| E. |
Other Benefits. In addition to the benefits specifically provided for
herein, during the Term the Executive shall be entitled to participate in all
benefit plans maintained by the Company for officers generally according to the
terms of such plans. |
| VI. |
TERMINATION OF AGREEMENT. The Executive’s employment under this
Agreement shall not be terminated except as set forth in this Section. Any
reference to the date of delivery of a notice of termination or resignation by
either the Company or the Executive in this Section VI shall constitute the
“Date of Termination,” unless otherwise set forth herein. |
| A. |
By Mutual Consent. The Executive’s employment pursuant to this
Agreement may be terminated at any time by the mutual written agreement of the
Company and the Executive upon such terms as are agreed upon between the
parties. |
| B. |
Death. If Executive dies during the Term of this Agreement, the Company
shall pay his Base Salary due through the date of his death plus a pro-rata
portion of any Bonus Plan or other compensation to which he is otherwise
entitled as of the time of his death, which Bonus Plan amount will be determined
after the end of the fiscal year for which the Bonus Plan was in place.
Furthermore, all outstanding stock options, restricted stock, restricted stock
units and any other unvested equity incentives shall vest and/or remain
exercisable for their stated terms solely in accordance with the terms of the
stock option agreements or restricted stock agreements to which the Company and
the Executive are parties at the time of his death. In addition, all amounts
contributed by the Company to the Capital Accumulation Plan (“CAP”)
for the benefit of the Executive shall vest and thereafter be paid out in
accordance with the terms of the CAP as in effect at the time of the
Executive’s death. The Company shall then have no further obligations to
the Executive or any representative of his estate or his heirs except that
Executive’s estate or beneficiaries as the case may be shall be paid such
amounts as may be payable under the Company’s life insurance policies and
other plans as they relate to benefits following death then in effect. |
| 1. |
The Executive’s employment may be terminated by written notice by either
party to the other party, when: |
| a. |
the Executive suffers a physical or mental disability entitling the Executive to
long-term disability benefits under the Company’s long-term disability
plan, if any, or |
| b. |
in the absence of a Company long-term disability plan, the Executive is unable,
as determined by the Board (or any designated Committee of the Board), to
perform the essential functions of his regular duties and responsibilities, with
or without reasonable accommodation, due to a medically determinable physical or
mental illness which has lasted (or can reasonably be expected to last) for a
period of six (6) consecutive months. |
| 2. |
If the Executive’s employment is terminated under this Section (C), the
Executive shall be entitled to receive: |
| a. |
all Base Salary and benefits due to the Executive through the Date of
Termination and a pro-rata portion of any Bonus Plan or other compensation to
which he is otherwise entitled as of the Date of Termination, which Bonus Plan
amount will be determined after the end of the fiscal year for which the Bonus
Plan was in place; |
| b. |
an amount equal to the Executive’s Base Salary for a total of eighteen (18)
months following the Date of Termination; and |
| c. |
if permitted under the Company’s group medical insurance, group medical
benefits at the same rate as then in effect for the Company’s employees for
two (2) years after the Date of Termination; provided, that if the Executive
instead elects continuation of group benefits under COBRA, the Company shall pay
the full cost of the premiums for two (2) years following the Date of
Termination. |
| 3. |
The amounts in clauses 2(b) and 2(c) above shall be reduced by any disability
insurance payments the Executive receives as a result of his disability, and
shall be paid to the Executive periodically at the regular payroll dates
commencing as of the Date of Termination and for the remaining term of the
non-compete covenant in Section IX hereof; provided, that in the event the
receipt of amounts payable pursuant to this Section (C) within six (6) months of
the Date of Termination would cause the Executive to incur any penalty under
Section 409A of the Internal Revenue Code of 1986, as amended (“IRC”),
then payment of such amounts shall be delayed until the date that is six (6)
months following the Date of Termination. The Executive may elect to receive an
enhanced severance amount consisting of six (6) additional months of the
Executive’s Base Salary (payable in accordance with the first sentence of
this paragraph) upon execution of a full release of claims in favor of the
Company. Furthermore, all outstanding stock options, restricted stock,
restricted stock units and any other unvested equity incentives shall vest
and/or remain exercisable for their stated terms solely in accordance with the
terms of the stock option agreements or restricted stock agreements to which the
Company and the Executive are parties on the Date of Termination. In addition,
all amounts contributed by the Company to the CAP for the benefit of the
Executive shall vest and thereafter be paid out in accordance with the terms of
the CAP as in effect on the Date of Termination. |
| D. |
By the Company for Cause |
| 1. |
The Executive’s employment may be terminated by the Board upon
recommendation of the CEO, both acting in good faith, by written notice to the
Executive specifying the event(s) relied upon for such termination upon the
occurrence of any of the following events (each of which shall constitute
“Cause” for termination): |
| a. |
the continued failure by the Executive to substantially perform his duties after
written notice and failure to cure within sixty (60) days; |
| b. |
conviction of a felony or engaging in misconduct which is materially injurious
to the Company, monetarily or to its reputation or otherwise, or which would
damage Executive’s ability to effectively perform his duties; |
| c. |
theft or dishonesty by the Executive; |
| d. |
intoxication while on duty; or |
| e. |
willful violation of Company policies or procedures after written notice and
failure to cure within thirty (30) days. |
| 2. |
If the Executive’s employment is terminated under this Section (D), the
Executive shall be entitled to receive all Base Salary and benefits to be paid
or provided to the Executive under this Agreement through the Date of
Termination, and no more. |
| 3. |
In addition, the Executive may elect to receive six (6) months of the
Executive’s Base Salary, upon execution of a full release of claims in
favor of the Company. Such payment shall be made to the Executive periodically
at the regular payroll dates commencing as of the Date of Termination and for
the remaining term of the non-compete covenant in Section IX hereof; provided,
that in the event the receipt of amounts payable pursuant to this Section (D)
within six (6) months of the Date of Termination would cause the Executive to
incur any penalty under Section 409A of the IRC, then payment of such amounts
shall be delayed until the date that is six (6) months following the Date of
Termination. Furthermore, all outstanding stock options, restricted stock,
restricted stock units and any other vested equity incentives shall remain
exercisable solely in accordance with the terms of the stock option agreements
or restricted stock agreements to which the Company and the Executive are
parties on the Date of Termination. All unvested equity incentives shall
terminate on the Date of Termination. In addition, all amounts contributed by
the Company to the CAP for the benefit of the Executive that have vested shall
be paid out in accordance with the terms of the CAP as in effect on the Date of
Termination. The Executive shall not be entitled to receive any unvested Company
contributions to the CAP. |
| E. |
By the Company Without Cause |
| 1. |
The Executive’s employment may be terminated by the Board upon
recommendation of the CEO at any time without Cause by delivery of a written
notice of termination to the Executive. If the Executive’s employment is
terminated under this Section (E), the Executive shall be entitled to receive: |
| a. |
all Base Salary and benefits due to the Executive through the Date of
Termination and a pro-rata portion of any Bonus Plan or other compensation to
which he is otherwise entitled as of the Date of Termination, which Bonus Plan
amount will be determined after the end of the fiscal year for which the Bonus
Plan was in place; |
| b. |
an amount equal to the Executive’s Base Salary for a total of eighteen (18)
months following the Date of Termination; and |
| c. |
group medical benefits for eighteen (18) months after the Date of Termination. |
| 2. |
The amount in clause 1(b) above shall be paid to the Executive periodically at
the regular payroll dates commencing as of the Date of Termination and for the
remaining term of the non-compete covenant in Section IX hereof; provided, that
in the event the receipt of amounts payable pursuant to this Section (E) within
six (6) months of the Date of Termination would cause the Executive to incur any
penalty under Section 409A of the IRC, then payment of such amounts shall be
delayed until the date that is six (6) months following the Date of Termination.
The Executive may elect to receive an enhanced severance amount consisting of
six (6) additional months of the Executive’s Base Salary (payable in
accordance with the first sentence of this paragraph), upon execution of a full
release of claims in favor of the Company. Furthermore, all outstanding stock
options, restricted stock, restricted stock units and any other unvested equity
incentives shall vest and/or remain exercisable for their stated terms solely in
accordance with the terms of the stock option agreements or restricted stock
agreements to which the Company and the Executive are parties on the Date of
Termination. In addition, all amounts contributed by the Company to the CAP for
the benefit of the Executive shall vest and thereafter be paid out in accordance
with the terms of the CAP as in effect on the Date of Termination. |
| F. |
By the Executive for Good Reason |
| 1. |
The Executive’s employment may be terminated by the Executive by written
notice of his resignation delivered within sixty (60) days after the occurrence
of any of the following events, each of which shall constitute “Good
Reason” for resignation: |
| a. |
a reduction in the Executive’s Base Salary (unless such reduction is part
of an across the board reduction affecting all Company executives with a
comparable title); |
| b. |
a requirement by the Company to relocate the Executive to a location that is
greater than twenty-five (25) miles from the location of the office in which the
Executive performs his duties hereunder at the time of such relocation; |
| c. |
in connection with a Change in Control, a failure by the successor person or
entity, or the Board, either to honor this Agreement or to present the Executive
with an employment agreement containing provisions satisfactory to the Executive
and which is executed by the Executive; or |
| d. |
a reduction in the Executive’s title, or a material and adverse change in
Executive’s status and responsibilities, or the assignment to Executive of
duties or responsibilities which are materially inconsistent with
Executive’s status and responsibilities. |
| 2. |
The Executive shall give the Company written notice of his intention to resign
for Good Reason (stating the reason therefor) and the Company shall have sixty
(60) days thereafter to rescind the events as stated in subparagraphs (a), (b),
(c) or (d), in which event the Executive no longer shall have the right to
resign for Good Reason. If the Executive resigns for Good Reason as defined in
this Section (F), the Executive shall be entitled to receive: |
| a. |
all Base Salary and benefits due to the Executive under this Agreement through
the Date of Termination and a pro-rata portion of any Bonus Plan or other
compensation to which he is otherwise entitled as of the Date of Termination,
which Bonus Plan amount will be determined after the end of the fiscal year for
which the Bonus Plan was in place; |
| b. |
an amount equal to Executive’s Base Salary for a total of eighteen (18)
months following the Date of Termination; and |
| c. |
group medical benefits for eighteen (18) months after the Date of Termination. |
| 3. |
The amount in clause 2(b) above shall be paid to the Executive periodically at
the regular payroll dates commencing as of the Date of Termination and for the
remaining term of the non-compete covenant in Section IX hereof; provided, that
in the event the receipt of amounts payable pursuant to this Section (F) within
six (6) months of the Date of Termination would cause the Executive to incur any
penalty under Section 409A of the IRC, then payment of such amounts shall be
delayed until the date that is six (6) months following the Date of Termination.
The Executive may elect to receive an enhanced severance amount consisting of
six (6) additional months of the Executive’s Base Salary (payable in
accordance with the first sentence of this paragraph), upon execution of a full
release of claims in favor of the Company. Furthermore, all outstanding stock
options, restricted stock, restricted stock units and any other unvested equity
incentives shall vest and/or remain exercisable for their stated terms solely in
accordance with the terms of the stock option agreements or restricted stock
agreements to which the Company and the Executive are parties on the Date of
Termination. In addition, all amounts contributed by the Company to the CAP for
the benefit of the Executive shall vest and thereafter be paid out in accordance
with the terms of the CAP as in effect on the Date of Termination. |
| G. |
By the Executive Without Good Reason |
| 1. |
The Executive may terminate his employment at any time by delivery of a written
notice of resignation to the Company no less than sixty (60) days and no more
than ninety (90) days prior to the effective date of the Executive’s
resignation. The Executive shall receive all Base Salary and benefits due under
this Agreement through the next payroll date following the Date of Termination,
and no more. |
| 2. |
Although the Executive is not entitled to any severance amount in the event of
termination pursuant to this Section (G), the Executive may reduce the term of
the non-compete and non-solicitation covenants in Section IX hereof, from
twenty-four (24) months to eighteen (18) months, upon execution of a full
release of claims in favor of the Company. Furthermore, all outstanding stock
options, restricted stock, restricted stock units and any other vested equity
incentives shall remain exercisable solely in accordance with the terms of the
stock option agreements or restricted stock agreements to which the Company and
the Executive are parties on the Date of Termination. All unvested equity
incentives shall terminate on the Date of Termination. In addition, all amounts
contributed by the Company to the CAP for the benefit of the Executive that have
vested shall be paid out in accordance with the terms of the CAP as in effect on
the Date of Termination. The Executive shall not be entitled to receive any
unvested Company contributions to the CAP. |
| H. |
Following a Change in Control |
| 1. |
If the Executive’s termination of employment without Cause (pursuant to
Section VI(E)) or for Good Reason (pursuant to Section VI(F)) occurs within
twelve (12) months following a Change in Control, then the amounts payable
pursuant to Section (E) or Section (F) above, as the case may be, shall be
referred to as the “Change in Control Severance Amount,” and shall be
paid to Executive in a lump sum no later than sixty (60) days following the Date
of Termination or periodically at the regular payroll dates, at the
Executive’s election, as of the Date of Termination and for the remaining
term of the non-compete covenant in Section IX hereof; provided, that in
the event the receipt of amounts payable pursuant to this Section (H) within six
(6) months of the Date of Termination would cause the Executive to incur any
penalty under Section 409A of the IRC, then payment of such amounts shall be
delayed until the date that is six (6) months following the Executive’s
termination date. The Executive may elect to receive an enhanced severance
amount consisting of six (6) additional months of the Executive’s Base
Salary (payable in accordance with the first sentence of this paragraph), upon
execution of a full release of claims in favor of the Company. Payments pursuant
to this Section (H) shall be made in lieu of, but not in addition to, any
payment under any other paragraph of this Section VI. Furthermore, all
outstanding stock options, restricted stock, restricted stock units and any
other unvested equity incentives shall vest and/or remain exercisable for their
stated terms solely in accordance with the terms of the stock option agreements
or restricted stock agreements to which the Company and the Executive are
parties on the Date of Termination. In addition, all amounts contributed by the
Company to the CAP for the benefit of the Executive shall vest and thereafter be
paid out in accordance with the terms of the CAP as in effect on the Date of
Termination. |
| 2. |
For the purposes of this Agreement, a “Change in Control” shall mean
any of the following events: |
| a. |
any person or entity, including a “group” as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), other than the Company or a wholly-owned subsidiary
thereof or any employee benefit plan of the Company or any of its subsidiaries,
becomes the beneficial owner of the Company’s securities having 35% or more
of the combined voting power of the then outstanding securities of the Company
that may be cast for the election of directors of the Company (other than as a
result of an issuance of securities initiated by the Company in the ordinary
course of business); |
| b. |
as the result of, or in connection with, any cash tender or exchange offer,
merger or other business combination, sales of assets or contested election, or
any combination of the foregoing transactions, less than a majority of the
combined voting power of the then outstanding securities of the Company or any
successor corporation or entity entitled to vote generally in the election of
the directors of the Company or such other corporation or entity after such
transaction are held in the aggregate by the holders of the Company’s
securities entitled to vote generally in the election of directors of the
Company immediately prior to such transaction; or |
| c. |
during any period of two (2) consecutive years, individuals who at the beginning
of any such period constitute the Board cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination for election by
the Company’s stockholders, of each director of the Company first elected
during such period was approved by a vote of at least two-thirds of the
directors of the Company then still in office who were directors of the Company
at the beginning of any such period. |
| 3. |
Excise Tax Payment. If, in connection with a Change in Control, the
Internal Revenue Service asserts, or if the Executive or the Company is advised
in writing by an established accounting firm, that any payment in the nature of
compensation to, or for the benefit of, the Executive from the Company (or any
successor in interest) constitutes an “excess parachute payment” under
section 280G of the IRC, whether paid pursuant to this Agreement or any other
agreement, and including property transfers pursuant to securities and other
employee benefits that vest upon a Change in Control (collectively, the
“Excess Parachute Payments”) the Company shall pay to the Executive,
on demand, a cash sum equal to the amount of excise tax due under
section 4999 of the IRC on the entire amount of the Excess Parachute
Payments (excluding any payment pursuant to this Section VI(H)). |
| VII. |
REPRESENTATIONS. The Executive represents and warrants that he is not a
party to any agreement or instrument which would prevent him from entering into
or performing his duties in any way under this Agreement. |
| VIII. |
ASSIGNMENT, BINDING AGREEMENT. This Agreement is a personal contract and
the rights and interests of the Executive hereunder may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by him, except as
otherwise expressly permitted by the provisions of this Agreement. This
Agreement shall inure to the benefit of and be enforceable by the Executive and
his personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive should die while
any amount would still be payable to him hereunder had the Executive continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there is no such designee, to his estate. |
| IX. |
CONFIDENTIALITY, NON-COMPETITION, NON-SOLICITATION |
| A. |
The Executive acknowledges that: |
| 1. |
the business of providing care support services and health support services in
which the Company is engaged (the “Business”) is intensely competitive
and that the Executive’s employment by the Company will require that the
Executive have access to and knowledge of confidential information of the
Company relating to its business plans, financial data, marketing programs,
client information, contracts and other trade secrets, in each case other than
as and to the extent such information is generally known or publicly available
through no violation of this Agreement by the Executive; |
| 2. |
the use or disclosure of such information other than in furtherance of the
Business may place the Company at a competitive disadvantage and may do damage,
monetary or otherwise, to the Business; and |
| 3. |
the engaging by the Executive in any of the activities prohibited by this
Section shall constitute improper appropriation and/or use of such information.
The Executive expressly acknowledges the trade secret status of the
Company’s confidential information and that the confidential information
constitutes a protectable business interest of the Company. Other than as may be
required in the performance of his duties, Executive expressly agrees not to
divulge such confidential information to anyone outside the Company without
prior permission. |
| B. |
The “Company” (which shall be construed to include the Company, its
subsidiaries and their respective affiliates) and the Executive agree that for a
period of eighteen (18) months after the Date of Termination if the
Executive’s employment is terminated under Sections VI(C), (D), (E), (F) or
(H), and for a period of twenty-four (24) months after the Date of Termination
if the Executive’s employment is terminated under Section VI(G), the
Executive shall not: |
| 1. |
engage in Competition, as defined below, with the Company or its subsidiaries
within any market where the Company is conducting the Business at the time of
termination of the Executive’s employment hereunder. For purposes of this
Agreement, “Competition” by the Executive shall mean the
Executive’s being employed by or acting as a consultant or lender to, or
being a director, officer, employee, principal, agent, stockholder, member,
owner or partner of, or permitting his name to be used in connection with the
activities of any entity engaged in the Business, provided that,
it shall not be a violation of this sub-paragraph for the Executive to become
the registered or beneficial owner of less than five percent (5%) of any class
of the capital stock of any one or more competing corporations registered under
the 1934 Act, provided that, the Executive does not participate in
the business of such corporation until such time as this covenant expires; and |
| 2. |
The Executive further agrees that he will not, directly or indirectly, for his
benefit or for the benefit of any other person or entity, do any of the
following: |
| a. |
solicit from any customer, doing business with the Company as of the
Executive’s termination, business of the same or of a similar nature to the
Business of the Company with such customer; |
| b. |
solicit from any known potential customer of the Company business of the same or
of a similar nature to that which, to the knowledge of the Executive, has been
the subject of a written or oral bid, offer or proposal by the Company, or of
substantial preparation with a view to making such a bid, proposal or offer,
within eighteen (18) months prior to the Executive’s termination; or |
| c. |
recruit or solicit the employment or services of any person who was employed by
the Company upon termination of the Executive’s employment and is employed
by the Company at the time of such recruitment or solicitation. |
| 3. |
The Executive acknowledges that the services to be rendered by him to the
Company are of a special and unique character, which causes this Agreement to be
of significant value to the Company, the loss of which may not be reasonably or
adequately compensated for by damages in an action at law, and that a breach or
threatened breach by him of any of the provisions contained in this Section will
cause the Company irreparable injury. The Executive therefore agrees that the
Company will be entitled, in addition to any other right or remedy, to a
temporary, preliminary and permanent injunction, without the necessity of
proving the inadequacy of monetary damages or the posting of any bond or
security, enjoining or restraining the Executive from any such violation or
threatened violations. The Executive acknowledges that the terms of this
Section IX and its obligations are reasonable and will not prohibit him
from being employed or employable in the health care industry. |
| C. |
If any one or more of the provisions contained in this Agreement shall be held
to be excessively broad as to duration, activity or subject, such provisions
shall be construed by limiting and reducing them so as to be enforceable to the
fullest extent permitted by law. |
| X. |
ENTIRE AGREEMENT. This Agreement, together with Exhibit A attached
hereto, contains all the understandings between the parties pertaining to the
matters referred to herein, and supersedes any other undertakings and
agreements, whether oral or written, previously entered into by them with
respect thereto. The Executive represents that, in executing this Agreement, he
does not rely and has not relied upon any representation or statement not set
forth herein made by the Company with regard to the subject matter or effect of
this Agreement or otherwise and that Executive has had the opportunity to be
represented by counsel of his choosing. |
| XI. |
AMENDMENT OR MODIFICATION; WAIVER. No provision of this Agreement may be
amended or waived, unless such amendment or waiver is agreed to in writing,
signed by the Executive and by a duly authorized officer of the Company. No
waiver by any party hereto of any breach by another party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time. |
| XII. |
NOTICES. Any notice to be given hereunder shall be in writing and shall
be deemed given when delivered personally, sent by courier, facsimile or
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice in writing: |
|
|
|
| |
To the Executive at:
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000 |
|
To the Company at:
Chief Executive Officer
Healthways, Inc.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 |
| |
Any
notice delivered personally or by courier shall be deemed given on the date delivered. Any
notice sent by facsimile, registered or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date transmitted by facsimile or mailed. |
| XIII. |
SEVERABILITY. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable, shall not be affected thereby, and each provision
hereof shall be validated and shall be enforced to the fullest extent permitted
by law. |
| XIV. |
SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. |
| XV. |
GOVERNING LAW; VENUE. This Agreement will be governed by and construed in
accordance with the laws of the State of Tennessee, without regard to the
principles of conflicts of law thereof. |
| XVI. |
HEADINGS. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph. |
| XVII. |
COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. |
IN WITNESS WHEREOF, the
parties hereto have executed this Employment Agreement effective as of date set forth
above.
|
|
| |
HEALTHWAYS, INC.
By: /s/ Xxx X. Xxxxxx, Xx.
Name: Xxx X. Xxxxxx, Xx.
Title: President & CEO
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx |
EXHIBIT A
Exceptions
Notwithstanding anything in the
Agreement to the contrary, the following terms are also part of the Agreement and
supersede any contradictory term contained therein:
