Exhibit 10.3
THIS
EMPLOYMENT AGREEMENT (this “Agreement”), dated as of February 1, 2006 is by and
between Healthways, Inc., a Delaware corporation (the “Company”), and Xxxxxx X.
Xxxxxxxx (the “Executive”).
WHEREAS,
the Company desires that the Executive serve or continue to serve as Chairman 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:
| 1. |
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. |
| 2. |
Term. Subject to termination as stated in Section 6, the term of
employment of the Executive pursuant to this Agreement (as the same may be
extended, the “Term”) shall commence on September 1, 2005 (the
“Effective Date”), and shall have a continuous term expiring on the
date of the Company’s Annual Meeting in January 2008, but in no event later
than January 31, 2008. |
| 3. |
Position. During the Term, the Executive shall serve as Chairman 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
any subsidiary of the Company, and/or in one or more officer positions with 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. |
| 4. |
Duties. During the Term, the Executive shall devote his time and
attention during normal business hours, as normally required to fulfill the role
of non-management, non-executive Chairman, 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 (a) devote
time to charitable and community activities and industry or professional
activities, and/or (b) 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 base salary as of the Effective Date is
$250,000.00 (“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. The Executive shall not participate in the Company’s
bonus plan. |
| (c) |
Long Term Incentive Awards. The Executive shall not participate in the
Company’s long term incentive award plans. |
| (d) |
Vacation. The Executive shall not participate in the Company’s
vacation plan. |
| (e) |
Other Benefits. During the term, the Executive will be entitled to
participate in the Company’s health, dental, vision, life insurance plans,
and long and short term disability plans as they apply to other Executives of
the Company. In addition, the Executive shall receive benefits shown on
Exhibit A. |
| 6. |
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 6 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 the Executive dies during the Term of this Agreement, the
Company shall pay his Base Salary due through the date of his death and any
other compensation to which he is otherwise entitled as of the time of his
death. 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. |
| (c) |
Disability. The Executive’s employment may be terminated by written
notice by either party to the other party, when: |
|
(i)
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 (ii) 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. |
| |
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 any other compensation to which he is otherwise entitled as of
the Date of Termination; |
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(B)
an amount equal to the Executive’s Base Salary for the lesser of eighteen
(18) months following the Date of Termination, or the remaining Term of this
Agreement; 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
the lesser of two (2) years after the Date of Termination or the remaining Term
of this Agreement; provided, that if the Executive instead elects continuation
of group benefits under COBRA, the Company shall pay the full cost of the
premiums for the lesser of two (2) years following the Date of Termination or
the remaining Term of this Agreement. |
| |
The
amounts in clauses (B) and (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 9 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. The Executive’s employment may be
terminated by the Board upon recommendation of the Nominating and Corporate
Governance Committee, 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): |
|
(i)
the continued failure by the Executive to substantially perform his duties after
written notice and failure to cure within sixty (60) days; |
|
(ii)
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; |
|
(iii)
theft or dishonesty by the Executive; |
|
(iv)
intoxication while on duty; or |
|
(v)
willful violation of Company policies or procedures after written notice and
failure to cure within thirty (30) days. |
| |
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.
|
| |
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
9 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. The Executive’s employment may be
terminated by the Board upon recommendation of the Nominating and Corporate
Governance Committee 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: |
|
(i)
all Base Salary and benefits due to the Executive through the Date of
Termination and any other compensation to which he is otherwise entitled as of
the Date of Termination; |
|
(ii)
an amount equal to the Executive’s Base Salary for a total of eighteen (18)
months following the Date of Termination; and |
|
(iii)
group medical benefits and other benefits listed in Section 5(e) and on
Exhibit A, for eighteen (18) months after the Date of Termination. |
| |
The
amount in clause (ii) 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;
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. 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: |
|
(i)
a reduction in the Executive’s Base Salary (unless such reduction is part
of an across the board reduction affecting all Company Senior Executives); |
|
(ii)
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; and |
|
(iii)
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. |
|
(iv)
a reduction in the Executive’s title, or a material and adverse change in
the Executive’s status and responsibilities, or the assignment to Executive
of duties or responsibilities which are materially inconsistent with
Executive’s status and responsibilities. |
| |
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 (i), (ii), (iii) or (iv), 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 any other compensation to which he is otherwise
entitled as of the Date of Termination; |
|
(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 and other benefits listed in Section 5(e) of this
Agreement and on Exhibit A, for eighteen (18) months after the Date of
Termination. |
| |
The
amount in clause (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 this
Agreement; 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. 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. |
| |
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 9 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. If the Executive’s termination of
employment (i) for Good Reason (pursuant to Section (f)) or (ii) without Cause
(pursuant to Section (e)) 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 the 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 Agreement; 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 6. 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. |
| (i) |
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); or |
|
(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. |
| (j) |
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 6(j)). |
| 7. |
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. |
| 8. |
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. |
| 9. |
Confidentiality; Non-Competition; Non-Solicitation |
| (a) |
The Executive acknowledges that: (i) 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, (ii) 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
(iii) 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, the 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 6(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 6(g), the
Executive shall not: |
|
(i)
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. |
|
(ii)
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. |
| (c) |
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 9 and its obligations are reasonable and will not prohibit him from
being employed or employable in the health care industry. |
| (d) |
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. |
| 10. |
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 the Executive has had the opportunity to be
represented by counsel of his choosing. |
| 11. |
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. |
| 12. |
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: |
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|
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To the Executive at:
Xxxxxx X. Xxxxxxxx
0000 X. Xxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000 |
|
To the Company at:
Chairman - Nominating and Corporate
Governance Committee
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
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HEALTHWAYS, INC.
By: /s/ Xxxx
X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: EVP & CFO
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx |
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:
| |
(i) |
The Executive will be entitled to participate in the Company’s 401-(K) plan
and be allowed to contribute to the Company’s Capital Accumulation Plan,
however, Executive will not receive a Company match for contributions to the
Capital Accumulation Plan; |
| |
(ii) |
The Company will continue to pay the premiums on a term life insurance policy in
the amount of $500,000.00 and such policy shall be payable upon the
Executive’s death to the Executive’s estate or to such beneficiaries
as the Executive shall have designated, |
| |
(iii) |
The Executive will be provided an office appropriate to the Chairman and
secretarial support satisfactory to him, |
| |
(iv) |
The Executive will have the use of, and support for, Company owned Blackberry
and computers currently provided. |
