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Exhibit 10.4
EXECUTIVE RETENTION AGREEMENT
This Executive Retention Agreement (the "Agreement") is made the 1st
day of September, 1997 (the "Effective Date"), by and between Horizon Health
Corporation, a Delaware corporation acting by and through its hereunto duly
authorized officer (the "Company"), and Xxxxx Xxx Xxxxxx (the "Executive").
WHEREAS, the Executive is presently in the employ of the Company in
the capacity of Chairman and Chief Executive Officer, and the Company desires
to retain the services of the Executive on a basis which will provide for a
continuity of management for the Company according to the terms and conditions
hereinafter set forth; and
WHEREAS, the Executive is willing to remain in the employ of the
Company in the capacity of Chairman and Chief Executive Officer and, after his
retirement, to provide consulting services to the Company for such management
continuity on such terms and conditions;
NOW, THEREFORE, in consideration of the premises and the mutual terms
and conditions herein contained, the Company and the Executive hereby agree as
follows:
1. Employment.
(a) Retention. Subject to the provisions of Section 7 of
this Agreement, in consideration of the compensation and benefits
hereinafter specified, the Executive hereby agrees to continue his
employment with the Company in the capacity of Chairman and Chief
Executive Officer and to discharge his duties in such capacity. The
Company hereby employs the Executive upon the terms and conditions
hereinafter set forth.
(b) Exclusive Services. During the term of his
employment, the Executive shall devote his full working time, ability
and attention to the business of the Company during the term of this
Agreement and shall not, directly or indirectly, render any services
of a business, commercial or professional nature to any other person,
corporation or organization, whether for compensation or otherwise,
without the prior knowledge and consent of the Board of Directors (the
"Board") of the Company; provided, however, that the provisions of
this Agreement shall not be construed as preventing the Executive from
investing in other non-competitive businesses or enterprises if such
investments do not require substantial services on the part of the
Executive in the affairs or operations of any such business or
enterprise so as to significantly diminish the performance by the
Executive of his duties, functions and responsibilities under this
Agreement.
(c) Authority and Duties. During the term of his
employment, the Executive shall have such authority and shall perform
such duties, functions and responsibilities as are specified by the
Bylaws of the Company and as are necessary or appropriate for the
office of the Chairman and Chief Executive Officer of the Company and
shall serve with
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the necessary power and authority commensurate with such position and consistent
with the manner with which the Executive has carried out the responsibilities of
such office in the past.
2. Term.
(a) Term. This Agreement shall have a term of five (5)
years commencing on the Effective Date; subject, however, to automatic
renewal and to earlier termination as hereinafter provided.
(b) Automatic Renewal. Commencing on August 31, 1999,
and continuing each and every day thereafter, the then remaining three
year term of this Agreement shall be automatically extended for an
additional day so that on each and every day after the first two years
of the term of this Agreement there shall always be a remaining term
of three (3) years unless and until the Company gives written notice
to the Executive that the term of this Agreement shall not be further
so extended, in which case the term of this Agreement shall not be
further automatically extended after the date of receipt of such
notice by the Executive.
3. Compensation. As compensation for his services rendered under
this Agreement as the Chairman and Chief Executive Officer of the Company, the
Executive shall be entitled to receive for his employment services the
following:
(a) Base Salary. The Executive shall be paid an annual
base salary of $280,000 per year, payable in equal monthly
installments during the term of his employment, which shall be
prorated for any partial employment month. Such base salary shall be
subject to increase, but not decrease, by the Compensation Committee
of the Board in its sole discretion.
(b) Bonuses. For each fiscal year of the Company or
portion thereof that expires during the term of the employment of the
Executive after the fiscal year ended August 31, 1997, the
Compensation Committee shall adopt a bonus plan under which the
Executive shall have the ability to earn a bonus in an amount up to
one hundred percent (100%) of his base salary for each such respective
fiscal year. The terms, conditions and performance criteria
applicable to such bonuses shall be determined by the Compensation
Committee of the Board. Any bonus payable with respect to any partial
fiscal year of the Company that occurs during the term of the
employment of the Executive shall be prorated based on the number of
days of such fiscal year that occurred prior to the termination date
of employment or retirement to consultant status, whichever is
applicable. Each bonus payment due under this Section 3(b) shall be
made to the Executive within 90 days after the end of the fiscal year
with respect to which such bonus payment is due, regardless of whether
or not the employment of the Executive or the term of this Agreement
terminated prior to the due date of such payment.
(c) Stock Options. The Executive shall be granted stock
options to purchase shares of Common Stock of the Company in such
amounts, at such exercise prices and
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upon such terms and conditions as may be determined by the
Compensation Committee of the Board in its sole discretion; provided,
however, that
i) Vesting. Any stock options granted in the
fiscal year ending August 31, 1998 shall have a term of ten
(10) years and shall vest not less than ten percent (10%) per
year at the end of each of the first eight years after the
date of the grant of the option and the remaining twenty
percent (20%) shall vest no later than at the end of the ninth
year after the date of the grant. Additionally, options
granted in each fiscal year thereafter shall fully vest over a
total period being one year less than the total vesting period
of stock options granted in the prior fiscal year (i.e., stock
options granted in the fiscal year ending August 31, 1999
shall fully vest over eight years, etc.) until the total
vesting period is reduced to three years where it shall remain
for any stock options thereafter granted during the term of
this Agreement and the percentage of the stock options that
vest each year shall be not less than ten percent (10%) per
year until the final year of vesting when all such stock
options shall vest.
ii) Acceleration of Vesting. All stock options
granted to the Executive on or after the Effective Date shall
contain a provision that, upon termination of this Agreement
(including as a result of a resignation with good reason as
defined herein after the occurrence of a change of control as
defined herein), except when such termination of this
Agreement is by the Company with cause (as defined herein),
all unvested stock options shall be accelerated and shall
become immediately vested and exercisable irrespective of when
such stock options otherwise would have vested.
iii) Termination. All stock options granted to
the Executive shall not terminate upon the retirement of the
Executive so long as the Executive continues as a consultant
to the Company.
All stock options previously granted to the Executive by the Company
prior to the Effective Date shall not be amended to incorporate the
foregoing provisions of Sections 3(c)(ii) and (iii) above but such
provisions shall be incorporated as a part of any stock options
granted on or after the Effective Date.
(d) Additional Compensation. The Executive shall be paid
such additional compensation and bonuses, if any, as may be determined
by the Compensation Committee of the Board from time to time, in its
sole and absolute discretion.
4. Benefits. During the term of this Agreement, in addition to
the compensation to be paid to the Executive pursuant to Section 3 or Section 7
hereof, the Executive shall be included and entitled to participate in any
hospital, surgical, and medical benefit plan, any group term life insurance
policy, any disability insurance policy, any pension or profit sharing plan, or
any other fringe benefits which may be extended generally to senior executive
officers of the Company by the Board of Directors from time to time. The
Company agrees that it shall provide such benefits
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to the Executive on the same basis as the Company makes such benefits available
to its senior executive officers from time to time.
5. Reimbursement of Expenses. Subject to such reasonable rules
and procedures as from time to time are specified by the Company or the Board,
the Company shall reimburse the Executive on a timely basis for reasonable
business expenses necessarily incurred in the performance of his duties under
this Agreement.
6. Place of Performance. During the term hereof, the principal
executive offices of the Company and the principal place for performance by the
Executive of his duties, functions and responsibilities under this Agreement
shall be in the Dallas, Ft. Worth, Denton, Texas metropolitan area.
7. Consulting Services. At any time during the term of this
Agreement, the Executive may elect at his sole discretion to retire as the
Chief Executive Officer of the Company. In such event, the Executive shall
become a consultant to the Company and provide consulting services to the
Company, and the Company shall retain the Executive as an independent
consultant, on the following terms and conditions, to-wit:
(a) Consulting Services. The Executive shall provide
consulting services as an independent consultant and not as an
employee with respect to such business and other matters pertaining to
the Company as may be reasonably requested by the Company from time to
time and shall be willing to serve as the Chairman of the Board of
Directors of the Company.
(b) Term. The term of this Agreement shall remain in
effect without change notwithstanding such retirement and shall
continue to be automatically renewed, subject to the provisions of
Section 2(b) until terminated in accordance with the express terms of
this Agreement.
(c) Consulting Fees. The Company shall pay to the
Executive an annual consultant fee for his consulting services in an
amount equal to seventy-five percent (75%) of the annual base salary
of the Executive in effect immediately prior to the date of retirement
payable in equal monthly installments.
(d) Bonuses. After the date of retirement, the Executive
shall not be entitled to any bonuses under Section 3(b) of this
Agreement except for any bonus earned up to the date of retirement
even if payable at a later date.
(e) Stock Options. All stock options granted to the
Executive prior to the date of retirement shall not be modified,
accelerated, terminated or otherwise changed in any respect solely as
a result of the retirement of the Executive to consultant status and
shall continue in full force and effect. All stock options granted to
the Executive shall expressly provide that such stock options shall
not terminate as a result of the termination of employment of the
Executive as a result of his retirement and that such stock options
shall
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continue in full force and effect after the retirement of the
Executive so long as he continues to be a consultant to the Company
under this Agreement.
(f) Benefits/Expenses. The Executive shall continue to
receive the benefits as specified under Section 4 of this Agreement
and to be reimbursed expenses as specified under Section 5 of this
Agreement.
(g) Office. The Executive shall be provided an office at
the principal executive offices of the Company for performing his
consulting services and shall be provided secretarial assistance for
up to twenty (20) hours of secretarial time per week.
(h) Other Terms. Except as expressly set forth above in
this Section 7, all of the terms and provisions of this Agreement
shall continue in full force and effect notwithstanding the change in
status of the Executive under this Agreement from that of an executive
officer to that of a consultant.
8. Confidentiality/Trade Secrets. The Executive acknowledges
that his position with the Company is one of trust and confidence both by
reason of his position and by reason of his access to and contact with the
trade secrets and confidential and proprietary business information of the
Company. Both during the term of this Agreement and thereafter, the Executive
covenants and agrees as follows:
(a) that he will exercise diligence to protect and
safeguard the trade secrets and confidential and proprietary
information of the Company including but not limited to the identity
of its patients, customers and suppliers, the identity of its officers
and other key employees and their areas of expertise, its arrangements
with patients, customers and suppliers, and its technical data,
records, compilations of information, processes, and specifications
relating to its patients, customers, suppliers, products and services;
(b) that he shall not disclose any of such trade secrets
and confidential and proprietary information, except as may be
required in the course of his employment; and
(c) that he shall not use, directly or indirectly, for
his own benefit or for the benefit of another, any of such trade
secrets and confidential and proprietary information.
All files, records, documents, drawings, specifications, memoranda, notes, or
other documents relating to the business of the Company, whether prepared by
the Executive or otherwise coming into his possession shall be the exclusive
property of the Company and shall be delivered to the Company and not retained
by the Executive upon termination of this Agreement for any reason whatsoever.
The Executive shall not be required to keep confidential or restrict
the use of any trade secrets or confidential and proprietary data and
information of the Company (i) which he may be required to disclose at the
express direction of any authorized government agency, pursuant to a subpoena
or other court process, or as otherwise required by any law, rule, regulation
or order
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of any regulatory body, (ii) which has become generally available to the public
by means other than a breach of this Agreement by the Executive, or (iii) as to
which disclosure or use the Board consents in writing in its sole and absolute
discretion.
9. Non-Competition. The Executive covenants and agrees that
during the term of this Agreement and after termination of this Agreement for
the period that the Executive continues to receive payments under Section 15(c)
of this Agreement, if at all, (1) he shall not without the prior written
consent of the Board, in its sole discretion, directly or indirectly, as an
employee, employer, consultant, agent, principal, partner, shareholder,
corporate officer, director or through any kind of ownership or investment
(other than ownership of securities of publicly held corporations of which the
Executive owns less than five percent (5%) of any class of outstanding
securities) or in any other representative or individual capacity, engage in
any business or render any services to any business that is in competition with
the business of the Company and (2) he shall not encourage, solicit or induce,
directly or indirectly, any employee, manager, supervisor, officer or director
of the Company to terminate his or her employment with the Company or any
affiliate of the Company.
Notwithstanding any provision of this Section 9 to the contrary, the
Executive in his sole discretion may elect at any time twenty-four (24) months
or more after the date of termination of this Agreement to not receive any
further payments under Section 15(c) of this Agreement and, in such event, the
provisions of this Section 9 shall not apply from and after the last day of the
month with respect to which a payment is made under Section 15(c) of this
Agreement.
As provided in Section 15(f) of this Agreement in the event that the
Executive resigns without cause at any time during the term of this Agreement,
the Executive shall be subject to the provisions of this Section 9 for a period
of twenty-four (24) months after the date of such resignation in consideration
of the payment of $1,000 per month by the Company to the Executive during such
period.
10. Remedies for Breach of Covenants of the Executive. The
covenants set forth in Sections 8 and 9 of this Agreement shall continue to be
binding upon the Executive, notwithstanding the termination of this Agreement.
It is expressly agreed that the remedy at law for the breach of any such
covenant is inadequate and that injunctive relief, in addition to any other
remedies that may be available to the Company at law or in equity, shall be
available to the Company to prevent to the breach or any threatened breach
thereof.
11. Definition of Change of Control. For purposes of this
Agreement, "change of control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (an "Acquiring
Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of either (i) the
then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power
of the then outstanding voting
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securities of the Company entitled to vote generally in the election
of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a change of control: (i) any
acquisition directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company.
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of an
Acquiring Person other than the Board; or
(c) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
12. Discharge with Cause. For the purposes of this Agreement, the
Company shall be deemed to have terminated the Executive for cause only if any
one of the following conditions existed:
(a) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one
of its affiliates (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand
for substantial performance is delivered to the Executive by the Board
of Directors which specifically identifies the manner in which the
Board of Directors believes the Executive has not substantially
performed the Executive's duties; or
(b) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably
injurious to the Company.
Any termination with cause by the Company under subsections (a) and
(b) above shall be made in good faith at the sole discretion of the Board of
Directors of the Company.
13. Resignation for Good Reason. For the purposes of this
Agreement, the Executive shall be deemed to have resigned for good reason if
the Company assigns to the Executive any duties inconsistent in any material
respect with the Executive's position (including status, office, title, and
reporting requirements), authority, duties or responsibilities or any other
action by the Company which results in material diminution in such position,
authority, duties or responsibilities of the Executive.
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14. Termination.
(a) Termination by the Executive with Cause. The
Executive may, upon written notice effective immediately, terminate
this Agreement "with cause" if any one of the following conditions
exist:
(1) If the Company breaches any material
provision of this Agreement or fails to perform any of its
obligations hereunder, and such breach or failure continues
for at least ten days after the Executive provides written
notice to the Company specifying in reasonable detail the
nature of such breach or failure. It is expressly understood
that (i) during the term of the employment of the Executive as
an officer of the Company, a relocation of the principal
corporate offices of the Company outside of Dallas, Ft. Worth,
Denton, Texas metropolitan area without the prior consent of
the Executive and (ii) the failure to timely pay any amounts
due hereunder each shall constitute a material breach of this
Agreement by the Company.
The resignation of the Executive at any time during the term of this
Agreement when none of the foregoing conditions exist shall be deemed
a resignation without cause by the Executive.
(2) If the Executive resigns for good reason as
defined in Section 13 of this Agreement.
(b) Termination by Company with Cause. The Board may,
upon written notice effective immediately, terminate this Agreement if
any one of the following conditions exist:
(1) If "cause" exists as defined in Section 12 of
this Agreement.
(2) If the Executive should die (effective on the
date of death);
The termination of the Executive by the Company when none of the
foregoing conditions exist shall be deemed to be a termination without
cause.
15. Post-Termination Matters
(a) Salary and Employee Benefits. In the event of the
termination of this Agreement by either party for any reason
whatsoever, the Executive shall be entitled to his salary pursuant to
Section 5(a) or his consulting fees pursuant to Section 7(c), as
applicable, computed on a pro rata basis to and including such date of
termination.
(b) Bonus. During the term of his employment, in the
event that this Agreement is terminated by the Company (other than
with cause as described in Section 12 of this Agreement) or by the
Executive with cause as described in Section 14 of this
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Agreement, the Executive shall be entitled to receive any bonus
specified in Section 3(b) hereof calculated on a pro rata basis to the
date of termination and payable at the same time when such bonus would
have otherwise been payable.
(c) Severance Payment. In the event that this Agreement
is terminated by the Company (other than with cause as described in
Section 12 of this Agreement) or by the Executive with cause as
described in Section 14 of this Agreement, the Executive shall be
entitled to receive as a severance cash payment the full amount of the
base salary if such termination occurs while the Executive is an
employee or the full amount of the consulting fees if such termination
occurs while the Executive is a consultant which would have been paid
to the Executive over the then remaining unexpired term of this
Agreement, payable in equal consecutive monthly installments
commencing on the first day of the month after the date of termination
and continuing for the then unexpired term of this Agreement.
Notwithstanding the foregoing, the Executive may
elect in his sole discretion at any time twenty-four (24) months or
more after the date of termination of this Agreement to not receive
any further payments under this Section 15(c) and, in such event, the
provisions of Section 9 of this Agreement shall not be applicable and
shall have no further force or effect.
(d) Vesting of Benefits. In the event that this
Agreement is terminated by the Company (other than with cause as
described in Section 12 of this Agreement) or by the Executive with
cause as described in Section 14 of this Agreement (but only after a
change of control has occurred in the event of a resignation for good
reason), all stock options granted by the Company to the Executive
(whether prior to or after the Effective Date), all contributions made
by the Company for the account of the Executive to any pension, thrift
or any other benefit plan, and all other benefits or bonuses which
contain vesting or exercisability provisions conditioned upon or
subject to the continued employment of the Executive, shall become
fully vested and exercisable; provided, however, that if any such
amount, benefit, or payment cannot become fully vested pursuant to
such plan or arrangement on account of limitations imposed by law, the
Executive shall be entitled, to the extent permitted by law, to
receive from the Company an amount in cash payable within 30 days of
the date of termination equal to the total amount of benefits or
payments which the Executive will have to forfeit pursuant to such
plan or arrangement on account of such termination of employment.
(e) Continuation of Benefits. In the event that this
Agreement is terminated by the Company (other than with cause as
described in Section 12 of this Agreement) or by the Executive with
cause as described in Section 14 of this Agreement, the Company shall
continue the participation of the Executive on the same basis as
extended to senior executive officers of the Company from time to time
in all life, accident, disability, medical, dental and all other
health plans maintained by the Company for its senior executives for
the period equal to the unexpired term of this Agreement.
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(f) Resignation Without Cause by the Executive. In the
event that the Executive resigns without cause during the term of this
Agreement, then the Executive shall not be entitled to any of the
benefits under Sections 15(b)(c)(d) or (e) above, but shall be
obligated to comply with the provisions of Section 9 of this Agreement
for a period of twenty-four (24) months in consideration of the
payment of $1,000 per month by the Company to the Executive during
such period.
16. Tax Matters. If the Executive is a disqualified individual
(as the term "disqualified individual" is defined in Section 280G of the
Internal Revenue Code) and if any portion of the severance benefits under this
Agreement would be an excess parachute payment (as the term "excess parachute
payment" is defined in Section 280G of the Code) but for the application of
this sentence, then the amount of the severance benefits otherwise payable to
the Executive pursuant to this Agreement will be reduced to the minimum extent
necessary (but in no event to less than zero) so that no portion of the
severance benefits, as so reduced, constitutes an excess parachute payment.
The determination of whether any reduction in the amount of the severance
benefits is required pursuant to this Section 17(a) will be made by the
Company's independent accountants. The fact that the Executive has his
Severance Benefits reduced as a result of the limitations set forth in this
Section 17(a) will not of itself limit or otherwise affect any rights of the
Executive arising other than pursuant to this Agreement.
Notwithstanding the foregoing, in the event that the Company
terminates this Agreement without cause (as defined in Section 12 of this
Agreement) and any portion of the severance benefits payable hereunder in such
event would be an excess parachute payment, then the foregoing limitation
specified in this Section 16 shall not apply and, instead, the Company will
also pay to the Executive an additional amount in cash equal to the amount
necessary to cause the aggregate amount payable under this Agreement including
such additional cash payment (net of all taxes payable as a result of the
application of Sections 280G and 4999 of the Code and net of all federal income
taxes payable with respect to such additional payment), to be equal to the
aggregate amount payable under this Agreement as if Sections 280G and 4999 of
the Code (and any successor provisions thereto) had not been enacted into law.
17. General Provisions.
(a) Notices. Any notices to be given hereunder by either
party to the other may be effected either by personal delivery or by
fax in writing or by mail, registered or certified, postage prepaid,
with return receipt requested. Personal delivery to the Board shall
be to any member of the Board of Directors other than the Executive.
Mailed notices shall be addressed as follows:
(1) If to the Company:
Horizon Health Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000-0000
Attn: Board of Directors
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(2) If to the Executive:
Xxxxx Xxx Xxxxxx
000 Xx Xxxx
Xxxxxx, Xxxxx 00000
Either party may change its address for notice by giving notice in
accordance with the terms of this Section 17(a) of this Agreement.
(b) Law Governing. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas.
(c) Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under
present or future laws effective during the term hereof, such
provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by
its severance therefrom. Furthermore, in lieu of such illegal,
invalid or unenforceable provision there shall be added automatically
as part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and
still be legal, valid or enforceable.
(d) Entire Agreement. This Agreement sets forth the
entire understanding of the parties and supersedes all prior
agreements or understandings, whether written or oral, with respect to
the subject matter hereof. No terms, conditions or warranties, other
than those contained herein, and no amendments or modifications hereto
shall be binding unless made in writing and signed by the parties
hereto.
(e) Binding Effect. This Agreement shall extend to and
be binding upon and inure to the benefit of the parties hereto, their
respective heirs, representatives, successors and assigns. All of the
provisions of this Agreement shall be fully applicable to any
successor to the Company resulting from a change of control. The
Company agrees that in the event of a tender or exchange offer,
merger, consolidation or liquidation or any such similar event
involving the Company, its securities or assets, it shall reveal the
existence of this Agreement to the acquiring person or entity. The
Company further agrees that if such action is not inconsistent with
the best interests of the Company, it shall condition approval of any
transactions proposed by the acquiror upon obtaining the consent, in
writing, of the potential successor to the Company to be bound by this
Agreement. In the event the Executive dies prior to the termination
of this Agreement, any compensation or other payment due and owing to
the Executive on or before the date of the Executive's death shall be
paid to his estate, executors, administrators, heirs or legal
representatives. Since the duties and services of the Executive
hereunder are special, personal and unique in nature, the Executive
may not transfer, sell or otherwise assign his rights, obligations or
benefits under this Agreement.
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(f) Remedies. If the Executive or the Company shall file
any judicial action for enforcement of this Agreement and successfully
recover compensation or damages, the successful party shall be
entitled to recover in such proceeding an additional amount equal to
interest at ten percent (10%) per annum on the amount recovered from
the date such amount was due and payable together with all expenses
and reasonable attorneys' fees incurred in obtaining legal advice and
counseling respecting his or its rights under this Agreement and in
prosecuting and disposing of such action. The provisions of this
Section shall be cumulative and without prejudice to any other right
or remedy to which the Executive or the Company may be entitled either
at law, in equity or under this Agreement and shall not constitute the
exclusive remedy of the Executive or the Company for breach of this
Agreement.
(g) Waiver. The waiver by either party hereto of a
breach of any term or provision of this Agreement shall not operate or
be construed as a waiver of a subsequent breach of the same provisions
by either party or of the breach of any other term or provision of
this Agreement.
(h) Titles. Titles of the paragraphs herein are used
solely for convenience and shall not be used for interpretation or
construing any word, clause, paragraph or provision of this Agreement.
(i) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be an original, but which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Executive Retention Agreement as of the day and year first written above.
COMPANY:
HORIZON HEALTH CORPORATION
By: /s/ XXXXX X. XXXXXX
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Its: Executive Vice President
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EXECUTIVE:
/s/ XXXXX XXX XXXXXX
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XXXXX XXX XXXXXX
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