EXHIBIT 10.1
EXECUTIVE RETENTION AGREEMENT
This Executive Retention Agreement (the "Agreement") is made the 1st day of
May, 2003 (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 Company desires to retain the services of the Executive in the
capacity of Chairman and Chief Executive Officer of the Company 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 serve 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 be employed 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 the
necessary power and authority commensurate with such position and
consistent with the
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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 May 1, 2005, 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; provided, however, that in no
event shall the term of this Agreement be extended beyond August 31, 2013.
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
$400,000 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 beginning
with the fiscal year ending August 31, 2003, 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 100,000 shares of Common Stock of the Company, at an exercise
price equal to the closing price of the Company's Common Stock on the
NASDAQ National Market on the
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Effective Date and shall further provide that:
(i) Vesting. Such stock options shall vest in two installments as
follows: options for 50,000 shares shall vest on April 30, 2004 and
options for 50,000 shares shall vest on April 30, 2005; provided that
the Executive is still serving as the Chief Executive Officer of the
Company on such respective vesting date and provided further that, in
the event of the death of the Executive while serving as the Chief
Executive Officer of the Company, the vesting of such options shall be
accelerated and such options shall automatically fully vest as of the
date of death.
(ii) Term. All such stock options shall have a term of ten (10)
years.
(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 Section 3(c)(iii) above but such provisions shall be
incorporated as a part of any stock options granted on or after the
Effective Date. In addition, such stock options granted on the Effective
Date and all stock options granted to the Executive 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.
(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.
(a) 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 to the Executive on the
same basis as the Company makes such benefits available to its senior
executive officers from time to time.
(b) In order to permit the Executive to exercise stock options and
sell shares of the Company in a manner that will not be disruptive on the
public market for the Common Stock of the Company, the Company agrees that,
during the period from August 1, 2003
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to July 31, 2004, it will purchase from the Executive up to 50,000 shares
of Common Stock of the Company that the Executive in his discretion may
elect to sell to the Company at any time and from time to time during such
period. The purchase price of any such shares that the Executive elects to
sell shall be the closing price on the NASDAQ National Market on the date
of the sale or sales. The obligation of the Company to purchase such shares
shall be subject to and conditioned upon (i) compliance with all applicable
corporate and securities laws requirements; (ii) satisfaction of all
fiduciary duties of the Board of Directors of the Company and (iii)
compliance with any applicable requirements under the bank credit facility
of the Company.
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 be willing to
continue to serve as Chairman of the Company and 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.
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(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 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 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.
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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 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
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shares of common stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding voting
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.
14. Termination.
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(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:
(i) 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, or
(ii) If the Executive resigns for good reason as defined in
Section 13 of this Agreement.
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.
(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:
(i) If "cause" exists as defined in Section 12 of this Agreement,
or
(ii) 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 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.
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(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 determined as if the Company had given notice of
non-extension as contemplated by Section 2(b) of this Agreement effective
on the date of termination, payable in equal consecutive monthly
installments commencing on the first day of the month after the date of
termination and continuing for such 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.
(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
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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.
(g) Death Benefits. In the event that this Agreement is terminated due
to the death of the Executive, the Company shall:
(i) pay to the estate of the Executive or his designated
beneficiary an amount equal to the annual base salary of the Executive
in effect on the date of death if such termination occurs while the
Executive is an employee or the annual consulting fee in effect on the
date of death if such termination occurs while the Executive is a
consultant, such amount of annual base salary or annual consulting fee
for one year to be payable, however, in equal consecutive monthly
installments over a period of twenty-four (24) months commencing on
the first day of the month after the date of such termination; and
(ii) shall continue the participation of the spouse of the
Executive at the expense of the Company in all life, accident,
disability, medical, dental and other health plans maintained by the
Company for its senior executives for a period of twenty-four (24)
months beginning with the first month after the date of such
termination.
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 16(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 16(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.
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(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: Chairman of the Compensation Committee
of the Board of Directors
(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, including, without limitation, that certain Executive Retention
Agreement, dated September 1, 1997, between the Executive and the Company
which is superseded in its entirety by this Agreement. 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
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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.
(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.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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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/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxx
Chairman of the Compensation Committee
of the Board of Directors
EXECUTIVE:
/s/ Xxxxx Xxx Xxxxxx
----------------------------
Xxxxx Xxx Xxxxxx
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