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EXHIBIT 10.1
EXECUTIVE AGREEMENT
(SEVERANCE/NON-COMPETITION)
This Executive Agreement (the "Agreement") is made as of August 31,
1999, by and between Horizon Health Corporation, a Delaware corporation
(hereinafter referred to as "Horizon"), and Xxxxxx X. Xxxxxx (hereinafter
referred to as "Executive").
WHEREAS, the Executive is employed as a Senior Vice President and Chief
Financial Officer of Horizon; and
WHEREAS, the Executive and Horizon have agreed to enter into a
severance agreement, in part, for and in consideration of the agreement of the
Executive to a non-competition agreement on the terms and conditions hereinafter
set forth;
In consideration of the premises and the mutual terms and conditions
hereinafter set forth, Horizon and the Executive hereby agree as follows:
1. SEVERANCE AGREEMENT. In the event of the termination of the
employment of the Executive without Cause (as defined in Section 2 hereof) by
Horizon, Executive shall be entitled to severance pay in an amount equal to the
Executive's annual base salary then in effect on the date of termination of
employment (exclusive of any earned or unearned bonus.) Such severance pay shall
be payable in twelve (12) equal monthly installments payable on the first
regular payroll payment date of Horizon in each calendar month of Horizon
commencing on such date in the month after the month in which termination of
employment occurs. No severance pay shall be payable to the Executive in the
event of (a) the voluntary termination of employment by the Executive, (b) the
termination of employment of the Executive by Horizon with Cause or (c) the
termination of employment of the Executive due to death, disability or
retirement.
2. DEFINITION OF CAUSE. For purposes of this Agreement, the term
"Cause" shall mean: (i) conviction of a crime punishable by imprisonment under
state or federal law; (ii) commission of any act of dishonesty against Horizon;
(iii) willful and material failure to perform the employment duties by the
Executive and the continuation of such failure for at least ten days after
Horizon provides written notice to the Executive specifying in reasonable detail
the nature of such failure, (iv) failure by the Executive to devote
substantially all his working, time and ability exclusively to the attention of
Horizon; or (v) the failure of the Executive to exercise diligence to protect
the trade secrets and confidential and proprietary information of Horizon.
3. NON-COMPETITION AND CONFIDENTIALITY.
a. NON-COMPETITION. Executive recognizes and understands that
in performing the responsibilities of his employment, he will occupy a position
of fiduciary trust and confidence, pursuant to which he will develop and acquire
experience and knowledge with respect to the business of Horizon and its
confidential proprietary information. It is the express intent and agreement of
Executive and Horizon that such knowledge and experience shall be used
exclusively in the furtherance of the interests of Horizon and not in any manner
which would be detrimental to Horizon's interests. Executive further understands
and agrees that Horizon conducts its business within a specialized market
segment throughout the United States and that it would be detrimental to the
interests of Horizon if Executive used the knowledge and experience which he
acquires pursuant to his employment and position with
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Horizon for the purpose of directly or indirectly competing with Horizon, or for
the purpose of aiding other persons or entities in so competing with Horizon,
anywhere in the United States.
Executive therefore agrees that so long as he is employed by
Horizon and for a period of one (1) year from the date of termination of
employment for any reason whatsoever, with or without Cause, (unless Executive
first secures the written consent of Horizon)
i. Executive shall not, 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 publically held corporations of which
Executive owns less than four percent (4%) of any class of outstanding
securities), engage in any business or render any services to any business that
is in competition with the business conducted by Horizon on the date of
termination of employment; and
ii. Executive shall not encourage, solicit or
induce, directly or indirectly, any manager, supervisor, officer, director or
employee of Horizon to terminate his or her employment with Horizon or hire any
such individual.
The foregoing non-competition provisions are not to be
construed to prohibit Executive from being employed in the health care industry,
but rather to permit him to be so employed so long as such employment does not
involve Executive's direct or indirect participation in a business which is the
same or similar to Horizon's business.
b. CONFIDENTIALITY. Executive acknowledges that, in rendering
his services, he shall have access to and contact with the trade secrets and
confidential and proprietary business information of Horizon. Both during the
term of this Agreement and thereafter, Executive covenants and agrees as
follows:
i. That he shall use his best efforts and
exercise utmost diligence to protect and safeguard the trade secrets and
confidential and proprietary information of the Company;
ii. That he shall not disclose any of such trade
secrets and confidential and proprietary information, except as may be required
in the course of performing his services under this Agreement; and
iii. 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, 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 Horizon
and shall be delivered to Horizon and not retained by the Executive upon
termination of employment for any reason whatsoever.
It is expressly understood, however, that the foregoing shall not apply
to any information that was generally available to the public in a
non-confidential basis prior to the date of this Agreement or was or becomes
generally available to the public on a non-confidential basis from a third-party
who is not bound to keep such information confidential.
c. REMEDIES. Executive acknowledges that the restrictions
contained in Section 3 are reasonable and necessary to protect the legitimate
interests of Horizon in view of the nature of the
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business in which Horizon is engaged. Executive understands that the remedies at
law for his violations of any of the covenants of provisions of Section 3 will
be inadequate, that such violation will cause irreparable injury within a short
period of time, and that Horizon shall be entitled to preliminary injunctive
relief against such violation and specific performance of such covenants. Such
injunctive relief and specific performances shall be in addition to, and in no
way in limitation of, any and all other remedies Horizon shall have in law and
equity for the enforcement of those covenants and provisions.
4. GENERAL PROVISIONS.
a. NOTICES. Any notice to be given hereunder by either party
to the other may be effected in writing by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses set forth below, but
each party may change his or its address by written notice in accordance with
this Section 4(a). Notice delivered personally shall be deemed communicated as
of the date of the actual receipt; mailed notices shall be deemed communicated
as of three days after the date of mailing.
If to Executive: Xxxxxx X. Xxxxxx
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If to Horizon: 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: President
b. PARTIAL INVALIDITY. If any provision in this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
such provision shall be fully severable and the remaining provisions shall,
nevertheless, continue in full force and without being impaired or invalidated
in any way. Furthermore, in lieu of such invalid, void or unenforceable
provision there shall be added automatically as a part of this Agreement, a
provision as similar in terms to such invalid, void or unenforceable provision
as may be possible and still be legal, valid and enforceable.
c. GOVERNING AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas.
d. ENTIRE AGREEMENT. This Agreement constitutes the sole and
complete agreement of the parties, and supersedes all other agreements and
understandings, whether oral or written, between parties hereto with respect to
the subject matter hereof. Each party to this Agreement acknowledges that no
representations, inducements or agreements, oral or otherwise, not contained in
this Agreement, and no other agreement, statement or promise not contained in
this Agreement shall be valid or binding. Any modification of this Agreement
will be effective only if it is in writing signed by the parties hereto.
e. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Executive Agreement
as of the date first written above.
HORIZON HEALTH CORPORATION
By: /s/ Xxxxx X. XxXxxx
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Xxxxx X. XxXxxx, President
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
