AGREEMENT
Exhibit
10.1
THIS
AGREEMENT (the “Agreement”), dated as of June
29, 2007 (the “Effective Time”), is made and
entered into by and among Odyssey HealthCare, Inc., a Delaware corporation
(the
“Company”), and Xxxxxxx X. Xxxxxxxxx
(“Employee”).
W
I T N E S S E T H:
WHEREAS,
Employee and the Company are party to that certain Employment Agreement of
Xxxxxxx X. Xxxxxxxxx, made and entered into as of August 1, 2005 (the
“Employment Agreement”), a true and correct
copy of which is attached hereto as Exhibit A;
WHEREAS,
Employee has announced her resignation as Senior Vice President and Chief
Operating Officer of the Company (the
“Resignation”), and Employee and the Company
have mutually agreed that such resignation will be effective on the earlier
to
occur (such date, the “Resignation Effective
Time”) of (i) the Company’s employment of a Chief Operating
Officer to replace Employee in such position or (ii) July 1, 2007;
WHEREAS,
the Company and Employee have mutually agreed to the termination of the
Employment Agreement, without further rights or obligations of either party
under the Employment Agreement (except to the extent that any such rights
or
obligations are expressly incorporated herein), effective as of the Effective
Time;
WHEREAS,
upon the termination of the Employment Agreement, (i) the Company desires
to
retain the services of Employee, and Employee desires to be employed by the
Company as an at-will employee and to continue to serve as Senior Vice President
and Chief Operating Officer of the Company until the Resignation Effective
Time
and (ii) following the Resignation Effective Time, the Company desires to
continue to retain the services of Employee, and Employee desires to remain
employed by the Company as an at-will employee and to continue to serve as
Regional Vice President of the Company’s Southeast Region, in the case of
clauses (i) and (ii), upon the terms and conditions set forth in this Agreement;
and
WHEREAS,
each capitalized term used but not otherwise defined herein shall have the
meaning given such term in the Employment Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants, agreements, and promises
set forth herein, and for other good a valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, Employee and the Company hereby
agree as follows:
1. Acknowledgement;
Termination of Employment Agreement. The parties hereby
represent and warrant that prior to the Effective Time, Employee’s employment
relationship with the Company was pursuant to and governed solely by the
Employment Agreement. Effective as of the Resignation Effective Time,
Employee resigns as Senior Vice President and Chief Operating Officer of
the
Company and as an officer of the Company’s subsidiaries, including, without
limitation, Odyssey HealthCare Holding Company, Odyssey HealthCare GP, LLC,
Hospice of the Palm Coast, Inc., Odyssey HealthCare Management, LP, Odyssey
HealthCare Operating A, LP, Odyssey HealthCare Operating B, LP, and Odyssey
HealthCare Foundation. In connection with Employee’s resignation, the parties
hereby agree that the Employment Agreement is hereby terminated in full as
of
the Effective Time, except as set forth in Section 4,
without any further action on the part of the Company or Employee and, except
as
set forth in Section 4, thereafter
shall be of no further force or effect. From and after the date of
termination of the Employment Agreement, Employee shall not be entitled to
receive any further wages, compensation, or benefits arising pursuant to
the
Employment Agreement, and neither the Company nor Employee shall have any
rights
or obligations thereunder, other than as provided in Section 4. Employee
agrees to execute all further documents which the Company may reasonably
request
of her to effectuate such resignations.
2. Continued
Services.
(a) At
Will Employment. Effective as of the Effective Time, and
subject to such terms and conditions as are set forth in this Agreement,
the
Company hereby retains Employee as an employee to perform such services on
behalf of the Company as set forth herein or as may be mutually agreed to
in
writing by the Company and Employee, and Employee hereby accepts such employment
from the Company. Until the Resignation Effective Time, Employee
shall serve as Senior Vice President and Chief Operating Officer of the Company,
and shall have such powers and duties (including holding officer positions
with
one or more Subsidiaries of the Company) as may be assigned from time to
time by
the Board of Directors of the Company (the
“Board”). Following the Resignation
Effective Time, Employee shall no longer serve as Senior Vice President and
Chief Operating Officer of the Company, but shall serve as Regional Vice
President of the Company’s Southeast Region, and shall have such powers and
duties as may be assigned from time to time by the President or the Chief
Operating Officer of the Company. The Company has the right to
terminate the Employee’s employment under this Section 2(a)
at will (for any reason or no reason), and, in the event the Company exercises
such right of termination, the Company shall pay to Employee any compensation
or
benefits due Employee pursuant to Section 2(b)
and Section 2(c),
if applicable, through and including the date of such termination, and
thereafter the Company shall have no further obligation to Employee hereunder
or
otherwise, except as required by the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”) or other applicable
law.
(b) Employee
Compensation and Benefits.
(i) Annual
Base Salary. Employee shall receive an annual base salary
(“Annual Base Salary”) which shall be paid
bi-weekly in accordance with customary payroll practices of the
Company. Employee’s Annual Base Salary shall be $335,000.00 per year
until December 31, 2007. Effective January 1, 2008 and thereafter for
so long as Employee remains in the employ of the Company, subject to any
increases or decreases in salary as the President in his discretion from
time to
time shall deem appropriate, Employee’s Annual Base Salary shall be $183,000.00
per year.
(ii) Pro-Rated
2007 Annual Bonus. Employee shall be entitled to receive an
annual bonus for 2007 for her service as Senior Vice President and Chief
Operating Officer from January 1, 2007 through the Resignation Effective
Time. Such bonus shall be a pro-rated amount equal to the product of
(i) the amount of the annual bonus, if any, to which Employee would have
been
entitled for calendar 2007 if Employee had not resigned as Senior Vice President
and Chief Operating Officer of the Company, multiplied by (ii) a
fraction, the numerator of which is the number of days that have elapsed
since
January 1, 2007 through (but not including) the Resignation Effective Time,
and
the denominator of which is the total number of days in 2007. Such
bonus shall be paid at such time as the Company pays the executives of the
Company annual bonuses for the 2007 calendar year (but in no event later
than
the fifth business day after the Company publicly announces its earnings
for
such calendar year in a press release), whether or not Employee is then employed
by the Company. Except for the foregoing bonus, Employee shall not be
entitled to receive any other bonus from the Company for the 2007 calendar
year.
Effective January 1, 2008 and thereafter for so long
as Employee remains in the employ of the Company as one of its Regional Vice
Presidents, Employee shall be eligible to participate in such bonus programs
established by the Company from time to time for its Regional Vice
Presidents.
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(iii) Benefits. The
Company agrees to provide Employee with such health insurance and other benefits
as are generally made available to the Company’s common law employees for so
long as Employee remains in the employ of the Company.
(c) Guaranteed
Salary Payment. If the Company terminates Employee’s
employment on or prior to December 31, 2007 for any reason other than Cause,
Employee shall be entitled to continue to receive the compensation described
in
Section 2(b)(i)
through December 31, 2007, payable as described in Section 2(b)(i).
(d) Withholding. The
Company may withhold from any amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) Notice
of Termination. Any termination by the Company for any or no
reason, or by Employee’s resignation, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 6(a). For
purposes of this Agreement, a “Notice of Termination” means a written notice
which, to the extent applicable, sets forth in reasonable detail the facts
and
circumstances that provide a basis for termination of Employee’s
employment. The failure by the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of
Cause
shall not waive any right of the Company hereunder or preclude the Company
from
asserting such fact or circumstance in enforcing the Company’s rights
hereunder.
3. Equity
Awards and Agreements. Employee hereby represents and
warrants that, except for the equity award agreements described in Exhibit
B hereto (the “Equity Agreements”), she is
not a party to any stock option, stock appreciation right, restricted stock,
or
similar agreement granting Employee the right to acquire or benefit from
the
appreciation in value of the capital stock of the Company or any of its
subsidiaries. Except for the Retained Awards (as
defined below), Employee and the Company hereby agree that, notwithstanding
any
contrary provision in the Equity Agreements, all stock options, restricted
shares, and/or other equity awards granted to Employee pursuant to the Equity
Agreements shall immediately be terminated and of no further force or
effect. Concurrently with the execution of this Agreement, Employee
and the Company are entering into an Equity Award Termination Agreement,
Release
and Waiver (the “Termination Agreement”)
terminating all Equity Agreements, except the Retained Awards. As
used in this Agreement, “Retained Awards” means
the (i) the Nonstatutory Stock Option Agreement, dated November 20, 2002,
representing the right to acquire 20,000 shares of the Company’s common stock
(45,000 shares after the Company’s three-for-two stock splits on February 6,
2003 and July 28, 2003), of which options to acquire 45,000 shares are
exercisable as of July 1, 2007, (ii) the Nonstatutory Stock Option Agreement,
dated June 20, 2003, representing the right to acquire 75,000 shares of the
Company’s common stock (112,500 shares after the Company’s three-for-two stock
split on July 28, 2003), of which options to acquire 112,500 shares are
exercisable as of July 1, 2007, (iii) the Nonstatutory Stock Option
Agreement, dated January 26, 2004, representing the right to acquire 75,000
shares of the Company’s common stock, of which options to acquire 75,000 shares
are exercisable as of July 1, 2007, (iv) the Restricted Stock Award Agreement,
dated November 18, 2004, representing the right to receive 30,000 shares
of the
Company’s common stock, par value $0.001 per share, and (v) the Nonstatutory
Stock Option Agreement, dated November 16, 2005 (the “November
2005 Option”), representing the right to acquire 90,000 shares
of the Company’s common stock, of which options to acquire 22,500 shares are
exercisable as of July 1, 2007; provided, however, that with
respect to the November 2005 Option, the option shares which are not exercisable
as of July 1, 2007 shall be forfeited as set forth in the Termination Agreement.
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4. Survival
of Specified Provisions in the Employment Agreement. The
following provisions of the Employment Agreement are incorporated herein
by
reference, shall survive the Effective Time, and shall continue in full force
and effect, as such provisions may be amended by this Section 4,
notwithstanding any other provision of this Agreement:
(a) All
definitions contained in the Employment Agreement and used in this Agreement
(including the provisions of the Employment Agreement incorporated by reference
herein), except that:
(i) All
references to “Agreement” in Sections 9 and 10 of the Employment Agreement shall
now refer to this Agreement; and
(ii) The
definition of “Competing Business” as used in the Employment Agreement is hereby
amended and restated in its entirety as follows:
“Competing
Business” means any business that provides hospice care or
services to terminally ill patients.
(iii) The
definition of “Date of Termination” as used in the
Employment Agreement is hereby amended and restated in its entirety as
follows:
“Date
of Termination” means (i) if Employee’s employment is
terminated by reason of Employee’s death, the date of Employee’s death; (ii) if
Employee’s employment is terminated by the Company for any or no reason, the
date specified in the Notice of Termination or, if no date is specified,
the
date on which the Company notifies Employee that Employee’s employment by the
Company is terminated; or (iii) if Employee’s employment is terminated by
Employee, the date specified in the Notice of Termination or agreed to by
the
Company and Employee.
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(b) Section
9
of the Employment Agreement (“Confidential Information; Ownership of Property”),
except that the first sentence of Section 9(a)(i) of the Employment Agreement
is
hereby amended and restated in its entirety as follows:
Employee
acknowledges that the Company has trade, business and financial secrets and
other confidential and proprietary information regarding the Company and
its
business, in whatever form, tangible or intangible (collectively, the
“Confidential Information”), and that, during
the course of Employee’s employment with the Company, Employee has received,
shall receive or be placed in a position to have access to or develop
Confidential Information.
(c) Section
10
of the Employment Agreement (“Non-Competition; Non-Solicitation;
Non-Disparagement”); except that Section 10(a) of the Employment Agreement is
hereby amended and restated in its entirety as follows:
(a)
For the reasons and consideration specified in Section 8 of the
Employment Agreement, which reasons continue to be valid and which consideration
Employee acknowledges was provided as set forth in that Section 8 and
which Employer agrees will continue to be provided in the future, Employee
hereby covenants and agrees that:
(i)
for a
period of two years from the Effective Time, Employee shall not serve as
an
executive, general manager, executive director, director, officer, consultant,
or any other capacity that has duties and responsibilities identical or
substantially similar to the those of the position of Senior Vice President
or
Chief Operating Officer for any Competing Business that operates in any city
(including the 50-mile radius surrounding such city) in which the Company,
or
any of its Subsidiaries, has a facility that engages in its respective business
as of the Effective Time.
(ii)
during her employment with Company and for a period of one year following
the
Date of Termination, Employee shall not:
(A)
serve as an executive, general manager, executive director, director, officer,
consultant, or any other capacity that has duties and responsibilities identical
or substantially similar to those of the position of Regional Vice President
of
the Southeast Region for any Competing Business that operates in any city
(including the 50-mile radius surrounding such city) in the Company’s Southeast
Region in which the Company or any of its Subsidiaries has a facility that
engages in its respective business as of the Effective Time.
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(B)
recruit, hire, assist in hiring, attempt to hire, or contact or solicit with
respect to hiring any Person who, at any time during the 12 month period
preceding the Date of Termination, was an employee of the Company or any
of its
Subsidiaries, provided that Employee may hire any individual who is employed
as
an administrative assistant or clerical employee as of the Date of
Termination;
(C)
induce or attempt to induce any employee of the Company, or any of its
Subsidiaries, to terminate, or in any way interfere with, the relationship
between the Company, or any of its Subsidiaries, and any employee thereof;
or
(D) induce or attempt to induce any current or prospective customer,
client, patient, supplier, service provider, or other business relation of
the
Company, or any of its Subsidiaries, who was served or solicited by Employee
during the term of Employee’s employment to cease doing business with the
Company, or any of its Subsidiaries, or in any way interfere with the actual
or
prospective relationship between the Company, or any of its Subsidiaries,
and
any such individual or entity.
Except
as
otherwise specifically provided in this Section 4,
all of the parties’ rights and obligations under the Employment Agreement are
extinguished upon the effectiveness of this Agreement.
5. General
Release and Covenant Not to Xxx.
(a) Employee,
on behalf of herself and her family, xxxxxxxxx, xxxxx, xxxxxx, agents,
executors, representatives, administrators and each of their respective
successors and assigns (collectively, the “Employee
Parties”), hereby generally releases and forever discharges
the Company and its predecessors, successors, assigns, parents, subsidiaries
and
affiliates and each of the foregoing entities’ respective past, present and
future shareholders, members, partners, managers, directors, officers,
employees, agents, representatives, principals, insurers, attorneys, employee
benefit programs (and the trustees, administrators, fiduciaries and insurers
of
such programs), and any person acting by, through, under or in concert with
any
of the foregoing entities (collectively, the “Company
Parties”) from any and all claims, complaints, charges,
demands, liabilities, suits, damages, losses, expenses, attorneys’ fees,
obligations or causes of action (“Claims”),
known or unknown, of any kind and every nature whatsoever, and whether or
not
accrued or matured, which any of them may have, arising out of or relating
to
any transaction, dealing, relationship, conduct, act or omission, or any
other
matters or things occurring or existing at any time prior to and including
the
Effective Time (including, but not limited to, any Claims against any of
the
Company Parties based on, relating to or arising under wrongful discharge,
retaliation, breach of contract (whether oral or written), tort, fraud,
defamation, slander, breach of privacy, violation of public policy, negligence,
promissory estoppel, Title VII of the Civil Rights Act of 1964, The Age
Discrimination in Employment Act, The Americans with Disabilities Act, the
Employee Retirement Income Security Act of 1974, or any other federal, state
or
local law relating to employment (or unemployment), the payment of wages,
salary
or other compensation, civil or human rights, discrimination in employment
(based on age or any other factor), or raised by that certain letter dated
January 4, 2007, from Xxxxxxx X. Xxxxxx, on behalf of Employee, to Xxxxxx
Xxxxxx,) in all cases arising out of or relating to Employee’s employment by the
Company or any subsidiary thereof or Employee’s investment in the Company or any
subsidiary thereof or her services as an officer or employee of the Company
or
any subsidiary thereof, or otherwise relating to the termination of such
employment or services; provided, however, that this release will
not limit or release (i) Employee’s rights under this Agreement or Employee’s
rights under the Employment Agreement that survive the Effective Time and
are
expressly identified and incorporated by reference herein pursuant to Section
4,
(ii) Employee’s rights to indemnification from any Company Party in respect of
her services as a director, officer or employee of a Company Party (or of
any
entity for which Employee has served in any such capacity or a similar capacity
at the request of the Company) as provided by law, that certain Indemnification
Agreement dated as of April 29, 2004, by and between the Company and Employee
(the “Indemnification Agreement”), or the
certificates of incorporation or bylaws (or like constitutive documents)
of any
Company Party, and (iii) Employee’s rights under the Retained
Awards.
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Employee,
on behalf of herself and each of the other Employee Parties, hereby covenants
forever not to assert, file, prosecute, commence or institute (or sponsor
or
purposely facilitate any person in connection with the foregoing), any complaint
or lawsuit or any legal, equitable, arbitral or administrative proceeding
of any
nature, against any of the Company Parties in connection with any released
Claims, and represents and warrants that no other person or entity has initiated
or, to the extent within her control, will initiate any such proceeding on
her
behalf, and that if such a proceeding is initiated, Employee shall accept
no
benefit therefrom.
(b) The
Company, on its own behalf and on behalf of the other Company Parties, hereby
generally releases and forever discharges the Employee Parties from any and
all
Claims, known or unknown, of any kind and every nature whatsoever, and whether
or not accrued or matured, which any of them may have, arising out of or
relating to any transaction, dealing, relationship, conduct, act or omission,
or
any other matters or things occurring or existing at any time prior to and
including the Effective Time (including but not limited to any Claims based
on,
relating to or arising under breach of contract (whether oral or written),
tort,
fraud, defamation, slander, violation of public policy, negligence, promissory
estoppel, or any other federal, state or local law relating to employment
or
discrimination in employment) in all cases arising out of or relating to
Employee’s employment by the Company or any subsidiary thereof or Employee’s
investment in the Company or any subsidiary thereof or her services as a
director, officer or employee of any Company Party (or of any entity for
which
Employee has served in any such capacity or a similar capacity at the request
of
the Company), or otherwise relating to the termination of such employment
or
services; provided, however, that this release will not limit or
release (i) the Company’s rights under this Agreement or the Company’s rights
under the Employment Agreement that survive the Effective Time and are expressly
identified and incorporated by reference herein pursuant to Section 4,
(ii) the Company’s rights against Employee with respect to any breach of
fiduciary or other legal duties as a director or officer, any fraudulent
or
criminal activity or any action or conduct that would constitute Cause under
the
Employment Agreement, or (iii) the Company’s rights under the Retained
Awards.
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The
Company, on behalf of itself and the other Company Parties, hereby covenants
forever not to assert, file, prosecute, commence or institute (or sponsor
or
purposely facilitate any person in connection with the foregoing), any complaint
or lawsuit or any legal, equitable, arbitral or administrative proceeding
of any
nature, against any of the Employee Parties in connection with any released
Claims, and represents and warrants that no other person or entity has initiated
or to the extent within its control, will initiate any such proceeding on
its
behalf, and that if such a proceeding is initiated, the Company and the other
Company Parties shall accept no benefit therefrom.
6. Additional
Provisions.
(a) Notices. Any
notice, demand, or communication required, permitted, or desired to be given
hereunder, shall be deemed effectively given when personally delivered or
mailed
by prepaid, certified mail, return receipt requested, addressed as
follows:
To
Employee:
|
To
the Company:
|
|
Xxxxxxx
X. Xxxxxxxxx
0000
Xxxxxxxx
Xxxxxx,
Xxxxx 00000
|
Odyssey
HealthCare, Inc.
000
X. Xxxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn: General
Counsel
|
|
With
a copy to:
|
||
P.
Xxxxxxx Xxxxxxx
Xxxxxx
& Xxxxxx LLP
3700
Xxxxxxxx Xxxx Center
0000
Xxxx Xxxxxx
Xxxxxx,
Xxxxx 00000
|
or
to such
other address or addresses as any party hereto may from time to time specify
in
writing in a notice given to the other party in compliance with this Section
6(a). Notices
shall be deemed given upon the earlier of actual receipt or three days after
mailing in accordance with this Section 6(a).
(b) Prior
Agreements. With the exception of (i) the Equity Agreements,
(ii) the Termination Agreement, (iii) that certain Indemnification Agreement,
dated April 29, 2004, by and between the Company and Employee, which is attached
hereto as Exhibit C, and (iv) those provisions of the Employment
Agreement that are specifically incorporated by reference herein in Section
4,
this Agreement integrates the whole of all agreements and understandings
of any
sort or character between the parties concerning the subject matter of this
Agreement and any other dealings between the parties, and supersedes all
prior
negotiations, discussions, or agreements of any sort whatsoever relating
to the
subject matter hereof, or any claims that might have ever been made by one
party
against the other. There are no representations, agreements, or
inducements except as set forth expressly and specifically in this
Agreement. There are no unwritten oral or verbal understandings,
agreements, or representations of any sort whatsoever, it being stipulated
that
the rights of the parties shall be governed exclusively by this
Agreement.
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(c) Certain
Definitions. As used in this Agreement (including the
provisions of the Employment Agreement incorporated by reference herein),
the
following terms have the meanings set forth below:
(i)
“Cause”
means Employee’s
(a) continued
failure to substantially perform Employee’s obligations and duties under
Section 2(a)
(other than as a result of physical or mental incapacity), as reasonably
determined by the Board, and which is not remedied within 30 days after receipt
of written notice from the Company specifically identifying the manner in
which
the Company believes that Employee has not substantially performed Employee’s
obligations and duties under Section 2(a);
(b) commission
of an act of fraud, embezzlement, misappropriation, willful misconduct, bad
faith, dishonesty, breach of trust, or breach of fiduciary duty against the
Company or other conduct materially harmful or potentially materially harmful
to
the Company’s interest, as reasonably determined by the Board after a hearing by
the Board following 10 days’ prior written notice to Employee of such
hearing;
(c) material
breach of Section 4(b)
or Section 4(c);
(d) conviction,
plea of no contest or nolo contendere, deferred adjudication or unadjudicated
probation for any felony or any crime involving moral turpitude;
(e) failure
to carry out, or comply with, in any material respect, any lawful directive
of
the Board, the President or the Chief Operating Officer of the Company
consistent with the terms of this Agreement, which is not remedied within
30
days after receipt of written notice from the Company specifying such
failure;
(f) violation
of the Company’s substance abuse policy; or
(g) suspension
or termination of Employee from the Medicare or Medicaid programs.
(d) Modification
and Waiver. This Agreement may not be modified or amended
except in writing signed by the parties. No term or condition of this
Agreement will be deemed to have been waived except in writing by the party
charged with waiver. A waiver shall operate only as to the specific
term or condition waived and will not operate as, or be construed to be,
a
waiver of any subsequent breach of the same or other provision
hereof. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect
hereof
at law or in equity, or to insist upon compliance by any other party hereto
with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its
right
to exercise any such or other right, power or remedy or to demand such
compliance.
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(e) Counterparts. This
Agreement may be executed and delivered (including by facsimile transmission)
in
any number of counterparts, each of which shall be an original, but all of
which
together shall constitute one and the same instrument. Any
counterpart of this Agreement that has attached to it separate signature
pages
that together contain the signature of all parties hereto shall for all purposes
be deemed a fully executed original. Facsimile signatures shall
constitute original signatures.
(f) Successors
and Assigns. This Agreement and the rights and obligations
hereunder shall bind and inure to the benefit of any successor or successors
of
the Company by way of reorganization, merger or consolidation, and any assignee
of all or substantially all of its business and properties, but, except as
to
any such successor or assignee of the Company, neither this Agreement nor
any
rights or benefits hereunder may be assigned by either party.
(g) Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
for any reason, such provision shall be fully severable; this Agreement shall
be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions
of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from
this
Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provisions, 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 be legal, valid and
enforceable.
(h) Injunctive
Relief. Employee acknowledges that money damages would be
both incalculable and an insufficient remedy for breach by Employee of any
of
the provisions of the Employment Agreement that are specifically incorporated
by
reference herein by Section 4
(i.e., of Sections 9 or 10 of the Employment Agreement, which shall
be
referred to in this Section 6(h)
as the “Incorporated Employment Agreement
Provisions”) and that any such breach would cause the Company
irreparable harm. Accordingly, the Company, in addition to any other
remedies at law or in equity it may have, shall be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance, in connection with a breach by
Employee of the Incorporated Employment Agreement Provisions. The
parties agree that the only circumstance in which disputes between them will
not
be subject exclusively to arbitration pursuant to the provisions in Section
6(n)
is in connection with a breach of the Incorporated Employment Agreement
Provisions by Employee. The parties consent to venue in Dallas
County, Texas and to the exclusive jurisdiction of competent state courts
or
federal courts in Dallas County, Texas for all litigation which may be brought,
subject to the requirement for arbitration in Section 6(n),
with respect to the terms of, and the transactions and relationships
contemplated by, this Agreement. The parties further consent to the
non-exclusive jurisdiction of any state court located within a district which
encompasses assets of a party against which a judgment has been rendered
for the
enforcement of such judgment or award against the assets of such
party.
(i) Governing
Law. This Agreement has been executed and delivered in, and
shall be interpreted, construed, and enforced pursuant to and in accordance
with
the laws of the State of Texas (without giving effect to principles of conflict
of law) and, where applicable, the laws of the United States.
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(j) Remedies
Cumulative. All rights, powers, and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof
by any
party shall not preclude the simultaneous or later exercise of any other
such
right, power, or remedy by such party.
(k) Third
Party Beneficiaries. Except as provided in Section 6(f)
of this Agreement, this Agreement is not intended to be for the benefit of,
and
shall not be enforceable by, any person or entity who or which is not a party
hereto.
(l) Construction. This
Agreement shall be deemed drafted equally by all the parties. Its
language shall be construed as a whole and according to its fair
meaning. Any presumption or principle that the language is to be
construed against any party shall not apply. The headings in this
Agreement are only for convenience and are not intended to affect construction
or interpretation. Any references to paragraphs, subparagraphs, or
sections are to those parts of this Agreement, unless the context clearly
indicates to the contrary. Also, unless the context clearly indicates
to the contrary, (i) the plural includes the singular and the singular includes
the plural, (ii) “and” and “or” are each used both conjunctively and
disjunctively, (iii) “any,” “all,” “each,” or “every” means “any and all, and
each and every,” (iv) “includes” and “including” are each “without limitation,”
and (v) “herein,” “hereof,” “hereunder,” and other similar compounds of the word
“here” refer to the entire Agreement and not to any particular paragraph,
subparagraph, section or subsection.
(m) Expenses. Except
as otherwise expressly provided in this Agreement, all costs and expenses
(including attorneys fees and expenses) incurred by the parties hereto in
connection with this Agreement and the transactions contemplated hereby shall
be
borne solely and entirely by the party which has incurred such
expenses.
11
(n) Arbitration. Except
as otherwise provided in Section 6(h),
the Company and Employee agree to the resolution by binding arbitration of
all
claims, demands, causes of action, disputes, controversies or other matters
in
question (“Claims”), whether or not arising out
to this Agreement, the Employment Agreement, or Employee’s employment (or
resignation or termination), whether sounding in contract, tort or otherwise
and
whether provided by statute or common law, that the Company may have against
Employee or that Employee may have against the Company or its parents,
subsidiaries and affiliates, and each of the foregoing entities’ respective
officers, directors, employees or agents in their capacity as such or
otherwise. Claims covered by this Section 6(n)
also include claims by Employee for breach of this Agreement, wrongful
termination, discrimination (based on age, race, sex, disability, national
origin, or any other factor) and retaliation. The Company and
Employee agree that any arbitration shall be in accordance with the Federal
Arbitration Act (“FAA”) and, to the extent an
issue is not addressed by the FAA, with the then-current National Rules for
the
Resolution of Employment Disputes of the American Arbitration Association
(“AAA”) or such other rules of the AAA as are
applicable to the Claims being arbitrated. If a party refuses to
honor its obligations under this Section 6(n),
the other party may compel arbitration in either federal or state
court. The arbitrator shall apply the substantive law of the State of
Texas (excluding Texas choice-of-law principles that might call for the
application of some other state’s law), or federal law, or both as applicable to
the Claims asserted. The arbitrator shall have exclusive authority to
resolve any dispute relating to the interpretation, applicability,
enforceability, or formation of this Section 6(n),
including any Claim that all or part of this Agreement is void or voidable
and
any Claim that an issue is not subject to arbitration; provided that the
arbitrator will not have the power to add or ignore any of the terms and
conditions of this Agreement, and the arbitrator’s decision will not go beyond
what is necessary for the interpretation, application, and enforcement of
this
Agreement and the obligations of the parties pursuant to this
Agreement. The parties agree that venue for arbitration will be in
Dallas, Texas, and that any arbitration commenced in any other venue will
be
transferred to Dallas, Texas, upon the written request of any party to this
Agreement. In the event that an arbitration is actually conducted
pursuant to this Section 6(n),
the party in whose favor the arbitrator renders the award shall be entitled
to
recover from the other party all costs and expenses incurred, including
reasonable attorneys’ fees, expert witness fees, and costs actually
incurred. Any and all of the arbitrator’s orders, decisions, and
awards may be enforceable in, and judgment upon any award rendered by the
arbitrator may be confirmed and entered by, any federal or state court having
jurisdiction. All proceedings conducted pursuant to this Section
6(n),
including any order, decision, or award of the arbitrator, shall be kept
confidential by all parties. THE ARBITRATORS SHALL HAVE NO
AUTHORITY TO AWARD PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES (WHETHER IT BE
EXEMPLARY DAMAGES, TREBLE DAMAGES, OR ANY OTHER PENALTY OR PUNITIVE TYPE
OF
DAMAGES). REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER
TEXAS LAW, EMPLOYEE AND THE COMPANY EACH HEREBY WAIVE THE RIGHT, IF ANY,
TO
RECOVER PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIMS.EMPLOYEE
AND THE COMPANY ACKNOWLEDGE THAT, BY SIGNING THIS AGREEMENT, EMPLOYEE AND
THE
COMPANY ARE WAIVING ANY RIGHT THAT EMPLOYEE OR THE COMPANY MAY HAVE TO A
JURY
TRIAL OR A COURT TRIAL OF ANY EMPLOYMENT-RELATED CLAIM ALLEGED BY EMPLOYEE,
EXCEPT AS PROVIDED IN SECTION
6(h).
[Signature
Page to follow.]
12
IN
WITNESS
WHEREOF, the Company has caused this Agreement to be executed in its corporate
name by an officer thereof thereunto duly authorized, and Employee has hereunto
set her hand, as of the day and year first above written.
ODYSSEY HEALTHCARE, INC. | |||
By: | /s/ Xxxxxx X. Xxxxxx | ||
Name: | Xxxxxx X. Xxxxxx | ||
Title: | President and Chief Executive Officer | ||
/s/ Xxxxxxx X. Xxxxxxxxx | |||
XXXXXXX X. XXXXXXXXX |
S-1
EXHIBIT
A
Employment
Agreement of Xxxxxxx X. Xxxxxxxxx
Exhibit
A-1
EXHIBIT
B
Equity
Agreements
1.
|
Restricted
Stock Unit Award Agreement (Time-Based RSU Award), dated December
20,
2006, representing the right to receive 16,080 shares of the Company’s
common stock
|
2.
|
Restricted
Stock Unit Award Agreement (Additional Incentive Based RSU Award),
dated
December 20, 2006, representing the right to receive 29,480 shares
of the
Company’s common stock
|
3.
|
Nonstatutory
Stock Option Agreement, dated November 16, 2005, representing the
right to
acquire 90,000 shares of the Company’s common stock, of which options to
acquire 22,500 shares are exercisable as of July 1,
2007
|
4.
|
Restricted
Stock Award Agreement, dated November 18, 2004, representing the
right to
receive 30,000 shares of the Company’s common
stock
|
5.
|
Nonstatutory
Stock Option Agreement, dated January 26, 2004, representing the
right to
acquire 75,000 shares of the Company’s common stock, of which options to
acquire 75,000 shares are exercisable as of July 1,
2007
|
6.
|
Nonstatutory
Stock Option Agreement, dated June 20, 2003, representing the right
to
acquire 75,000 shares of the Company’s common stock (112,500 shares after
the Company’s three-for-two stock split on July 28, 2003), of which
options to acquire 112,500 shares are exercisable as of July 1,
2007
|
7.
|
Nonstatutory
Stock Option Agreement, dated November 20, 2002, representing the
right to
acquire 20,000 shares of the Company’s common stock (45,000 shares after
the Company’s three-for-two stock splits on February 6, 2003 and July 28,
2003), of which options to acquire 45,000 shares are exercisable
as of
July 1, 2007
|
Exhibit
B-1
EXHIBIT
C
Indemnification
Agreement
Exhibit
C-1