EXHIBIT 10.12
HEALTHSPRING, INC.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of _____________ 2006, between HealthSpring,
Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxx
("Executive"), and amends and restates in its entirety that certain Employment
Agreement between NewQuest, Inc. and Executive dated March 1, 2005 (the
"Original Employment Agreement").
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend and restate the Original
Employment Agreement in its entirety as follows:
1. Employment. The Company shall employ Executive, and Executive hereby
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the date hereof and ending as
provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Chief
Executive Officer of the Company and shall have the normal duties,
responsibilities, functions and authority of the Chief Executive Officer,
subject to the power and authority of the Company's Board of Directors to expand
or limit such duties, responsibilities, functions and authority and to overrule
actions of officers of the Company. During the Employment Period, Executive
shall render such administrative, financial and other executive and managerial
services to the Company and its Subsidiaries which are consistent with
Executive's position as the Board may from time to time reasonably direct.
(b) During the Employment Period, Executive shall report to the
Company's Board and shall devote his full business time and attention (except
for permitted vacation periods and reasonable periods of illness or other
incapacity) to the business and affairs of the Company and its Subsidiaries.
Executive shall perform his duties, responsibilities and functions to the
Company and its Subsidiaries hereunder in good faith in a diligent, trustworthy
and professional manner and shall comply with the Company's and its
Subsidiaries' policies and procedures in all material respects. During the
Employment Period, Executive shall not serve as an officer or director of, or
otherwise perform services for compensation for, any other entity without the
prior written consent of the Board (which shall not be unreasonably withheld,
conditioned or delayed); provided that Executive may participate on boards of
charitable entities or other civic entities so long as such service does not
materially interfere with Executive's duties under this Agreement.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
corporation or other entity of which the securities or other ownership interests
having the voting power to
elect a majority of the board of directors or other governing body are, at the
time of determination, owned by the Company, directly or through one or more
Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall be
$525,000 per annum or such higher rate as the Board may determine from time to
time (as adjusted from time to time, the "Base Salary"), which salary shall be
payable by the Company or one of its Subsidiaries in regular installments in
accordance with such entity's general payroll practices (in effect from time to
time). In addition, during the Employment Period, Executive shall be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
During the Employment Period, Executive shall also be entitled to five weeks of
paid vacation each calendar year in accordance with the Company's policies,
which if not taken during any year may not be carried forward, other than with
respect to one week per year, to any subsequent calendar year and no
compensation shall be payable in lieu thereof. The Company or one of its
affiliates or Subsidiaries shall obtain and maintain customary directors and
officers' liability insurance coverage covering Executive on terms reasonably
satisfactory to the Board.
(b) In addition to the Base Salary, Executive shall be eligible for an
annual bonus in an amount up to 100% of the Base Salary then in effect following
the end of each fiscal year of the Company (ending December 31) based upon the
achievement by Executive and the Company and its Subsidiaries of budgetary and
other objectives set by the Compensation Committee of the Board; provided that
for the calendar year 2005, such bonus shall be paid on a pro rata basis based
upon that portion of the year that remained after March 1, 2005. Such bonus
shall be paid on or before March 15 of the following year.
(c) During the Employment Period, the Company or one of its
Subsidiaries shall reimburse Executive for all reasonable business expenses
incurred by him in the course of performing his duties and responsibilities
under this Agreement which are consistent with the Company's and its
Subsidiaries' policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's and its
Subsidiaries' requirements with respect to reporting and documentation of such
expenses.
(d) All amounts payable to Executive as compensation hereunder shall
be subject to all required and customary withholding by the Company.
4. Term.
(a) The Employment Period will continue until (i) Executive's
resignation, Disability (as defined in paragraph 4(f) below) or death, or (ii)
the Board decides to terminate Executive's employment with or without Cause (as
defined in paragraph 4(e) below). Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to Executive.
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(b) If the Employment Period is terminated by the Company without
Cause or upon Executive's resignation with Good Reason, Executive shall be
entitled to (x) continue to receive his Base Salary payable in regular
installments and (y) continue to participate in employee benefit programs for
senior executive employees (other than bonus and incentive compensation plans),
at the Company's cost, to the extent permitted under the terms of such programs
and under applicable law, as special severance payments from the date of
termination for a period of twelve (12) months thereafter (the "Severance
Period") if and only if Executive has executed and delivered to the Company the
General Release substantially in form and substance as set forth in Exhibit A
attached hereto and the General Release has become effective, and only so long
as Executive has not revoked or breached the provisions of the General Release
or breached the provisions of paragraphs 5, 6 or 7 hereof and does not apply for
unemployment compensation chargeable to the Company or any Subsidiary during the
Severance Period, and Executive shall not be entitled to any other salary,
compensation or benefits after termination of the Employment Period, except as
specifically provided for in the Company's employee benefit plans or as
otherwise expressly required by applicable law. The amounts payable pursuant to
this paragraph 4(b) shall be payable in regular monthly installments; provided,
that, in the event the receipt of amounts payable pursuant to this paragraph
4(b) within six (6) months of the date of the Executive's termination would
cause the Executive to be subject to tax under Section 409A of the Internal
Revenue Code of 1986, as amended, then payment of such amounts shall be delayed
until the date that is six (6) months following Executive's termination date.
Unless Executive is terminated by the Company or its successor without Cause in
connection with a Sale of the Company (as defined below), the amounts payable
pursuant to this paragraph 4(b) shall be reduced by the amount of any
compensation Executive receives with respect to any other employment during the
Severance Period; provided that Executive shall have no duty or obligation to
seek other employment during the Severance Period or otherwise mitigate damages
hereunder. Upon request from time to time, Executive shall furnish the Company
with a true and complete certificate specifying any such compensation earned or
received by him during the Severance Period. For purposes of this Agreement,
"Sale of the Company" shall mean the sale of the Company to an Independent Third
Party or group of Independent Third Parties pursuant to which such party or
parties acquire (y) 50% or more of the common stock of the Company, par value
$.01 per share ("Common Stock") outstanding at the time of such transaction or
series of transactions or (z) all or substantially all of the Company's assets
determined on a consolidated basis. For purposes of this Agreement, "Independent
Third Party" shall mean any person who, immediately prior to the contemplated
transaction, does not own in excess of 5% of the Common Stock on a fully-diluted
basis (a "5% Owner"), who is not controlling, controlled by or under common
control with any such 5% Owner and who is not the spouse or descendant (by birth
or adoption) of any such 5% Owner or a trust for the benefit of such 5% Owner
and/or such other persons.
(c) If the Employment Period is terminated by the Company for Cause or
is terminated pursuant to clause (a)(i) above (other than termination with Good
Reason), Executive shall only be entitled to receive his Base Salary through the
date of termination and shall not be entitled to any other salary, compensation
or benefits from the Company or any of its Subsidiaries thereafter, except as
otherwise specifically provided for under the Company's employee benefit plans
or as otherwise expressly required by applicable law.
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(d) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the termination of the
Employment Period shall cease upon such termination, other than those expressly
required under applicable law (such as COBRA). The Company may offset any
amounts Executive owes the Company or any of its Subsidiaries against any
amounts the Company or any of its Subsidiaries owes Executive hereunder.
(e) For purposes of this Agreement, "Cause" shall mean with respect to
Executive one or more of the following: (i) the conviction of a felony or other
crime involving moral turpitude or the commission of any other act or omission
involving material dishonesty or fraud with respect to the Company or any of its
Subsidiaries, (ii) reporting to work under the influence of illegal drugs, the
use of illegal drugs (whether or not at the workplace) or other repeated conduct
causing the Company or any of its Subsidiaries substantial public disgrace or
disrepute or substantial economic harm, which is not cured within 20 days
following written notice thereof to the Executive, (iii) material and repeated
failure to perform his duties as reasonably directed by the Board, which is not
cured within 20 days following written notice thereof to the Executive, (iv)
breach of fiduciary duty or engaging in gross negligence or willful misconduct
with respect to the Company or any of its Subsidiaries or (v) any other material
breach of this Agreement which is not cured within 20 days after written notice
thereof to Executive.
(f) For purposes of this Agreement, "Disability" shall mean the
disability of Executive caused by any physical or mental injury, illness or
incapacity as a result of which Executive is unable to effectively perform or
fails to perform the essential functions of Executive's duties for 90
consecutive days or 120 days during any 12-month period.
(g) For purposes of this Agreement, "Good Reason" shall mean if
Executive resigns from employment with the Company and its Subsidiaries prior to
the end of the Employment Period as a result of one or more of the following
reasons: (i) the Company reduces the amount of the Base Salary, (ii) the Company
materially reduces his responsibilities, in each case which is not cured within
20 days after written notice thereof to the Company, (iii) the relocation of the
Company's principal executive offices and/or the location at which Executive
provides services pursuant to this Agreement to a location outside the
metropolitan Nashville, Tennessee area, or (iv) the Company's material breach of
this Agreement; provided that written notice of Executive's resignation for Good
Reason must be delivered to the Company within 45 days after the occurrence of
any such event in order for Executive's resignation with Good Reason to be
effective hereunder.
5. Confidential Information.
(a) Executive acknowledges that the information, observations and data
(including trade secrets) obtained by him while employed by the Company and its
Subsidiaries (including those obtained by him while employed by NewQuest, LLC
("NQLLC") or any of its subsidiaries prior to March 1, 2005) concerning the
business or affairs of the Company or NQLLC or any other Subsidiary
("Confidential Information") are the property of the Company or such Subsidiary.
Therefore, Executive agrees that, except as set forth in, and pursuant to, this
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paragraph 5(a), he shall not disclose to any unauthorized person or entity or
use for his own purposes any Confidential Information or any confidential or
proprietary information of other persons or entities in the possession of the
Company and its Subsidiaries ("Third Party Information"), without the prior
written consent of the Board, unless and to the extent that the Confidential
Information or Third Party Information becomes generally known to and available
for use by the public other than as a result of Executive's acts or omissions.
In the event that Executive is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand or similar process) to disclose any
Confidential Information, such Executive shall notify the Company promptly of
the request or requirement so that the Company may seek an appropriate
protective order or waive compliance with the provisions of this Section. If, in
the absence of a protective order or the receipt of a waiver hereunder,
Executive is, on the advice of counsel, compelled to disclose any Confidential
Information to any tribunal, such Executive may disclose the Confidential
Information to the tribunal; provided that such disclosing Executive shall use
its reasonable best efforts to assist the Company to obtain, at the request of
the Company (and at the Company's sole expense), an order or other assurance
that confidential treatment shall be accorded to such portion of the
Confidential Information required to be disclosed as the Company shall
designate. Executive shall deliver to the Company at the termination of the
Employment Period, or at any other time the Company may request, all memoranda,
notes, plans, records, reports, computer files, disks and tapes, printouts and
software and other documents and data (and copies thereof) embodying or relating
to Third Party Information, Confidential Information, Work Product (as defined
below) or the business of the Company or any of its Subsidiaries which he may
then possess or have under his control.
(b) Executive shall be prohibited from using or disclosing any
confidential information or trade secrets that Executive may have learned
through any prior employment. If at any time during this employment with the
Company or any Subsidiary, Executive believes he is being asked to engage in
work that will, or will be likely to, jeopardize any confidentiality or other
obligations Executive may have to former employers, Executive shall immediately
advise the Board so that Executive's duties can be modified appropriately.
Executive represents and warrants to the Company that Executive took nothing
with him which belonged to any former employer when Executive left his prior
position and that Executive has nothing that contains any information which
belongs to any former employer. If at any time Executive discovers this is
incorrect, Executive shall promptly return any such materials to Executive's
former employer. The Company does not want any such materials, and Executive
shall not be permitted to use or refer to any such materials in the performance
of Executive's duties hereunder.
6. Intellectual Property, Inventions and Patents. Executive acknowledges
that all discoveries, concepts, ideas, inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports, patent
applications, copyrightable work and mask work (whether or not including any
Confidential Information) and all registrations or applications related thereto,
all other proprietary information and all similar or related information
(whether or not patentable) which relate to the Company's or any of its
Subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive (whether alone or jointly with others) while employed by the
Company and its Subsidiaries, whether before or after the date of this
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Agreement ("Work Product"), belong to the Company or such Subsidiary. Executive
shall promptly disclose all patentable inventions and other material Work
Product to the Board and, at the Company's expense, perform all actions
reasonably requested by the Board (whether during or after the Employment
Period) to establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments). Executive
acknowledges that all Work Product shall be deemed to constitute "works made for
hire" under the U.S. Copyright Act of 1976, as amended.
In accordance with Title 19, Section 805 of the Delaware Code, Executive is
hereby advised that this paragraph 6 regarding the Company's and its
Subsidiaries' ownership of Work Product does not apply to any invention for
which no equipment, supplies, facilities or trade secret information of the
Company or any Subsidiary was used and which was developed entirely on
Executive's own time, unless (i) the invention relates to the business of the
Company or any Subsidiary or to the Company's or any Subsidiaries' actual or
demonstrably anticipated research or development or (ii) the invention results
from any work performed by Executive for the Company or any Subsidiary.
7. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course of his
employment with the Company and its Subsidiaries he shall become familiar, and
during his employment with NQLLC or any of its subsidiaries he has become
familiar with the Company's and its Subsidiaries' trade secrets and with other
Confidential Information concerning the Company and its predecessors and
Subsidiaries and that his services have been and shall continue to be of
special, unique and extraordinary value to the Company and its Subsidiaries and
therefore Executive agrees that, during the Employment Period and for eighteen
months thereafter (the "Noncompete Period"), he shall not directly or indirectly
own any interest in, manage, control, participate in, consult with, render
services for, be employed in an executive, managerial or administrative capacity
by, or in any manner engage in any business competing with the businesses of the
Company or its Subsidiaries, as such businesses exist during the Employment
Period or, as of the date of termination or expiration of the Employment Period,
are contemplated to exist during the eighteen-month period following the date of
termination or expiration of the Employment Period (the "Restricted Business")
within any geographical area in which the Company or any of its Subsidiaries
engage or plan to engage during the eighteen-month period following the date of
termination of the Employment Period. Nothing herein shall prohibit Executive
from (i) being a passive owner of not more than 2% of the outstanding stock of
any class of a corporation which is publicly traded, so long as Executive has no
active participation in the business of such corporation or (ii) becoming
employed, engaged, associated or otherwise participating with a separately
managed division or Subsidiary of a competitive business that does not engage in
the Restricted Business (provided that services are provided only to such
division or Subsidiary).
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt to induce any
employee of the Company or any Subsidiary to leave the employ of the Company or
such Subsidiary, or in any way interfere with the relationship between the
Company or any Subsidiary and any employee thereof, (ii) hire
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any person who was an employee of the Company or any Subsidiary at any time
during the 18-month period immediately prior to the termination of the
Employment Period or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, franchisee or other business relation of the Company or any
Subsidiary to cease doing business with the Company or such Subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any Subsidiary (including,
without limitation, making any negative or disparaging statements or
communications regarding the Company or its Subsidiaries). Notwithstanding the
foregoing, nothing in this Agreement shall prohibit Executive from employing an
individual (i) with the consent of the Company or (ii) who responded to general
solicitations in publications or on websites, or through the use of search
firms, so long as such general solicitations or search firm activities are not
targeted specifically at an employee of the Company or any of its Subsidiaries.
In addition, nothing in this Agreement will prohibit the making of any truthful
statements made by any Person in response to a lawful subpoena or legal
proceeding or to enforce such Person's rights under this Agreement, or any other
agreement between Executive, the Company and its Subsidiaries.
8. Enforcement. If, at the time of enforcement of paragraph 5, 6 or 7
of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to Confidential Information
and Work Product, the parties hereto agree that the Company and its Subsidiaries
would suffer irreparable harm from a breach of paragraph 5, 6 or 7 by Executive
and that money damages would not be an adequate remedy for any such breach of
this Agreement. Therefore, in the event a breach or threatened breach of this
Agreement, the Company or its successors or assigns, in addition to other rights
and remedies existing in their favor, shall be entitled to specific performance
and/or injunctive or other equitable relief from a court of competent
jurisdiction in order to enforce, or prevent any violations of, the provisions
hereof (without posting a bond or other security). In addition, in the event of
a breach or violation by Executive of paragraph 7, the Noncompete Period shall
be automatically extended by the amount of time between the initial occurrence
of the breach or violation and when such breach or violation has been duly
cured. Executive acknowledges that the restrictions contained in paragraph 7 are
reasonable and that he has reviewed the provisions of this Agreement with his
legal counsel.
9. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and
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conditions contained herein. The Company hereby represents and warrants to
Executive that (i) the execution, delivery and performance of this Agreement by
the Company do not and shall not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Company is a party or by which it is bound and (ii) upon the execution
and delivery of this Agreement by Executive, this Agreement shall be the valid
and binding obligation of the Company, enforceable in accordance with its terms.
10. Survival. Paragraphs 4 through 24, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
11. Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, sent by reputable overnight courier
service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Notices to the Company:
HealthSpring, Inc.
00 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
Fax: (000) 000-0000
With copies to:
Bass, Xxxxx & Xxxx PLC Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, III, Esq. Attn: Xxxxx X. Xxxxxxx, P.C.
J. Xxxxx Xxxxxxx, Jr., Esq. Xxxxxxx X. Fine, Esq.
Fax: (000) 000-0000 Fax: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
12. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not
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affect any other provision of this Agreement or any action in any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
13. Complete Agreement. This Agreement, those documents expressly referred
to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
14. No Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
15. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
16. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive, the Company and their respective
heirs, successors and assigns, except that Executive may not assign his rights
or delegate his duties or obligations hereunder without the prior written
consent of the Company.
17. Choice of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
18. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company (as approved by the
Board) and Executive, and no course of conduct or course of dealing or failure
or delay by any party hereto in enforcing or exercising any of the provisions of
this Agreement (including, without limitation, the Company's right to terminate
the Employment Period for any reason) shall affect the validity, binding effect
or enforceability of this Agreement or be deemed to be an implied waiver of any
provision of this Agreement.
19. Insurance. The Company may, at its discretion, apply for and procure in
its own name and for its own benefit life and/or disability insurance on
Executive in any amount or amounts considered advisable. Executive agrees to
reasonably cooperate in any medical or other examination, supply any information
reasonably requested and execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and constitute
such insurance. Executive hereby represents that he has no reason to believe
that his life is not insurable at rates now prevailing for healthy men of his
age.
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20. Indemnification and Reimbursement of Payments on Behalf of Executive.
The Company and its Subsidiaries shall be entitled to deduct or withhold from
any amounts owing from the Company or any of its Subsidiaries to Executive any
federal, state, local or foreign withholding taxes, excise tax or employment
taxes ("Taxes") imposed with respect to Executive's compensation (including,
without limitation, wages, bonuses, dividends, the receipt or exercise of equity
options and/or the receipt or vesting of restricted equity). In the event the
Company or any of its Subsidiaries does not make such deductions or
withholdings, Executive shall indemnify the Company and its Subsidiaries for any
amounts paid with respect to any such Taxes.
21. Consent to Jurisdiction. EACH OF THE PARTIES HERETO SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN NASHVILLE, TENNESSEE, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN AND AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE
PARTIES HERETO WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY OR OTHER
SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO. ANY
PARTY MAY MAKE SERVICE ON ANY OTHER PARTY BY SENDING OR DELIVERING A COPY OF THE
PROCESS (I) TO THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER PROVIDED
FOR THE GIVING OF NOTICES IN PARAGRAPH 11 ABOVE, OR (II) TO THE PARTY TO BE
SERVED IN CARE OF SUCH PARTY'S REGISTERED AGENT IN THE MANNER PROVIDED FOR THE
GIVING OF NOTICES IN PARAGRAPH 11 ABOVE. NOTHING IN THIS PARAGRAPH 21 HOWEVER
SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. EACH PARTY AGREES THAT A FINAL JUDGMENT (AFTER GIVING EFFECT
TO ANY TIMELY APPEALS) IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
22. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR
EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE
OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN
ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
23. Corporate Opportunity. During the Employment Period, Executive shall
submit to the Board all material business, commercial and investment
opportunities or offers presented to Executive or of which Executive becomes
aware in his capacity as an officer of the Company which relate to the business
of the Company or its Subsidiaries at any time during the Employment Period
("Corporate Opportunities"). Unless approved by the Board, Executive shall not
accept or pursue, directly or indirectly, any Corporate Opportunities on
Executive's own behalf.
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24. Executive's Cooperation. During the Employment Period and thereafter,
Executive shall reasonably cooperate with the Company and its Subsidiaries in
any internal investigation, any administrative, regulatory or judicial
investigation or proceeding or any dispute with a third party as reasonably
requested by the Company (including, without limitation, Executive being
available to the Company upon reasonable notice and at reasonable times for
interviews and factual investigations, appearing at the Company's request upon
reasonable notice and at reasonable times to give testimony without requiring
service of a subpoena or other legal process, delivering to the Company
requested information and relevant documents which are or may come into
Executive's possession, all at times and on schedules that are reasonably
consistent with Executive's other permitted activities and commitments). In the
event the Company requests Executive's cooperation in accordance with this
paragraph, the Company shall (i) reimburse Executive for all reasonable travel
expenses and other reasonable out-of-pocket expenses (including lodging and
meals) upon submission of receipts and (ii) reimburse Executive for all
reasonable fees and expenses, including without limitation all attorneys fees
and expenses, incurred by Executive in connection with any such investigation or
proceeding. Notwithstanding anything contained herein to the contrary, Executive
shall not be required to cooperate or assist the Company in any such
investigation or proceeding in the event that (i) legal counsel to Executive
advises him that a reasonable likelihood exists of a conflict of interest
between the Company and its Affiliates and Executive or (ii) cooperation with
the Company could incriminate the Executive or adversely affect the defense by
Executive of any investigation, claim or proceeding.
* * * * *
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
HEALTHSPRING, INC.
By:
------------------------------------
Its:
-----------------------------------
----------------------------------------
XXXXXXX X. XXXXXX
D-1
Exhibit A
GENERAL RELEASE
I, Xxxxxxx X. Xxxxxx, in consideration of and subject to the performance by
HealthSpring, Inc., a Delaware corporation (together with its subsidiaries, the
"Company"), of its obligations under the Amended and Restated Employment
Agreement, dated as of _________, 2006 (the "Agreement"), do hereby release
and forever discharge as of the date hereof the Company and its affiliates and
all present and former directors, officers, agents, representatives, employees,
successors and assigns of the Company and its affiliates and the Company's
direct or indirect owners (collectively, the "Released Parties") to the extent
provided below.
1. I understand that any payments or benefits paid or granted to me under
paragraph 4(b) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to which
I was already entitled. I understand and agree that I will not receive the
payments and benefits specified in paragraph 4(b) of the Agreement unless I
execute this General Release and do not revoke this General Release within
the time period permitted hereafter or breach this General Release. Such
payments and benefits will not be considered compensation for purposes of
any employee benefit plan, program, policy or arrangement maintained or
hereafter established by the Company or its affiliates. I also acknowledge
and represent that I have received all payments and benefits that I am
entitled to receive (as of the date hereof) by virtue of any employment by
the Company.
2. Except as provided in paragraph 4 below and except for the provisions of my
Employment Agreement which expressly survive the termination of my
employment with the Company, I knowingly and voluntarily (for myself, my
heirs, executors, administrators and assigns) release and forever discharge
the Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs and attorneys' fees, or
liabilities of any nature whatsoever in law and in equity, both past and
present (through the date this General Release becomes effective and
enforceable) and whether known or unknown, suspected or claimed against the
Company or any of the Released Parties which I, my spouse or any of my
heirs, executors, administrators or assigns, may have, which arise out of
or are connected with my employment with, or my separation or termination
from, the Company (including, but not limited to, any allegation, claim or
violation, arising under: Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Age Discrimination in Employment
Act of 1967, as amended (including the Older Workers Benefit Protection
Act); the Equal Pay Act of 1963, as amended; the Americans with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
Worker Adjustment Retraining and Notification Act; the Employee Retirement
Income Security Act of 1974; any applicable Executive Order Programs; the
Fair Labor Standards Act; or their state or local counterparts; or under
any other federal, state or local civil or human rights law, or under any
other local, state or federal law, regulation or ordinance; or under any
public policy, contract or tort, or under common
ExB-1
law; or arising under any policies, practices or procedures of the Company;
or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees or other
expenses, including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "Claims").
3. I represent that I have made no assignment or transfer of any right, claim,
demand, cause of action or other matter covered by paragraph 2 above.
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the Company
in compliance with the terms of the Agreement shall not serve as the basis
for any claim or action (including, without limitation, any claim under the
Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim seeking
damages against the Company, or in the event I should seek to recover
against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such
Claims. I further agree that I am not aware of any pending charge or
complaint of the type described in paragraph 2 as of the execution of this
General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any
time to be an admission by the Company, any Released Party or myself of any
improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release. I also
agree that if I violate this General Release by suing the Company or the
other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable
attorneys' fees, and return all payments received by me pursuant to the
Agreement.
8. I agree that this General Release is confidential and agree not to disclose
any information regarding the terms of this General Release, except to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and I will
instruct each of the foregoing not to disclose the same to
ExB-2
anyone. Notwithstanding anything herein to the contrary, each of the
parties (and each affiliate and person acting on behalf of any such party)
agree that each party (and each employee, representative and other agent of
such party) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of this transaction contemplated
in the Agreement and all materials of any kind (including opinions or other
tax analyses) that are provided to such party or such person relating to
such tax treatment and tax structure, except to the extent necessary to
comply with any applicable federal or state securities laws. This
authorization is not intended to permit disclosure of any other information
including (without limitation) (i) any portion of any materials to the
extent not related to the tax treatment or tax structure of this
transaction, (ii) the identities of participants or potential participants
in the Agreement, (iii) any financial information (except to the extent
such information is related to the tax treatment or tax structure of this
transaction), or (iv) any other term or detail not relevant to the tax
treatment or the tax structure of this transaction.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the Securities
and Exchange Commission (SEC), the National Association of Securities
Dealers, Inc. (NASD), any other self-regulatory organization or
governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation, any administrative, regulatory or judicial proceeding or any
dispute with a third party on the terms and subject to the limitations set
forth in paragraph 24 of the Agreement.
11. I agree not to disparage the Company, its past and present investors,
officers, directors or employees or its affiliates and to keep all
confidential and proprietary information about the past or present business
affairs of the Company and its affiliates confidential in accordance with
the terms of the Agreement unless a prior written release from the Company
is obtained. I further agree that as of the date hereof, I have returned to
the Company any and all property, tangible or intangible, relating to its
business, which I possessed or had control over at any time (including, but
not limited to, company-provided credit cards, building or office access
cards, keys, computer equipment, manuals, files, documents, records,
software, customer data base and other data) and that I shall not retain
any copies, compilations, extracts, excerpts, summaries or other notes of
any such manuals, files, documents, records, software, customer data base
or other data.
12. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish or in any way affect (i) any
rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement after the date hereof, (ii) any rights or
obligations under applicable law which cannot be waived or released
pursuant to an agreement, (iii) any rights to payments or benefits under
paragraph 4(b) of the Agreement, (iv) my rights of indemnification and
directors and officers insurance coverage to which I may be entitled solely
with regards to my service as an officer or director of the Company; (v) my
rights with regard to accrued benefits under any employee benefit plan,
policy or arrangement maintained by the Company or
ExB-3
under COBRA; and (vi) my rights as a stockholder or other equityholder of
the Company and/or its affiliates.
13. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON [_______________ __, _____] TO CONSIDER
IT AND THE CHANGES MADE SINCE THE [_______________ __, _____] VERSION OF
THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY
PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE [_______________ ___, _____] EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
ExB-4
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE:
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ExB-5
