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Exhibit 10(xxiii)
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the _____ day of
__________, 1997, by and between Xxx X. Xxxxxx ("Executive") and Coventry
Corporation ("Employer"), a Delaware corporation with its principal place of
business at 00 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by Employer as the Vice
President of Finance, and Employer and Executive desire to enter into an
employment relationship; and
WHEREAS, Executive and Employer desire to set forth in a written
agreement the terms and conditions of such employment.
NOW, THEREFORE, in consideration of the premises hereof and of the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. EMPLOYMENT. Employer currently employs Executive, and Executive
hereby agrees to continue her employment as Vice President of Finance of
Employer on and after the Effective Date (as defined in Section 3 below) under
the terms and conditions hereinafter set forth.
2. DUTIES. As Vice President, Finance, of Employer, Executive shall
report to the Chief Financial Officer of Employer. Her powers and duties shall
continue to be those normally associated with such position or as may be
delegated or assigned to Executive by Employer's Chief Financial Officer, or by
the President and Chief Executive Officer or by the Board of Directors of
Employer. During the term of this Agreement, Executive shall also serve without
additional compensation in such other offices of the Employer or its
subsidiaries or affiliates to which she may be elected or appointed by the Chief
Executive Officer of Employer or by the Board of Directors of Employer or its
subsidiaries or affiliates, respectively.
3. EFFECTIVE DATE. This Agreement shall be effective as of the date set
forth above (the "Effective Date").
4. INITIAL TERM. Subject to the terms and conditions set forth herein,
Executive shall be employed hereunder for an initial term of one year beginning
on the Effective Date. If at the end of the initial term a new employment
contract is not executed, the term of this Agreement shall continue on a
year-to-year basis in the absence of notice of either party.
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5. BASE COMPENSATION. For all duties rendered by Executive, Employer
shall continue to pay Executive a base salary ("Base Salary") of One Hundred
Twenty Thousand Dollars ($120,000), annually, to be reviewed on an annual basis
based upon the performance of Executive. The Base Salary shall be paid to
Executive in equal bi-weekly or semi-monthly payments in accordance with
Employer's normal payroll policies.
6. ADDITIONAL COMPENSATION. During the period of this Agreement and as
a result of employment under this Agreement, Executive shall receive or be
eligible for the following additional compensation:
(a) RETENTION BONUS: Executive shall be eligible to receive a
retention bonus ("Retention Bonus") in the amount of One
Hundred Fifty Thousand Dollars ($150,000) to be paid in full
on January 31, 1999 ("Payment Date"), if Executive is and has
been continuously employed with Employer or a subsidiary of
Employer from the Effective Date to the Payment Date.
(b) ADDITIONAL BONUS COMPENSATION: Executive shall be eligible to
participate in the annual incentive bonus programs available
to officers of Employer and will be eligible to receive other
incentive compensation in accordance therewith as determined
on an annual basis by the Compensation and Benefits Committee
of the Board of Directors of Employer.
(c) CAR ALLOWANCE: At the end of the lease term of Executive's
current vehicle leased by Employer for Executive's use,
Executive shall be entitled to a car allowance of $600.00 per
month.
(d) OTHER BENEFITS: Executive will be eligible for participation
in any employee benefit programs available to officers of
Employer from time to time as provided in Section 16 below.
7. EXPENSES. Executive shall be reimbursed for ordinary and necessary
business expenses incurred by Executive on behalf of Employer and its
subsidiaries or affiliates upon presentation of vouchers in accordance with the
usual and customary procedure of Employer in relation to such expense items,
except that Employer may elect, at its option, to pay such expense items
directly rather than reimburse Executive therefor.
8. EXTENT OF SERVICE. Executive shall devote substantially all of her
working time, attention and energies to the business of the Employer and shall
not, during the term of this Agreement, take, directly or indirectly, an active
role in any other business activity without the prior written consent of the
Employer; but except as provided in Section 14(b), this Section shall not
prevent Executive from serving as a director of other entities not affiliated
with Employer, from making real estate or other investments of a passive nature
or from participating in the activities of a nonprofit charitable organization
where such participation does not require a
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substantial amount of time and does not adversely affect Executive's ability to
perform her duties under this Agreement.
9. TERMINATION OF EMPLOYMENT. Employer may terminate this Agreement
with or without cause at any time during the term of this Agreement. If the
employment of Executive with Employer is terminated by Employer for any reason
other than Good Cause (as defined in Section 25 below), the following provisions
will apply:
(a) Employer shall during the Severance Period (as defined in
Section 25 below), continue to pay Executive an amount equal
to Executive's Base Salary at the time of termination of
employment.
Such amount will be paid during the Severance Period in
monthly or other installments, similar to those being received
by Executive at the date of termination of employment, and
will commence as soon as practicable following the date of
termination of employment.
(b) Executive shall be allowed to exercise options granted to her
and vested at the date of termination for a period of one year
from the date of termination, all in accordance with the
remaining terms and conditions set forth in Employer's stock
option plans and the respective stock option letters issued to
Executive.
(c) During the Severance Period Executive and her spouse and
family will continue to be covered by all Welfare Plans (as
defined in Section 25 below), maintained by Employer in which
she or her spouse or family were participating immediately
prior to the date of her termination as if she continued to be
an employee of Employer; provided that, if participation in
any one or more of such Welfare Plans is not possible under
the terms thereof, Employer will provide substantially
identical benefits to the extent possible. If, however,
Executive obtains employment with another employer during the
Severance Period, such coverage shall be provided until the
earlier of: (i) the end of the Severance Period or (ii) the
date on which the Executive and her spouse and family can be
covered under the plans of a new employer without being
excluded from full coverage because of any actual pre-existing
condition.
(d) Executive shall not be entitled to payments during the
Severance Period attributable to compensation for vacation
periods she would have earned had her employment continued
during the Severance Period or to unused vacation periods
accrued as of the date of termination of employment.
(e) During the Severance Period Executive shall not be entitled to
reimbursement for fringe benefits such as car allowance, dues
and expenses related to club memberships, and expenses for
professional services.
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Compensation under Sections 9(a), (b) and (c) hereof is contingent upon
Executive's compliance with Section 14 hereof.
10. TERMINATION BY EXECUTIVE. Executive may terminate her employment
hereunder at any time upon sixty (60) days prior written notice. Upon such
termination by Executive, the Employer shall pay the Executive only her Base
Salary due through the date on which her employment is terminated at the rate in
effect at the time of notice of termination. The Employer shall then have no
further obligation to Executive under this Agreement, except for the payout of
benefits accrued under any Employee Benefit Plans or other employee benefits.
11. TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. In the
event Executive's employment is terminated at any time within two years
following the occurrence of a Change in Control as set forth in that certain
Change in Control Agreement (as defined in Section 25 below), then this
Agreement shall become null and void and the terms and conditions of the Change
in Control Agreement shall control.
12. SETOFF.
(a) With respect to Section 9, payments or benefits payable to or
with respect to Executive or her spouse pursuant to this
Agreement shall be reduced by the amount of any claim of
Employer against Executive or her spouse or any debt or
obligation of Executive or her spouse owing to Employer.
(b) With respect to Section 9, payments or benefits payable to or
with respect to Executive pursuant to this Agreement shall be
reduced by any amount Executive may earn or receive from
employment with another employer, except as expressly provided
in Section 9(c).
13. DEATH. If Executive dies during the Severance Period:
(a) All amounts payable hereunder to Executive shall, during the
remainder of the Severance Period, be paid to her surviving
spouse. On the death of the survivor of Executive and her
spouse, no further benefits will be paid under the Agreement.
(b) The spouse and family of Executive shall, during the remainder
of the Severance Period, be covered under all Welfare Plans
made available by Employer to Executive or her spouse
immediately prior to the date of her death to the extent
possible.
Any benefits payable under this Section 13 are in addition to any other
benefit due to Executive or her spouse or beneficiaries from Employer,
including, but not limited to, payments under any Incentive Plans.
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14. RESTRICTIVE COVENANTS.
(a) Confidential Information. Executive agrees not to disclose,
either during the time she is employed by the Employer or
following termination of her employment hereunder, to any
person (other than a person to whom disclosure is necessary in
connection with the performance of her duties as an employee
of Employer or to any person specifically authorized by the
Board of Directors of Employer) any material confidential
information concerning the Employer or any of its Affiliates,
including, but not limited to, strategic plans, customer
lists, contract terms, financial costs, pricing terms, sales
data or business opportunities whether for existing, new or
developing businesses.
(b) Non-Competition. During the term of employment provided
hereunder and for a period of one year after termination of
employment, Executive will not directly or indirectly own,
manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an
officer, employee, partner, director or otherwise with, or
have any financial interest in, or aid or assist anyone else
in the conduct of, any business which is in competition with
any business conducted by the Employer or any Affiliate of
Employer in any state in which the Employer or any Affiliate
of Employer is conducting business on the date of termination
or expiration of this Agreement, provided that ownership of 5%
or less of the voting stock of any public corporation shall
not constitute a violation hereof. Notwithstanding the
foregoing, Executive may enter into competition with Employer
or any Affiliate of Employer without being in violation of
this Agreement; provided, however, in any such event,
Executive shall forfeit all rights to payments and other
benefits under Section 9, above.
(c) Non-Solicitation. During the term of employment provided for
hereunder and for a period of one year after termination of
employment, Executive will not (i) directly or indirectly
solicit business which could reasonably be expected to
conflict with the interest of Employer or any Affiliate of
Employer from any entity, organization or person which has
contracted with the Employer or any Affiliate of Employer,
which has been doing business with the Employer or any
Affiliate of Employer, from which the Employer or any
Affiliate of Employer was soliciting business at the time of
the termination of employment or from which Executive knew or
had reason to know that Employer or any Affiliate of Employer
was going to solicit business at the time of termination of
employment, or (ii) employ, solicit for employment, or advise
or recommend to any other persons that they employ or solicit
for employment, any employee of the Employer or any Affiliate
of Employer.
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(d) Consultation. Executive shall, at the Employer's written
request, for a period of one year after termination of
employment, cooperate with the Employer in concluding any
matters in which Executive was involved during the term of her
employment and will make herself available for consultation
with the Employer on other matters otherwise of interest to
the Employer. The Employer agrees that such requests shall be
reasonable in number and will consider Executive's time
required for other employment and/or employment search.
(e) Enforcement. Executive and the Employer acknowledge and agree
that any of the covenants contained in this Section 14 may be
specifically enforced through injunctive relief but such right
to injunctive relief shall not preclude the Employer from
other remedies which may be available to it.
(f) Continuing Obligation. Notwithstanding any provision to the
contrary or otherwise contained in this Agreement, the
agreement and covenants contained in this Section 14 shall not
terminate upon Executive's termination of her employment with
the Employer or upon the termination of this Agreement under
any other provision of this Agreement.
15. VACATION. During each year of this Agreement, Executive shall be
entitled to four (4) weeks paid vacation.
16. HEALTH AND WELFARE BENEFITS; PROFIT-SHARING PLANS. In addition to
the benefits specifically provided for herein, Executive and her family shall be
entitled to participate in all health and welfare benefit plans maintained by
the Employer for executive or managerial employees generally according to the
terms of such plans, including Executive Long Term Disability coverage (which is
an individual medically underwritten policy and subject to a physical
examination for eligibility). Executive shall be entitled to participate in any
profit-sharing, retirement or similar plans established by Employer in which
executive or managerial employees of Employer participate, including any such
plan intended to comply with Section 401(k) of the Internal Revenue Code of
1986, as amended, and any such plan providing supplemental executive retirement
benefits.
17. EXECUTIVE ASSIGNMENT. No interest of Executive or her spouse or any
other beneficiary under this Agreement, or any right to receive any payment or
distribution hereunder, shall be subject in any manner to sale, transfer,
assignment, pledge, attachment, garnishment, or other alienation or encumbrance
of any kind, nor may such interest or right to receive a payment or distribution
be taken, voluntarily or involuntarily, for the satisfaction of the obligations
or debts of, or other claims against, Executive or her spouse or other
beneficiary, including claims for alimony, support, separate maintenance, and
claims in bankruptcy proceedings.
18. BENEFITS UNFUNDED. All rights of Executive and her spouse or other
beneficiary under this Agreement shall at all times be entirely unfunded and no
provision shall at any time be
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made with respect to segregating any assets of Employer for payment of any
amounts due hereunder. Neither Executive nor her spouse or other beneficiary
shall have any interest in or rights against any specific assets of Employer,
and Executive and her spouse or other beneficiary shall have only the rights of
a general unsecured creditor of Employer.
19. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by registered or certified
mail to her residence in the case of Executive, or to its principal office in
the case of the Employer and the date of receipt shall be deemed the date which
such notice has been provided.
20. WAIVER OF BREACH. The waiver by either party of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by the other party.
21. ASSIGNMENT. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. The Executive acknowledges that the services to be
rendered by her are unique and personal, and Executive may not assign any of her
rights or delegate any of her duties or obligations under this Agreement.
22. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties and supersedes all other prior agreements, employment contracts and
understandings, both written and oral, express or implied with respect to the
subject matter of this Agreement and may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
23. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Tennessee, without giving effect to the principles of conflicts of law
thereof.
24. HEADINGS. The sections, subjects and headings of this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
25. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" shall have the meaning set forth in Rule 144(a)(1)
promulgated under the Securities Act of 1933, as amended.
(b) "Change in Control Agreement" shall mean that certain
Agreement (for Key Executives) dated September 12, 1995,
between Employer and Executive, a copy of which is attached
hereto as Exhibit "A".
(c) "Good Cause" shall be deemed to exist if, and only if:
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(i) Executive engages in material acts or omissions
constituting dishonesty, breach of fiduciary
obligation or intentional wrongdoing, malfeasance or
non-compliance with written directives approved by
the Chief Executive Officer of Employer or the Board
of Directors of Employer, which are demonstrably
injurious to Employer; or
(ii) Executive is convicted of a violation involving fraud
or dishonesty; or
(iii) Executive's unexcused failure to report to work for
twenty (20) consecutive days; or
(iv) Executive materially breaches this Agreement (other
than by engaging in acts or omissions enumerated in
paragraphs (i), (ii) and (iii) above), or materially
fails to satisfy the conditions and requirements of
her employment with Employer, and such breach or
failure by its nature is incapable of being cured, or
such breach or failure remains uncured for more than
30 days following receipt by Executive of written
notice from Employer specifying the nature of the
breach or failure and demanding the cure thereof. For
purposes of this paragraph (iv), inattention by
Executive to her duties shall be deemed a breach or
failure of cure.
Without limiting the generality of the foregoing, if Executive
acted in good faith and in a manner she reasonably believed to
be in, and not opposed to, the best interest of Employer and
had no reasonable cause to believe her conduct was unlawful in
connection with any action taken by Executive in connection
with her duties, it shall not constitute Good Cause.
(d) "Severance Period" shall mean the period beginning on the date
the Executive's employment with Employer terminates without
Good Cause under circumstances described in Section 9 and
ending on the date that is 12 months thereafter.
(e) "Welfare Plans" shall mean any health and dental plan,
disability plan, survivor income plan and life insurance plan
or arrangement currently or hereafter made available by
Employer in which Executive is eligible to participate.
26. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original.
27. SEVERABILITY. In the event any provision of this Agreement is held
illegal or invalid, the remaining provisions of this Agreement shall not be
affected thereby. In the event that Section 14(b) is determined by a court of
competent jurisdiction to be invalid due to overbreadth, such Section 14(b)
shall be constructed as narrowly as necessary to be enforceable.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
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Xxx X. Xxxxxx
COVENTRY CORPORATION
By:
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Xxxxx X. Xxxx
President and Chief Executive Officer
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