Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Lhc Group, LLC HTML 1.66M
14: CORRESP ¶ Comment-Response or Other Letter to the SEC 15 35K
2: EX-3.1 EX-3.1 Certificate of Incorporation of Lhc Group, 5 20K
Inc.
3: EX-3.2 EX-3.2 Bylaws of Lhc Group, LLC. 17 80K
4: EX-4.1 EX-4.1 Specimen Stock Certificate for Common Stock 2 18K
11: EX-10.10 EX-10.10 Form of Indemnity Agreement 13 65K
12: EX-10.11 EX-10.11 Lhc Group, Inc. 2005 Director 9 31K
Compensation Plan
5: EX-10.4 EX-10.4 Lhc Group, Inc. 2005 Long-Term Incentive 21 95K
Plan
6: EX-10.5 EX-10.5 Award Under 2005 Director Compensation 2 18K
Plan
7: EX-10.6 EX-10.6 Employment Agreement / Keith G. Myers 25 108K
8: EX-10.7 EX-10.7 Employment Agreement / R. Barr Brown 25 108K
9: EX-10.8 EX-10.8 Employment Agreement / John L. Indest 25 107K
10: EX-10.9 EX-10.9 Employment Agreement / Daryl J. Doise 25 107K
13: EX-23.2 EX-23.2 Consent of Ernst & Young LLP 1 7K
‘EX-10.7’ — EX-10.7 Employment Agreement / R. Barr Brown
Exhibit Table of Contents
EXHIBIT 10.7
--------------------------
EMPLOYMENT AGREEMENT
BETWEEN
R. BARR BROWN
AND
LHC GROUP, INC.
-------------------------------------------
EMPLOYMENT AGREEMENT
1. Effective Date.............................................................1
2. Employment and Directorship................................................1
3. Employment Period..........................................................1
4. Extent of Service..........................................................1
5. Compensation and Benefits..................................................2
(a) Base Salary.....................................................2
(b) Incentive, Savings and Retirement Plans.........................2
(c) Welfare Benefit Plans...........................................2
(d) Expenses........................................................2
(e) Fringe Benefits.................................................3
(f) Vacation........................................................3
(g) Office and Support Staff........................................3
6. Change of Control..........................................................3
7. Termination of Employment..................................................4
(a) Death or Retirement.............................................4
(b) Disability......................................................4
(c) Termination by the Company......................................5
(d) Termination by Executive........................................5
(e) Notice of Termination...........................................5
(f) Date of Termination.............................................6
8. Obligations of the Company upon Termination................................6
(a) Termination by Executive for Good Reason;
Termination by the Company Other Than for Cause
or Disability...................................................6
(b) Death, Disability or Retirement.................................8
(c) Cause or Voluntary Termination without Good
Reason..........................................................8
(d) Expiration of Employment Period.................................8
(e) Resignations....................................................8
9. Non-exclusivity of Rights.................................................8
10. Full Settlement; No Obligation to Mitigate................................8
11. Certain Additional Payments by the Company................................9
12. Costs of Enforcement.....................................................11
13. Representations and Warranties...........................................11
14. Restrictions on Conduct of Executive.....................................11
(a) General..........................................................11
(b) Definitions......................................................11
(c) Restrictive Covenants............................................13
(d) Enforcement of Restrictive Covenants.............................15
15. Arbitration..............................................................16
16. Assignment and Successors................................................16
17. Miscellaneous............................................................16
-ii-
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
this ________ day of January, 2005 by and between LHC Group, Inc., a Delaware
corporation (the "Company"), and R. Barr Brown ("Executive"), to be effective
as of the Effective Date, as defined in Section 1.
BACKGROUND
Executive currently serves as Senior Vice President and Chief
Financial Officer of the Company. The Company desires to continue to engage
Executive in such capacity from and after the Effective Date, in accordance
with the terms of this Agreement. Executive is willing to serve as such in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Effective Date. The effective date of this Agreement (the
"Effective Date") shall be the effective date of a registration
statement on Form S-l for the initial public offering of the common stock of
the Company.
2. Employment. Executive is hereby employed on the Effective Date as
Senior Vice President and Chief Financial Officer of the Company. In his
capacity as Senior Vice President and Chief Financial Officer of the Company,
Executive shall have the duties, responsibilities and authority commensurate
with such position as shall be assigned to him by the Chief Executive Officer
and/or the Board of Directors of the Company. In his capacity as Senior Vice
President and Chief Financial Officer of the Company, Executive will report
directly to the Chief Executive Officer of the Company.
3. Employment Period. Unless earlier terminated herein in accordance
with Section 7 hereof, Executive's employment shall be for a three year term,
beginning on the Effective Date and ending on the third anniversary of the
Effective Date (the "Employment Period"). Beginning on the third anniversary of
the Effective Date and on each subsequent anniversary of the Effective Date,
the Employment Period shall, without further action by Executive or the
Company, be extended by an additional one-year period; provided, however, that
either the Company or the Executive may, by notice to the other given at least
sixty (60) days prior to the scheduled expiration of the Employment Period,
cause the Employment Period to cease to extend automatically. Upon such notice,
the Employment Period shall terminate upon the expiration of the then-current
term, including any prior extensions.
4. Extent of Service. During the Employment Period, and excluding any
periods of vacation, holiday, sick leave and Company-approved leave of absence
to which Executive is entitled in accordance with Company policies, Executive
agrees to devote substantially all of his business time, attention, skill and
efforts exclusively to the faithful performance of his duties hereunder. It
shall not be a violation of this Agreement for Executive to (i) devote
reasonable time to charitable or community activities, (ii) serve on corporate,
civic, educational or charitable boards or committees, subject to the Company's
standards of business conduct or other code of ethics, (iii) deliver lectures
or fulfill speaking engagements from time to time on an infrequent basis,
and/or (iv) manage personal business interests and investments, subject to the
Company's standards of business conduct or other code of ethics, and so long as
such activities do not
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interfere in a material manner or on a routine basis with the performance of
Executive's responsibilities under this Agreement.
5. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Company
will pay to Executive base salary at the rate of U.S. $250,000 per year ("Base
Salary"), less normal withholdings, payable in approximately equal bi-weekly or
other installments as are or become customary under the Company's payroll
practices for its employees from time to time. The compensation committee of
the Board of Directors of the Company (or the full Board, if there is no
compensation committee) shall review Executive's Base Salary annually and may
increase (but not decrease) Executive's Base Salary from year to year. Such
adjusted salary then shall become Executive's Base Salary for purposes of this
Agreement. The annual review of Executive's salary by the Board will consider,
among other things, Executive's own performance, and the Company's performance.
(b) Incentive, Savings and Retirement Plans. During the Employment
Period, Executive shall be entitled to participate in all incentive, savings
and retirement plans, practices, policies and programs available to senior
executive officers of the Company ("Peer Executives"), and on the same basis as
such Peer Executives. Without limiting the foregoing, the following shall
apply:
(i) during the Employment Period, Executive will be entitled
to participate in the Company's executive bonus plan, pursuant to which he will
have an opportunity to receive an annual cash bonus based upon the achievement
of performance goals established from year to year by the compensation
committee of the Board of Directors of the Company (such bonus earned at the
stated "goal" level of achievement being referred to herein as the "Target
Bonus"); and
(ii) during the Employment Period, Executive will be eligible
for grants, under the Company's long-term incentive plan or plans, of stock
options and/or restricted stock awards (or such other stock-based awards as the
Company makes to Peer Executives), having terms and determined in the same
manner as awards to other Peer Executives, unless the Executive consents to a
different type of award or different terms of such award than are applicable to
other Peer Executives. Nothing herein requires the Board of Directors to make
grants of options or other awards in any year.
(c) Welfare Benefit Plans. During the Employment Period,
Executive and Executive's eligible dependents shall be eligible for
participation in, and shall receive all benefits under, the welfare benefit
plans, practices, policies and programs provided by the Company (including,
without limitation, medical, prescription drug, dental, disability, employee
life, dependent life, accidental death and travel accident insurance plans and
programs) ("Welfare Plans") to the extent available to other Peer Executives.
(d) Expenses. During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by Executive in the course of performing his duties and responsibilities under
this Agreement, in accordance with the policies, practices and procedures of
the Company to the extent available to other Peer Executives with respect to
travel, entertainment and other business expenses.
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(e) Fringe Benefits. During the Employment Period, Executive shall
be entitled to fringe benefits in accordance with the plans, practices,
programs and policies of the Company available to other Peer Executives.
(f) Vacation. During the Employment Period, Executive will be
entitled to such paid vacation time as may be provided from time to time under
any plans, practices, programs and policies of the Company available to other
Peer Executives.
(g) Office and Support Staff. During the Employment Period,
Executive will be entitled to office, furnishings and equipment of similar type
and quality made available to other Peer Executives. During the Employment
Period, Executive will be entitled to secretarial and other assistance
reasonably necessary for the performance of his duties and responsibilities.
6. Change of Control. For the purposes of this Agreement, a "Change of
Control" shall mean the occurrence of any of the following events:
(a) individuals who, on the Effective Date, constitute the Board of
Directors of the Company (the "Incumbent Directors") cease for any
reason to constitute at least a majority of such Board, provided
that any person becoming a director after the Effective Date and
whose election or nomination for election was approved by a vote of
at least a majority of the Incumbent Directors then on the Board
shall be an Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest with
respect to the election or removal of directors ("Election Contest")
or other actual or threatened solicitation of proxies or consents by
or on behalf of any "person" (such term for purposes of this Section
6 being as defined in Section 3(a)(9) of the Securities Exchange Act
of 1934 (the "Exchange Act") and as used in Section 13(d)(3) and
14(d)(2) of the Exchange Act) other than the Board ("Proxy
Contest"), including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest, shall be deemed an
Incumbent Director; or
(b) any person is or becomes a "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
either (i) 35% or more of the then-outstanding shares of common
stock of the Company ("Company Common Stock") or (ii) securities of
the Company representing 35% or more of the combined voting power of
the Company's then outstanding securities eligible to vote for the
election of directors (the "Company Voting Securities"); provided,
however, that for purposes of this paragraph (b), the following
acquisitions of Company Common Stock or Company Voting Securities
shall not constitute a Change of Control: (A) an acquisition
directly from the Company, (B) an acquisition by the Company or a
subsidiary of the Company, (C) an acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any subsidiary of the Company, or (D) an acquisition
pursuant to a Non-Qualifying Transaction (as defined in paragraph
(c) below); or
(c) the consummation of a recapitalization, reorganization, merger,
consolidation, statutory share exchange or similar form of
transaction involving the Company or a subsidiary of the Company (a
"Reorganization"), or the sale or other disposition of all or
substantially all of the Company's assets (a "Sale") or the
acquisition of assets or stock of another entity (an "Acquisition"),
unless immediately following such Reorganization, Sale or
Acquisition: (A) all or substantially all of the individuals
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and entities who were the beneficial owners, respectively, of the
outstanding Company Common Stock and outstanding Company Voting
Securities immediately prior to such Reorganization, Sale or
Acquisition beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the entity resulting from or surviving such
Reorganization, Sale or Acquisition (including, without limitation,
an entity which as a result of such transaction owns the Company or
all or substantially all of the Company's assets or stock either
directly or through one or more subsidiary entities, the "Surviving
Entity") in substantially the same proportions as their ownership,
immediately prior to such Reorganization, Sale or Acquisition, of
the outstanding Company Common Stock and the outstanding Company
Voting Securities, as the case may be, and (B) no person (other than
(x) the Company or any subsidiary of the Company, (y) the Surviving
Entity or its ultimate parent entity, or (z) any employee benefit
plan (or related trust) sponsored or maintained by any of the
foregoing) is the beneficial owner, directly or indirectly, of 35%
or more of the total common stock or 35% or more of the total voting
power of the outstanding voting securities eligible to elect
directors of the Surviving Entity, and (C) at least a majority of
the members of the board of directors of the Surviving Entity were
Incumbent Directors at the time of the Board's approval of the
execution of the initial agreement providing for such
Reorganization, Sale or Acquisition (any Reorganization, Sale or
Acquisition which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a "Non-Qualifying
Transaction"); or
(d) approval by the members or stockholders of the Company,
as the case may be, of a complete liquidation or dissolution of
the Company.
7. Termination of Employment.
(a) Death or Retirement. Executive's employment shall terminate
automatically upon Executive's death or Retirement during the Employment
Period. For purposes of this Agreement, "Retirement" shall mean normal
retirement as defined in the Company's then-current retirement plan, or if
there is no such retirement plan, "Retirement" shall mean voluntary termination
after age 65 with at least ten years of service.
(b) Disability. If the Company determines in good faith that the
Disability (as defined below) of Executive has occurred during the Employment
Period, it may give to Executive written notice of its intention to terminate
Executive's employment. In such event, Executive's employment with the Company
shall terminate effective on the 30th day after receipt of such written notice
by Executive (the "Disability Effective Date"), provided that, within the 30
days after such receipt, Executive shall not have returned to full-time
performance of Executive's duties. For purposes of this Agreement, "Disability"
shall have the same meaning as provided in the long-term disability plan or
policy maintained by the Company and covering Executive. If no such long-term
disability plan or policy is maintained, "Disability" shall mean the inability
of Executive, as determined by the Board, to perform the essential functions of
his regular duties and responsibilities, with or without reasonable
accommodation, due to a medically determinable physical or mental illness which
has lasted (or can reasonably be expected to last) for a period of six
consecutive months.
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(c) Termination by the Company. The Company may terminate
Executive's employment during the Employment Period with or without Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness, or following
Executive's delivery of notice of termination for Good Reason, and specifically
excluding any failure by Executive, after reasonable efforts, to meet
performance expectations), after a written demand for substantial performance
is delivered to Executive by the Board which specifically identifies the manner
in which the Board believes that Executive has not substantially performed
Executive's duties, or
(ii) the engaging by Executive in illegal conduct or gross
misconduct which is injurious to the Company, or
(iii) the conviction of Executive, or a plea of guilty or
nolo contendere by Executive, to a felony or other crime involving moral
turpitude.
(d) Termination by Executive. Executive's employment may be
terminated by Executive for Good Reason or no reason. For purposes of this
Agreement, unless written consent of Executive is obtained, "Good Reason" shall
mean:
(i) the assignment to Executive of duties inconsistent in
material respect with Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as in effect
on the Effective Date, or a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) a reduction by the Company in Executive's Base Salary or
Target Bonus as in effect on the Effective Date or, with respect to Executive's
Base Salary, as the same may be increased from time to time;
(iii) any failure by the Company to comply with and satisfy
16(c) of this Agreement; or
(v) the material breach by the Company of any other provision of
this Agreement.
Any claim of "Good Reason" under this Agreement shall be communicated
by Executive to the Company in writing, which writing shall specifically
identify the factual details concerning the event(s) giving rise to Executive's
claim of Good Reason under this Section 7(d). The Company shall have an
opportunity to cure any claimed event of Good Reason within 30 days of such
notice from Executive.
(e) Notice of Termination. Any termination by the Company for Cause,
or by Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 17(f) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of
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Executive's employment under the provision so indicated, and (iii) specifies
the termination date. The failure by Executive or the Company to set forth in
the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of Executive or the
Company, respectively, hereunder or preclude Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
(f) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated by the Company for Cause, or by Executive
for Good Reason, the date of receipt of the Notice of Termination or a date
within 30 days after receipt of the Notice of Termination, as specified in such
notice, (ii) if Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date of receipt
of the Notice of Termination or a date within 90 days after receipt of the
Notice of Termination, as specified in such notice, (iii) if Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Executive or the Disability Effective
Date, as the case may be, and (iv) if Executive's employment is terminated by
Executive without Good Reason, the Date of Termination shall be 60 days
following the Company's receipt of the Notice of Termination, unless the
Company specifies an earlier Date of Termination.
8. Obligations of the Company upon Termination.
(a) Termination by Executive for Good Reason; Termination by the
Company Other Than for Cause or Disability. If, during the Employment Period,
the Company shall terminate Executive's employment other than for Cause or
Disability, or Executive shall terminate employment for Good Reason within a
period of 90 days after the occurrence of the event giving rise to Good Reason,
then and, with respect to the payments and benefits described in clauses (i)(B)
and (ii) below, only if Executive executes a Release in substantially the form
of Exhibit A hereto (the "Release"):
(i) the Company shall provide to Executive in a single lump
sum cash payment within 30 days after the Date of Termination, or if later,
within five days after the Release becomes effective and nonrevocable, the
aggregate of the following amounts:
A. the sum of the following amounts, to the extent
not previously paid to Executive (the "Accrued Obligations"): (1)
Executive's Base Salary through the Date of Termination, (2) a
pro-rata bonus for the year in which the Date of Termination occurs,
computed as the product of (x) Executive's Target Bonus for such
year and (y) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination, and
the denominator of which is 365, (3) any accrued pay in lieu of
unused vacation (in accordance with the Company's vacation policy),
and (4) unless Executive has a later payout date that is required in
connection with the terms of a deferral plan or agreement, any
vested compensation previously deferred by Executive (together with
any amount equivalent to accrued interest or earnings thereon); and
B. a severance payment as determined pursuant to
clause (x) or (y) below, as applicable:
(x) if the Date of Termination occurs
before, or more than two years after, the occurrence of a Change of
Control, the severance payment shall be the product of 24 (the
"Regular Severance Factor") times one twelfth of the sum of
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(1) Executive's Base Salary in effect as of the Date of
Termination (ignoring any decrease in Executive's Base Salary
unless consented to by Executive), and (2) the greater of the
average of the annual bonuses earned by Executive for the two
fiscal years in which annual bonuses were paid immediately
preceding the year in which the Date of Termination occurs,
or Executive's Target Bonus for the year in which the Date of
Termination occurs; or
(y) if the Date of Termination occurs
within two years after the occurrence of a Change of Control,
the severance payment shall be the product of 30 (the "Change
of Control Severance Factor") times one twelfth of the sum
of (1) Executive's Base Salary in effect as of the Date of
Termination, and (2) the greater of the average of the annual
bonuses earned by Executive for the two fiscal years in which
annual bonuses were paid immediately preceding the year in
which the Date of Termination occurs, or Executive's Target
Bonus for the year in which the Date of Termination occurs;
and
(ii) the Company shall continue to provide, for a
number of months equal to the Regular Severance Factor or the Change of Control
Severance Factor (determined in Section 8(a)(i)(B)(x) or (y) above, as
applicable) after Executive's Date of Termination (the "Welfare Benefits
Continuation Period"), or such longer period as may be provided by the terms of
the appropriate plan, program, practice or policy, any group health benefits to
which Executive and/or Executive's eligible dependents would otherwise be
entitled to continue under COBRA, or benefits substantially equivalent to those
group health benefits which would have been provided to them in accordance with
the Welfare Plans described in Section 5(c) of this Agreement if Executive's
employment had not been terminated, provided, however, that if Executive
becomes employed with another employer (including self-employment) and receives
group health benefits under another employer provided plan, the Company's
obligation to provide group health benefits described herein shall cease,
except as otherwise provided by law and provided, further, that the Welfare
Benefits Continuation Period shall run concurrently with any period for which
Executive is eligible to elect health coverage under COBRA; and
(iii) all grants of stock options and other equity
awards granted by the Company and held by Executive as of the Date of
Termination will become immediately vested and exercisable as of the Date of
Termination and, to the extent necessary, this Agreement is hereby deemed an
amendment of any such outstanding stock option or other equity award; and
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to Executive any other amounts or
benefits required to be paid or provided or which Executive is eligible to
receive under any plan, program, policy or practice of the Company to the
extent provided to Peer Executives prior to the Date of Termination (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits").
If Executive's employment is terminated by the Company without Cause
prior to the occurrence of a Change in Control and if it can reasonably be
shown that Executive's termination (i) was at the direction or request of a
third party that had taken steps reasonably calculated to effect a Change in
Control after such termination, or (ii) otherwise occurred in anticipation of a
Change in Control, and in either case a Change in Control as defined hereunder
does, in fact, occur, then Executive shall have the rights described in this
Section 8(a) as if the Change in Control had occurred on the date immediately
preceding the Date of Termination.
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Executive acknowledges and agrees that the receipt of severance
benefits provided in this Section 8(a) constitutes consideration for the
restrictions on the conduct of Executive contained in Section 14 of this
Agreement.
(b) Death, Disability or Retirement. If Executive's employment is
terminated by reason of his death, Disability or Retirement during the
Employment Period, this Agreement shall terminate without further obligations
to Executive or his estate, beneficiaries or legal representatives, other than
for payment of Accrued Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to Executive or his estate,
beneficiary or legal representative, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as used in this Section 8(b) shall
include, without limitation, and Executive or his estate, beneficiaries or
legal representatives, as applicable, shall be entitled to receive, benefits
under such plans, programs, practices and policies relating to death,
disability or retirement benefits, if any, as are applicable to Executive or
his family on the Date of Termination.
(c) Cause or Voluntary Termination without Good Reason. If
Executive's employment shall be terminated for Cause during the Employment
Period, or if Executive voluntarily terminates employment during the Employment
Period without Good Reason, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued Obligations
(excluding the pro-rata bonus described in clause 2 of Section 8(a)(i)(A)) and
the timely payment or provision of Other Benefits.
(d) Expiration of Employment Period. If Executive's employment shall
be terminated due to the normal expiration of the Employment Period, this
Agreement shall terminate without further obligations to Executive, other than
for payment of Accrued Obligations and the timely payment or provision of Other
Benefits.
(e) Resignations. Termination of Executive's employment for any
reason whatsoever shall constitute Executive's resignation from the Board of
Directors of the Company and resignation as an officer of the Company, its
subsidiaries and affiliates.
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in any employee benefit
plan, program, policy or practice provided by the Company and for which
Executive may qualify, except as specifically provided herein. Amounts which
are vested benefits or which Executive is otherwise entitled to receive under
any employee benefit plan, policy, practice or program of the Company, its
subsidiaries or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program except as explicitly modified by this Agreement.
10. Full Settlement; No Obligation to Mitigate. The Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against Executive or others. In no event shall Executive be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to Executive under any of the provisions of
this Agreement and, except as explicitly provided herein, such amounts shall
not be reduced whether or not Executive obtains other employment.
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11. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional
payments required under this Section 11) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") or any interest or penalties are incurred by Executive
with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the "Excise
Tax"), then Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 11(a), if it shall be determined that Executive is entitled to a
Gross-Up Payment, but that Executive, after taking into account the Payments
and the Gross-Up Payment, would not receive a net after-tax benefit of at least
$50,000 (taking into account both income taxes and any Excise Tax) as compared
to the net after-tax proceeds to Executive resulting from an elimination of the
Gross-Up Payment and a reduction of the Payments, in the aggregate, to an
amount (the "Reduced Amount") such that the receipt of Payments would not give
rise to any Excise Tax, then no Gross-Up Payment shall be made to Executive and
the Payments, in the aggregate, shall be reduced to the Reduced Amount.
Executive may select the Payments to be limited or reduced.
(b) Subject to the provisions of Section 11(c), all determinations
required to be made under this Section 11, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be used in arriving at such determination, shall be made by a
certified public accounting firm selected by Executive (other than the
Company's regular accounting firm) and reasonably acceptable to the Company
(the "Accounting Firm") which shall provide detailed supporting calculations
both to the Company and Executive within 15 business days of the receipt of
notice from Executive that there has been a Payment, or such earlier time as is
reasonably requested by the Company. All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 11, shall be paid by the Company to Executive within
five days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Company and
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section ll(c) and Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Executive.
(c) Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of a Gross-Up Payment (or an additional Gross-Up Payment). Such
notification shall be given as soon as practicable but no later than ten
business days after Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which such
9
claim is requested to be paid. Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which he gives such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies
Executive in writing prior to the expiration of such period that it desires to
contest such claim, Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions
of this Section 11(c), the Company shall control all proceedings taken in
connection with such contest (to the extent applicable to the Excise Tax and
the Gross-Up Payment) and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and sue for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Executive to pay such
claim and sue for a refund, the Company shall advance the amount of such
payment to Executive, on an interest-free basis and shall indemnify and hold
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of Executive with respect to
which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Executive shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section ll(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 11(c)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an
amount advanced by the Company pursuant to Section 11(c), a determination is
made that Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify
10
Executive in writing of its intent to contest such denial of refund prior to
the expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required
to be paid.
12. Costs of Enforcement. In any action taken in good faith relating
to the enforcement of this Agreement or any provision herein, Executive shall
be entitled to reimbursement for any and all costs and expenses incurred by him
in enforcing or establishing his rights thereunder, including, without
limitation, reasonable attorneys' fees, whether suit be brought or not, and
whether or not incurred in arbitration, trial, bankruptcy or appellate
proceedings, but only if and to the extent Executive is successful in asserting
such rights. Executive shall also be entitled to be paid all reasonable legal
fees and expenses, if any, incurred in connection with any tax audit or
proceeding to the extent attributable to the application of Section 4999 of the
Internal Revenue Code to any payment or benefit hereunder.
13. Representations and Warranties. Executive hereby represents and
warrants to the Company that Executive is not a party to, or otherwise subject
to, any covenant not to compete with any person or entity, and Executive's
execution of this Agreement and performance of his obligations hereunder will
not violate the terms or conditions of any contract or obligation, written or
oral, between Executive and any other person or entity.
14. Restrictions on Conduct of Executive.
(a) General. Executive and the Company understand and agree that the
purpose of the provisions of this Section 14 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
impair or infringe upon Executive's right to work, earn a living, or acquire
and possess property from the fruits of his labor. Executive hereby
acknowledges that Executive has received good and valuable consideration for
the post-employment restrictions set forth in this Section 14 in the form of
the compensation and benefits provided for herein. Executive hereby further
acknowledges that the post-employment restrictions set forth in this Section 14
are reasonable and that they do not, and will not, unduly impair his ability to
earn a living after the termination of this Agreement.
In addition, the parties acknowledge: (A) that Executive's services
under this Agreement require unique expertise and talent in the provision of
Competitive Services and that Executive will have substantial contacts with
customers, suppliers, advertisers and vendors of the Company; (B) that pursuant
to this Agreement, Executive will be placed in a position of trust and
responsibility and he will have access to a substantial amount of Confidential
Information and Trade Secrets and that the Company is placing him in such
position and giving him access to such information in reliance upon his
agreement not to solicit customers during the Restricted Period; (C) that due
to Executive's unique experience and talent, the loss of Executive's services
to the Company under this Agreement cannot reasonably or adequately be
compensated solely by damages in an action at law; (D) that Executive is
capable of competing with the Company; and (E) that Executive is capable of
obtaining gainful, lucrative and desirable employment that does not violate the
restrictions contained in this Agreement.
Therefore, Executive shall be subject to the restrictions set forth
in this Section 14.
(b) Definitions. The following capitalized terms used in this
Section 14 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
11
"Competitive Services" means the business of providing post-acute
healthcare services, including home-based services through home nursing
agencies and hospices and facility-based services through long-term acute care
hospitals and outpatient rehabilitation clinics.
"Confidential Information" means all information regarding the
Company, its activities, business or clients that is the subject of reasonable
efforts by the Company to maintain its confidentiality and that is not
generally disclosed by practice or authority to persons not employed by the
Company, but that does not rise to the level of a Trade Secret. "Confidential
Information" shall include, but is not limited to, financial plans and data
concerning the Company; management planning information; business plans;
operational methods; market studies; marketing plans or strategies; product
development techniques or plans; customer lists; customer files, data and
financial information, details of customer contracts; current and anticipated
customer requirements; identifying and other information pertaining to business
referral sources; past, current and planned research and development; business
acquisition plans; and new personnel acquisition plans. "Confidential
Information" shall not include information that has become generally available
to the public by the act of one who has the right to disclose such information
without violating any right or privilege of the Company. This definition shall
not limit any definition of "confidential information" or any equivalent term
under state or federal law.
"Determination Date" means the date of termination of Executive's
employment with the Company for any reason whatsoever or any earlier date
(during the Employment Period) of an alleged breach of the Restrictive
Covenants by Executive.
"Person " means any individual or any corporation, partnership,
joint venture, limited liability company, association or other entity or
enterprise.
"Principal or Representative" means a principal, owner, partner,
stockholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom the Company has sold
its products or services or solicited to sell its products or services, other
than through general advertising targeted at consumers, during the 12 months
prior to the Determination Date.
"Protected Employees" means employees of the Company who were
employed by the Company or its affiliates at any time within six months prior
to the Determination Date, other than those who were discharged by the Company
or such affiliated employer without cause.
"Restricted Period" means the Employment Period plus 24 months (or
the Employment Period plus 6 months if Executive's termination occurs within
two years after the occurrence of a Change in Control); provided, however, that
the Restricted Period shall end with respect to the covenants in clauses (ii)
and (iii) of Section 14(c) on the 60th day after the Date of Termination in the
event the Company breaches its obligation, if any, to make any payment required
under Section 8(a)(i).
"Restricted Territory" means the geographical territory described on
Exhibit B hereto.
12
"Restrictive Covenants" means the restrictive covenants contained
in Section 14(c) hereof.
"Third Party Information" means confidential or proprietary
information subject to a duty on the Company's and its affiliates' part to
maintain the confidentiality of such information and to use it only for certain
limited purposes.
"Trade Secret" means all information, without regard to form,
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing,
a process, financial data, financial plans, product plans, distribution lists
or a list of actual or potential customers, advertisers or suppliers which is
not commonly known by or available to the public and which information: (A)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (B) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
Without limiting the foregoing, Trade Secret means any item of confidential
information that constitutes a "trade secret(s)" under the common law or
statutory law of the State of Delaware.
"Work Product" means all inventions, innovations, improvements,
developments, methods, processes, programs, designs, analyses, drawings,
reports, and all similar or related information (whether or not patentable)
that relate to the Company's or its affiliates' actual or anticipated business,
research and development, or existing or future products or services and that
are conceived, developed, contributed to, made, or reduced to practice by
Executive (either solely or jointly with others) while employed by the Company
or its affiliates.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential
Information and Trade Secrets. Executive understands and agrees that the
Confidential Information and Trade Secrets constitute valuable assets of the
Company and its affiliated entities, and may not be converted to Executive's
own use. Accordingly, Executive hereby agrees that Executive shall not,
directly or indirectly, at any time during the Restricted Period reveal,
divulge, or disclose to any Person not expressly authorized by the Company any
Confidential Information, and Executive shall not, directly or indirectly, at
any time during the Restricted Period use or make use of any Confidential
Information in connection with any business activity other than that of the
Company. Throughout the term of this Agreement and at all times after the date
that this Agreement terminates for any reason, Executive shall not directly or
indirectly transmit or disclose any Trade Secret of the Company to any Person,
and shall not make use of any such Trade Secret, directly or indirectly, for
himself or for others, without the prior written consent of the Company. The
parties acknowledge and agree that this Agreement is not intended to, and does
not, alter either the Company's rights or Executive's obligations under any
state or federal statutory or common law regarding trade secrets and unfair
trade practices.
Anything herein to the contrary notwithstanding, Executive
shall not be restricted from disclosing or using Confidential Information or
any Trade Secret that is required to be disclosed by law, court order or other
legal process; provided, however, that in the event disclosure is required by
law, Executive shall provide the Company with prompt notice of such requirement
so that the Company may seek an appropriate protective order prior to any such
required disclosure by Executive.
13
Executive acknowledges that any and all Confidential
Information is the exclusive property of the Company and agrees to deliver to
the Company on the Date of Termination, or at any other time the Company may
request in writing, any and all Confidential Information which he may then
possess or have under his control in whatever form same may exist, including,
but not by way of limitation, hard copy files, soft copy files, computer disks,
and all copies thereof.
(ii) Nonsolicitation of Protected Employees. Executive
understands and agrees that the relationship between the Company and each of
its Protected Employees constitutes a valuable asset of the Company and may not
be converted to Executive's own use. Accordingly, Executive hereby agrees that
during the Restricted Period, Executive shall not directly or indirectly on
Executive's own behalf or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee to terminate his employment
relationship with the Company or to enter into employment with any other
Person.
(iii) Restriction on Relationships with Protected Customers.
Executive understands and agrees that the relationship between the Company and
each of its Protected Customers constitutes a valuable asset of the Company and
may not be converted to Executive's own use. Accordingly, Executive hereby
agrees that, during the Restricted Period and in the Restricted Territory,
Executive shall not, without the prior written consent of the Company, directly
or indirectly, on Executive's own behalf or as a Principal or Representative of
any Person, solicit, divert, take away or attempt to solicit, divert or take
away a Protected Customer for the purpose of providing or selling Competitive
Services; provided, however, that the prohibition of this covenant shall apply
only to Protected Customers with whom Executive had Material Contact on the
Company's behalf during the 12 months immediately preceding the Date of
Termination; and, provided further, that the prohibition of this covenant shall
not apply to the conduct of general advertising activities. For purposes of
this Agreement, Executive had "Material Contact" with a Protected Customer if
(a) he had business dealings with the Protected Customer on the Company's
behalf; (b) he was responsible for supervising or coordinating the dealings
between the Company and the Protected Customer; or (c) he obtained Trade
Secrets or Confidential Information about the customer as a result of his
association with the Company.
(iv) Ownership of Work Product. Executive acknowledges that
the Work Product belongs to the Company or its affiliates and Executive hereby
assigns, and agrees to assign, all of the Work Product to the Company or its
affiliates. Any copyrightable work prepared in whole or in part by Executive in
the course of his work for any of the foregoing entities shall be deemed a
"work made for hire" under the copyright laws, and the Company or such
affiliate shall own all rights therein. To the extent that any such
copyrightable work is not a "work made for hire," Executive hereby assigns and
agrees to assign to the Company or such affiliate all right, title, and
interest, including without limitation, copyright in and to such copyrightable
work. Executive shall promptly disclose such Work Product and copyrightable
work to the Board and perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm the
Company's or such affiliate's ownership (including, without limitation,
assignments, consents, powers of attorney, and other instruments).
(v) Third Party Information. Executive understands that the
Company and its affiliates will receive Third Party Information. During the
Employment Period and thereafter, and without in any way limiting the
provisions of Section 14(c)(i) above, Executive will hold Third Party
Information in the strictest confidence and will not disclose to anyone (other
than personnel of the Company or its affiliates who need to know such
information in connection with
14
their work for the Company or its affiliates) or use, except in connection with
his work for the Company or its affiliates, Third Party Information unless
expressly authorized by a member of the Board (other than Executive) in
writing.
(vi) Use of Information of Prior Employers. During the
Employment Period, Executive will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employers or
any other person to whom Executive has an obligation of confidentiality, and
will not bring onto the premises of the Company or any of its affiliates any
unpublished documents or any property belonging to any former employer or any
other person to whom Executive has an obligation of confidentiality unless
consented to by in writing the former employer or person. Executive will use in
the performance of his duties only information which is (i) generally known and
used by persons with training and experience comparable to Executive's and
which is (x) common knowledge in the industry or (y) is otherwise legally in
the public domain, (ii) is otherwise provided or developed by the Company or
its affiliates or (iii) in the case of materials, property or information
belonging to any former employer or other person to whom Executive has an
obligation of confidentiality, approved for such use in writing by such former
employer or person.
(d) Enforcement of Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the event Executive
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the right and remedy to enjoin,
preliminarily and permanently, Executive from violating or threatening to
violate the Restrictive Covenants and to have the Restrictive Covenants
specifically enforced by any court or tribunal of competent jurisdiction, it
being agreed that any breach or threatened breach of the Restrictive Covenants
would cause irreparable injury to the Company and that money damages would not
provide an adequate remedy to the Company. Such right and remedy shall be
independent of any others and severally enforceable, and shall be in addition
to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity.
(ii) Severability of Covenants. Executive acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in time and
scope and in all other respects. The covenants set forth in this Agreement
shall be considered and construed as separate and independent covenants. Should
any part or provision of any covenant be held invalid, void or unenforceable,
such invalidity, voidness or unenforceability shall not render invalid, void or
unenforceable any other part or provision of this Agreement. If any portion of
the foregoing provisions is found to be invalid or unenforceable because its
duration, the territory, the definition of activities or the definition of
information covered is considered to be invalid or unreasonable in scope, the
invalid or unreasonable term shall be redefined, or a new enforceable term
provided, such that the intent of the Company and Executive in agreeing to the
provisions of this Agreement will not be impaired and the provision in question
shall be enforceable to the fullest extent of the applicable laws.
(iii) Reformation. The parties hereunder agree that it is
their intention that the Restrictive Covenants be enforced in accordance with
their terms to the maximum extent possible under applicable law. The parties
further agree that, in the event any tribunal of competent jurisdiction shall
find that any provision hereof is not enforceable in accordance with its terms,
the tribunal shall reform the Restrictive Covenants such that they shall be
enforceable to the maximum extent permissible at law.
15
15. Arbitration. Any claim or dispute arising under or relating to
this Agreement or the breach, termination, or validity of any term of this
Agreement, including, but not by way of limitation, the legality and
enforceability of the Restrictive Covenants, shall be subject to arbitration,
and prior to commencing any court action, the parties agree that they shall
arbitrate all controversies; provided, however, that nothing in this Section 15
shall prohibit the Company from exercising its right under Section 14(d)(i) to
pursue injunctive remedies with respect to a breach or threatened breach of the
Restrictive Covenants. The arbitration shall be conducted in Lafayette,
Louisiana, in accordance with the Employment Dispute Rules of the American
Arbitration Association and the Federal Arbitration Act, 9 U.S.C. Section 1,
et. seq. The arbitrator(s) shall be authorized to award both liquidated and
actual damages, in addition to injunctive relief, but no punitive damages. The
arbitrator(s) may also award attorney's fees and costs, without regard to any
restriction on the amount of such award under Delaware or other applicable law.
Such an award shall be binding and conclusive upon the parties hereto, subject
to 9 U.S.C. Section 10. Each party shall have the right to have the award made
the judgment of a court of competent jurisdiction.
16. Assignment and Successors.
(a) This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any Surviving Entity resulting from a
Reorganization, Sale or Acquisition (if other than the Company) to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no
Reorganization, Sale or Acquisition had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
17. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof,
of this Agreement should be held by any tribunal of competent jurisdiction to
be invalid, illegal or unenforceable, either in whole or in part, such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of the remaining provisions or covenants, or any
part thereof, of this Agreement, all of which shall remain in full force and
effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
limiting the Company from employing other personnel on such terms and
conditions as may be satisfactory to it, except that this Section 17(c) shall
not override the provision of Section 7(d)(i).
16
(d) Entire Agreement. Except as provided herein, this Agreement
contains the entire agreement between the Company and Executive with respect to
the subject matter hereof and, from and after the Effective Date, this
Agreement shall supersede any other agreement between the parties with respect
to the subject matter hereof, including without limitation, the Prior
Agreement.
(e) Governing Law. Except to the extent preempted by federal law,
and without regard to conflict of laws principles, the laws of the State of
Delaware shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first
class, certified mail, postage prepaid:
To the Company: LHC Group, Inc.
Suite A
420 W. Pinhook Road
Lafayette, LA 70503
Attention: General Counsel
To Executive: R. Barr Brown
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(h) Construction. Each party and his or its counsel have reviewed
this Agreement and have been provided the opportunity to revise this Agreement
and accordingly, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement. Instead, the language of all parts of
this Agreement shall be construed as a whole, and according to its fair
meaning, and not strictly for or against either party.
(i) Withholding. The Company or its subsidiaries, if applicable,
shall be entitled to deduct or withhold from any amounts owing from the Company
or any such affiliate to Executive any federal, state, local or foreign
withholding taxes, excise taxes, or employment taxes ("Taxes") imposed with
respect to Executive's compensation or other payments from the Company or any
of its affiliates. In the event the Company or its affiliates do not make such
deductions or withholdings, Executive shall indemnify the Company and its
affiliates for any amounts paid with respect to any such Taxes.
17
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Employment Agreement as of the date first above written.
LHC GROUP, INC.
By: signature
-----------------------
Title: President/CEO
---------------------
EXECUTIVE:
/s/ R. Barr Brown
----------------------------
R. Barr Brown
18
EXHIBIT A
Form of Release
THIS RELEASE ("Release") is granted effective as of
the_________________________________________day of_______________________,
20_, by__________________("Executive") in favor of LHC Group, Inc. (the
"Company"). This is the Release referred to that certain Employment Agreement
effective as of_________________________________________________, 200_ by and
between the Company and Executive (the "Employment Agreement"), with respect
to which this Release is an integral part.
FOR AND IN CONSIDERATION of the payments and benefits provided by
Section 8 of the Employment Agreement and the Company's other promises and
covenants as recited in the Employment Agreement, the receipt and sufficiency
of which are hereby acknowledged, Executive, for himself, his successors and
assigns, now and forever hereby releases and discharges the Company and all its
past and present officers, directors, stockholders, employees, agents, parent
corporations, predecessors, subsidiaries, affiliates, estates, successors,
assigns, benefit plans, consultants, administrators, and attorneys (hereinafter
collectively referred to as "Releasees") from any and all claims, charges,
actions, causes of action, sums of money due, suits, debts, covenants,
contracts, agreements, promises, demands or liabilities (hereinafter
collectively referred to as "Claims") whatsoever, in law or in equity, whether
known or unknown, which Executive ever had or now has from the beginning of
time up to the date this Release ("Release") is executed, including, but not
limited to, claims under the Age Discrimination in Employment Act, as amended
by the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act
of 1964 (and all of its amendments), the Americans with Disabilities Act, as
amended, or any other federal or state statutes, all tort claims, all claims
for wrongful employment termination or breach of contract, and any other claims
which Executive has, had, or may have against the Releasees on account of or
arising out of Executive's employment with or termination from the Company;
provided, however, that nothing contained in this Release shall in any way
diminish or impair (i) any rights of Executive to the benefits conferred or
referenced in the Employment Agreement or Executive's Retention Bonus Agreement
with the Company, (ii) any rights to indemnification that may exist from time
to time under the Company's bylaws, certificate of incorporation, Delaware law
or otherwise, or (iii) Executive's ability to raise an affirmative defense in
connection with any lawsuit or other legal claim or charge instituted or
asserted by the Company against Executive.
Without limiting the generality of the foregoing, Executive hereby
acknowledges and covenants that in consideration for the sums being paid to him
he has knowingly waived any right or opportunity to assert any claim that is in
any way connected with any employment relationship or the termination of any
employment relationship which existed between the Company and Executive.
Executive further understands and agrees that he has knowingly relinquished,
waived and forever released any and all remedies arising out of the aforesaid
employment relationship or the termination thereof, including, without
limitation, claims for backpay, front pay, liquidated damages, compensatory
damages, general damages, special damages, punitive damages, exemplary damages,
costs, expenses and attorneys' fees.
Executive specifically acknowledges and agrees that he has knowingly
and voluntarily released the Company and all other Releasees from any and all
claims arising under the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. Section 621, et seq., which Executive ever had or now has from the
beginning of time up to the date this Release is executed, including but not
limited to those claims which are in any way connected with any employment
relationship or
1
the termination of any employment relationship which existed between the
Company and Executive. Executive further acknowledges and agrees that he has
been advised to consult with an attorney prior to executing this Release and
that he has been given twenty-one (21) days to consider this Release prior to
its execution. Executive also understands that he may revoke this Release at
any time within seven (7) days following its execution. Executive understands,
however, that this Release shall not become effective and that none of the
consideration described above shall be paid to him until the expiration of the
seven-day revocation period.
Executive agrees never to seek reemployment or future employment with
the Company or any of the other Releasees.
Executive acknowledges that the terms of this Release must be kept
confidential. Accordingly, Executive agrees not to disclose or publish to any
person or entity, except as required by law or as necessary to prepare tax
returns, the terms and conditions or sums being paid in connection with this
Release.
It is understood and agreed by Executive that the payment made to him
is not to be construed as an admission of any liability whatsoever on the part
of the Company or any of the other Releasees, by whom liability is expressly
denied.
This Release is executed by Executive voluntarily and is not based
upon any representations or statements of any kind made by the Company or any
of the other Releasees as to the merits, legal liabilities or value of his
claims. Executive further acknowledges that he has had a full and reasonable
opportunity to consider this Release and that he has not been pressured or in
any way coerced into executing this Release.
Executive acknowledges and agrees that this Release may not be revoked
at any time after the expiration of the seven-day revocation period and that he
will not institute any suit, action, or proceeding, whether at law or equity,
challenging the enforceability of this Release. Executive further acknowledges
and agrees that, with the exception of an action to challenge his waiver of
claims under the ADEA, he shall not ever attempt to challenge the terms of this
Release, attempt to obtain an order declaring this Release to be null and void,
or institute litigation against the Company or any other Releasee based upon a
claim which is covered by the terms of the release contained herein, without
first repaying all monies paid to him under Section 8 of the Employment
Agreement. Furthermore, with the exception of an action to challenge his waiver
of claims under the ADEA, if Executive does not prevail in an action to
challenge this Release, to obtain an order declaring this Release to be null
and void, or in any action against the Company or any other Releasee based upon
a claim which is covered by the release set forth herein, Executive shall pay
to the Company and/or the appropriate Releasee all their costs and attorneys'
fees incurred in their defense of Executive's action.
This Release and the rights and obligations of the parties hereto
shall be governed and construed in accordance with the laws of the State of
Georgia. If any provision hereof is unenforceable or is held to be
unenforceable, such provision shall be fully severable, and this document and
its terms shall be construed and enforced as if such unenforceable provision
had never comprised a part hereof, the remaining provisions hereof shall remain
in full force and effect, and the court construing the provisions shall add as
a part hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
2
This document contains all terms of the Release and supersedes and
invalidates any previous agreements or contracts. No representations,
inducements, promises or agreements, oral or otherwise, which are not embodied
herein shall be of any force or effect.
IN WITNESS WHEREOF, the undersigned acknowledges that he has read
these three pages and he sets his hand and seal
this__________________________day of___________________________, 20_______.
Sworn to and subscribed
before me this_________________day of
___________________________, 20_______.
Notary Public
My Commission Expires:
3
EXHIBIT B
Restricted Territory
1
15 Subsequent Filings that Reference this Filing
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent
2/22/23 LHC Group, Inc. 10-K 12/31/22 78:11M
8/04/22 LHC Group, Inc. 10-Q 6/30/22 64:7.8M
5/04/22 LHC Group, Inc. 10-Q 3/31/22 60:6.1M
4/27/22 LHC Group, Inc. 10-K/A 12/31/21 13:870K
2/24/22 LHC Group, Inc. 10-K 12/31/21 77:11M
11/04/21 LHC Group, Inc. 10-Q 9/30/21 64:8.5M
8/05/21 LHC Group, Inc. 10-Q 6/30/21 65:8M
5/21/21 LHC Group, Inc. S-3ASR 5/21/21 4:544K Donnelley … Solutions/FA
5/06/21 LHC Group, Inc. 10-Q 3/31/21 60:5.9M
2/26/21 LHC Group, Inc. 10-K 12/31/20 82:11M
11/05/20 LHC Group, Inc. 10-Q 9/30/20 63:7.9M
8/06/20 LHC Group, Inc. 10-Q 6/30/20 63:8.1M
4/27/05 SEC UPLOAD¶ 9/20/17 1:16K LHC Group, Inc.
4/14/05 SEC UPLOAD¶ 9/20/17 1:13K LHC Group, Inc.
2/25/05 SEC UPLOAD¶ 9/20/17 1:8K LHC Group, Inc.
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Filing Submission 0000950144-05-001444 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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