Exhibit 10.1
HEALTH MANAGEMENT, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of September
9, 1996, by and between Health Management, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, Home Care Management, Inc., a New York corporation wholly-owned by
the Company entered into an employment agreement with the Executive, dated as of
January 8, 1996 (the "Original Agreement"); and
WHEREAS, the nature of the Executive's duties and responsibilities related
to the Company and its subsidiaries have expanded since the date of the Original
Agreement; and
WHEREAS, the Executive's compensation and stock options have been modified
by the Executive Committee of the Board of Directors of the Company since the
date of the Original Agreement; and
WHEREAS, the Company desires to memorialize the Executive's current
arrangement with the Company and to provide further incentives to the Executive
on the terms and conditions set forth below in place of the terms and conditions
set forth in the Original Agreement.
NOW, THEREFORE, in consideration of the foregoing recital and the
respective covenants and agreements of the parties contained in this document,
the Company and the Executive agree as follows:
1. Employment and Duties. The Executive will serve as Chief Operating
Officer of the Company. The duties and responsibilities of the Executive shall
include the duties and responsibilities of the chief operating officer of a
company whose securities are publicly traded and as set forth in the Company's
Bylaws from time to time in effect and such other duties and responsibilities as
the board of directors of the Company (the "Board of Directors") may from time
to time reasonably assign the Executive, in all cases to be consistent with the
Executive's corporate offices and positions. The Executive shall also serve as
an officer and/or director of affiliates of the Company, without additional
compensation, if requested to do so by the Board of Directors. The Executive
shall perform faithfully the executive duties assigned to him to the best of his
ability.
2. Employment Period.
(a) Term. The term of this Agreement shall extend from the date
hereof until April 30, 1998.
(b) Evergreen Extension of Agreement. This Agreement shall continue
in full force and effect, following the end of the term hereof, for additional
periods of one year if notice is not given by the Company to the Executive at
least six months in advance of the termination date provided in this Agreement
that this Agreement will terminate on its termination date.
The term of this Agreement shall be the period of time provided in
paragraphs 2(a) and 2(b) hereof and herein shall be referred to as the "Term."
(c) Involuntary Termination. The Company may terminate the
Executive's employment at any time. If the Company terminates the Executive's
employment for any reason other than Cause or Disability, each as defined below,
the provisions of paragraphs 12(a)(i), 12(b) and 12(c) shall apply. Upon
termination of the Executive's employment with the Company, the Executive's
rights under any applicable benefit plans shall be determined under the
provisions of those plans.
(d) Death. The Executive's employment will terminate in the event of
his death. The Company shall have no obligation to pay or provide any
compensation or benefits under this Agreement on account of the Executive's
death, or for periods following the Executive's death, provided that the
Company's obligations applicable under such circumstance under paragraph
12(a)(iii) shall not be interrupted as a result of the Executive's death. The
Executive's rights under any applicable benefit plans of the Company in the
event of the Executive's death will be determined under the provisions of those
plans.
(e) Disability. The Company may terminate the Executive's employment
for Disability by giving the Executive thirty (30) days advance notice in
writing. For all purposes under this Agreement, "Disability" shall mean that
the Executive, at the time notice is given, has been unable to substantially
perform his duties under this Agreement for a period of not less than ninety
(90) days due to physical or mental illness. The determination of the
Executive's Disability hereunder shall be made by a two-thirds (2/3) majority of
the Company's Board of Directors (excluding the Executive) and shall be based
upon advice from such medical professionals and upon such medical and other
records as the Company's Board of Directors may deem appropriate. In the event
that the Executive resumes the performance of substantially all of his duties
hereunder before the termination of his employment under this subparagraph (e)
becomes effective, the notice of termination shall automatically be deemed to
have been revoked. No compensation or benefits will be paid or provided to the
Executive under this Agreement on account of termination for Disability, or for
periods following the date when such a termination of employment is effective.
The Executive's rights under any applicable benefit plans of the Company shall
be determined under the provisions of those plans.
(f) Cause. The Company may terminate the Executive's employment for
cause by giving the Executive notice in writing. For all purposes under this
Agreement, "Cause" shall mean (i) willful failure by the Executive to perform
his duties hereunder, other than a failure resulting from the Executive's
complete or partial incapacity due to physical or mental illness or impairment,
(ii) gross negligence by the Executive in performing his duties hereunder, other
than negligence resulting from the Executive's complete or partial incapacity
due to physical or mental illness or impairment, (iii) a willful act by the
Executive which constitutes gross misconduct and which is injurious to the
Company, (iv) a violation of a federal or state law or regulation applicable to
the business of the Company. No act, or failure to act, by the Executive shall
be considered "willful" unless committed without good faith without a reasonable
belief that the act or omission was in the Company's best interest. The
determination of Cause hereunder shall be made by a majority of the Company's
Board of Directors. No compensation or benefits will be paid or provided to the
Executive under this Agreement on account of a termination for Cause.
Executive's rights under any applicable benefit plans of the Company shall be
determined under the provisions of those plans.
(g) Resignation for Cause--Change in Control or Diminution in Duties.
In the event that there is a change in Control of the Company (as defined in
Section 6(b) hereof) or in the event that the Board of Directors materially
reduces the scope and/or authority of the Executive's duties as Chief Operating
Officer of the Company, then the Executive may terminate his employment by
giving the Company thirty (30) days advance written notice. In such event, the
provisions of paragraph 12(a)(ii) shall apply and the Executive's rights under
any applicable benefit plans of the Company shall be determined under the
provisions of those plans.
(h) Resignation without Cause. The Executive may terminate his
employment for reasons other than those referred to in paragraph 2(g) hereof by
giving the Company forty-five (45) days advance written notice; provided that in
such event, the Executive will cease his employment immediately or at any time
during such forty-five (45) day period, if so requested by the Board of
Directors. In such event, the provisions of paragraph 12(a)(iii) shall apply
and the Executive's rights under any applicable benefit plans of the Company
shall be determined under the provisions of those plans.
3. Place of Employment. The Executive's services shall be performed at
the Company's principal executive offices in the Chicago, Illinois area,
although the Executive understands that he is expected to travel extensively in
carrying out his duties as Chief Operating Officer of the Company.
4. Base Salary. For all services to be rendered by the Executive
pursuant to this Agreement, the Company agrees to pay the Executive an annual
base salary ("the "Base Salary") of $225,000. The Base Salary shall be paid in
periodic installments in accordance with the Company's regular payroll
practices. The Company agrees to review Executive's Base Salary at least
annually as of the anniversary of the date of this Agreement and to make such
increases therein as the Board of Directors, in its sole discretion, may
approve.
5. Bonus. Beginning with the Company's 1997 fiscal year, and for each
fiscal year thereafter during the term of this Agreement, the Executive will be
eligible to receive an annual bonus (the "Bonus") based upon an Executive
Incentive Compensation Plan to be approved and adopted by the Board of
Directors.
6. Stock Options.
(a) Initial Option. Pursuant to the Company's Shareholder Value
Incentive Compensation Plan, the Company has granted the Executive options (the
"Executive Options") to purchase 200,000 shares of the Company's Common Stock
(the "Executive Option Shares") at $4.975 per share and such options have been
repriced as of the date hereof. Such options shall be exercisable over a period
of seven (7) years from the date of grant. The Executive Options shall vest as
described in paragraph 6(b) below and shall be subject to such other terms and
conditions as are described in paragraph 6(c) below.
(b) Vesting. The Executive Option Shares shall vest and become
exercisable in three equal annual installments beginning on April 3, 1996. In
the event of a Change of Control (as defined below), the unvested portion of the
Executive Options shall automatically accelerate, and the Executive shall have
the right to exercise all or any portion of the Executive Options, in addition
to any portion of the Executive Option exercisable prior to such event. For
purposes of this Agreement, the term "Change of Control" shall mean the
occurrence of any of the following events subsequent to the Effective Date:
(i) Any "person" (such as term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, or securities of the Company representing
fifty percent (50%) or more of the total voting power represented by the
Company's then outstanding voting securities; or
(ii) Any merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent fifty percent (50%) or more of the total voting power
represented by the Company's then outstanding voting securities (either by
remaining outstanding or by being converted into voting securities of the
Company or such other surviving entity outstanding immediately after such merger
or consolidation); or
(iii) A majority of the directors of the Company which were
not nominated by the Company's management (or were nominated by management
pursuant to an agreement with persons that acquired sufficient voting securities
of the Company to de facto control it) are elected to the Board of Directors by
the Company's shareholders; or
(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets.
(c) Registration of Common Stock underlying the Executive Options.
The Company agrees that the Common Stock underlying the Executive Options shall
be salable concurrent with the Executive's exercise, in whole or in part, of the
Executive Options under an applicable Registration Statement to be filed by the
Company with respect to the Company's Stock Plan, or other applicable
Registration Statement if issued outside of the Stock Plan and that it shall
cause such Registration Statements to be in effect at the time that the
Executive exercises his Executive Options.
7. Expenses. The Executive shall be entitled to reimbursement by the
Company for all reasonable, ordinary, and necessary travel, entertainment, and
other expenses incurred by the Executive during the term of this Agreement (in
accordance with the policies and procedures established by the Company for its
senior executive officers) in the performance of his duties and responsibilities
under this Agreement; provided, however, that the Executive shall properly
account for such expense in accordance with the Company's policies and
procedures.
8. Benefits. The Executive shall be entitled to participate in employee
benefit plans or programs of the Company, if any, to the extent that his
position, tenure, salary, age, health, and other qualifications make him
eligible to participate, subject to the rules and regulations applicable
thereto. In addition, the Executive shall be entitled to receive an annual
physical examination at Company expense; or at the Company's request, will take
an a physical examination annually and provide the results to the Company.
9. Vacations and Holidays. The Executive shall be entitled to paid
vacation time and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
10. Indemnification. The Company shall indemnify the Executive if the
Executive is made a party, or threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that the Executive is or
was an officer or director of the Company or any of its affiliates, in which
capacity the Executive is or was serving at the Company's request, against
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding to the fullest extent and in the manner set
forth in and permitted by the general corporation law of the state of
incorporation of the Company, and any other applicable law, as from time to time
in effect. The provisions of this paragraph shall survive the Term.
11. Other Activities. The Executive shall devote substantially all of his
working time and efforts during the Company s normal business hours to the
business and affairs of the Company and to the diligent and faithful performance
of the duties and responsibilities duly assigned to him pursuant to this
Agreement, except for vacations, holidays and sickness. The Executive may,
however, devote a reasonable amount of his time, in general after the regular
business hours of the Company, to civic, community, or charitable activities.
12. Termination Benefits. In the event the Executive's employment
terminates, then the Executive shall be entitled to receive severance and other
benefits as follows:
(a) Severance.
(i) Involuntary Termination. If the Company terminates the
Executive's employment other than for Disability or Cause, then in lieu of any
severance benefits to which the Executive may otherwise be entitled under any
Company severance plan or program, the Executive shall be entitled to payment of
his entire unpaid Base Salary for the remaining term of this Agreement, which
Base Salary shall be paid to him in periodic installments in accordance with the
Company s regular payroll practices; provided, however, that the Company s
obligations hereunder shall cease upon a breach by the Executive of his
obligations under paragraphs 13, 14, 17 and 19 hereof.
(ii) Resignation; Change in Control; Diminution in Duties. If
the Executive terminates his employment by resignation pursuant to paragraph
2(g) hereof as a result of a Change in Control of the Company or as a result of
the Board of Directors materially reducing the scope and/or authority of the
Executive's duties as Chief Operating Officer of the Company, then in lieu of
any severance benefits to which the Executive may otherwise be entitled under
any Company severance plan or program, the Executive shall be entitled to
payment of his entire unpaid Base Salary for the remaining term of this
Agreement, which Base Salary shall be paid to him in periodic installments in
accordance with the Company s regular payroll practices; provided, however, that
the Company s obligations hereunder shall cease upon a breach by the Executive
of his obligations under paragraphs 13, 14, 17 and 19 hereof.
(iii) Other Termination. In the event the Executive's
employment terminates for any reason other than as described in
paragraph 12(a)(i) or 12(a)(ii) above, including by reason of the Executive's
death or disability or resignation pursuant to paragraph 2(h) hereof, then the
Executive shall be not be entitled to receive any severance payment or any other
benefits, except as are provided in the Company s severance and benefit plans
and policies at the time of such termination.
(b) Options. In the event the Executive's employment is terminated
by the Company as described in paragraph 12(a)(i) above or by the Executive as
described in paragraph 12(a)(ii) above, then the Executive shall be deemed
vested in the unvested portion of the Executive Options and the Executive
Options shall become immediately exercisable with respect to all shares subject
thereto. In the event the Executive's employment is terminated for reasons
other than as described in paragraphs 12(a)(i) and 12(a)(ii), then the unvested
portion of the Executive Options shall not vest and the Executive's interest
therein shall immediately cease.
(c) Bonuses. In the event the Executive's employment is terminated
by the Company as described in paragraph 12(a)(i) above, then the Executive
shall be entitled to receive a portion of the Bonus, computed under the
Company s Executive Incentive Compensation Plan referred to in paragraph 5,
which Bonus will be determined, after the end of the fiscal year, by multiplying
the amount of the Bonus which would have become payable to the Executive had he
remained employed until the end of the fiscal year, by a fraction, the numerator
of which will be the number of days in which the Executive was employed by the
Company in such fiscal year, and the denominator of which shall be the number of
days in such fiscal year. In the event the Executive's employment terminates for
any other reason, then the Executive shall not be entitled to any Bonus which
has not accrued as of such date.
13. Proprietary Information. The Executive shall not, without the prior
written consent of the Board of Directors, disclose or use for any purpose
(except in the course of his employment under this Agreement and in furtherance
of the business of the Company) any confidential information or proprietary data
of the Company. As an express condition of the Executive's employment with the
Company, the Executive agrees to execute confidentiality agreements as requested
by the Company, including but not limited to the Company s standard form of
employee proprietary information agreement.
14. Absence of Conflict. The Executive represents and warrants that his
employment by the Company as described herein shall not conflict with and will
not be constrained by any prior employment or consulting agreement or
relationship.
15. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Chicago, Illinois, in accordance with the rules of the American Arbitration
Association then in effect by an arbitrator selected by both parties within ten
(10) days after either party has notified the other in writing that it desires a
dispute between then to be settled by arbitration. In the event the parties
cannot agree on such arbitrator within such ten (10) day period, each party
shall select an arbitrator and inform the other party in writing of such
arbitrator s name and address within five (5) days after the end of such ten
(10) day period and the two arbitrators so selected shall select a third
arbitrator within fifteen (15) days thereafter; provided, however, that in the
event of a failure by either party to select an arbitrator and notify the other
party of such selection within the time period provided above, the arbitrator
selected by the other party shall be the sole arbitrator of the dispute. Each
party shall pay his or its own expenses associated with such arbitration,
including the expense of any arbitrator selected by such party and the Company
will pay the expenses of the jointly selected arbitrator. The decision of the
arbitrator or a majority of the panel of arbitrators shall be binding upon the
parties and judgment in accordance with that decision may be entered in any
court having jurisdiction thereover. Punitive damages shall not be awarded.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois as applied to agreements
between Illinois residents entered and to be performed entirely within Illinois.
17. Certain Covenants of the Executive.
(a) Covenants Against Competition. The Executive acknowledges that
(i) the principal business of the Company and its affiliates involves the
distribution of pharmaceuticals, the provision of drug therapies, reimbursement
services and other related businesses which the Company and its affiliates
currently operate and which the Company and its affiliates may become involved
with during the Term (collectively, the "Company Business"); (ii) the Company
Business is national in scope; (iii) the Executive's work for the Company will
bring him into close contact with many confidential affairs not readily
available to the public; and (iv) the Company would not enter into this
Agreement but for the agreements and covenants of the Executive contained
herein. In order to induce the Company to enter into this Employment Agreement,
the Executive covenants and agrees that:
(1) Non-Compete. During the Term and for a period of eighteen
(18) months following the termination (whether for cause or otherwise) of the
Executive's employment with the Company or any of its affiliates (the
"Restricted Period"), the Executive shall not, in the United States of America
or in any foreign country, directly or indirectly, (i) engage in the Company
Business for his own account; (ii) enter the employ of, or render any services
to, any person engaged in such activities; or (iii) become interested in any
person engaged in the Company Business, directly or indirectly, as an
individual, partner, shareholder, officer, director, principal, agent, employee,
trustee, consultant or in any other relationship or capacity; provided, however,
that the Executive may own, directly or indirectly, solely as an investment,
securities of any person which are traded on any national securities exchange or
NASDAQ if the Executive (a) is not a controlling person of, or a member of a
group which controls, such person or (b) does not, directly or indirectly, own
1% or more of any class of securities of such person.
(2) Confidential Information. During and after the Restricted
Period, the Executive shall keep secret and retain in strictest confidence, and
shall not use for the benefit of himself or others except in connection with the
business and affairs of the Company, all confidential matters of the Company and
its affiliates. Such confidential matters include, without limitation, trade
secrets, customer lists, subscription lists, details of consultant contracts,
pricing policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans, new personnel
acquisition plans, methods of manufacture, technical processes, designs and
design projects, inventions and research projects of the Company and its
affiliates, learned by the Executive heretofore or hereafter that are
sufficiently secret to have the possibility, whether or not realized, of
deriving economic value from not being generally known to other persons who can
obtain economic value from their disclosure or use, and the Executive shall not
disclose them to anyone outside of the Company and its affiliates, either during
or after employment, by the Company or any of its affiliates, except as required
in the course of performing duties hereunder or with the Company s express
written consent. The Executive's obligations pursuant to this Employment
Agreement shall not extend to matters which are within the public domain or
hereafter enter the public domain through no fault or action or failure to act,
whether directly or indirectly, on the part of the Executive.
(3) Property of the Company. All memoranda, notes, lists,
records and other documents (and all copies thereof) made or compiled by the
Executive or made available to the Executive concerning the business of the
Company or any of its affiliates shall be the Company s property and shall be
delivered to the Company promptly upon the termination of the Executive's
employment with the Company or any of its affiliates or at any other time on
request.
(4) Employees of the Company. During the Restricted Period, the
Executive shall not, directly or indirectly, hire, solicit or encourage to leave
the employment of the Company or any of its affiliates, any employee of the
Company or its affiliates or hire any such employee who has left the employment
of the Company or any of its affiliates within one year of the termination of
such employee s employment with the Company or any of its affiliates.
(5) Consultants and Independent Contractors of the Company.
During the Restricted Period, the Executive shall not, directly or indirectly,
hire, solicit or encourage to cease to work with the Company or any of its
affiliates, any consultant, social worker, registered nurse, sales
representative or other person then under contract with the Company or any of
its affiliates.
(b) Rights and Remedies Upon Breach. If the Executive breaches, or
threatens to commit a breach of, any of the provisions of Section 17(a) (the
"Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity:
(1) Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and its
affiliates and that money damages will not provide an adequate remedy to the
Company.
(2) Accounting. The right and remedy to require the Executive
to account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits (collectively, "Benefits") derived or
received by the Executive as the result of any transactions constituting a
breach of any of the Restrictive Covenants, and the Executive shall account for
and pay over such Benefits to the Company.
(c) Severability of Covenants. If any court determines that any of
the Restrictive Covenants, or any parts thereof, are invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
(d) "Blue-Penciling". If any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
(e) Enforceability in Jurisdictions. The parties intend to and
hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts
of any jurisdiction within the geographical scope of such Restrictive Covenants.
If the courts of any one or more of such jurisdictions hold the Restrictive
Covenants wholly unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the parties that such determination not bar or
in any way affect the Company s right to the relief provided above in the courts
of any other jurisdiction within the geographical scope of such Restrictive
Covenants, as to breaches of such Restrictive Covenants in such other respective
jurisdictions, such Restrictive Covenants as they relate to each jurisdiction
being, for this purpose, severable into diverse and independent covenants.
18. Successors. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume 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 such succession
had taken place. Failure of the Company to obtain such assumption agreement
prior to the effectiveness of any such succession shall entitle the Executive to
the benefits described in paragraphs 12(a)(i), 12(b) and 12(c) of this
Agreement, subject to the terms and conditions therein.
19. Assignment. This Agreement and all rights under this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees, successors and assigns.
This Agreement is personal in nature, and, except as provided in paragraph 18
hereof, neither of the parties to this Agreement shall, without the written
consent of the other, assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. If the Executive
should die while any amounts are still payable to the Executive hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
20. Notices. For purposes of this Agreement, notices and other
communications provided for in this Agreement shall be in writing and shall be
delivered personally or sent by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: Health Management, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the
Board of Directors
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other address or the attention of such other person as the recipient
party has previously furnished to the other party in writing in accordance with
this paragraph. Such notices or other communications shall be effective upon
delivery or, if earlier, three (3) days after they have been mailed as provided
above.
21. Waiver. Failure or delay on the part of either party hereto to
enforce any right, power, or privilege hereunder shall not be deemed to
constitute a waiver hereof. Additionally, a waiver by either party or a breach
of any promise hereof by the other party shall not operate as or be construed to
constitute a waiver of any subsequent waiver by such other party.
22. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal, or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed, and enforced in such jurisdiction as if such invalid,
illegal, or unenforceable provision had never been contained herein.
23. Right to Advice of Counsel. The Executive acknowledges that he has
consulted with counsel and is fully aware of his rights and obligations under
this Agreement.
24. Counterparts. This Agreement may be executed in one or more
counterparts, none of which need contain the signature of more than one party
hereto, and each of which shall be deemed to be an original, and all of such
together shall constitute a single agreement.
25. Integration. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter hereof and supersedes
all prior or contemporaneous agreements whether written or oral, including,
without limitation, the Original Agreement. No waiver, alteration, or
modification of any of the provisions of this Agreement shall be binding unless
in writing and signed by duly authorized representatives of the parties hereto.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, on the day set opposite its
name below.
Date Agreement Executed "COMPANY"
Health Management, Inc.
September 16, 1996 By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Chairman of the Board
"EXECUTIVE"
September 16, 1996 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇