FORM OF EXECUTIVE SEVERANCE AND NONCOMPETITION AGREEMENT 10.1
 
 
Herbert A. Fritch
                                 NEWQUEST, INC.
 
                              EMPLOYMENT AGREEMENT
 
          THIS AGREEMENT is made as of March 1, 2005, between NewQuest, Inc., a
Delaware corporation (the "Company"), and Herbert A. Fritch ("Executive").
 
          The execution and delivery of this Agreement by the Company and
Executive are conditions to the Company's obligations to consummate the
transactions contemplated by that certain Purchase and Exchange Agreement, dated
as of November 10 2004, among NewQuest, LLC, a Texas limited liability company
("NQLLC"), NewQuest Holdings, Inc., a Delaware corporation ("Holdings"), the
Company and certain other persons identified therein (the "Purchase Agreement").
 
          In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
 
          1. Employment. The Company shall employ Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
 
          2. Position and Duties.
 
          (a) During the Employment Period, Executive shall serve as the Chief
Executive Officer of the Company and Holdings and shall have the normal duties,
responsibilities, functions and authority of the Chief Executive Officer,
subject to the power and authority of the Company's Board of Directors to expand
or limit such duties, responsibilities, functions and authority and to overrule
actions of officers of the Company and Holdings. During the Employment Period,
Executive shall render such administrative, financial and other executive and
managerial services to Holdings, the Company and their respective Subsidiaries
which are consistent with Executive's position as the Board may from time to
time reasonably direct.
 
          (b) During the Employment Period, Executive shall report to the
Company's Board and shall devote his full business time and attention (except
for permitted vacation periods and reasonable periods of illness or other
incapacity) to the business and affairs of Holdings, the Company and their
respective Subsidiaries. Executive shall perform his duties, responsibilities
and functions to Holdings, the Company and their respective Subsidiaries
hereunder in good faith in a diligent, trustworthy and professional manner and
shall comply with Holdings', the Company's and their respective Subsidiaries'
policies and procedures in all material respects. During the Employment Period,
Executive shall not serve as an officer or director of, or otherwise perform
services for compensation for, any other entity without the prior written
 
<PAGE>
 
consent of the Board (which shall not be unreasonably withheld, conditioned or
delayed); provided that Executive may participate on boards of charitable
entities or other civic entities so long as such service does not materially
interfere with Executive's duties under this Agreement.
 
          (c) For purposes of this Agreement, "Subsidiaries" shall mean any
corporation or other entity of which the securities or other ownership interests
having the voting power to elect a majority of the board of directors or other
governing body are, at the time of determination, owned by Holdings or the
Company, directly or through one or more Subsidiaries.
 
          3. Compensation and Benefits.
 
          (a) During the Employment Period, Executive's base salary shall be
$525,000 per annum or such higher rate as the Board may determine from time to
time (as adjusted from time to time, the "Base Salary"), which salary shall be
payable by the Company or one of its Subsidiaries in regular installments in
accordance with such entity's general payroll practices (in effect from time to
time). During the period beginning on the date of this Agreement and ending
December 31, 2005, the Base Salary shall be pro rated on an annualized basis. In
addition, during the Employment Period, Executive shall be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
During the Employment Period, Executive shall also be entitled to five weeks of
paid vacation each calendar year in accordance with the Company's policies,
which if not taken during any year may not be carried forward, other than with
respect to one week per year, to any subsequent calendar year and no
compensation shall be payable in lieu thereof. The Company or one of its
affiliates or Subsidiaries shall obtain and maintain customary directors and
officers' liability insurance coverage covering Executive on terms reasonably
satisfactory to the Board.
 
          (b) In addition to the Base Salary, Executive shall be eligible for an
annual bonus in an amount up to 100% of the Base Salary then in effect following
the end of each fiscal year of the Company (ending December 31) based upon the
achievement by Executive and the Company and its Subsidiaries of budgetary and
other objectives set by the Board, in consultation with the Chief Executive
Officer and the Chief Operating Officer; provided that with respect to the first
year for which Executive is eligible for a bonus, such bonus shall be paid on a
pro rata basis based upon that portion of the year that remained after the date
hereof. Such bonus shall be paid on or before March 15 of the following year.
 
          (c) During the Employment Period, the Company or one of its
Subsidiaries shall reimburse Executive for all reasonable business expenses
incurred by him in the course of performing his duties and responsibilities
under this Agreement which are consistent with the Company's and its
Subsidiaries' policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's and its
Subsidiaries' requirements with respect to reporting and documentation of such
expenses.
 
          (d) All amounts payable to Executive as compensation hereunder shall
be subject to all required and customary withholding by the Company.
 
 
                                       -2-
 
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          4. Term.
 
          (a) The Employment Period will continue until (i) Executive's
resignation, Disability (as defined in paragraph 4(f) below) or death, or (ii)
the Board decides to terminate Executive's employment with or without Cause (as
defined in paragraph 4(e) below). Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to Executive.
 
          (b) If the Employment Period is terminated by the Company without
Cause or upon Executive's resignation with Good Reason, Executive shall be
entitled to (x) continue to receive his Base Salary payable in regular
installments and (y) to continue to participate in employee benefit programs for
senior executive employees (other than bonus and incentive compensation plans),
at the Company's cost, to the extent permitted under the terms of such programs
and under applicable law, as special severance payments from the date of
termination for a period of twelve (12) months thereafter (the "Severance
Period") if and only if Executive has executed and delivered to the Company the
General Release substantially in form and substance as set forth in Exhibit A
attached hereto and the General Release has become effective, and only so long
as Executive has not revoked or breached the provisions of the General Release
or breached the provisions of paragraphs 5, 6 or 7 hereof and does not apply for
unemployment compensation chargeable to Holdings, the Company or any Subsidiary
during the Severance Period, and Executive shall not be entitled to any other
salary, compensation or benefits after termination of the Employment Period,
except as specifically provided for in the Company's employee benefit plans or
as otherwise expressly required by applicable law. The amounts payable pursuant
to this paragraph 4(b) shall be payable in regular monthly installments. Unless
Executive is terminated by the Company or its successor without Cause in
connection with a Sale of the Company (as defined below), the amounts payable
pursuant to this paragraph 4(b) shall be reduced by the amount of any
compensation Executive receives with respect to any other employment during the
Severance Period; provided that Executive shall have no duty or obligation to
seek other employment during the Severance Period or otherwise mitigate damages
hereunder. Upon request from time to time, Executive shall furnish the Company
with a true and complete certificate specifying any such compensation earned or
received by him during the Severance Period. For purposes of this Agreement,
"Sale of the Company" shall mean the sale of Holdings or the Company to an
Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (y) 50% or more of the common stock of Holdings,
par value $.01 per share ("Common Stock") outstanding at the time of such
transaction or series of transactions or (z) all or substantially all of the
Company's assets determined on a consolidated basis. For purposes of this
Agreement, "Independent Third Party" shall mean any person who, immediately
prior to the contemplated transaction, does not own in excess of 5% of the
Common Stock on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendant (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other persons.
 
          (c) If the Employment Period is terminated by the Company for Cause or
is terminated pursuant to clause (a)(i) above (other than termination with Good
Reason), Executive shall only be entitled to receive his Base Salary through the
date of termination or expiration and
 
 
                                       -3-
 
<PAGE>
 
shall not be entitled to any other salary, compensation or benefits from
Holdings, the Company or any of their respective Subsidiaries thereafter, except
as otherwise specifically provided for under the Company's employee benefit
plans or as otherwise expressly required by applicable law.
 
          (d) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the termination or expiration
of the Employment Period shall cease upon such termination or expiration, other
than those expressly required under applicable law (such as COBRA). The Company
may offset any amounts Executive owes Holdings, the Company or any of their
respective Subsidiaries against any amounts Holdings, the Company or any of
their respective Subsidiaries owes Executive hereunder.
 
          (e) For purposes of this Agreement, "Cause" shall mean with respect to
Executive one or more of the following: (i) the conviction of a felony or other
crime involving moral turpitude or the commission of any other act or omission
involving material dishonesty or fraud with respect to the Company or any of its
Subsidiaries, (ii) reporting to work under the influence of illegal drugs, the
use of illegal drugs (whether or not at the workplace) or other repeated conduct
causing the Company or any of its Subsidiaries substantial public disgrace or
disrepute or substantial economic harm, which is not cured within 20 days
following written notice thereof to the Executive, (iii) material and repeated
failure to perform his duties as reasonably directed by the Board, which is not
cured within 20 days following written notice thereof to the Executive, (iv)
breach of fiduciary duty or engaging in gross negligence or willful misconduct
with respect to the Company or any of its Subsidiaries or (v) any other material
breach of this Agreement which is not cured within 20 days after written notice
thereof to Executive.
 
          (f) For purposes of this Agreement, "Disability" shall mean the
disability of Executive caused by any physical or mental injury, illness or
incapacity as a result of which Executive is unable to effectively perform or
fails to perform the essential functions of Executive's duties for 90
consecutive days or 120 days during any 12-month period.
 
          (g) For purposes of this Agreement, "Good Reason" shall mean if
Executive resigns from employment with Holdings, the Company and their
respective Subsidiaries prior to the end of the Employment Period as a result of
one or more of the following reasons: (i) the Company reduces the amount of the
Base Salary, (ii) Holdings or the Company materially reduces his
responsibilities, in each case which is not cured within 20 days after written
notice thereof to the Company, (iii) the relocation of the Company's principal
executive offices and/or the location at which Executive provides services
pursuant to this Agreement to a location outside the metropolitan Nashville,
Tennessee area, or (iv) the Company's material breach of this Agreement;
provided that written notice of Executive's resignation for Good Reason must be
delivered to the Company within 45 days after the occurrence of any such event
in order for Executive's resignation with Good Reason to be effective hereunder.
 
 
                                       -4-
 
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          5. Confidential Information.
 
          (a) Executive acknowledges that the information, observations and data
(including trade secrets) obtained by him while employed by the Company and its
Subsidiaries (including those obtained by him while employed by NQLLC or any of
its subsidiaries prior to the date of this Agreement and the acquisition of
NQLLC by Holdings and the Company) concerning the business or affairs of
Holdings or the Company or NQLLC or any other Subsidiary ("Confidential
Information") are the property of Holdings, the Company or such Subsidiary.
Therefore, Executive agrees that, except as set forth in, and pursuant to, this
paragraph 5(a), he shall not disclose to any unauthorized person or entity or
use for his own purposes any Confidential Information or any confidential or
proprietary information of other persons or entities in the possession of the
Company and its Subsidiaries ("Third Party Information"), without the prior
written consent of the Board, unless and to the extent that the Confidential
Information or Third Party Information becomes generally known to and available
for use by the public other than as a result of Executive's acts or omissions.
In the event that Executive is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, such Executive shall notify the Company promptly of
the request or requirement so that the Company may seek an appropriate
protective order or waive compliance with the provisions of this Section. If, in
the absence of a protective order or the receipt of a waiver hereunder,
Executive is, on the advice of counsel, compelled to disclose any Confidential
Information to any tribunal, such Executive may disclose the Confidential
Information to the tribunal; provided that such disclosing Executive shall use
its reasonable best efforts to assist the Company to obtain, at the request of
the Company (and at the Company's sole expense), an order or other assurance
that confidential treatment shall be accorded to such portion of the
Confidential Information required to be disclosed as the Company shall
designate. Executive shall deliver to the Company at the termination or
expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer files, disks
and tapes, printouts and software and other documents and data (and copies
thereof) embodying or relating to Third Party Information, Confidential
Information, Work Product (as defined below) or the business of Holdings, the
Company, NQLLC or any other Subsidiaries which he may then possess or have under
his control.
 
          (b) Executive shall be prohibited from using or disclosing any
confidential information or trade secrets that Executive may have learned
through any prior employment. If at any time during this employment with
Holdings, the Company or any Subsidiary, Executive believes he is being asked to
engage in work that will, or will be likely to, jeopardize any confidentiality
or other obligations Executive may have to former employers, Executive shall
immediately advise the Board so that Executive's duties can be modified
appropriately. Executive represents and warrants to the Company that Executive
took nothing with him which belonged to any former employer when Executive left
his prior position and that Executive has nothing that contains any information
which belongs to any former employer. If at any time Executive discovers this is
incorrect, Executive shall promptly return any such materials to Executive's
former employer. The Company does not want any such materials, and Executive
shall not be permitted to use or refer to any such materials in the performance
of Executive's duties hereunder.
 
 
                                       -5-
 
<PAGE>
 
          6. Intellectual Property, Inventions and Patents. Executive
acknowledges that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or not including
any Confidential Information) and all registrations or applications related
thereto, all other proprietary information and all similar or related
information (whether or not patentable) which relate to Holdings', the Company's
or any of their Subsidiaries' actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by Executive (whether alone or jointly with others) while
employed by Holdings, the Company and its Subsidiaries, whether before or after
the date of this Agreement ("Work Product"), belong to Holdings, the Company or
such Subsidiary. Executive shall promptly disclose all patentable inventions and
other material Work Product to the Board and, at the Company's expense, perform
all actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments).
Executive acknowledges that all Work Product shall be deemed to constitute
"works made for hire" under the U.S. Copyright Act of 1976, as amended.
 
          In accordance with Title 19, Section 805 of the Delaware Code,
Executive is hereby advised that this paragraph 6 regarding Holdings', the
Company's and their Subsidiaries' ownership of Work Product does not apply to
any invention for which no equipment, supplies, facilities or trade secret
information of Holdings, the Company or any Subsidiary was used and which was
developed entirely on Executive's own time, unless (i) the invention relates to
the business of Holdings, the Company or any Subsidiary or to Holdings', the
Company's or any Subsidiaries' actual or demonstrably anticipated research or
development or (ii) the invention results from any work performed by Executive
for Holdings, the Company or any Subsidiary.
 
          7. Non-Compete, Non-Solicitation.
 
          (a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course of his
employment with the Company and its Subsidiaries he shall become familiar, and
during his employment with NQLLC or any of its subsidiaries he has become
familiar with Holdings', the Company's and their Subsidiaries' trade secrets and
with other Confidential Information concerning Holdings, the Company and their
predecessors and Subsidiaries and that his services have been and shall continue
to be of special, unique and extraordinary value to Holdings, the Company and
their Subsidiaries, including NQLLC, and therefore Executive agrees that, during
the Employment Period and for eighteen months thereafter (the "Noncompete
Period"), he shall not directly or indirectly own any interest in, manage,
control, participate in, consult with, render services for, be employed in an
executive, managerial or administrative capacity by, or in any manner engage in
any business competing with the businesses of Holdings, the Company or their
Subsidiaries, as such businesses exist during the Employment Period or, as of
the date of termination or expiration of the Employment Period, are contemplated
to exist during the eighteen-month period following the date of termination or
expiration of the Employment Period (the "Restricted Business") within any
geographical area in which Holdings, the Company or any of its Subsidiaries
engage or plan to engage during the eighteen-month period following the date of
termination or expiration of the Employment Period. Nothing herein shall
prohibit Executive from (i) being a
 
 
                                       -6-
 
<PAGE>
 
passive owner of not more than 2% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation or (ii) becoming employed,
engaged, associated or otherwise participating with a separately managed
division or Subsidiary of a competitive business that does not engage in the
Restricted Business (provided that services are provided only to such division
or Subsidiary).
 
          (b) During the Noncompete Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt to induce any
employee of Holdings, the Company or any Subsidiary to leave the employ of
Holdings, the Company or such Subsidiary, or in any way interfere with the
relationship between Holdings, the Company or any Subsidiary and any employee
thereof, (ii) hire any person who was an employee of Holdings, the Company or
any Subsidiary at any time during the 18-month period immediately prior to the
termination of the Employment Period or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business relation of
Holdings, the Company or any Subsidiary to cease doing business with Holdings,
the Company or such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and Holdings,
the Company or any Subsidiary (including, without limitation, making any
negative or disparaging statements or communications regarding Holdings, the
Company or its Subsidiaries). Notwithstanding the foregoing, nothing in this
Agreement shall prohibit Executive from employing an individual (i) with the
consent of the Company or (ii) who responded to general solicitations in
publications or on websites, or through the use of search firms, so long as such
general solicitations or search firm activities are not targeted specifically at
an employee of Holdings, the Company or any of their respective Subsidiaries. In
addition, nothing in this Agreement will prohibit the making of any truthful
statements made by any Person in response to a lawful subpoena or legal
proceeding or to enforce such Person's rights under this Agreement, or any other
agreement between Executive, Holdings, the Company and their respective
Subsidiaries.
 
          8. Enforcement. If, at the time of enforcement of paragraph 5, 6, or 7
of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to Confidential Information
and Work Product, the parties hereto agree that Holdings, the Company and its
Subsidiaries would suffer irreparable harm from a breach of paragraph 5, 6 or 7
by Executive and that money damages would not be an adequate remedy for any such
breach of this Agreement. Therefore, in the event a breach or threatened breach
of this Agreement, the Company or its successors or assigns, in addition to
other rights and remedies existing in their favor, shall be entitled to specific
performance and/or injunctive or other equitable relief from a court of
competent jurisdiction in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security). In addition, in
the event of a breach or violation by Executive of paragraph 7, the Noncompete
Period shall be automatically extended by the amount of time between the initial
occurrence of the breach or violation and when such breach or violation has been
duly cured. Executive acknowledges that
 
 
                                       -7-
 
<PAGE>
 
the restrictions contained in paragraph 7 are reasonable and that he has
reviewed the provisions of this Agreement with his legal counsel.
 
          9. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein. The Company hereby represents and warrants to Executive that (i) the
execution, delivery and performance of this Agreement by the Company do not and
shall not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which the Company is a party
or by which it is bound and (ii) upon the execution and delivery of this
Agreement by Executive, this Agreement shall be the valid and binding obligation
of the Company, enforceable in accordance with its terms.
 
          10. Survival. Paragraphs 4 through 24, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
 
          11. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
 
          Notices to Executive:
 
          Herbert A. Fritch
          5568 Hearthstone Lane
          Brentwood, TN 37027
 
          Notices to the Company:
 
          NewQuest, Inc.
          44 Vantage Way
          Suite 300
          Nashville, TN 37228
          Attn: Jeffrey L. Rothenberger
          Telecopy: (615) 291-7011
 
 
                                       -8-
 
<PAGE>
 
          With a copy to:
 
          Kirkland & Ellis LLP
          200 East Randolph Drive
          Chicago, Illinois 60601
          Attn: Kevin R. Evanich, P.C.
                Jeffrey A. Fine, Esq.
          Fax: (312) 861-2200
 
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
 
          12. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any action in any other jurisdiction,
but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.
 
          13. Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
 
          14. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
 
          15. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
 
          16. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his duties or obligations hereunder without the prior
written consent of the Company.
 
          17. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
 
 
                                       -9-
 
<PAGE>
 
          18. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement (including, without limitation, the
Company's right to terminate the Employment Period for any reason) shall affect
the validity, binding effect or enforceability of this Agreement or be deemed to
be an implied waiver of any provision of this Agreement.
 
          19. Insurance. The Company may, at its discretion, apply for and
procure in its own name and for its own benefit life and/or disability insurance
on Executive in any amount or amounts considered advisable. Executive agrees to
reasonably cooperate in any medical or other examination, supply any information
reasonably requested and execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and constitute
such insurance. Executive hereby represents that he has no reason to believe
that his life is not insurable at rates now prevailing for healthy men of his
age.
 
          20. Indemnification and Reimbursement of Payments on Behalf of
Executive. The Company and its Subsidiaries shall be entitled to deduct or
withhold from any amounts owing from Holdings, the Company or any of their
Subsidiaries to Executive any federal, state, local or foreign withholding
taxes, excise tax, or employment taxes ("Taxes") imposed with respect to
Executive's compensation (including, without limitation, wages, bonuses,
dividends, the receipt or exercise of equity options and/or the receipt or
vesting of restricted equity). In the event the Company or any of its
Subsidiaries does not make such deductions or withholdings, Executive shall
indemnify the Company and its Subsidiaries for any amounts paid with respect to
any such Taxes.
 
          21. Consent to Jurisdiction. EACH OF THE PARTIES HERETO SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN CHICAGO, ILLINOIS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN AND AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE
PARTIES HERETO WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY OR OTHER
SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO. ANY
PARTY MAY MAKE SERVICE ON ANY OTHER PARTY BY SENDING OR DELIVERING A COPY OF THE
PROCESS (I) TO THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER PROVIDED
FOR THE GIVING OF NOTICES IN PARAGRAPH 11 ABOVE, OR (II) TO THE PARTY TO BE
SERVED IN CARE OF SUCH PARTY'S REGISTERED AGENT IN THE MANNER PROVIDED FOR THE
GIVING OF NOTICES IN PARAGRAPH 11 ABOVE. NOTHING IN THIS PARAGRAPH 21 HOWEVER
SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. EACH PARTY AGREES THAT A FINAL JUDGMENT (AFTER GIVING EFFECT
TO ANY TIMELY APPEALS) IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE
CONCLUSIVE AND MAY BE
 
 
                                      -10-
 
<PAGE>
 
ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
 
          22. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT
FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE
OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN
ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
 
          23. Corporate Opportunity. During the Employment Period, Executive
shall submit to the Board all material business, commercial and investment
opportunities or offers presented to Executive or of which Executive becomes
aware in his capacity as an officer of the Company which relate to the business
of the Company or its Subsidiaries at any time during the Employment Period
("Corporate Opportunities"). Unless approved by the Board, Executive shall not
accept or pursue, directly or indirectly, any Corporate Opportunities on
Executive's own behalf.
 
          24. Executive's Cooperation. During the Employment Period and
thereafter, Executive shall reasonably cooperate with the Company and its
Subsidiaries in any internal investigation, any administrative, regulatory or
judicial investigation or proceeding or any dispute with a third party as
reasonably requested by the Company (including, without limitation, Executive
being available to the Company upon reasonable notice and at reasonable times
for interviews and factual investigations, appearing at the Company's request
upon reasonable notice and at reasonable times to give testimony without
requiring service of a subpoena or other legal process, delivering to the
Company requested information and relevant documents which are or may come into
Executive's possession, all at times and on schedules that are reasonably
consistent with Executive's other permitted activities and commitments). In the
event the Company requests Executive's cooperation in accordance with this
paragraph, the Company shall (i) reimburse Executive for all reasonable travel
expenses and other reasonable out-of-pocket expenses (including lodging and
meals) upon submission of receipts and (ii) reimburse Executive for all
reasonable fees and expenses, including without limitation all attorneys fees
and expenses, incurred by Executive in connection with any such investigation or
proceeding. Notwithstanding anything contained herein to the contrary, Executive
shall not be required to cooperate or assist the Company in any such
investigation or proceeding in the event that (i) legal counsel to Executive
advises him that a reasonable likelihood exists of a conflict of interest
between the Company and its Affiliates and Executive or (ii) cooperation with
the Company could incriminate the Executive or adversely affect the defense by
Executive of any investigation, claim or proceeding.
 
                                    * * * * *
 
 
                                      -11-
 
<PAGE>
 
          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
 
                                        NEWQUEST, INC.
 
 
                                        By:
                                            ------------------------------------
                                        Its:
                                             -----------------------------------
 
 
                                        ----------------------------------------
                                        HERBERT A. FRITCH
 
 
                                       D-1
 
<PAGE>
 
                                                                       Exhibit A
 
                                 GENERAL RELEASE
 
     I, Herbert A. Fritch, in consideration of and subject to the performance by
NewQuest, Inc., a Delaware corporation (together NewQuest Holdings, Inc. and
each of their respective subsidiaries, the "Company"), of its obligations under
the Employment Agreement, dated as of the date as of March 1, 2005 (the
"Agreement"), do hereby release and forever discharge as of the date hereof the
Company and its affiliates and all present and former directors, officers,
agents, representatives, employees, successors and assigns of the Company and
its affiliates and the Company's direct or indirect owners (collectively, the
"Released Parties") to the extent provided below.
 
1.   I understand that any payments or benefits paid or granted to me under
     paragraph 4(b) of the Agreement represent, in part, consideration for
     signing this General Release and are not salary, wages or benefits to which
     I was already entitled. I understand and agree that I will not receive the
     payments and benefits specified in paragraph 4(b) of the Agreement unless I
     execute this General Release and do not revoke this General Release within
     the time period permitted hereafter or breach this General Release. Such
     payments and benefits will not be considered compensation for purposes of
     any employee benefit plan, program, policy or arrangement maintained or
     hereafter established by the Company or its affiliates. I also acknowledge
     and represent that I have received all payments and benefits that I am
     entitled to receive (as of the date hereof) by virtue of any employment by
     the Company.
 
2.   Except as provided in paragraph 4 below and except for the provisions of my
     Employment Agreement which expressly survive the termination of my
     employment with the Company, I knowingly and voluntarily (for myself, my
     heirs, executors, administrators and assigns) release and forever discharge
     the Company and the other Released Parties from any and all claims, suits,
     controversies, actions, causes of action, cross-claims, counter-claims,
     demands, debts, compensatory damages, liquidated damages, punitive or
     exemplary damages, other damages, claims for costs and attorneys' fees, or
     liabilities of any nature whatsoever in law and in equity, both past and
     present (through the date this General Release becomes effective and
     enforceable) and whether known or unknown, suspected, or claimed against
     the Company or any of the Released Parties which I, my spouse, or any of my
     heirs, executors, administrators or assigns, may have, which arise out of
     or are connected with my employment with, or my separation or termination
     from, the Company (including, but not limited to, any allegation, claim or
     violation, arising under: Title VII of the Civil Rights Act of 1964, as
     amended; the Civil Rights Act of 1991; the Age Discrimination in Employment
     Act of 1967, as amended (including the Older Workers Benefit Protection
     Act); the Equal Pay Act of 1963, as amended; the Americans with
     Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
     Worker Adjustment Retraining and Notification Act; the Employee Retirement
     Income Security Act of 1974; any applicable Executive Order Programs; the
     Fair Labor Standards Act; or their state or local counterparts; or under
     any other federal, state or local civil or human rights law, or under any
     other local, state, or federal law,
 
 
                                      ExB-1
 
<PAGE>
 
     regulation or ordinance; or under any public policy, contract or tort, or
     under common law; or arising under any policies, practices or procedures of
     the Company; or any claim for wrongful discharge, breach of contract,
     infliction of emotional distress, defamation; or any claim for costs, fees,
     or other expenses, including attorneys' fees incurred in these matters)
     (all of the foregoing collectively referred to herein as the "Claims").
 
3.   I represent that I have made no assignment or transfer of any right, claim,
     demand, cause of action, or other matter covered by paragraph 2 above.
 
4.   I agree that this General Release does not waive or release any rights or
     claims that I may have under the Age Discrimination in Employment Act of
     1967 which arise after the date I execute this General Release. I
     acknowledge and agree that my separation from employment with the Company
     in compliance with the terms of the Agreement shall not serve as the basis
     for any claim or action (including, without limitation, any claim under the
     Age Discrimination in Employment Act of 1967).
 
5.   In signing this General Release, I acknowledge and intend that it shall be
     effective as a bar to each and every one of the Claims hereinabove
     mentioned or implied. I expressly consent that this General Release shall
     be given full force and effect according to each and all of its express
     terms and provisions, including those relating to unknown and unsuspected
     Claims (notwithstanding any state statute that expressly limits the
     effectiveness of a general release of unknown, unsuspected and
     unanticipated Claims), if any, as well as those relating to any other
     Claims hereinabove mentioned or implied. I acknowledge and agree that this
     waiver is an essential and material term of this General Release and that
     without such waiver the Company would not have agreed to the terms of the
     Agreement. I further agree that in the event I should bring a Claim seeking
     damages against the Company, or in the event I should seek to recover
     against the Company in any Claim brought by a governmental agency on my
     behalf, this General Release shall serve as a complete defense to such
     Claims. I further agree that I am not aware of any pending charge or
     complaint of the type described in paragraph 2 as of the execution of this
     General Release.
 
6.   I agree that neither this General Release, nor the furnishing of the
     consideration for this General Release, shall be deemed or construed at any
     time to be an admission by the Company, any Released Party or myself of any
     improper or unlawful conduct.
 
7.   I agree that I will forfeit all amounts payable by the Company pursuant to
     the Agreement if I challenge the validity of this General Release. I also
     agree that if I violate this General Release by suing the Company or the
     other Released Parties, I will pay all costs and expenses of defending
     against the suit incurred by the Released Parties, including reasonable
     attorneys' fees, and return all payments received by me pursuant to the
     Agreement.
 
8.   I agree that this General Release is confidential and agree not to disclose
     any information regarding the terms of this General Release, except to my
     immediate family and any tax, legal or other counsel I have consulted
     regarding the meaning or effect hereof or as
 
 
                                      ExB-2
 
<PAGE>
 
     required by law, and I will instruct each of the foregoing not to disclose
     the same to anyone. Notwithstanding anything herein to the contrary, each
     of the parties (and each affiliate and person acting on behalf of any such
     party) agree that each party (and each employee, representative, and other
     agent of such party) may disclose to any and all persons, without
     limitation of any kind, the tax treatment and tax structure of this
     transaction contemplated in the Agreement and all materials of any kind
     (including opinions or other tax analyses) that are provided to such party
     or such person relating to such tax treatment and tax structure, except to
     the extent necessary to comply with any applicable federal or state
     securities laws. This authorization is not intended to permit disclosure of
     any other information including (without limitation) (i) any portion of any
     materials to the extent not related to the tax treatment or tax structure
     of this transaction, (ii) the identities of participants or potential
     participants in the Agreement, (iii) any financial information (except to
     the extent such information is related to the tax treatment or tax
     structure of this transaction), or (iv) any other term or detail not
     relevant to the tax treatment or the tax structure of this transaction.
 
9.   Any non-disclosure provision in this General Release does not prohibit or
     restrict me (or my attorney) from responding to any inquiry about this
     General Release or its underlying facts and circumstances by the Securities
     and Exchange Commission (SEC), the National Association of Securities
     Dealers, Inc. (NASD), any other self-regulatory organization or
     governmental entity.
 
10.  I agree to reasonably cooperate with the Company in any internal
     investigation, any administrative, regulatory, or judicial proceeding or
     any dispute with a third party on the terms and subject to the limitations
     set forth in paragraph 24 of the Agreement.
 
11.  I agree not to disparage the Company, its past and present investors,
     officers, directors or employees or its affiliates and to keep all
     confidential and proprietary information about the past or present business
     affairs of the Company and its affiliates confidential in accordance with
     the terms of the Agreement unless a prior written release from the Company
     is obtained. I further agree that as of the date hereof, I have returned to
     the Company any and all property, tangible or intangible, relating to its
     business, which I possessed or had control over at any time (including, but
     not limited to, company-provided credit cards, building or office access
     cards, keys, computer equipment, manuals, files, documents, records,
     software, customer data base and other data) and that I shall not retain
     any copies, compilations, extracts, excerpts, summaries or other notes of
     any such manuals, files, documents, records, software, customer data base
     or other data.
 
12.  Notwithstanding anything in this General Release to the contrary, this
     General Release shall not relinquish, diminish, or in any way affect (i)
     any rights or claims arising out of any breach by the Company or by any
     Released Party of the Agreement after the date hereof, (ii) any rights or
     obligations under applicable law which cannot be waived or released
     pursuant to an agreement, (iii) any rights to payments or benefits under
     paragraph 4(b) of the Agreement, (iv) my rights of indemnification and
     directors and officers insurance coverage to which I may be entitled solely
     with regards to my service
 
 
                                      ExB-3
 
<PAGE>
 
     as an officer or director of the Company; (v) my rights with regard to
     accrued benefits under any employee benefit plan, policy or arrangement
     maintained by the Company or under COBRA; and (vi) my rights as a
     stockholder or other equityholder of the Company and/or its affiliates.
 
13.  Whenever possible, each provision of this General Release shall be
     interpreted in, such manner as to be effective and valid under applicable
     law, but if any provision of this General Release is held to be invalid,
     illegal or unenforceable in any respect under any applicable law or rule in
     any jurisdiction, such invalidity, illegality or unenforceability shall not
     affect any other provision or any other jurisdiction, but this General
     Release shall be reformed, construed and enforced in such jurisdiction as
     if such invalid, illegal or unenforceable provision had never been
     contained herein.
 
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
 
(a)  I HAVE READ IT CAREFULLY;
 
(b)  I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
     RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
     IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
     1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
     DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
     OF 1974, AS AMENDED;
 
(c)  I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
 
(d)  I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
     HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
     TO DO SO OF MY OWN VOLITION;
 
(e)  I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
     SUBSTANTIALLY IN ITS FINAL FORM ON [_______________ __, _____] TO CONSIDER
     IT AND THE CHANGES MADE SINCE THE [_______________ __, _____] VERSION OF
     THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY
     PERIOD;
 
(f)  THE CHANGES TO THE AGREEMENT SINCE [_______________ ___, _____] EITHER ARE
     NOT MATERIAL OR WERE MADE AT MY REQUEST.
 
(g)  I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
     REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
     UNTIL THE REVOCATION PERIOD HAS EXPIRED;
 
 
                                      ExB-4
 
<PAGE>
 
(h)  I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
     ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
 
(i)  I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
     WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
     AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
 
 
DATE:
      --------------------              ----------------------------------------
 
 
                                     ExB-5
</TEXT>
</DOCUMENT>

 

 

EX-10.1 2 c93646exv10w1.htm EXHIBIT 10.1

Exhibit 10.1

FORM OF EXECUTIVE SEVERANCE AND NONCOMPETITION AGREEMENT

THIS SEVERANCE AND NONCOMPETITION AGREEMENT (the “Agreement”), dated as of                                         , is by and between HealthSpring, Inc., a Delaware corporation (collectively with its Subsidiaries, the “Company”), and                                          (“Employee”).

WHEREAS, the Company and Employee have each agreed to execute this Agreement to provide for the rights and obligations set forth herein.

NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions. Words or phrases that are initially capitalized or within quotation marks shall have the meanings provided in this Section 1 and as provided elsewhere in this Agreement. For purposes of this Agreement, the following definitions apply:

Accrued Obligations” shall mean, as of the date of termination, the sum of (A) Employee’s then-current base salary (disregarding any reduction constituting Good Reason) through the date of termination to the extent not theretofore paid by the Company and (B) any vacation pay, sick pay, and expense reimbursements earned and accrued by Employee as of the date of termination to the extent not theretofore paid by the Company.

Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

Board” shall mean the Board of Directors of the Company.

Cause” shall mean, with respect to Employee, one or more of the following: (i) the conviction of a felony or a crime involving moral turpitude; (ii) the commission of any act or omission involving material dishonesty or fraud with respect to the Company or any of its Subsidiaries; (iii) reporting to work under the influence of illegal drugs or the use of illegal drugs (whether or not at the workplace); (iv) repeated conduct causing the Company or any of its Subsidiaries substantial public disgrace or disrepute or substantial economic harm; (v) the continued and repeated failure to perform substantially the duties of his or her employment after 30 days’ notice from the Company, such notice setting forth in reasonable detail the nature of such failure, and in the event Employee fails to cure such failure within 30 days of notice from the Company, if such failure is capable of being cured; (vi) breach of fiduciary duty or engaging in gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries; or (vii) any other material breach of this Agreement which is not cured within 30 days after written notice thereof to Employee.

Change of Control” shall mean any of the following events:

(i) any Person, other than the Company or any of its Subsidiaries or any employee benefit plan of the Company or any of its Subsidiaries, becomes the beneficial owner of the Company’s securities having 35% or more of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities initiated by the Company in the ordinary course of business);

 

 


 

(ii) as the result of, or in connection with, any cash tender or exchange offer, merger or other business combination or contested election, or any combination of the foregoing transactions, less than a majority of the combined voting power of the then outstanding securities of the Company or any successor company or entity entitled to vote generally in the election of the directors of the Company or such other corporation or entity after such transaction are held in the aggregate by the holders of the Company’s securities entitled to vote generally in the election of directors of the Company immediately prior to such transaction;

(iii) during any period of two consecutive years, individuals who at the beginning of any such period constitute the Board cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by the Company’s stockholders, of each director of the Company first elected during such period was approved by a vote of at least two-thirds (2/3rds) of the directors of the Company then still in office who were (i) directors of the Company at the beginning of any such period, and (ii) not initially (a) appointed or elected to office as result of either an actual or threatened election and/or proxy contest by or on behalf of a Person other than the Board, or (b) designated by a Person who has entered into an agreement with the Company to effect a transaction described in (i) or (ii) above or (iv) or (v) below;

(iv) a complete liquidation or dissolution of the Company; or

(v) the sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary).

Change of Control Termination” shall mean a Qualifying Termination that takes place on the day of, or within 24 months after, the occurrence of a Change of Control.

Code” shall mean the United States Internal Revenue Code of 1986, as amended from time to time.

Confidential Information” shall mean any and all information of the Company and its Subsidiaries that is not generally known by others with whom they compete or do business, or with whom they plan to compete or do business, and any and all information, which, if disclosed by the Company or any of its Subsidiaries, would assist in competition against any of them. Confidential Information includes without limitation information relating to the historic and projected financial performance and strategic plans of the Company and its Subsidiaries. Confidential Information also includes any and all information that the Company or any of its Subsidiaries has received from others with any understanding that it would not be disclosed.

Good Reason” shall mean if Employee resigns from his or her employment with the Company and its Subsidiaries in connection with one or more of the following events: (i) a reduction of 10% or more of Employee’s base salary; (ii) a reduction of 10% or more of Employee’s annual target bonus opportunity; (iii) any material reduction to the nature or scope of Employee’s responsibilities, which is not cured within 30 days after written notice thereof by Employee to the Company; or (iv) a requirement by the Company, without Employee’s consent, to relocate Employee to a location that is greater than 50 miles from the location of the office in which Employee primarily performs his or her duties of employment at the time of such relocation; provided that written notice of Employee’s resignation for Good Reason must be delivered to the Company within 45 days after the occurrence of any such event in order for Employee’s resignation with Good Reason to be effective hereunder.

Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2)(A) of the Code) to or for the benefit of Employee, whether paid or payable pursuant to this Agreement or otherwise pursuant to any plan, agreement or understanding between Employee and the Company, which, within the meaning of Section 280G(b)(2)(A)(i) of the Code, is contingent on a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company.

 

2


 

Person” means an individual, a corporation, an association, a partnership, an estate, a trust or other entity or organization (including a “group” as defined in Section 13(d)(3) or 14(d)(2) of the Act).

Qualifying Termination” shall mean a termination of Employee’s employment (i) by the Company and its Subsidiaries without Cause (and other than due to Employee’s death or disability) or (ii) by Employee for Good Reason.

Subsidiary” shall mean any corporation, partnership, limited liability company, or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests is owned by the Company.

2. Change of Control Severance Benefits. In the event of a Change of Control Termination, in addition to Employee’s Accrued Obligations, Employee shall be entitled to receive severance pay equal to two times the sum of (A) Employee’s base salary in effect immediately prior to such termination (disregarding any reduction constituting Good Reason) and (B) Employee’s target annual bonus for the year in which such termination occurs (disregarding any reduction constituting Good Reason), which, subject to Section 4 hereof, shall be paid to Employee by the Company in a lump sum no later than 30 days following the date of the Change of Control Termination, provided, however, that if the Change of Control Termination occurs within the last 45 days of a calendar year, in no event shall any payment be made pursuant to this Section 2 prior to January 1 of the next succeeding calendar year. For a period of two years following the date of the Change of Control Termination (the “Change of Control Severance Period”), the Company shall continue to provide, at the Company’s expense, medical and dental insurance benefits to Employee (and all family members and other dependents of Employee who were enrolled in such programs as of the date of the Change of Control Termination) on substantially the same terms and conditions existing immediately prior to the Change of Control Termination.

3. Severance Benefits. If Employee’s employment with the Company and its Subsidiaries is terminated due to a Qualifying Termination that is not a Change in Control Termination, in addition to Employee’s Accrued Obligations, Employee shall be entitled to receive severance pay equal to [two times][1.5 times] Employee’s base salary in effect immediately prior to such termination (disregarding any reduction constituting Good Reason), which, subject to Section 4 hereof, shall be paid by the Company to Employee in regular installments, in accordance with the Company’s normal payroll policies then in effect, for a period of [24][18] months following the date of the Qualifying Termination. These payments will commence with the payroll period following the date on which the Qualifying Termination occurs (or, if later, the expiration of any revocation period applicable to the release described in Section 4 hereof, provided that if a Qualifying Termination occurs within the last 30 days of a calendar year, in no event shall payments commence prior to January 1 of the next succeeding calendar year) (such [24][18]-month period, the “Severance Period”). For a period of 18 months following the date of the Qualifying Termination, the Company shall continue to provide, at the Company’s expense, medical and dental insurance benefits to Employee (and all family members and other dependents of Employee who were enrolled in such programs as of the date of the Qualifying Termination) on substantially the same terms and conditions existing immediately prior to the Qualifying Termination.

4. Conditions. Any payments or benefits made or provided pursuant to this Agreement shall be available if and only if Employee has executed and delivered to the Company the General Release substantially in form and substance as set forth in Exhibit A attached hereto, the General Release has become effective, Employee has not revoked or breached the provisions of the General Release or breached the provisions of Section 5 or Section 6 hereof, all applicable revocation periods with respect to such release have expired, and Employee does not apply for unemployment compensation chargeable to the Company or any Subsidiary. In no event shall cash severance payments received pursuant to Section 2 or Section 3 hereof be reduced as a result of the receipt by Employee of compensation or benefits from a Person other than the Company during the Severance Period or Change of Control Severance Period, as applicable. All medical and dental insurance benefits made or provided pursuant to this Agreement shall be reduced by the amount of any comparable benefits Employee receives with respect to any other employment during the Severance Period or Change of Control Severance Period, as applicable; provided that Employee shall have no duty or obligation to seek other employment during any Severance Period or Change of Control Severance Period or otherwise mitigate damages hereunder. Upon request from time to time, Employee shall furnish the Company with a true and complete certificate specifying any such benefits received by Employee from any Person other than the Company during the Severance Period or Change of Control Severance Period, as applicable.

 

3


 

5. Noncompete/Nonsolicitation.

5.1 In further consideration of the benefits to Employee hereunder and as a condition of his or her continued employment with the Company and its Subsidiaries, Employee acknowledges that during the course of his or her employment with the Company and its Subsidiaries, Employee has and will become familiar with the Company’s and its Subsidiaries’ trade secrets and with other Confidential Information concerning the Company and its Subsidiaries and that Employee’s services have been and shall continue to be of special, unique, and extraordinary value to the Company and its Subsidiaries. Employee agrees that, during his or her employment with the Company and its Subsidiaries and for twelve months thereafter (the “Noncompete Period”), Employee shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed in an executive, managerial or administrative capacity by, or in any manner engage in any business within the United States that is engaging in the businesses of the Company or its Subsidiaries, as such businesses exist at any time during his or her employment with the Company and its Subsidiaries or, as of the date of termination of such employment, are contemplated to exist during the twelve-month period following the date of termination of employment (the “Restricted Business”). Nothing herein shall prohibit Employee from (i) being a passive owner of not more than 2% of the outstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or (ii) becoming employed, engaged, associated or otherwise participating with a separately managed division or subsidiary of a competitive business that does not engage in the Restricted Business (provided that Employee’s services are provided only to such division or subsidiary); or (iii) accepting employment with any federal or state government or governmental subdivision or agency.

5.2 During the Noncompete Period, Employee shall not directly or indirectly through another Person (i) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof; (ii) hire any Person who was an employee of the Company or any Subsidiary at any time during the twelve-month period immediately prior to the termination of his employment with the Company; or (iii) induce or attempt to induce any member, provider, payor or other business relation of the Company or any Subsidiary to cease or materially reduce doing business with the Company or such Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any Subsidiary (including, without limitation, making any negative or disparaging statements or communications regarding the Company or its Subsidiaries). Notwithstanding the foregoing, nothing in this Agreement shall prohibit Employee from employing an individual (i) with the consent of the Company or (ii) who responds to general solicitations in publications or on websites, or through the use of search firms, so long as such general solicitations or search firm activities are not targeted specifically at an employee of the Company or any of its Subsidiaries. In addition, nothing in this Agreement will prohibit the making of any truthful statements made by any Person in response to a lawful subpoena or legal proceeding or to enforce such Person’s rights under this Agreement, or any other agreement between Employee, the Company, and its Subsidiaries.

 

4


 

6. Confidentiality; Trade Secrets.

6.1 Employee acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that Employee may develop Confidential Information for the Company or its Subsidiaries, and that Employee may learn of Confidential Information during the course of his or her employment. Employee agrees that all Confidential Information that Employee creates or to which Employee has access as a result of Employee’s employment, whether before or after the date of this Agreement, is and shall remain the sole and exclusive property of the Company and that Employee will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information. Employee further agrees that, except as required for the proper performance of Employee’s duties for the Company or as required by applicable law (and then only to the extent required), Employee will not, directly or indirectly, use for Employee’s own benefit or gain, or assist others in the application of, or disclose any Confidential Information. Employee understands and agrees that these restrictions will continue to apply after Employee’s employment terminates, regardless of the reason for termination and regardless whether Employee is receiving or is entitled to receive any payments or other benefits under this Agreement.

6.2 Employee acknowledges that all discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not including any Confidential Information) and all registrations or applications related thereto, all other proprietary information and all similar or related information (whether or not patentable) that relate to the Company’s or any of its Subsidiaries’ actual or anticipated business, research and development or existing or future products or services and that are conceived, developed or made by Employee (whether alone or jointly with others) while employed by the Company and its Subsidiaries, whether before or after the date of this Agreement (“Work Product”), belong to the Company or such Subsidiary. Employee shall promptly disclose all patentable inventions and other material Work Product to the Board and, at the Company’s expense, perform all actions reasonably requested by the Board (whether during or after his or her employment with the Company and its Subsidiaries) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments). Employee acknowledges that all Work Product shall be deemed to constitute “works made for hire” under the U.S. Copyright Act of 1976, as amended. In accordance with Title 19, Section 805 of the Delaware Code, Employee is hereby advised that this Section 6.2 regarding the Company’s and its Subsidiaries’ ownership of Work Product does not apply to any invention for which no equipment, supplies, facilities or trade secret information of the Company or any Subsidiary was used and which was developed entirely on Employee’s own time, unless (i) the invention relates to the business of the Company or any Subsidiary or to the Company’s or any Subsidiaries’ actual or demonstrably anticipated research or development, or (ii) the invention results from any work performed by Employee for the Company or any Subsidiary.

 

5


 

7. Enforceability and Remedies.

7.1 Employee agrees that the restrictions on, and other provisions relating to, Employee’s activities contained in this Agreement are fully reasonable and necessary to protect the goodwill, Confidential Information, and other legitimate interests of the Company. Employee also acknowledges and agrees that, were Employee to breach the provisions of this Agreement, the harm to the Company would be irreparable. Employee therefore agrees that in the event of such a breach or threatened breach the Company shall, in addition to any other remedies available to it, have the right to obtain preliminary and permanent injunctive relief against any such breach without having to post bond. Employee further agrees that, in addition to any other relief awarded to the Company as a result of Employee’s breach of any of the provisions of this Agreement, the Company shall be entitled to recover all payments made to Employee or on Employee’s behalf hereunder.

7.2 Employee hereby agrees that in the event any provision of this Agreement shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too long a time, too large a geographic area, or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.

8. Assignment. Neither the Company nor Employee may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and obligations under this Agreement without Employee’s consent in the event that the Company shall hereafter effect a Change of Control. This Agreement shall inure to the benefit of and be binding upon the Company, its successors (including without limitation any transferee of all or substantially all of its assets), and permitted assigns and upon Employee, Employee’s executors, administrators, heirs, and permitted assigns. In the event of any Change of Control, references to the Company in this Agreement shall, unless the context suggests otherwise, be deemed to include the entity resulting from such Change of Control of the Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company to expressly assume this Agreement and all obligations of the Company hereunder in the same manner and to the same extent that the Company would be so obligated if no such succession had taken place.

9. Notices. Any and all notices, requests, demands, acceptances, appointments and other communications provided for by this Agreement shall be in writing (including electronic mail or similar electronic transmission) and shall be effective when actually delivered in person or, if mailed, five days after having been deposited in the United States mail, postage prepaid, registered or certified and addressed to Employee at Employee’s last known address on the books of the Company or, in the case of the Company, addressed to its principal place of business, attention General Counsel, or to such other address as either party may specify by notice to the other.

10. Withholding. All compensation paid or provided to Employee under this Agreement shall be subject to any applicable income, payroll or other tax withholding requirements.

 

6


 

11. Section 409A. It is intended that (1) each installment of the payments provided under this Agreement is a separate “payment” for purposes of Section 409A of the Code, and (2) that the payments satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v). Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on the date Employee’s employment with the Company terminates or at such other time that the Company determines to be relevant, Employee is a “specified employee” (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company and (ii) that any payments to be provided to Employee pursuant to this Agreement are or may become subject to the additional tax under Code Section 409A(a)(1)(B) or any other taxes or penalties imposed under Code Section 409A (“Section 409A Taxes”) if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six months after the date of Employee’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or such shorter period that, as determined by the Company, is sufficient to avoid the imposition of Section 409A Taxes. For the avoidance of doubt, it is anticipated that payments qualifying for the exemption from application of Section 409A pursuant to Treasury Regulation 1.409A-1(b)(9)(iii) will be made during this six month period, if applicable. Any payments delayed pursuant to this Section 11 shall be made in a lump sum on the first day of the seventh month following Employee’s “separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)), or such earlier date that, as determined by the Company, is sufficient to avoid the imposition of any Section 490A Taxes.

12. Section 280G. Notwithstanding anything in this Agreement to the contrary, in the event that it shall be determined that any Payment would constitute an “excess parachute payment” within the meaning of Section 280G(b) of the Code, the Payment(s) shall be reduced by an amount necessary to prevent any portion of the Payment(s) from being a “parachute payment” as defined in Section 280G(b)(2) of the Code. The value of Payment(s) for purposes of this Section 12 shall be established by an independent certified public accounting firm designated by the Company and by applying principles, assumptions, and procedures consistent with Section 280G of the Code.

13. Other Arrangements. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice, or other Company document, then the provisions of this Agreement shall control. This Agreement shall supersede and replace any prior employment, change of control or severance agreement between Employee and the Company (excluding any equity plan or equity award agreement) and may be amended only by a writing signed by an officer of the Company and Employee.

14. Miscellaneous. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement. Nothing herein shall be deemed to create an employment contract, and Employee acknowledges that his or her employment by the Company is terminable at will by either party with or without cause and with or without notice. This Agreement may not be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in a writing signed by Employee and a duly authorized officer of the Company. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Delaware, without giving effect to choice of law or conflict of law rules or provisions thereof. The parties agree that, in the event it becomes necessary to seek judicial remedies for the breach or threatened breach of this Agreement, the prevailing party will be entitled, in addition to all other remedies, to recover from the non-prevailing party reasonable attorneys’ fees and costs upon the entry of a final nonappealable judgment. Each party shall perform such further acts and execute and deliver such further documents as may be reasonably necessary to carry out the provisions of this Agreement. By accepting this agreement, Employee hereby agrees and acknowledges that the Company makes no representations with respect to the application of Code Section 409A to any tax, economic, or legal consequences of any payments payable to Employee hereunder (including, without limitation, payments pursuant to Section 2 and Section 3 above) and, by the acceptance of this Agreement, Employee agrees to accept the potential application of Code Section 409A to the tax and legal consequences of payments payable to Employee hereunder (including, without limitation, payments pursuant to Section 2 and Section 3 above). The parties agree to cooperate in good faith to amend such documents and to take such actions as may be necessary or appropriate to comply with Code Section 409A.

This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together constitute one and the same instrument. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

 

7


 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first written above.

 

 

 

 

 

 

 

HEALTHSPRING, INC.

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

Its:

 

 

 

 

 

 

 

 

 

 

 

 

 

EMPLOYEE

 

 

 

 

 

 

 

 

 

8


 

Exhibit A

GENERAL RELEASE

I,                     , in consideration of and subject to the performance by HealthSpring, Inc., a Delaware corporation (together with each of its Subsidiaries, the “Company”), of its obligations under the Severance and Noncompetition Agreement, dated as of the date as of                      (the “Agreement”), do hereby release and forever discharge as of the date hereof the Company and its affiliates and all present and former directors, officers, agents, representatives, employees, successors and assigns of the Company and its affiliates and the Company’s direct or indirect owners (collectively, the “Released Parties”) to the extent provided below.

1.

 

I understand that any payments or benefits paid or granted to me under Section 1 of the Agreement represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I will not receive the payments and benefits specified in Section 2 or Section 3 of the Agreement unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter or breach this General Release. Such payments and benefits will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates. I also acknowledge and represent that I have received all payments and benefits that I am entitled to receive (as of the date hereof) by virtue of any employment by the Company.

2.

 

Except as provided in paragraph 4 below, I knowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever discharge the Company and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date this General Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, which arise out of or are connected with my employment with, or my separation or termination from, the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”).

 

3.

 

I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 2 above.

 

A-1


 

 

4.

 

I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company in compliance with the terms of the Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967).

 

5.

 

In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company would not have agreed to the terms of the Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company, or in the event I should seek to recover against the Company in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims. I further agree that I am not aware of any pending charge or complaint of the type described in paragraph 2 as of the execution of this General Release.

6.

 

I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or myself of any improper or unlawful conduct.

 

7.

 

I agree that I will forfeit all amounts payable by the Company pursuant to the Agreement if I challenge the validity of this General Release. I also agree that if I violate this General Release by suing the Company or the other Released Parties, I will pay all costs and expenses of defending against the suit incurred by the Released Parties, including reasonable attorneys’ fees, and return all payments received by me pursuant to the Agreement.

8.

 

I agree that this General Release is confidential and agree not to disclose any information regarding the terms of this General Release, except to my immediate family and any tax, legal or other counsel I have consulted regarding the meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone. Notwithstanding anything herein to the contrary, each of the parties (and each affiliate and person acting on behalf of any such party) agree that each party (and each employee, representative, and other agent of such party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this transaction contemplated in the Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to such party or such person relating to such tax treatment and tax structure, except to the extent necessary to comply with any applicable federal or state securities laws. This authorization is not intended to permit disclosure of any other information including (without limitation) (i) any portion of any materials to the extent not related to the tax treatment or tax structure of this transaction, (ii) the identities of participants or potential participants in the Agreement, (iii) any financial information (except to the extent such information is related to the tax treatment or tax structure of this transaction), or (iv) any other term or detail not relevant to the tax treatment or the tax structure of this transaction.

 

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9.

 

Any non-disclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization or governmental entity.

 

10.

 

I agree to reasonably cooperate with the Company in any internal investigation, any administrative, regulatory, or judicial proceeding or any dispute with a third party.

11.

 

I agree not to disparage the Company, its past and present investors, officers, directors or employees or its affiliates and to keep all confidential and proprietary information about the past or present business affairs of the Company and its affiliates confidential in accordance with the terms of the Agreement unless a prior written release from the Company is obtained. I further agree that as of the date hereof, I have returned to the Company any and all property, tangible or intangible, relating to its business, which I possessed or had control over at any time (including, but not limited to, Company-provided credit cards, building or office access cards, keys, computer equipment, manuals, files, documents, records, software, customer data base and other data) and that I shall not retain any copies, compilations, extracts, excerpts, summaries or other notes of any such manuals, files, documents, records, software, customer data base or other data.

 

12.

 

Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect (i) any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof, (ii) any rights or obligations under applicable law which cannot be waived or released pursuant to an agreement, (iii) any rights to payments or benefits under Section 2 or Section 3 of the Agreement, (iv) my rights of indemnification and directors and officers insurance coverage to which I may be entitled solely with regards to my service as an officer or director of the Company; (v) my rights with regard to accrued benefits under any employee benefit plan, policy or arrangement maintained by the Company or under COBRA; and (vi) my rights as a stockholder or other equityholder of the Company and/or its affiliates.

13.

 

Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:

(a)

 

I HAVE READ IT CAREFULLY;

(b)

 

I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;

 

 

 

(c)

 

I VOLUNTARILY CONSENT TO EVERYTHING IN IT;

 

 

 

(d)

 

I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;

 

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(e)

 

I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON [_____,  _____] TO CONSIDER IT AND THE CHANGES MADE SINCE THE [_____,  _____]

 

 

 

 

 

VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;

 

(f)

 

THE CHANGES TO THE AGREEMENT SINCE [_____,  _____] EITHER ARE NOT MATERIAL OR WERE MADE AT MY REQUEST.

(g)

 

I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;

 

(h)

 

I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND

(i)

 

I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.

 

 

 

 

 

 

 

 

DATE:

 

 

 

 

 

 

 

 

 

 

 

 

 

ACCEPTED:

 

 

 

 

 

 

 

 

 

 

 

HEALTHSPRING, INC.

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

 

 

A-4