EXECUTIVE SEVERANCE AND
RESTRICTIVE COVENANT AGREEMENT
This AMENDED
AND RESTATED EXECUTIVE SEVERANCE AND RESTRICTIVE COVENANT
AGREEMENT (“Agreement”) is made as of this 11th day
of December, 2008, by and between LifePoint CSGP, LLC, a Delaware
limited liability company with its principal place of business at
103 Powell Court, Suite 200, Brentwood, Tennessee (the
“Company”), and William F. Carpenter III, a resident of
Nashville, Tennessee (“Executive”).
WHEREAS, Executive
has been an employee of the Company and/or its subsidiaries and
affiliates since 1999, serving most recently as the Executive Vice
President, General Counsel and Secretary of LifePoint Hospitals,
Inc. (“LifePoint”), the parent corporation of the
Company;
WHEREAS, effective
June 26, 2006, Executive was promoted and appointed to serve
as the Chief Executive Officer and President of
LifePoint;
WHEREAS, in
connection with Executive’s employment by the Company and his
services as the Chief Executive Officer and President of the
Company and LifePoint (and such other appointments as he may hold
with their respective subsidiaries and affiliates), the Company and
Executive have, pursuant to the Executive Severance and Restrictive
Covenant Agreement, made as of December 11, 2006 (the
“Prior Agreement”), set forth, among other things, the
terms of Executive’s severance benefits and certain related
matters in the event Executive’s employment is terminated,;
and
WHEREAS, the
Executive and the Company desire to amend and restate the Prior
Agreement as of the date hereof.
NOW, THEREFORE,
for and in consideration of the mutual promises and covenants set
forth below and other good and valuable consideration, receipt of
which is hereby acknowledged, the Company and Executive do hereby
agree as follows:
(a)
Offices and Duties . Executive is employed by the Company
and has been appointed to serve as the Chief Executive Officer and
President of LifePoint (and to serve in similar capacities with
certain of their respective subsidiaries and affiliates). As such,
Executive shall have such duties and responsibilities as may be
delineated in the bylaws and/or other constituent documents of the
Company and LifePoint (and in the bylaws and/or other constituent
documents of any of their respective applicable subsidiaries or
affiliates) and as are directed by the Board of Directors of
LifePoint (the “Board of Directors”), and Executive
shall report directly to the Board of Directors.
(b)
Compensation and Benefits . The Board of Directors (or such
committee thereof as shall have the responsibility for and
authority to set the compensation of Lifepoint’s and its
subsidiaries’ and affiliates’ executive officers and
key employees) shall from time to time
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set
Executive’s compensation, including his base salary
(“Base Salary”) and bonus compensation (“Bonus
Compensation”), and other benefits (including participation
in the Company’s equity incentive plans and qualified plans
(collectively, the “Plans”)). The Base Salary and Bonus
Compensation shall be retroactive to June 26, 2006, the date
Executive was appointed to serve as Chief Executive Officer and
President.
(c)
At-Will Employment . Executive recognizes and accepts
that, notwithstanding anything in this Agreement to the contrary,
(i) Executive is employed by the Company (and by any of its
subsidiaries and affiliates) on an “at-will” basis,
(ii) this Agreement does not guarantee or otherwise provide
for employment and that, at any time and for any reason, Executive
may resign or the Company may terminate Executive’s
employment with the Company (and with any of its subsidiaries and
affiliates), and (iii) neither the Company nor any of its
subsidiaries and affiliates shall, in any case, be responsible for
any severance pay, termination pay, severance obligations, damages
or any other additional payments or obligations whatsoever arising
from the termination of his employment, above and beyond those
specifically provided for or referred to in this Agreement or
otherwise provided by law. The parties further acknowledge and
agree that there shall be no duplication between any payments or
other benefits due Executive hereunder and any payments or benefits
paid or to be paid to Executive under any other plan, program,
agreement or arrangement.
(d)
Execution of Release Upon Termination . The execution,
delivery and non-revocation of the Release of Claims attached
hereto as Exhibit A (the “Release”) shall be a
condition to the Company’s obligations to make the payments
described in Section 3 hereof to Executive following the
termination of his employment. The Release is deliverable by the
Executive no later than thirty days after the date of termination
of the Executive’s employment.
2. Term
of Agreement . This Agreement shall continue indefinitely until
Executive terminates his employment with the Company and/or its
subsidiaries and affiliates or the Company terminates
Executive’s employment with the Company and/or its
subsidiaries and affiliates, provided that the provisions of
Sections 3 and 4 shall survive any termination of this
Agreement.
3.
Termination of Employment .
(a)
Termination for Cause .
(i)
If Executive’s employment is terminated by the Company for
Cause, as defined in Section 3(a)(ii) below, Executive shall
receive his Base Salary through the date of such termination and
any earned but unpaid Bonus Compensation for any prior fiscal year,
but he shall not be eligible to receive Base Salary or to
participate in any Plans after the date of such termination except
as otherwise required by law and except for the right to receive
benefits which have become vested under any Plans in accordance
with the terms of such Plans. In addition, Executive shall not be
eligible to receive any Bonus Compensation for the Company’s
fiscal year during which the date of termination occurs or any
later year.
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(ii)
Termination for “Cause” shall mean termination of
Executive’s employment with the Company and its subsidiaries
and affiliates by the Board of Directors because of (a)
Executive’s material breach of the terms of this Agreement or
repeated failure to perform his duties in a manner reasonably
consistent with the criteria established or directions given by the
Board of Directors; provided , however , that the
termination pursuant to this clause shall be preceded by a written
notice providing a reasonable opportunity for Executive to correct
his conduct, if the conduct in question can be corrected,
(b) any action by Executive constituting fraud, self-dealing,
embezzlement, or dishonesty in the course of his employment
hereunder, or (c) the conviction of Executive of a crime
involving moral turpitude or any felony.
(iii)
The termination of Executive’s employment shall not be deemed
to be for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative
vote of not less than two-thirds of the entire membership of the
Board at a meeting of the Board called and held for such purpose
(after reasonable notice is provided to Executive and Executive is
given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of such Board,
Executive is guilty of the conduct described in any of the
subsections set forth in Section 3(a)(ii) above.
(iv)
The date of termination of employment by the Company under this
Section 3(a) shall be the date specified in a written notice of
termination (which date shall be no earlier than the date of
furnishing such notice), or if no such date is specified therein,
the date of receipt by Executive of such written notice of
termination.
(b)
Termination Without Cause .
(i)
If Executive’s employment is terminated by the Company
without Cause, Executive shall receive his Base Salary through the
date of such termination and any earned but unpaid Bonus
Compensation for any prior fiscal year, and shall further be
entitled to receive, as severance, his then current Base Salary for
a period of 24 months following the date of termination of his
employment plus an amount equal to two (2) times
Executive’s bonus earned for the prior fiscal year which
bonus amount shall be paid in equal amounts, ratably, over the
24-month period following the date of termination of his employment
(each such installment to be treated as a separate payment as
defined under Treasury Regulation Section 1.409A-2(b)(2)
promulgated under Section 409A of the Internal Revenue Code
1986, as amended). The Company further agrees to provide Executive
with insurance coverage ( e.g ., medical, dental and life)
commensurate with the coverage provided to Executive immediately
prior to the date of termination for a period of 24 months
following the date of termination. Other than as set forth in the
preceding sentences, Executive shall not be eligible to participate
in any Plans after the date of termination except as otherwise
required by law and except for the right to receive benefits which
have vested under any Plan in accordance with the terms of such
Plan, and Executive shall not be eligible to receive any Bonus
Compensation for the Company’s fiscal year during which the
date of termination occurs or any later year.
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(ii)
The date of termination of employment by the Company under this
Section 3(b) shall be the date specified in a written notice of
termination to Executive (which date shall be no earlier than the
date of furnishing such notice) or, if no such date is specified
therein, the date on which such notice is given to
Executive.
(iii)
Severance payments under this Section 3(b) shall be made in
accordance with the Company’s then current payroll practice
commencing on the next payroll date following the date of
expiration of the revocation period provided for in the
Release.
(iv)
If the Executive is a “specified employee” (as
determined under the Company’s policy for identifying
specified employees) on the date of his “separation from
service” (within the meaning of Section 409A of the
Code) and if any portion of the amounts payable under this Section
3(b) would be considered “deferred compensation” under
Section 409A of the Code, all such payments (other than
payments that satisfy the short-term deferral rule, as defined in
Treasury Regulation Section 1.409A-1(b)(4), or that are
treated as separation pay under Treasury
Regulation Section 1.409A-1(b)(9)(iii) or
Section 1.049A-1(b)(9)(v)) shall not commence to be paid on
any date prior to the first business day after the date that is six
months following the Executive’s termination of employment.
The first payment that can be made shall include the cumulative
amount of any amounts that could not be paid during such six-month
period. In addition, interest will accrue at the 10-year T-bill
rate (as in effect as of the first business day of the calendar
year in which the t
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