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EXHIBIT 10.100
EMPLOYMENT AGREEMENT
This AGREEMENT is made this 1st day of July, 1997 ("Effective Date") by and
between HealthCare COMPARE Corp., a Delaware corporation headquartered in
Illinois ("Company"), and Xxxxxx X. Xxxxxxxx ("Employee").
BACKGROUND
A. Company desires to employ Employee, and Employee desires to be employed by
Company.
B. For and in consideration of the promises and of the mutual covenants
hereinafter set forth, it is hereby agreed by and between the parties as
follows:
AGREEMENT
1. Employment. Company hereby agrees to employ Employee to perform the
duties set forth in Section 3 hereof ("Employee Services"). Employee hereby
accepts employment to perform Employee Services for Employer under the terms
and conditions of this Agreement.
2. Term. The Initial Term of this Agreement will be for three years
beginning on the Effective Date and will automatically renew for consecutive
one year terms, unless earlier terminated pursuant to Section 8 hereof.
3. Duties. Employee will serve as Chief Financial Officer and perform all
responsibilities and duties as are assigned, or delegated to Employee, by
President and Chief Executive Officer, which responsibilities and duties
include but are not limited to the overall accounting and financial activities
of the Company. Employee will report to and is subject to supervision by
President and Chief Executive Officer or his/her designee.
4. Time Commitment. Employee will devote Employee's entire time,
attention and energies to the performance of Employee Services. Employee may
not be associated with, consult, advise, work for, be employed by, contract
with, or otherwise devote any of the Employee's time to the pursuit of any
other work or business activities which may interfere with the performance of
services hereunder.
5. Compensation and Benefits. Company will pay the following compensation
to Employee in full consideration for performance of Employee Services
hereunder in accordance with Company's then-current payroll policies and
procedures.
(a) Salary. Employee will receive a gross annual salary of
$260,000.00. This salary is payable in accordance with Company's then - current
payroll policies and procedures. The gross annual salary will be subject to
annual increases as may by approved by Company.
(b) Expenses. Company will reimburse Employee for all reasonable and
necessary expenses incurred by Employee in connection with the performance of
Employee Services upon
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submission by Employee of expense reports with substantiating vouchers, in
accordance with the Company's then current expense reimbursement policy.
(c) Stock Options. Employee will be awarded the option to purchase a
minimum of 80,000 shares of Company common stock, adjusted for any stock
splits, set by the Board of Directors of Company in accordance with the Company
Stock Option Plan (the "Stock Options"). The awards of the Stock Options are
subject to (i) approval of the Board of Directors of Company of the
recommendations; and (ii) execution by Employee of the then current Stock
Option Agreement.
(d) Benefits and Flexible Time Off. Employee shall be entitled to
participate in such group life insurance, major medical, and other employee
benefit plans (collectively "Benefit Plans") as established by Company in
accordance with the applicable terms and conditions of such Benefit Plans,
which Benefit Plans may be modified or discontinued by Company at any time;
provided, however that Employee shall meet the requirements of the Benefit
Plans for participation and in no event, including breach or wrongful
termination of this Agreement, shall Employee be entitled to any amount of
compensation in lieu of participation, unless otherwise provided by the terms
of the Benefit Plan.
Employee shall also be entitled to paid time off in accordance with
Company's then current Flexible Time Off (FTO) program. Employee shall accrue
such FTO at the rate specified in the FTO program. Flexible Time Off shall be
taken with due consideration for the services required of Employee and to the
requirements of Company.
6. Termination.
(a) Either party may terminate this Agreement at any time following the
Initial Term, without cause and without any liability to Company, upon no less
than one hundred and twenty (120) day's prior written notice to Employee. In
such event, Employee, if requested by Company, will continue to render Employee
Services and be paid Employee's regular compensation up to the date of
termination in accordance with Company's then-current payroll policies and
procedures.
(b) Either party may terminate this Agreement at anytime for cause upon
14 days written notice. "Cause" includes, without limitation, breach of any
provision of this Agreement or Employee's failure to adhere to the Company's
policies and procedures. If the cause is not cured within the 14 day period,
the Agreement may then be terminated by written notice. An opportunity to cure
is not required if the party receiving notice of termination has previously
been given notice of termination and the opportunity to cure the same or
similar cause.
(c) Company may terminate this Agreement by written notice at anytime
(including during the Initial Term) immediately for the following reasons: (i)
Death or legal incapacity of Employee; (ii) Employee's conviction of a felony;
(iii) willful violation of the Company's policies or standards including
without limitation, Corporate Compliance standards, confidentiality and
nondisclosure; or (iv) theft or dishonesty.
(d) Company may terminate at any time (including during the Initial
Term) by written notice upon Employee's other incapacity or inability to
perform Employee Services for a period of
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at least 90 consecutive days because of impairment of Employee's physical, or
mental health making it impossible or impractical for Employee to perform
Employee Services.
7. Confidentiality. Employee agrees not to directly or indirectly use or
disclose, for the benefit of any person, firm or entity other than Company and
its subsidiary companies, the Confidential Business Information of Company.
Confidential Business Information means information or material which is not
generally available to or used by others or the utility or value of which is
not generally known or recognized as a standard practice, whether or not the
underlying details are in the public domain, including but not limited to its
computerized and manual systems, procedures, reports, client lists, review
criteria and methods, financial methods and practices, plans, pricing and
marketing techniques as well as information regarding Company's past, present
and prospective clients and their particular needs and requirements, and their
own confidential information.
Upon termination of employment, with or without cause, Employee agrees
to return to Company all policy and procedure manuals, records, notes, data,
memoranda, and reports of any nature (including computerized and electronically
stored information) which are in Employee's possession and/or control which
relate to (i) the Confidential Business Information of Company, (ii) Employee's
employment with Company, or (iii) the business activities or facilities of
Company or its past, present, or prospective clients.
8. Restrictive Covenant. During the period of employment and for a period
of one year from the date of termination, with or without cause, Employee will
not directly or indirectly, within the United States or in any foreign market
in which Employee was engaged in activities on behalf of Company, own, engage
or participate in any way in any business which is similar to or competitive
with any actual or planned business activity engaged in or planned by Company
at the time the employment was terminated. However, this Agreement shall not
prohibit ownership of up to 2% of the shares of stock of any such corporation
whose stock is listed on a national securities exchange or is traded in the
over-the-counter market.
Employee further agrees that, for a period of one year after
termination of employment with Company, with or without cause, Employee will
promptly notify Company of any business with whom Employee is associated or in
which has an ownership interest and provide Company with a description of
Employee's duties or interests.
For a period of one year after termination of employment, with or
without cause, Employee will not directly or indirectly, for the purpose of
selling services provided or planned by Company at the time the employment was
terminated, call upon, solicit or divert any actual customer or prospective
customer of Company. An actual customer, for purposes of this Section, is any
customer to whom Company has provided services within one year prior to
Employee's termination. A prospective customer, for purposes of this Section,
is any prospective customer to whom Company sought to provide services within
one year prior to the date of Employee's termination and Employee has knowledge
or and was involved in such solicitation.
9. Non-Solicitation of Employees. Employee further agrees that for a
period of one year from the date of Employee's termination, with or without
cause, Employee shall not directly or indirectly solicit or hire any person who
is currently or was an employee of Company at any time during the twelve months
prior to Employee's termination.
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10. Remedies. In the event Employee breaches or threatens to breach
Sections 7, 8 or 9 of this Agreement, Company shall be entitled to injunctive
relief, enjoining or restraining such breach or threatened breach. Employee
acknowledges that Company's remedy at law is inadequate and that Company will
suffer irreparable injury if such conduct is not prohibited.
Employee and Company agree that, because of the difficulty of
ascertaining the amount of damages in the event that Employee breaches Section
9 of this Agreement, Company shall be entitled to recover, at its option, as
liquidated damages and not as a penalty, a sum equal to one year's annual
salary of the employee(s) solicited to leave Company's employ. The parties
further agree that the existence of this remedy will not preclude employer from
seeking or receiving injunctive relief.
Employee further agrees that the covenants contained in Sections 7, 8
or 9 shall be construed as separate and independent of other provisions of this
Agreement and the existence of any claim by Employee against Company shall not
constitute a defense to the enforcement by Company of either of these
paragraphs.
11. Property Rights. All discoveries, designs, improvements, ideas,
inventions, creations, and works of art, whether or not patentable or subject
to copyright, relating to the business of Company or its clients, conceived,
developed or made by Employee during employment by Company, either solely or
jointly with others (hereafter "Developments") shall automatically become the
sole property of Company. Employee shall immediately disclose to Company all
such Developments and shall, without additional compensation, execute all
assignments, application or any other documents deemed necessary by Company to
perfect Company's rights therein. These obligations shall continue for a
period of one year beyond the termination of employment with respect to
Developments conceived, developed or made by Employee during employment with
Company.
Company acknowledges and agrees that the provisions of this section
shall not apply to inventions for which no equipment, supplies, facility or
trade secret information of Company or its clients were used by Employee and
which were developed entirely on Employee's own time unless (a) such inventions
relate (i) to the business of Company or (ii) to Company's actual or
demonstrably anticipated research or development or (b) such inventions result
from any work performed by Employee for Company.
12. Assignments. Neither party shall have the right or power to assign
any rights or duties under this Agreement without the written consent of the
other party, provided, however, that Company shall have the right to assign
this Agreement without consent pursuant to any corporate reorganization,
merger, or other transaction involving a change of control of Company or to any
subsidiary company. Any attempted assignment in breach of this Section 12
shall be void.
13. Severability. Each section, paragraph, clause, sub-clause and
provision (collectively "Provisions") of this Agreement shall be severable from
each other, and if for any reason the paragraph, clause, sub-clause or
provision is invalid or unenforceable, such invalidity or unenforceability
shall not prejudice or in any way affect the validity or enforceability of any
other Provision hereof.
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14. Miscellaneous.
(a) This Agreement, the schedules and any amendments hereto contain the
entire agreement of the parties with respect to the employment of the Employee
and supersedes all other understandings (including without limitation, that
certain Employment Agreement dated May 23, 1991 whether written or oral;
provided, however, that Employee shall comply with all policies, procedures and
other requirements of Company as established in the Colleague Handbook and
Corporate Policy Manuals, not inconsistent with this Agreement.
(b) Failure on the part of either party to insist upon strict
compliance by the other with respect to any of the terms, covenants and
conditions hereof, shall not be deemed a subsequent waiver of such term,
covenant or condition.
(c) The provisions of any paragraph containing a continuing obligation
after termination shall survive such termination whether with or without cause
and even if occasioned by Company's breach or wrongful termination.
(d) This Agreement may not be modified except in writing as signed by
the parties; provided, however, that Company may amend or terminate its Benefit
Plans, Incentive Plan, Corporate Policies and/or employees' rules and
regulations in its sole discretion.
(e) In the event of litigation under this Agreement, the court shall
have discretion to award the prevailing party reasonable attorney's fees.
15. Governing Law. It is the intention of the parties hereto that all
questions with respect to the construction, formation, and performance of this
Agreement and the rights and liabilities of the parties hereto shall be
determined in accordance with the laws of the State of Illinois. The parties
hereto submit to the jurisdiction and venue of the courts of DuPage County
Illinois in respect to any matter or thing arising out of this agreement
pursuant hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement in the State of Illinois as of the day and year first above written.
The Company:
HealthCare COMPARE Corp.
By:
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Its: President and
Chief Executive Officer
Employee:
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Xxxxxx X. Xxxxxxxx
