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EXHIBIT 10.93
HEALTHCARE COMPARE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 21st day of August, 1990, by and between
HealthCare COMPARE Corp., a Delaware corporation headquartered in Illinois (the
"Company"), and Xxxxxxx X. Xxxxx (the "Employee").
WITNESSETH
WHEREAS, the Company desires to employ Employee, and Employee desires to
be employed by the Company.
1. Employment. The Company hereby agrees to employ the Employee as set
forth hereinafter, and Employee agrees to diligently and faithfully serve the
Company on the terms and conditions hereinafter set forth. Employee agrees to
perform such other duties as may be assigned during the term of this Agreement.
2. Term. Subject to the provisions for earlier termination as hereinafter
provided, the term of employment shall be for a period of five years, three
months and eighteen days, commencing on August 21, 1990, and terminating on
December 9, 1995, provided, however, this agreement shall automatically renew
and the term hereof shall be extended for one year after the expiration of the
Initial Term unless one party shall give the other party not less than One
hundred and twenty (120) days advance written notice prior to the last date of
the current term hereof that said party is not extending the term hereof.
3. Duties. The Company hereby employs the Employee as the Vice President
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of Sales, with responsibilities and duties as are assigned by, and subject
to the supervision of the President of the Company and for such other duties as
may, from time to time, be delegated to Employee by the President or his
designee, which duties shall include but shall not be limited to the overall
supervision of the Company's Sales activities, with direct reporting
responsibilities to the President and Chief Executive Officer of the Company,
or any other person(s) so directed.
4. Full Time. During the term of this Agreement, Employee agrees to
devote Employee's entire time, attention and energies to the business of the
Company. Employee shall not be associated with, consult, advise, work for, be
employed by, or contract with or otherwise devote any of the Employee's time to
the pursuit of any other work or business enterprises which are in any way,
directly or indirectly, competitive with the Company or any of its subsidiaries
whether as an employee, officer, director, consultant, creditor, security
holder or otherwise (except that Employee may own up to 2% of the shares of
stock of any corporation competitive to the Company whose securities are traded
on a national securities exchange or on the over-the-counter market).
5. Compensation. For services to be rendered by the Employee hereunder, in
whatever capacity, the Company agrees to pay the following compensation to
Employee:
(a) Salary. Employee shall receive an annual salary of One Hundred and
Eighty-Five Thousand Dollars ($185,000), effective February 1, 1991. This
salary shall be subject to annual increases on February 1 equal to the CPI rate
for the previous calendar year, and shall be payable at such time and manner as
may from time to time be effective and in force for similar employees of the
Company, but not less often than semi-monthly.
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(b) Expense. The Company shall reimburse the Employee upon submission
by the Employee of expense reports with substantiating vouchers, in accordance
with the Company's reimbursement policy for all reasonable expenses incurred by
Employee in connection with the performance of services thereunder.
(c) Vacation. The Employee shall earn a total of three weeks paid
vacation for the first ten years of service and four weeks paid vacation over
ten years of service. Vacation time shall be taken with due consideration for
the services required of Employee and to the requirements of the Company.
7. Illness, Incapacity and Death.
(a) If, because of illness or other incapacity, Employee shall fail for a
period of thirty (30) consecutive days, or for shorter periods
aggregating thirty (30) days in any consecutive twelve (12) month period, to
render services contemplated hereunder, the Company may, in its sole
discretion and judgment, fix a date on which it is deemed that the Employee
became disabled and, at the Company's option, may terminate the term of
Employee's employment hereunder by giving written notice thereof to the
Employee, effective on the dates set forth in such notice (which date shall
not be less than ten (10) business days after the mailing of such notice).
(b) In the event of the death of the Employee during the employment term,
the employment term shall terminate on the date of Employee's death.
8. Termination Without Cause and Voluntary Termination
(a) Anytime after the first five years of this Agreement, without cause
and without any liability to the Company, the Company may terminate this
Agreement at any time upon one hundred and twenty (120) days notice to the
Employee. In such event, the Employee, if requested by the Company, shall
continue to render
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services and shall be paid Employee's regular compensation up to the date
of termination
(b) If the Employee shall voluntarily terminate his employment hereunder,
the Company shall only be obligated to pay or cause to be paid to Employee in a
lump sum, an amount equal to (i) such amounts as the Employee shall be
entitled to receive under the terms of retirement and investment plans of the
Company, to the extent such plans permit such amount to be paid and subject to
and in accordance with applicable law and any beneficiary designation made by
the Employee in the plan which law and beneficiary designation shall prevail,
(ii) payment in respect of all accrued and unused vacation time, as
established in the Company's then current benefit plan, and (iii) payment in
respect of all accrued but unpaid compensation. Upon such termination and such
payment Company shall have no further obligation or liability to Employee.
9. Termination With Cause. If any of the following events occur during the
term of employment hereunder, the Company shall have the right to terminate
immediately the term of Employee's employment without any liability to the
Company:
(a) Employee commits a material and willful breach of this Agreement
which is not cured within five business days after the Company notifies the
Employee of such breach.
(b) Employee refuses to follow a lawful and reasonable order or direction
of an officer of the Company.
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(c) Employee commits an act which gives the Company cause for
terminating Employee. For purposes of this Agreement "cause" shall include,
without limitation, the reasonable belief of the Company of the Employee's
dishonesty, theft, failure to follow Company policies or procedures, willful
misconduct or disregard of duties.
(d) Employee, in the sole judgment of the Company, is not performing the
duties assigned to him in a manner acceptable to Company or in a manner
consistent with Company's established procedures or policies.
10. Confidentiality and Competition.
(a) In consideration of the substantial benefits to be provided
hereunder to the Employee by the Company, and in recognition of the fact that
the Employee shall occupy a position of trust and confidence with the Company,
Employee acknowledges that Employee has acquired and hereafter will acquire
valuable and confidential information of a special and unique nature relating
to such matters as the Company's trade secrets, systems, procedures, manuals,
confidential reports, employee rosters, client lists, software systems,
products, business and financial methods and practices, plans,
pricings, selling techniques and special processes involved in designing,
assembling and operating computer programs and the application there of to
hospital utilization review and other related electronic data processing
information respecting the Company's present and prospective clients, and the
particular business requirements of the Company's present and prospective
clients, including the methods used and preferred by the Company's clients and
fees paid by such clients. In addition, Employee has developed and may
develop further on behalf of the Company a personal acquaintance of the
Company's clients and prospective clients, which acquaintance may constitute
the Company's only contact
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with such clients. As a consequence thereof, Employee has occupied and will
occupy a position of trust and confidence with respect to the affairs of the
Company, its products and services. In view of the foregoing and in
consideration of the remuneration to be paid to Employee hereunder, Employee
acknowledges and agrees that it is reasonable and necessary for the protection
of the goodwill and business of the Company that he make the covenants
contained in this Paragraph 10 regarding his conduct during and subsequent
to his employment by the Company and that the Company will suffer irreparable
injury if Employee engaged in any conduct prohibited thereby. Employee
represents Employee's experience and/or abilities are such that the observance
of the aforementioned covenants will not cause the Employee any undue
hardships, nor will it unreasonably interfere with Employees's ability to earn
a livelihood. Employee and the Company further agree that the covenants
contained in this Paragraph 10 shall each be construed as a separate agreement
independent of any other provisions of this Agreement, and the existence of
any claim or cause of action by Employee against the Company's whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of any of these covenants.
(b) Employee, while in the employ of the Company or at any time
thereafter, will not, without the express written consent of the Company,
directly or indirectly communicate or divulge, or use for the benefit of
Employee or of any other person, firm, association or corporation, any of the
Company's trade secrets or other confidential information, including, solely by
way of illustration, the matters mentioned in Subparagraph (a) of this
Paragraph 10, which trade secrets and confidential information were or will be
communicated to or otherwise learned or
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acquired by Employee in the course of Employee's employment with the
Company, except the Employee may disclose such matters to the extent that
disclosure thereof is required (a) by a court or other governmental agency of
competent jurisdiction. During the term of this employment with the Company,
Employee will not contact, with a view towards selling any product or service
competitive with any product or service sold or proposed to be sold by the
Company, any person, firm, association or corporation (i) to which the Company
provided its services, or (ii) which Employee solicited contacted or otherwise
dealt with on behalf of the Company. During the term of his employment by the
Company, Employee will not directly or indirectly make any such contact, either
for the benefit of Employee or on behalf of any other person, firm, association
or corporation to make any such contact. During the term of Employee's
employment by the Company, Employee will not directly or indirectly have any
interest in any corporation, firm or business (other than the Company) which
is engaged in a business in any area of the world in which the Company engages
in such business, whether as any employee, director, officer, consultant,
creditor, security holder or otherwise (except that he may own up to 2%
of the shares of stock of any such corporation whose stock is listed on a
national securities exchange or is traded on the over-the-counter market).
Employee and the Company acknowledge that the Company presently conducts
business in several jurisdictions within the United States.
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(c) Upon the voluntary or involuntary termination of employment during
the term hereof for any reason whatsoever, Employee agrees that, for the period
of one year from the date thereof, Employee will not directly or indirectly have
any interest or involvement in any corporation, firm, or business (other than
the Company) which is or becomes involved in any business activity of the
Company as presently conducted or as hereafter conducted during the employment
term, whether such interest or involvement is as an employee, director,
officer, consultant, creditor, security holder or otherwise (except that he may
own up to 2% of the shares of stock of any such corporation whose stock is
listed on a national securities exchange or is traded on the over-the-counter
market). In addition, for such period the Employee shall not, directly or
indirectly, for the purpose of engaging in any activity of the Company, as
presently conducted or as hereafter conducted during the employment term, call
upon, solicit, divert, take away, contact, approach or deal with any person who
is client or employee of the Company during the employment term in order to
obtain utilization review business from such person or to cause such person to
terminate his employment with the Company, as the case may be. Notwithstanding
anything herein to the contrary, the Company and the Employee agree that the
Employee shall be permitted to become an officer, employee, director or
consultant with any insurance carrier, consulting firm or other entity which is
engaged in health care consulting or health care data processing, provided that
such business does not provide for utilization review, and that he shall be
further entitled to be employed by any professional standards review
organization, professional review organization, state medical society,
foundation for medical care or multi-sited company whose principal business is
not health care.
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(d) In the event of a breach or threatened or intended breach of this
Agreement and the foregoing covenants by the Employee, Employee and
the Company agree that the Company shall be entitled to the
following particular forms of relief, in addition to remedies
otherwise available to it at law or in equity:
(i) In the event Employee breaches or threatens to breach any provision
of this Paragraph 10, Company shall be entitled to injunctions,
both preliminary and permanent, enjoining or restraining such breach
or threatened or intended breach, and Employee hereby consents to the
issuance thereof forthwith by any court of competent jurisdiction;
(ii) In the event Employee breaches any provision of this Paragraph 10,
ascertainment of the exact amount of the Company's damages is
acknowledged to be difficult, if not impossible, and therefore
the parties hereto fix, as liquidated damages to be paid by the
Employee to the Company upon the account of any such breach and not as
a penalty, the aggregate consideration received for the provision of
services or introduction of competitive activities arising as a result
of such breach.
11. Severability. Each paragraph, clause, sub-clause and provision 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 paragraph, clause, sub-clause or
provision hereof. This Agreement and all of the provisions hereof shall be read
and construed so as to give full effect thereto, subject only to any contrary
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provision of law to the extent that, when this Agreement or any provision
hereof would have been read and construed as being void and ineffective but for
the provisions of this Paragraph 11, it shall nevertheless be a valid agreement
or provision, as the case may be, to the full extent to which it is not
contrary to any provision of law.
12. Assignments. No right under this Agreement shall be subject to
assignment by other parties without the consent of such other party thereto,
which consent shall not be unreasonably withheld, provided, however, that the
Company shall reserve the right to assign this Agreement without consent
pursuant to any corporate reorganization, merger, or other transaction
involving the change of control or a change in form of the Company.
13. Miscellaneous.
(a) This instrument contains and evidences the entire agreement of the
parties hereto with respect to the employment of the Employee.
(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 waiver of such term, covenant or
condition.
(c) In the event of litigation under this Agreement, the court shall
have discretion to award the prevailing party reasonable attorney's fees.
14. 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 of the courts of Illinois in respect to any
manner or thing arising out of this agreement pursuant hereto.
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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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Xxxxxxx X. Xxxxx
pme
11/11/90
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