Contract
Exhibit 10.13
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EMPLOYMENT AGREEMENT EMPLOYMENT AGREEMENT, dated as of , 2019 (this "Agreement"), by and between Convey Health Solutions, Inc., a Delaware corporation (the "Company"), Xxxx Xxxxx (the "Executive") and Convey Health Parent, Inc., a Delaware corporation ("Parent") (each of the Executive, the Company and Parent, a "Party," and collectively, the "Parties"). WHEREAS, in connection with the closing and consummation of the transactions contemplated by that certain Agreement and Plan of Merger entered into by and among (i) Parent, (ii) Cannes Parent, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent, (iii) Cannes Merger Sub, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Parent, (iv) the Company, (v) New Mountain Partners IV, L.P., and certain other parties, dated as of June 19, 2019 (the "Merger Agreement"), the Company desires to enter into this Agreement with the Executive effective upon the consummation and closing of the transactions contemplated by the Merger Agreement (the "Effective Date"); WHEREAS, the Company desires to continue to employ the Executive as Managing Partner of HealthScape Advisors, LLC and wishes to acquire and be assured of the Executive's services commencing as of and after the Effective Date on the terms and conditions hereinafter set forth; and WHEREAS, the Executive desires to continue to be employed by the Company as Managing Partner of HealthScape Advisors, LLC and to perform and to serve the Company and its affiliates on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valid consideration, the sufficiency of which is acknowledged, the Parties hereto agree as follows: Employment. Section I. 1.1. Term. Subject to Section 3 hereof, the Company agrees to employ the Executive, and the Executive agrees to be employed by the Company, in each case pursuant to this Agreement, for a period commencing on the Effective Date and ending on the date that the employment of the Executive is terminated by either Party in accordance with Section 3 of this Agreement. The Executive's period of employment pursuant to this Agreement shall hereinafter be referred to as the "Employment Period." 1.2. Duties. During the Employment Period, the Executive shall serve as Managing Patiner ofHealthScape Advisors, LLC and such affiliates of the Company as may be determined by the Company from time to time and shall report directly to the Chief Executive Officer of the Company. In the Executive's position as Managing Partner of HealthScape Advisors, LLC, the Executive shall perform such duties, functions and responsibilities during the Employment Period as are commensurate with such position, as reasonably and lawfully directed by the Chief Executive Officer or his or her designee. |
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governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, conceming matters relevant to the governmental agency or entity that do not constitute attorney-client privileged information of the Company or its affiliates. In addition, the Executive acknowledges that he has received notice of the immunity from liability to which he is entitled for the disclosure of confidential information or a trade secret to the government or in a court filing as provided by Federal law, as set forth in Exhibit B to this Employment Agreement. 4.2. Non-Competition. By and in consideration of the Company entering into this Agreement, and in further consideration of the Executive's exposure to the Confidential Information and eligibility to receive and/or receipt of the cash incentive opportunity described in Section 2.2, the Executive agrees that the Executive shall not, during the Employment Period and for a period of 12 months after the Executive's termination of employment for any reason (the "Restriction Period"), directly or indirectly, own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected in any manner with, including, without limitation, holding any position as a stockholder, director, officer, consultant, independent contractor, employee, partner, or investor in, any Restricted Enterprise (as defined below); provided, that, in no event shall (X) ownership by the Executive of two percent or less of the outstanding securities of any class of equity of any issuer whose securities are registered under the Securities Exchange Act of 1934, as amended, standing alone, be prohibited by this Section 4.2, so long as the Executive does not have, or exercise, any rights to manage or operate the business of such issuer other than rights as a shareholder thereof, (Y) being employed by an entity, standing alone, be prohibited by this Section 4.2, so long as the entity has more than one discrete and readily distinguishable patt of its business and the Executive's duties are not at or involving the part of the entity's business that is actively engaged in a Restricted Enterprise, or (Z) being employed by or providing services to a private equity firm or fund or other investor group who may own or seek to acquire one or more portfolio companies that would constitute a Restricted Enterprise, standing alone, be prohibited by this Section 4.2, provided, that, for purposes of this subclause (Z), the Executive is not directly involved, in any capacity, with any p01tfolio company (or the acquisition thereof) that would constitute a Restricted Enterprise. For purposes of this paragraph, "Restricted Enterprise" shall mean any Person that is engaged, directly or indirectly, in (or intends or proposes to engage in, or has been organized for the purpose of engaging in) a business which is in competition with a business of the Company, Parent or any of their subsidiaries, which (i) is in the business of providing software products or consulting services to government programs, health plans (including specialty health organizations such as dental, behavioral and vision clients), or provider organizations ("Restricted Business Customers"), including where software products or consulting services are concerned providing Restricted Business Customers assistance operationally and/or strategically in the areas of compliance, sales, operations, marketing, clinical, pharmacy, quality, risk adjustment, provider networking, business intelligence I analytics, provider communications, clinical data exchange, data integrity and payment I premium integrity, (ii) is in the business of providing technology and services for health plans supporting plan administration and supplemental benefits, or (iii) is any other business commenced by the Company after the date hereof and on or prior to the Termination Date, that the Company is providing in any country or territory in which the Company, Parent or any of their subsidiaries markets any of its services or products, or, as of the Termination Date, has substantially commenced plans to begin marketing any of its services or products in such country 7 |
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Facsimile: 000-000-0000 E-Mail: xxxxx.xxxxx@xxxxxxxxx.xxx If to the Executive: At his principal office at the Company (during the Employment Period), and at all times to his principal residence as reflected in the records of the Company. If bye mail, to his Company-supplied e-mail address. All such notices, requests, consents and other communications shall be deemed to have been given when received. Either Party may change its facsimile number or its address to which notices, reqnests, demands, claims and other communications hereunder are to be delivered by giving the other parties hereto notice in the manner then set forth. 8.5. Governing Law. This Agreement shall be construed and enforced in accordance with, and the laws of the State of Florida hereto shall govern the rights and obligations of the parties, without giving effect to the conflicts of law pi'inciples thereof. 8.6. Severability. Whenever possible, each provision or portion of any provision of this Agreement, including those contained in Section 4 hereof, will be interpreted in such manner as to be effective and valid under applicable law but the invalidity or unenforceability of any provision or portion of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision or portion of any provision, in any other jurisdiction. In addition, should a court or arbitrator determine that any provision or portion of any provision of this Agreement, including those contained in Section 4 hereof, is not reasonable or valid, either in period of time, geographical area, or otherwise, the Parties hereto agree that such provision should be interpreted and enforced to the maximum extent which such court or arbitrator deems reasonable or valid. 8.7. Entire Agreement. From and after the Effective Date, this Agreement constitutes the entire agreement between the Parties hereto, and supersedes all prior representations, agreements and understandings (including any prior course of dealings), both written and oral, between the Parties hereto with respect to the subject matter hereof. 8.8. Counterparts. This Agreement may be executed by .pdf or facsimile signatures in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. 8.9. Binding Effect. This Agreement shall inure to the benefit of, and be binding on, the successors and assigns of each of the Parties, including, without limitation, the Executive's heirs and the personal representatives of the Executive's estate and any successor to all or substantially all of the business and/or assets of the Company. In the event of a change in majority voting control (whether by merger or otherwise and irrespective whether the Company or Parent survives) of the Company or Parent, in which the Executive's employment terminates upon or within 180 days thereafter, the scope of the "Restricted Enterprise" shall be determined as of immediately prior to such change of voting control event. 12 |
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CONVEY HEALTH SOLUTIONS, INC. | ||
By: | /s/ Xxx Xxxxxxxxx | |
Name: Xxx Xxxxxxxxx | ||
Title: Chief Financial Officer | ||
CONVEY HEALTH PARENT, INC. | ||
By: | /s/ Xxx Xxxxxxxxx | |
Name: Xxx Xxxxxxxxx | ||
Title: Chief Financial Officer | ||
/s/ Xxxx X. Xxxxx | ||
Xxxx Xxxxx |
[Signature Page to Employment Agreement]
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Exhibit A YOU SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE OF CLAIMS. Release I. In consideration of the payments and benefits to be made under the Employment Agreement, dated as of [ ], 2019 (the "Employment Agreement"), by and between Xxxx Xxxxx (the "Executive"), Convey Health Solutions, Inc. (the "Company") and Convey Health Parent, Inc. ("Parent") (each of the Executive, the Company and Parent, a "Party" and collectively, the "Parties"), the sufficiency of which the Executive acknowledges, the Executive, with the intention of binding himself or herself and his heirs, executors, administrators and assigns, does hereby release, remise, acquit and forever discharge the Company and each of its subsidiaries and affiliates (the "Company Affiliated Group"), their present and former officers, directors, executives, shareholders, agents, attorneys, employees and employee benefit plans (and the fiduciaries thereof), and the successors, predecessors and assigns of each of the foregoing (collectively, the "Company Released Parties"), of and from any and all claims, actions, causes of action, complaints, charges, demands, rights, damages, debts, sums of money, accounts, financial obligations, suits, expenses, attorneys' fees and liabilities of whatever kind or nature in law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown, suspected or unsuspected, which the Executive, individually or as a member of a class, now has, owns or holds, or has at any time heretofore had, owned or held, arising on or prior to the date hereof, against any Company Released Party that arises out of, or relates to, the Employment Agreement, the Executive's employment with the Company or any of its subsidiaries and affiliates, or any termination of such employment, including claims (i) for severance or vacation benefits, unpaid wages, salary or incentive payments, (ii) for breach of contract, wrongful discharge, impairment of economic opportunity, defamation, intentional infliction of emotional harm or other tort, (iii) for any violation of applicable state and local labor and employment laws (including, without limitation, all laws concerning unlawful and unfair labor and employment practices) and (iv) for employment discrimination under any applicable federal, state or local statute, provision, order or regulation, and including, without limitation, any claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Civil Rights Act of 1988, the Fair Labor Standards Act, the Americans with Disabilities Act ("ADA"), the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Age Discrimination in Employment Act ("ADEA''), and any similar or analogous state statute, each as amended from time to time, excepting only: A. rights of the Executive arising under, or preserved by, this Release or Section 3 of the Employment Agreement; B. the right of the Executive to receive COBRA continuation coverage in accordance with applicable law; C. claims for benefits under any health, disability, retirement, life insurance or other, similar employee benefit plan (within the meaning of Section 3(3) of ERISA) of the Company Affiliated Group; |
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D. rights to indemnification the Executive has or may have under the Employment Agreement, by-laws, certificate of incorporation or other governing instrument of any member of the Company Affiliated Group or as an insured under any director's and officer's liability insurance policy now or previously in force; E. rights granted to Executive during his employment related to the purchase or grant of equity of any member of the Company Affiliated Group; and F. that nothing in this Release shall prohibit the Executive from reporting possible violations of federal law or regulation to or otherwise cooperating with or providing information requested by any governmental agency or entity, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation, and respecting which the Executive shall not require the prior authorization of the Company to make any such reports or disclosures and the Executive shall not be required to notify the Company that the Executive has made such reports or disclosures. 2. The Executive acknowledges and agrees that this Release is not to be construed in any way as an admission of any liability whatsoever by any Company Released Party, any such liability being expressly denied. 3. This Release applies to any relief no matter how called, including, without limitation, wages, back pay, front pay, compensatory damages, liquidated damages, punitive damages, damages for pain or suffering, costs, and attorneys' fees and expenses. 4. The Executive specifically acknowledges that his acceptance of the terms of this Release is, among other things, a specific waiver of his rights, claims and causes of action under Title VII, ADEA, ADA and any state or local law or regulation in respect of discrimination of any kind; provided, however, that nothing herein shall be deemed, nor does anything contained herein purport, to be a waiver of any right or claim or cause of action which by law the Executive is not permitted to waive. 5. The Executive aclmowledges that he has been given a period of [twenty-one (21)]/[forty-five (45)]1 days to consider whether to execute this Release. If the Executive accepts the terms hereof and executes this Release, he may thereafter, for a period of seven (7) days following (and not including) the date of execution, revoke this Release. If no such revocation occurs, this Release shall become irrevocable in its entirety, and binding and enforceable against the Executive, on the day next following the day on which the foregoing seven-day period has elapsed. If such a revocation occurs, the Executive shall irrevocably forfeit any right to payment of the Severance Benefits (as defined in the Employment Agreement), but the remainder of the Employment Agreement shall continue in full force. 6. The Executive aclmowledges and agrees that nothing contained in this Release shall be construed to prohibit him from filing a charge with or participating in any 1 Note to Draft: To be determined by the Company at the time of separation. 2 |
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investigation or proceeding conducted by the federal Equal Employment Opportunity Commission or a comparable state or local agency; provided, however, that the Executive hereby agrees to waive his right to recover monetary damages or other individual relief in any such charge, investigation or proceeding or any related complaint or lawsuit filed by him or by anyone else on his behalf. The Executive further understands that nothing contained in this Release shall be construed to limit, restrict or in any other way affect his communicating with any govemmental agency or entity, or communicating with any official or staff person of a govemmental agency or entity, conceming matters relevant to such govemmental agency or entity. 7. The Executive acknowledges that he has been advised to seek, and has had the opportunity to seek, the advice and assistance of an attomey with regard to this Release, and has been given a sufficient period within which to consider this Release. 8. The Executive acknowledges that this Release relates only to claims that exist as of the date of this Release. 9. The Executive acknowledges that the severance payments and benefits he is receiving in connection with this Release and his obligations under this Release are in addition to anything of value to which the Executive is entitled from the Company. The Executive fmther acknowledges that, except as expressly provided hereunder, no further compensation or benefits are owed, or will be provided to him, by the Company or any of its Affiliates. I 0. Each provision hereof is severable from this Release, and if one or more provisions hereof are declared invalid, the remaining provisions shall nevertheless remain in full force and effect. If any provision of this Release is so broad, in scope, or duration or otherwise, as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable. II. This Release constitutes the complete agreement of the Parties in respect of the subject matter hereof and shall supersede all prior agreements between the Parties in respect of the subject matter hereof except to the extent set forth herein. For the avoidance of doubt, however, nothing in this Release shall constitute a waiver of any Company Released Party's right to enforce any obligations of the Executive under the Employment Agreement that survive the Employment Agreement's termination, including without limitation, any non-competition covenant, non-solicitation covenant or any other restrictive covenants contained therein. 12. The failure to enforce at any time any of the provisions of this Release or to require at any time performance by another party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect the validity of this Release, or any part hereof, or the right of any party thereafter to enforce each and every such provision in accordance with the terms of this Release. 13. This Release may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile shall be deemed effective for all purposes. 14. This Release shall be binding upon any and all successors and assigns of the Executive and the Company. 3 |
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15. Except for issues or matters as to which federal law is applicable, this Release shall be governed by and construed and enforced in accordance with the laws of the State of Florida without giving effect to the conflicts of law principles thereof. [signature page follows] 4 |
IN WITNESS WHEREOF, this Release has been signed by or on behalf of each of the Parties, all as of .
CONVEY HEALTH SOLUTIONS, INC. | ||
By: | ||
Name: | ||
Title: | ||
CONVEY HEALTH PARENT, INC. | ||
By: | ||
Name: | ||
Title: | ||
/s/ Xxxx X. Xxxxx | ||
Xxxx Xxxxx |
5
CONVEY HEALTH SOLUTIONS, INC. | ||
By: | /s/ Xxx Xxxxxxxxx |
I aclmowledge receiving a copy of this Invention Assignment Notice:
/s/ Xxxx X. Xxxxx | ||
Xxxx Xxxxx | ||
Date: |