Exhibit 10(o)
SEPARATION AND CONTINUING EMPLOYMENT AGREEMENT
This Separation and Continuing Employment Agreement ("AGREEMENT") is
entered into this 1st day of March, 2000, by and between ▇▇▇▇▇ Healthcare
Corporation ("▇▇▇▇▇") and Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ )"▇▇. ▇▇▇▇▇▇") who agree as
follows:
WHEREAS, ▇▇. ▇▇▇▇▇▇ has been employed as Chief Corporate Officer and
Chief Financial Officer for ▇▇▇▇▇;
WHEREAS, ▇▇▇▇▇ has made a strategic decision to invest in and develop an
internet-based technology which enables group purchasing to be conducted
electronically which business shall be run through a joint venture company
("BROADLANE, INC.") established by ▇▇▇▇▇ (currently the majority shareholder)
and Ventro Corporation;
WHEREAS, ▇▇. ▇▇▇▇▇▇ has been instrumental in developing the Broadlane,
Inc. venture;
WHEREAS, ▇▇▇▇▇ desires that ▇▇. ▇▇▇▇▇▇ assume the position of Chief
Executive Officer of Broadlane, Inc. and that Broadlane, Inc. assume
responsibility for a portion of ▇▇▇▇▇'▇ corporate material resource
management operations and its group purchasing functions through a management
service (outsourcing) agreement;
WHEREAS, ▇▇▇▇▇ desires to retain the services of ▇▇. ▇▇▇▇▇▇ as a
part-time employee to consult with ▇▇▇▇▇ and assist it on matters with which
▇▇. ▇▇▇▇▇▇ had knowledge or experience while an executive with ▇▇▇▇▇ as well
as other matters that are within his area of business expertise and skill; and
WHEREAS, ▇▇. ▇▇▇▇▇▇ agrees to resign his full-time employment with ▇▇▇▇▇
to assume the position of Chief Executive Officer of Broadlane, Inc. and to
enter into part-time employment with ▇▇▇▇▇ pursuant to the terms of this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. COMMENCEMENT DATE: ▇▇. ▇▇▇▇▇▇'▇ last day of full-time employment with
Tent will be February 29, 2000 ("RESIGNATION DATE"). ▇▇. ▇▇▇▇▇▇'▇ part-time
employment will commence on March 1, 2000. As a part-time employee, ▇▇.
▇▇▇▇▇▇ will not have an implied right of authority to assume or create any
obligation or responsibility on behalf of or in the name of ▇▇▇▇▇, except as
otherwise specifically provided for in this Agreement or pursuant to express
authorization from ▇▇▇▇▇ or its authorized employees.
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2. SEPARATION COMPENSATION AND BENEFITS: ▇▇▇▇▇ will pay ▇▇. ▇▇▇▇▇▇ all
past compensation due ▇▇. ▇▇▇▇▇▇ for his services as Chief Corporate Officer
and Chief Financial Officer as of the Resignation Date. Any unused Manager's
Time Off benefits that ▇▇. ▇▇▇▇▇▇ had as of the time of his resignation shall
transfer to Broadlane, Inc. and shall be immediately available for use by ▇▇.
▇▇▇▇▇▇. In addition, ▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ agree that ▇▇. ▇▇▇▇▇▇ will receive
one hundred percent (100%) of the ▇▇▇▇▇ FY2000 Annual Incentive Plan ("AIP")
award that ▇▇. ▇▇▇▇▇▇ would have been eligible for had he continued his
full-time employment with ▇▇▇▇▇ through August 2000, at which time the award
shall be payable to ▇▇. ▇▇▇▇▇▇.
3. PART-TIME EMPLOYMENT COMPENSATION AND BENEFITS:
a. The term of ▇▇. ▇▇▇▇▇▇'▇ part-time employment with ▇▇▇▇▇ shall be
for a period of forty-two (42) months commencing on March 1, 2000 and ending
on August 31, 2003 hereafter (the "TERM OF EMPLOYMENT"). During the Term of
Employment, ▇▇. ▇▇▇▇▇▇ will report to the Chairman and CEO of ▇▇▇▇▇ and
provide the following services:
(1) assist ▇▇▇▇▇ in seeking to strengthen and build upon its
BuyPower business relationships;
(2) assist ▇▇▇▇▇ in seeking to convert its BuyPower customers to
Broadlane, Inc.;
(3) provide advice to ▇▇▇▇▇ on E-commerce technology and other
internet business opportunities; and
(4) provide advice and/or assistance to ▇▇▇▇▇ on matters that were
within ▇▇. ▇▇▇▇▇▇'▇ knowledge and experience while employed as its Chief
Corporate Officer and Chief Financial Officer.
▇▇. ▇▇▇▇▇▇ shall make himself available for such services at mutually
convenient time(s) and place(s) upon notice from ▇▇▇▇▇'▇ Chairman and CEO or
his/her authorized designee. ▇▇▇▇▇ shall compensate ▇▇. ▇▇▇▇▇▇ for such
services at the rate of six thousand five-hundred dollars ($6,500.00) per
month ($78,000 per year) for each of the forty-two (42) months of
employment under this Agreement for a total compensation of two hundred
seventy-three thousand dollars ($273,000). Such compensation shall be paid
bi-weekly throughout the Term of Employment, less all tax deductions and
other withholdings. In addition, ▇▇▇▇▇ will reimburse ▇▇. ▇▇▇▇▇▇ for all
actual documented reasonable out-of-pocket expenses necessarily incurred in
providing his services under this Agreement, including, without limitation,
travel, lodging and meals.
▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ further agree that ▇▇. ▇▇▇▇▇▇'▇ stock options
granted by ▇▇▇▇▇ in shares of its common stock (the "▇▇▇▇▇ OPTIONS") shall
continue to vest during the Term of Employment, so long as he remains a
part-time employee of ▇▇▇▇▇, but in no
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event longer than the initial term of the options. Upon ▇▇. ▇▇▇▇▇▇'▇
termination of part-time employment with ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ shall have ninety
(90) days to exercise any and all vested ▇▇▇▇▇ Options.
c. ▇▇. ▇▇▇▇▇▇ and his dependents shall continue to receive health and
welfare benefits under ▇▇▇▇▇'▇ benefit plans on the same cost basis as when
▇▇. ▇▇▇▇▇▇ was employed full-time until such time as he is eligible for
benefits under Broadlane, Inc.'s health and welfare benefits plan. ▇▇▇▇▇
shall include ▇▇. ▇▇▇▇▇▇ as an eligible member of the applicable plan.
d. ▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ agree that although ▇▇. ▇▇▇▇▇▇ is a participant
in ▇▇▇▇▇'▇ Supplemental Executive Retirement Plan ("SERP"), he is not
currently entitled to receive any payment of his SERP benefits. ▇▇. ▇▇▇▇▇▇
understands and agrees that he will not accrue additional SERP benefits as a
part-time employee of ▇▇▇▇▇ under this Agreement, however, if ▇▇. ▇▇▇▇▇▇
returns to full-time employment with ▇▇▇▇▇ upon the termination of his
employment under this Agreement, he will be provided SERP credit for all the
time he was employed pursuant to this Agreement, and he will be reinstated
into the SERP plan irrespective of the title and executive position he
ultimately accepts upon his return as a full-time employee. If, on the other
hand, ▇▇. ▇▇▇▇▇▇ fails to return to full-time employment with ▇▇▇▇▇, he will
be entitled to only those SERP benefits which had accrued as of February 29,
2000.
e. Except as expressly provided herein, given the part-time nature of
▇▇. ▇▇▇▇▇▇'▇ employment, he shall not be entitled to any other fringe
benefits offered by ▇▇▇▇▇ to its employees.
4. ▇▇▇▇▇ REPRESENTATIONS AND WARRANTIES: ▇▇▇▇▇ hereby represents and
warrants each of the following which ▇▇. ▇▇▇▇▇▇ has relied on in entering
into this Agreement and in consenting to the terms of the release contained
below:
a. With respect to the amendments made to the SERP as described more
fully in paragraph 3(d) above, ▇▇▇▇▇ has the authority, pursuant to the terms
of each respective plan to amend the terms thereof through an agreement with a
plan participant and that such amendment shall be valid and binding on ▇▇▇▇▇
and any successor to ▇▇▇▇▇'▇ business whether through asset sale, merger,
consolidation or any corporate restructuring;
b. The terms of ▇▇▇▇▇'▇ health and welfare benefit plan permit the
inclusion of ▇▇. ▇▇▇▇▇▇ and his dependents as individuals entitled to
coverage under the plan; and
▇. ▇▇▇▇▇'▇ agreement to extend the period during which ▇▇. ▇▇▇▇▇▇'▇
▇▇▇▇▇ Options will vest, as set forth in paragraph 3b above, is permitted
under the terms of ▇▇▇▇▇'▇ stock option plan, and such extension shall be
binding on ▇▇▇▇▇ and any successor to ▇▇▇▇▇'▇ business whether through asset
sale, merger, consolidation or any corporate
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restructuring.
5. TERMINATION ONLY FOR CAUSE: This Agreement may be terminated by ▇▇▇▇▇
prior to its term only for "cause". The term "cause" is defined as:
dishonesty, fraud, willful misconduct, breach of fiduciary duty, violation of
law in performing job duties (except traffic violations, or similar minor
infractions), or a willful breach of this Agreement where such breach results
in demonstrably material injury to ▇▇▇▇▇ or any of its affiliates.
6. OFFICE SPACE: ▇▇▇▇▇ agrees to provide suitable office space and a
dedicated administrative assistant for use by ▇▇. ▇▇▇▇▇▇ in its Santa ▇▇▇▇▇▇▇
headquarters for the period from March 1, 2000 through May 31, 2002 and ▇▇▇▇▇
will provide ▇▇. ▇▇▇▇▇▇ use of an unstaffed office at its Dallas Operations
Center for the period from March 1, 2000 through May 31, 2001. After said
dates ▇▇▇▇▇ will provide ▇▇. ▇▇▇▇▇▇ such office space and clerical assistance
as is necessary in order for him to perform the duties required of him by
this Agreement.
7. CONFIDENTIAL INFORMATION: ▇▇. ▇▇▇▇▇▇ agrees that all confidential
information that comes or has come into his possession by reason of his past
or present employment with ▇▇▇▇▇ is the property of ▇▇▇▇▇ and shall not be
used except in the course of employment by ▇▇▇▇▇ and for ▇▇▇▇▇'▇ exclusive
benefit. Further, ▇▇. ▇▇▇▇▇▇ shall not, during his employment or thereafter,
disclose or acknowledge the content of any confidential information to any
person who is not an employee, officer or director of ▇▇▇▇▇ authorized to
possess such confidential information. "Confidential information" means all
proprietary and other confidential information relating to the business and
operations of ▇▇▇▇▇. Confidential information includes by way of illustration
and without limitation: trade secrets, business plans, marketing plans and
strategies, pricing information, financial data, customer, patient and
supplier information, regulatory approval strategies, new service line and
contract products, and other information that was developed, assembled,
gathered by, or originated with ▇▇▇▇▇ for its own private use.
Notwithstanding, nothing herein is intended to preclude the use or disclosure
of such information by ▇▇. ▇▇▇▇▇▇ as is necessary to the performance of his
duties under this Agreement and in furtherance of ▇▇▇▇▇'▇ best interests, or
as required by applicable law, or as otherwise authorized by ▇▇▇▇▇. ▇▇.
▇▇▇▇▇▇ agrees that upon the termination of his employment with ▇▇▇▇▇, he will
deliver all documents, writings, electronic storage devices, and other
tangible things containing any confidential information to ▇▇▇▇▇ without
making or retaining copies, excerpts, or notes of such information. Under no
circumstances, however, shall this paragraph 7 be interpreted in any way to
restrict or otherwise prevent ▇▇. ▇▇▇▇▇▇ from fully performing his employment
duties on behalf of Broadlane.
8. NON-COMPETITION/NON-INTERFERENCE: During any periods of time that he is
receiving payments from ▇▇▇▇▇ or a successor, as provided herein, ▇▇. ▇▇▇▇▇▇
will not compete, directly or indirectly, with ▇▇▇▇▇ in any market where
▇▇▇▇▇ does business. "Compete" means and includes rendering services,
accepting employment, consultation, or any other
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business relationship with any company, association, affiliation, consortium,
or other for-profit or not-for-profit organization that provides acute care
general hospital health care services, or any other line of business that
constitutes at least ten percent (10%) of ▇▇▇▇▇'▇ annual revenue volume. ▇▇.
▇▇▇▇▇▇ also agrees that during the periods stated in this paragraph, he will
not (i) directly or indirectly solicit or encourage in any manner the
resignation or reaffiliation of any employee, physician, contractor, or
professional health care provider that is employed by, affiliated or
associated with ▇▇▇▇▇ or any affiliated entity; (ii) directly or indirectly
solicit or divert customers, vendors, or business of ▇▇▇▇▇ of any affiliated
entity; or (iii) attempt to influence, directly or indirectly, any person or
entity to cease, reduce, alter or rearrange any business relationship with
▇▇▇▇▇ or any affiliated entity. The provisions of this paragraph 8 shall
apply irrespective of the type or reason for termination of employment. ▇▇▇▇▇
hereby acknowledges and consents to ▇▇. ▇▇▇▇▇▇'▇ employment as Chairman and
Chief Executive Officer of Broadlane, Inc. Accordingly, Tenent agrees that
the restrictive covenants and non-solicitation provisions of this paragraph 8
shall not apply to ▇▇. ▇▇▇▇▇▇'▇ employment with Broadlane (or its successors
or permitted assigns). ▇▇. ▇▇▇▇▇▇ acknowledges and agrees that he considers
the restrictions set forth in this paragraph to be reasonable both
individually and in the aggregate, and that the duration, geographic scope,
extent and application of each of these restrictions are no greater than is
necessary for the protection of ▇▇▇▇▇'▇ legitimate interests. It is the
desire and intent of ▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ that the provisions of this
paragraph shall be enforced to the fullest extent possible under the laws and
public policies of the State of California, or where applicable, under the
laws of each jurisdiction in which enforcement is sought. ▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇ further agree that if any particular provision or portion of this
paragraph shall be adjudicated to be invalid or unenforceable, such
adjudication shall apply only with respect to the operation of such provision
in the particular jurisdiction in which such adjudication is made. ▇▇▇▇▇ and
▇▇. ▇▇▇▇▇▇ further agree that in the event that any restriction herein shall
be found to be void or unenforceable but would be valid or enforceable if
some part or parts thereof were deleted or the period or area of application
reduced, such restriction shall apply with modification as may be necessary
to make it valid, and ▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ empower a court or arbitrator
hereunder of competent jurisdiction, to modify, reduce or otherwise reform
such provision(s) in such fashion as to carry out the parties' intent to
▇▇▇▇▇ ▇▇▇▇▇ the maximum allowable protection consistent with the applicable
law and facts and the express exceptions contained herein.
9. ENFORCEMENT/SEVERABILITY/REFORMATION: The parties agree that a breach
or threatened breach of any protective or restrictive provisions contained in
paragraphs 7 and 8 above will cause immediate irreparable harm to ▇▇▇▇▇ for
which legal remedies alone are inadequate to compensate. Therefore, ▇▇.
▇▇▇▇▇▇ agrees that these provisions shall be enforceable by equitable process
of injunction in addition to, but without limitation of, any monetary
damages, sanctions or other legal remedies available, plus recovery by ▇▇▇▇▇
of its reasonable attorney's fees and expenses incurred in enforcing these
provisions. The parties further agree that in the event that any provisions
of this Agreement are declared invalid or unenforceable, as written, the
remaining provisions shall not be abridged or
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affected.
10. DUTY OF COOPERATION: During the term of this Agreement, ▇▇. ▇▇▇▇▇▇
will cooperate fully with ▇▇▇▇▇, upon request, up to a maximum of twenty (20)
hours per month in relation to the defense, prosecution or other involvement
in any continuing or future claims, lawsuits, charges, and internal or
external investigations which arise out of events or business matters which
either have occurred, or will occur, during ▇▇. ▇▇▇▇▇▇'▇ employment by ▇▇▇▇▇,
and for which ▇▇. ▇▇▇▇▇▇ has or had knowledge and/or responsibility in his
position as Chief Corporate Officer and Chief Financial Officer. Such
continuing duty of cooperation shall include making himself available to
▇▇▇▇▇, upon reasonable notice, for depositions, interviews, and appearance as
a witness, and furnishing information to ▇▇▇▇▇ and its legal counsel upon
request. ▇▇▇▇▇ will reimburse actual documented reasonable out-of-pocket
expenses necessarily incurred in assisting ▇▇▇▇▇ in this manner, such as
travel, lodging and meals. Nothing in this paragraph is intended to cause ▇▇.
▇▇▇▇▇▇ to waive his rights to protect his own legal interests in the event of
a lawsuit or legal claim against ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇. The parties agree that
no provision of this paragraph shall be construed or interpreted in any way
to limit, restrict or preclude either party hereto from cooperating with any
governmental agency in the performance of its investigatory or other lawful
duties. In addition, ▇▇. ▇▇▇▇▇▇ at all times will retain any and all rights
of indemnification agreements for any alleged act or failure to act on his
part within the course and scope of ▇▇. ▇▇▇▇▇▇'▇ employment with ▇▇▇▇▇.
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11. RETURN OF ALL PROPERTY: ▇▇. ▇▇▇▇▇▇ shall further return to ▇▇▇▇▇ all
property in his possession or control which ▇▇▇▇▇ has not permitted him to
retain, including, without limitation, equipment, telephones, credit cards,
keys, pagers, tangible proprietary information, documents, computers and
computer discs, files and data, which ▇▇. ▇▇▇▇▇▇ prepared or obtained during
the course of his employment with ▇▇▇▇▇.
12. FAIR TREATMENT PROCESS: ▇▇. ▇▇▇▇▇▇ acknowledges that he has received a
copy of ▇▇▇▇▇'▇ Fair Treatment Process (the "FTP") and has had an opportunity
to review the FTP prior to executing this Agreement. The FTP and its
provisions shall be deemed incorporated into this Agreement. ▇▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ agree to the full extent permitted by law that in lieu of a jury trial,
any dispute over the validity, enforcement, scope, breach or Interpretation
of this Agreement and any dispute regarding unreleased claims or future
claims between the parties. If any, shall be submitted and/or resolved in
accordance with the terms of the FTP and any successor thereto, including
final and binding arbitration pursuant to the provisions of the applicable
Employment Dispute Resolution Rules of the American Arbitration Association.
13. ENTIRE AGREEMENT: Except for the various plan documents which relate to
the employee benefits provided herein, this Agreement contains the entire
agreement and understanding between ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ relating to his
separation from full time employment and commencement of part time
employment with ▇▇▇▇▇, and is intended to supersede all prior negotiations
and agreements proposed or otherwise, whether written or oral, concerning the
subject matter hereof. This is an integrated document.
16. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and shall
inure to the benefit of ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇ and the ▇▇▇▇▇ Releasees and their
respective heirs, administrators, successors and assigns.
17. COUNTERPARTS: This Agreement may be executed in counterparts, and each
counterpart when executed shall have the efficacy of a signed original.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
18. CHOICE OF LAW: This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of California.
19. VOLUNTARINESS: ▇▇. ▇▇▇▇▇▇ represents and affirms that he has carefully
read and fully understands the provisions of this Agreement and that he is
voluntarily entering into this Agreement.
IN WITNESS HEREOF, the parties have agreed to be bound by the terms of
this Agreement commencing on the date first written in the introductory
paragraph above.
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Dated:
---------------------------, 2000 ------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ HEALTHCARE CORPORATION
Dated
----------------------------, 2000 By
-----------------------------------
Its
----------------------------------
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