1
Exhibit 10(p)
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This amendment is made as of December 15, 1997, in Columbus, Ohio,
among CompManagement, Inc., an Ohio corporation ("CMI"), CompManagement Health
Systems, Inc., an Ohio corporation ("CHS"), and Xxxxxx X. Xxxxxxx (the
"Employee").
Background Information
A. The Employee and CMI are parties to an Employment Agreement dated as
of July 21, 1995 (the "Original Employment Agreement"), which agreement was
amended as of October 1996 (the "First Amendment"). The Original Employment
Agreement, as amended by the First Amendment, is hereinafter referred to as the
"Employment Agreement."
B. CHS, a wholly owned subsidiary of CMI, is a managed care
organization (an "MCO") under Ohio's managed care workers' compensation system.
The parties desire to amend the Employment Agreement in order to, among other
things, make CHS a party to the employment arrangement and to reflect the
Employee's responsibilities with respect to the businesses of CMI and CHS. The
Employment Agreement, as amended by this amendment, is hereinafter collectively
referred to as the "Agreement."
Statement of Agreement
The parties hereby acknowledge the accuracy of the foregoing Background
Information and hereby agree as follows:
Section 1. Effective Date. This amendment shall be effective as of
December 15, 1997.
Section 2. Additional Party. CHS is hereby made a party to the
Agreement. As used in the Agreement, the term "Company" shall collectively mean
CMI and CHS, and the term "Health Power Companies" shall include CHS.
Section 3. Term of Employment. The parties acknowledge that, pursuant
to Section 2 of the First Amendment, the term of the Employee's employment by
the Company pursuant to the Agreement shall end on December 31, 1999 (the
"Termination Date"), unless sooner terminated or thereafter extended in
accordance with the provisions of the Agreement.
Section 4. Services. Section 3 of the Original Employment Agreement is
hereby amended in its entirety to read as follows:
The Employee shall serve as the Chief Executive Officer of CMI
and as the Chief Executive Officer and President of CHS. As such, the
Employee shall perform such services as may be reasonably assigned to
him in order to enable him to carry out the responsibilities and
authority granted to him under the Agreement. The Employee shall devote
his full business time, attention, energy, and skill to the businesses
of the Company; provided that he shall be entitled to attend business
and trade conventions and meetings and to take sick leaves as may be
provided generally for the Company's personnel and to take vacations as
provided in the Agreement. The Employee shall not engage in any
business or investment activity (whether or not competitive with the
Company) which requires any substantial time on his part.
2
Section 5. Responsibilities; Authority. Section 5 of the Original
Employment Agreement is hereby amended in its entirety to read as follows:
As the Chief Executive Officer and President of CHS, the
Employee shall be responsible for supervising and managing the
day-to-day business operations of CHS and for supervising and
implementing the policies and operating programs, budgets, procedures,
and directions established or changed from time to time (collectively,
the "Policies and Programs") by (i) the Chairman of the Board or the
Board of Directors of CHS, or (ii) the Chairman of the Board or the
Board of Directors of CMI, or (iii) the Chairman of the Board or the
Board of Directors of Health Power, Inc., a Delaware corporation
("Health Power"), which is the parent of CMI. Such responsibilities
shall include, without limitation, the following: developing CHS's
financial and operational goals and objectives and implementing
strategies to achieve such goals and objectives within budgeted
amounts; planning and developing CHS's financial and operational
budgets and projections; assisting department managers with developing
financial and operational goals and objectives for each department of
CHS and implementing strategies to achieve such goals and objectives
within such department's budgeted amounts; coordinating and
supervising the accounting and financial operations of CHS; hiring,
training, supervising, and discharging employees; and performing all
other activities relating to the management and day-to-day operations
of CHS's busineSection The Employee shall report to the Chairman of
CHS and shall consult with the Chairman of CHS, from time to time, on
all matters relating to the business policies and financial planning
of and for CHS.
The Employee shall have the authority on behalf of CHS to
manage and conduct the day-to-day operations of CHS in the ordinary
course of its business pursuant to the Policies and Programs of CHS and
the Policies and Programs of CMI and Health Power which are applicable
to CHS, provided that the Employee shall not take any of the following
actions without the prior approval of the Chairman of the Board of CHS:
(a) Incur capital expenditures or acquire assets
having a price in excess of $25,000 or incur expenditures,
debts, liabilities, or other financial commitments in excess
of $25,000, unless the incurrance of such expenditures, debts,
liabilities, or other financial commitments or the acquisition
of such assets are in accordance with budgeted amounts set
forth in budgets previously approved by the Board of Directors
of CHS;
(b) Grant any mortgage, security interest, or other
encumbrance on any assets of CHS;
(c) Employ, change the compensation, or terminate the
employment of the President or any Executive Vice President of
CHS; or enter into any employment agreement not terminable at
the will of CHS; or
(d) Enter into any transaction, agreement, or take
any other action that is outside the ordinary course of CHS's
business or contrary to the Policies and Programs of CHS or
the Policies and Programs of CMI or Health Power applicable to
CHS.
As the Chief Executive Officer of CMI, the Employee shall,
along with the President of CMI, be responsible for supervising and
implementing the Policies and Programs for CMI. The Employee shall
report to the Chairman of CMI and shall consult with the Chairman of
CMI, from time to time, on all matters relating to the
3
business policies and financial planning of and for CMI. The Employee's
authority on behalf of CMI shall be limited in the same manner as set
forth in (a) through (d), above.
Section 6. Change in Control Definition. The last paragraph in Section
8 of the Original Employment Agreement, which paragraph sets forth the events
when a change of control of Health Power is deemed to have occurred, is hereby
amended in its entirety to read as follows:
For purposes of the Agreement, a change in control shall be
deemed to occur:
(A) When any "person" as defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange Act")
and as used in Section Section 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) of the
Exchange Act, but excluding Health Power and any subsidiary of
Health Power and any employee benefit plan sponsored or
maintained by Health Power or any subsidiary of Health Power
(including any trustee of such plan acting as trustee),
directly or indirectly, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act, as amended from
time to time) of securities of Health Power representing 20%
or more of the combined voting power of Health Power's then
outstanding securities;
(B) When, during any period of 24 consecutive months
during the term of the Agreement, the individuals who, at the
beginning of such period, constitute the Board of Directors of
Health Power (the "Incumbent Directors") cease for any reason
other than death to constitute at least a majority thereof;
provided, however, that a director who was not a director at
the beginning of such 24-month period shall be deemed to have
satisfied such 24-month requirement (and be an Incumbent
Director) if such director was elected by, or on the
recommendation of or with the approval of, at least two-thirds
of the directors who then qualified as Incumbent Directors
either actually (because they were directors at the beginning
of such 24-month period) or by prior operation of this Section
8(B);
(C) Upon the occurrence of a transaction requiring
stockholder approval for the acquisition of Health Power by an
entity other than Health Power or a subsidiary of Health Power
through purchase of assets, by merger or otherwise.
(D) Upon the occurrence of the sale of either CMI or
CHS to a third party, whether such sale is structured as an
asset, stock, merger, or other similar type of transaction.
Section 7. Sales Commissions. The provisions of this section shall
govern the payment of sales commissions to the Employee and shall supersede and
replace in its entirety Section 5(b) of the Original Employment Agreement and
Section 3 of the First Amendment.
(a) CMI Sales Commissions. The Company shall pay to the
Employee sales commissions on the CMI Fees (as defined below) generated
by the sales efforts of the Employee (the "CMI Sales Commissions"). The
CMI Sales Commissions shall be in an amount up to (i) 25% of the amount
(subject to allocation as described in (d), below) of the CMI Fees for
the first year of business from a CMI Employer (as defined below),
which CMI Fees were generated by the sales efforts of the Employee,
plus (ii) 25% of the amount (subject to allocation as described in (d),
below) of the increase in CMI Fees from one Calendar Year (as defined
in (c), below) to the next Calendar Year from CMI Employers who are
part of group rating plans of CMI, which CMI Fees were generated by the
sales efforts of the Employee.
4
CMI Sales Commissions shall be payable on CMI Fees applicable
to CMI Employers located in any state or jurisdiction in which CMI is
authorized and approved to conduct busineSection With respect to a
business acquisition by CMI (whether such acquisition is structured as
an asset, stock, merger, or other similar type of transaction), no CMI
Sales Commissions shall be payable with respect to any fees received by
CMI from any employer who, at the time of such acquisition, was a
client or customer of the business acquired by CMI, except to the
extent payable pursuant to (ii), above.
For purposes of the Agreement: (A) "CMI Fees" shall mean fees
payable to CMI for its performance of third party administrative
services for workers' compensation and unemployment compensation claims
on behalf of CMI Employers; and (B) a "CMI Employer" shall mean any
individual or entity (including a corporation, limited liability
company, partnership, or business trust) which has entered into a
contract with CMI pursuant to which CMI performs third party
administrative services for workers' compensation or unemployment
compensation claims on behalf of such individual or entity, but is
limited to employers that are part of group rating plans (prospective
and retrospective group rating plans), state-funded employers, and
self-funded employers.
(b) CHS Sales Commissions. The Company shall pay to the
Employee sales commissions on the CHS Fees (as defined below) generated
by the sales efforts of the Employee (the "CHS Sales Commissions") as
set forth in this section.
For the 1997 Calendar Year (as defined below), the CHS Sales
Commissions shall be $638,918, which represents approximately 5.9% of
the 1997 CHS Fees.
For the first quarter of the 1998 Calendar Year, the CHS Sales
Commissions shall be in an amount up to 25% of the amount (subject to
allocation as described in (d), below) of the gamma claim revenues of
CHS accrued during such quarter.
The parties shall enter into good faith discussions with
respect to the CHS Sales Commissions payable for the remainder of the
1998 Calendar Year and thereafter, with the intent that the CHS Sales
Commissions will be in an amount up to 25% of the amount (subject to
allocation as described in (d), below) of the CHS Fees for the first
year of business from a CHS Employer, which CHS Fees were generated by
the sales efforts of the Employee. The parties will determine, among
other things, the extent to which bonuses from the Bureau (as defined
below) will be included in CHS Fees for the first year of business from
a CHS Employer.
CHS Sales Commissions shall be payable only on CHS Fees
applicable to CHS Employers located in Ohio. With respect to the
acquisition of another MCO by CHS (whether such acquisition is
structured as an asset, stock, merger, or other similar type of
transaction), no CHS Sales Commissions shall be payable with respect to
any fees received by CHS with respect to any employer who, at the time
of such acquisition, had either selected the acquired MCO as its MCO or
been assigned to the acquired MCO by the Bureau (as defined below).
For purposes of the Agreement: (A) "CHS Fees" shall mean the
fees payable to CHS under the agreement dated as of February 12, 1997,
between the Ohio Bureau of Workers' Compensation (the "Bureau") and CHS
(as such agreement may be hereafter amended, modified, renewed,
extended, supplemented, or replaced), pursuant to which CHS has agreed
to provide medical management services for workers' compensation claims
on behalf of employers who have either selected CHS as their MCO or
been assigned to CHS by the Bureau; and (B) a "CHS Employer" is any
individual or entity (including a corporation, limited liability
company, partnership, or business trust) who has selected CHS as its
MCO.
5
(c) Annual Deduction. For each Calendar Year, a deduction in
the amount of $82,500 shall be made to the aggregate amount of the CMI
Sales Commissions and the CHS Sales Commissions payable to the
Employee. Such deduction shall be made prior to any payment of such
commissions for such Calendar Year.
(d) Allocation of Commissions. The Employee acknowledges and
agrees that the "25%" sales commission amount described in (a) and (b),
above, represents the total amount of sales commissions which are
payable with respect to any CMI Employer or CHS Employer, as the case
may be, and that the 25% sales commission amount may be allocated by
the Company among all of the salespersons participating in the sales
effort to the CMI Employer or CHS Employer, as the case may be. The
Chief Executive Officer of CMI or CHS, as the case may be, shall have
the authority to allocate the 25% sales commission amount in any manner
such officer deems appropriate, in his reasonable discretion. In the
event of any dispute regarding the allocation by the Chief Executive
Officer of the 25% sales commission amount, such dispute shall be
referred to, and resolved by, the Compensation Committee of Health
Power, whose determination shall be binding and conclusive on all
parties.
(e) Miscellaneous. The CMI Sales Commissions and the CHS Sales
Commissions shall be determined on a Calendar Year basis.
The payment of the CMI Sales Commissions shall accrue upon the
execution of the contract with the CMI Employer. The payment of the CHS
Sales Commissions shall accrue upon CHS receiving notification from the
Bureau that the CHS Employer has selected CHS as its MCO. In any event,
neither CMI nor CHS shall be obligated to pay such commissions unless
and until the corresponding CMI Fees or CHS Fees, as the case may be,
are received by CMI or CHS, respectively.
No commissions shall be payable to the Employee with respect
to any entity other than CMI or CHS.
For purposes of the Agreement, a "Calendar Year" shall mean
the period from January 1 through December 31 of the same year.
Section 8. Additional Base Salary. In addition to the base salary set
forth in Section 5(a) of the Original Employment Agreement (the "Original Base
Salary"), for the 1998 Calendar Year, the Company shall pay the Employee an
additional base salary of $201,461 (the "Additional Base Salary"), payable in 24
equal installments at the same time and in the same manner as the Original Base
Salary. The Additional Base Salary shall be applicable only for the 1998
Calendar Year.
If, during the 1998 Calendar Year, the Employee's employment is
terminated by the Company for "just cause" (as defined in the Original
Employment Agreement) other than due to the death of the Employee or by the
Employee, then the Employee shall receive payment of the Additional Base Salary
accrued through the date of termination of employment, and the Company shall
have no further obligation with respect to the payment of the Additional Base
Salary. If, during the 1998 Calendar Year, the Employee's employment is
terminated due to the death of the Employee or by the Company for any reason
other than just cause, then the Employee (or his beneficiaries) shall receive
payment of the Additional Base Salary for the remainder of the 1998 Calendar
Year in the manner set forth in the preceding paragraph. In the event the
Employee is not an employee of the Company at the time of any payment of the
Additional Base Salary, the Additional Base Salary shall be treated as a salary
continuation by the Company.
6
The Additional Base Salary shall be excluded from the calculation of
the Employee's severance pay under Section 8(b) of the Original Employment
Agreement.
Section 9. Miscellaneous Changes. The term "President of the Company"
as used in Section 6 of the Original Employment Agreement is hereby amended to
read "Chief Executive Officer and President of CHS and Chief Executive Officer
of CMI."
Section 10. Definitions. All capitalized terms used in this amendment
which are not otherwise defined herein shall have the respective meanings given
those terms in the Original Employment Agreement or the First Amendment, as the
case may be.
Section 11. Captions. The captions of the various sections of this
amendment are not part of the context of this amendment, but are only labels to
assist in locating those sections, and shall be ignored in construing this
amendment.
Section 12. Construction. This document is an amendment to the
Employment Agreement. In the event of any inconsistencies between the provisions
of the Employment Agreement and this amendment, the provisions of this amendment
shall control. Except as modified by this amendment, the Employment Agreement
shall continue in full force and effect without change.
COMPMANAGEMENT, INC.
By__________________________________ ___________________________________
Xxxxxxx X. Master, D.O., XXXXXX X. XXXXXXX
Chairman
COMPMANAGEMENT HEALTH
SYSTEMS, INC.
By__________________________________
Xxxxxxx X. Master, D.O.,
Chairman
