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EXHIBIT 10.92
HEALTHCARE COMPARE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 23rd day of May, 1991, by and between HealthCare
COMPARE Corp., a Delaware corporation headquartered in Illinois (the
"Company"), and Xxxx Xxxx Xxxxxxxxx (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 three (3) years
commencing on May 23, 1991, and terminating on May 23, 1994, 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.
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3. Duties. The Company hereby employs the Employee as the Senior Vice
President- Review Operations, with responsibilities and duties as are assigned
by, and subject to the supervision of the Executive Vice President and Chief
Operating Officer of the Company and for such other duties as may, from time to
time, be delegated to Employee by the Chief Operating Officer or his designee,
which duties shall include but shall not be limited to the overall supervision
of the Company's Review Operations, with direct reporting responsibilities to
the Executive Vice President and Chief Operating 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 ways
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 Seventy-five Thousand ($175,000) effective May 23, 1991. This salary shall
be subject to annual increases on February 1 equal to the CPI rate for the
previous calendar year, and
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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.
(b) Expenses. 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 Employees 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.
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8. Termination Without Cause and Voluntary Termination.
(a) Anytime after the first year 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
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.
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(b) Employee refuses to follow a lawful and reasonable order or
direction of an officer of the Company.
(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, pricing, 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
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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 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 hardship, nor will it unreasonably interfere with
Employee'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,
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
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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 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
orgarzation, 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 a 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 compentent 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 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
provision of law to the extent that, when this Agreement or any provision hereof
would have been
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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 term, 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: Xxxxx X. Xxxxx
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Its: President and
Chief Executive Officer
Employee:
Xxxx Xxxx Xxxxxxxxx
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Xxxx Xxxx Xxxxxxxxx
pme
5/23/91
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