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EXHIBIT 10.20
EMPLOYMENT AND NONCOMPETITION AGREEMENT
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THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT ("Agreement") is made and
entered into this 1st day of July, 1996, by and between CONSOLIDATED GROUP,
INC., a Massachusetts corporation and the companies identified on Exhibit A
attached hereto (hereinafter collectively called the "Employer"), and XXXXXXX
X. XXXXXXXX (hereinafter called "Employee").
WHEREAS, the Employee is an employee of the Employer; and
WHEREAS, the Employer is being acquired (the "Acquisition") by
HealthPlan Services Corporation ("HPSC") and in connection with such
acquisition Employee is selling 3,000 shares of his stock in the Employer to
certain other shareholders of the Employer (the "Selling Shareholders") in
order to facilitate their sale of all of the shares of the Employer to HPSC
pursuant to the terms of the Acquisition and in connection therewith is
receiving a portion of the proceeds thereof; and
WHEREAS, as consideration for HPSC's consummation of the Acquisition
and the purchase of the Employee's stock by HPSC indirectly through the Selling
Shareholders, HPSC has requested that, effective as of the Closing Date of the
Acquisition, Employee enter into an Employment and Noncompetition Agreement
with Employer in substantially the form set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound thereby, agree as follows:
W I T N E S S E T H :
1. EMPLOYMENT. Employer hereby agrees to employ Employee, and
Employee hereby accepts employment with Employer upon the terms and conditions
hereinafter set forth.
2. TERM. Subject to the provisions of resignation and
termination as hereinafter provided, the term of this Agreement shall commence
on June 30, 1996 and shall terminate on June 30, 1998.
3. DUTIES. The Employee is engaged as the Employer's Chairman
and Chief Executive Officer and shall have such duties, responsibilities and
accommodations as may be assigned to him, from time to time, by the Board of
Directors of Employer. Nothing herein shall preclude the Board of Directors of
Employer from changing the duties of Employee if the Board concludes in its
reasonable judgment that such changes are in the Employer's best interests;
provided, however, that at all times during the term of this Agreement Employee
shall serve with the same functions, duties and status of the office of chief
executive officer of the Employer.
4. EXTENT OF SERVICE. Employee shall exclusively devote his
entire working time, energy and attention to his duties in connection with
Employer, provided that Employee may own passive investments in real estate and
may own on a passive basis up to 2% of the outstanding stock in any Company
whose securities are traded on a national securities exchange or on the Nasdaq
Stock Market with which Employee has no relationship. Employer agrees that not
less than sixty percent (60%) of Employee's working time shall be spent in
Employer's offices in Framingham, Massachusetts.
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5. COMPENSATION. During the term of this Agreement, Employer
shall pay to Employee the following compensation, which shall be payable in
accordance with Employer's normal payroll policies applicable to all of
Employer's employees and shall be subject to all authorized and required
payroll deductions for taxes, social security and the like, and contributions
to benefit plans:
(a) During the period from June 30, 1996 through June
30, 1998 an annual salary of no less than $200,000.00 U.S. (the
"Annual Base Salary") provided that the Board of Directors in its sole
discretion may increase such Annual Base Salary at any time during the
term of this Agreement and upon such increase the increased salary
shall become the new Annual Base Salary from the effective date of
such increase forward;
(b) In addition to the Annual Base Salary, the Employee shall
be entitled to:
(i) A bonus of $100,000.00, payable upon the
execution of this Agreement (the "Signing Bonus"), and such
additional bonus or bonuses as the Compensation Committee of
HPSC shall from time to time determine. For the period from
the effective date of this Agreement through December 31,
1996, the standard by which Employee's performance is to be
measured if he is to qualify for a bonus, and the bonus grant
awarded, shall be pro-rated for the portion of the calendar
year within that period and shall be based upon the net income
figure stated in the Employer's 1996 budget delivered to HPSC
through Xxxxxx Xxxxxxx and shall be calculated in accordance
with the formula set forth on Exhibit A attached hereto (it
being understood that the maximum bonus award which Employee
is eligible to receive on a non-pro-rated basis for 1996 is
$250,000.00). Thereafter, the bonus plan of the Employer will
be patterned on and similar to the senior officer bonus plan
of HealthPlan Services, Inc.
(ii) A stock option grant of 25,000 shares of HPSC
common stock at a strike price equal to the closing price of
such stock on the New York Stock Exchange as of the date of
the execution of the Acquisition Agreement for the Acquisition
or the Closing Date of the Acquisition, as selected by the
Employee, in accordance with the terms of the HealthPlan
Services Corporation 1995 Incentive Equity Plan, and such
other stock options as the Board of Directors may from time to
time determine;
(iii) Participate in the employee benefit plans of
Employer in existence from time to time consistent with the
terms and conditions of the Acquisition Agreement for the
Acquisition;
(iv) Severance benefits in accordance with the
provisions of Section 7 hereof.
6. TERMINATION.
(a) The foregoing notwithstanding, this Agreement is not
to be considered an agreement for a fixed term or as a guarantee of
continuing employment. Accordingly, subject to the provisions of
Section 7 hereof, Employee's employment may be terminated by Employer
with or without Cause (as defined below) upon immediate written notice
to Employee at any time during the term of this Agreement.
Additionally, Employee's employment shall automatically terminate upon
his death or upon a determination that he is Permanently Disabled (as
defined below). Employee may resign as an officer and, if applicable,
director and terminate his
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employment at any time upon 30 days written notice to Employer. In
the event that such termination is by the Employer for Cause or by the
Employee other than as a result of a Constructive Termination Event,
for death or Permanent Disability, (i) Employee shall be paid the
bi-weekly portion of his Annual Base Salary then due through the date
of such termination and shall be entitled to no salary from that date
forward and to only those benefits which Employer is required by law
to provide to Employee; and (ii) within ten (10) days from the date of
such termination, Employee shall repay to Employer a pro-rated portion
of the Signing Bonus equal to the amount of the Signing Bonus
multiplied by a fraction, the numerator of which is the number of full
months remaining in the term of the Agreement immediately prior to
such termination, and the denominator of which is 24. Upon any
termination, Employee shall immediately return any and all property
and records belonging to Employer which are in Employee's possession
and shall vacate Employer's offices in a prompt and professional
manner. In addition to the foregoing, upon termination of Employee's
employment with Employer for any reason, Employee shall resign
promptly as an officer and, if applicable, director of Employer and
any subsidiary or parent of Employer unless Employer indicates in
writing to Employee its desire that Employee retain any such position.
In the event such termination by the Employer is without cause, or is
caused by the death or Permanent Disability of Employee or in the
event that the Employee terminates his employment as a result of a
Constructive Termination Event, Employee shall be entitled solely to
(y) the Severance Benefits provided in Section 7, and (z) immediate
vesting of all unvested options, rights and benefits under any stock
option plan in which Employee has an unvested interest. The foregoing
notwithstanding, in the event of any termination of Employee's
employment whether or not for Cause, Employee shall be entitled to
receive all benefits which are accrued, vested and earned up to the
termination date under the terms of any existing benefit plan such as
the vested balance of the employee's account under any retirement or
deferred compensation plan and any benefits which are legally required
to be provided after termination such as COBRA benefits (the "Legally
Earned or Required Benefits").
(b) Upon a termination of employment, whether by Employee
or by Employer, with or without Cause, Employee shall render
reasonable cooperation to Employer in order to insure an orderly and
businesslike transfer of Employee's duties to other personnel
designated by the Employer. Additionally, Employee shall make himself
available at reasonable times upon reasonable prior written notice to
consult with Employer and assist Employer with respect to (i) any
matters for which Employer requests such assistance for a period of
ninety (90) days after such termination, and (ii) any litigation or
governmental or quasi-governmental agency investigation which may be
pending at the time of termination or implemented after termination
which relates to any period during which Employee was employed by
Employer for the period during which such matters are pending;
provided, that, in either case, Employer shall reimburse Employee for
any reasonable out-of-pocket expense incurred by Employee at
Employer's request in connection with such consultation or assistance,
and with respect to (ii), Employer shall schedule such consultation at
times which will not interfere with any subsequent employment which
Employee has obtained and such consultation shall not require more
than an average of two days per month without Employee's consent. A
breach of the foregoing provisions by Employee shall be deemed to be a
material breach of this Agreement.
7. SEVERANCE BENEFITS.
(a) If during the term of this Agreement, Employee's
employment is terminated (i) by the Employer other than for Cause, as
defined below, (ii) by the Employee as a result of the
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occurrence of a Constructive Termination Event, as defined below,
which has not been cured by the Employer within 30 days of receipt of
written notice from the Employee that such event has occurred, or
(iii) as a result of the Employee's death or Permanent Disability, as
defined below, then upon the occurrence of such event Employer shall
pay to the Employee (or the Employee's estate in the event of death),
as a severance benefit and in complete satisfaction of any and all
claims which Employee may have against Employer or its affiliates,
officers, directors or employees as a result of this Agreement or his
previous employment by Employer, the greater of (i) Employee's Annual
Base Salary remaining to be paid through the term of the Agreement
immediately before such termination or (ii) Two Hundred Fifty Thousand
Dollars ($250,000.00); provided, however, Employer shall not be
obligated to pay any severance benefit until Employee (or Employee's
personal representative in the event of Employee's death or legal
guardian in the event of Permanent Disability which causes Employee to
be unable to do so) has delivered to Employer a complete and
unconditional release, in form reasonably satisfactory to Employer,
releasing Employer from any and all claims which Employee may have
against Employer as a result of any occurrence during Employee's
employment and including, but not limited to, any claim for wrongful
termination (the "Employee Release"). The foregoing notwithstanding,
the Employee Release shall not release the Employer from any of its
post termination obligations under this Agreement. Such severance
benefit shall be paid over the remaining term of the Agreement
following such termination or, if longer, over the one (1) year period
following such termination in equal bi-weekly payments. As used
herein:
(A) the term "Cause" means (i) the Employee's
violation of his fiduciary duty to the Employer, (ii) gross or
wilful failure by the Employee to perform the duties of
Employee's position, (iii) the Employee's habitual unexcused
absence over an extended period, (iv) the Employee's
disloyalty or insubordination, or other similar misconduct
which is of the nature of disloyalty or insubordination, (v)
embezzlement or misappropriation of Employer funds by the
Employee, or (vi) the Employee's commission of an act
involving criminal activity of a felonious nature or sexual
harassment or similar serious breach of conduct involving
moral turpitude, provided that in the event of a termination
for Cause involving insubordination or disloyalty or other
similar conduct which is of the nature of disloyalty or
insubordination, the Employer shall give the Employee written
notice of the conduct constituting such Cause and the Employee
shall have thirty (30) days to correct such conduct and cure
any damage suffered by Employer as a result thereof. If
Employee fails to correct such conduct within such 30-day
period, such conduct will be deemed to be Cause;
(B) the term "Permanent Disability" means the
permanent mental or physical inability of the Employee to
perform with reasonable accommodation the essential duties of
Employee's position as existing on the date of this Agreement
which condition causes the Employee to be unable to perform
the duties of his office for a period of six months in any
twelve-month period.
(C) the term "Constructive Termination Event" means
action by the Employer which is directed at the Employee
specifically and not at all employees generally and which has
the effect of significantly reducing the Employee's
compensation, employment responsibilities, authority, or the
accommodations in which the Employee performs his job, or the
nonpayment by Employer of compensation due and owing to the
Employee
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under this Agreement, which has not been cured by the Employer
within 30 days of receipt of written notice from the Employee
that such nonpayment has occurred.
(b) Following Employer's termination of Employee's
employment for any reason other than Cause or Employee's termination
of his employment as a result of a Constructive Termination Event
during the term of this Agreement, Employer shall maintain in full
force and effect, for the Employee's continued benefit until the
earlier of (i) 12 months after such termination of Employee's
employment or (ii) the Employee's commencement of full time employment
with a new employer, all life insurance, medical, dental, health and
accident, and disability plans, programs or arrangements of the
Employer in which the Employee participated on the date of
termination, provided that the Employee's continued participation is
possible under the general terms and provisions of such plans and
programs.
(c) After the expiration of the term of this Agreement if
Employee is terminated by Employer for any reason other than Cause,
Employee shall be entitled to receive the standard severance package
given to executive officers of HPSC.
8. NON-COMPETITION.
(a) For a period equal to the longer of the term of this
Agreement or two years after the Closing Date of the Acquisition,
without the written consent of the Employer, Employee shall not either
directly or indirectly engage (whether for his own account or as a
partner, joint venturer, employee, consultant, agent, contractor,
officer, director or shareholder or otherwise) in any business within
the United States which delivers marketing, distribution,
administrative, or cost containment services on behalf of health care
payors, primarily to the small business marketplace, provided,
however, that the foregoing shall not be deemed to prohibit Employee
from purchasing and owning securities of a company traded on a
national securities exchange or on the Nasdaq National Market with
which Employee has no relationship so long as such ownership does not
exceed 2% of the outstanding stock of such company. For purposes of
the foregoing, the small business marketplace shall be deemed to be
the market for those businesses which employ 24 or fewer employees; or
(b) For a period of three years after termination of
Employee's employment for any reason Employee will not:
(i) solicit, contact or encourage (i) any person
who is an employee of the Employer or of any division or
subsidiary of the Employer or (ii) any supplier, vendor, agent
or consultant to the Employer, to terminate its, his, or her
relationship with the Employer;
(ii) make any derogatory, defamatory or negative
statement about the Employer or HPSC or any of their officers,
directors, or employees to the press, to any part of the
investment community, to the public, or to any person
connected with, employed by or having a relationship to the
Employer, provided that nothing contained herein shall be
deemed to prohibit full and xxxxx discussions of the Employer,
HPSC and its subsidiaries and its affairs in any Board of
Directors meeting of the Employer or its parent corporation
and, during such period as Employee may be a stockholder of
HPSC, at any stockholders' meeting thereof;
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(iii) wilfully interfere with or disrupt the
Employer's operations; or
(iv) assist, advise or provide information or
support, whether financial or otherwise, to any person in
connection with any proxy contest, action by written consent
or vote of the Employer or HPSC, the purpose of which is to
elect a director or slate of directors who were not nominated
by the then sitting Board of Directors of the Employer or
HPSC, provided, however, that nothing contained herein shall
require the Employee to vote any shares held by him in any
particular manner.
(c) For a period of three years after termination of
Employee's employment for any reason other than Cause, Employer and
its directors, chief executive, financial and operating officers shall
refrain from making any negative, derogatory or defamatory statement
about Employee.
9. NONDISCLOSURE OF CONFIDENTIAL INFORMATION AND TRADE SECRETS.
While employed by Employer and after termination of such employment for the
Applicable Period as defined below, Employee shall not disclose, either
directly or indirectly, any Confidential Information or Trade Secrets to any
other person or otherwise use such Confidential Information or Trade Secrets
for any purpose except in connection with his employment with the Employer.
For purposes of the foregoing, the term Trade Secret has the meaning ascribed
thereto in Chapter 93, Section 42, Massachusetts Statutes, or any revision or
successor thereto, and Confidential Information means any technical or
nontechnical data, formula, pattern, compilation, program, device, method,
technique, drawing, process, know-how, financial data, financial plan,
marketing plan, expansion plan, cost analysis, list of suppliers or employees,
or other proprietary information which is proprietary, secret and confidential
and is not readily and legally available to the public from sources other than
the Employer which is not classified as a Trade Secret. The term "Applicable
Period" shall mean two years with respect to disclosure of Confidential
Information or Trade Secrets.
10. SPECIAL INTERPRETIVE AND ENFORCEMENT PROVISION. The prohibited
activities set forth in Sections 8 and 9 above are herein defined as
"Restricted Activities" and the covenants set forth therein are herein defined
as "Restrictive Covenants". If a court determines that any Restricted Activity
is not enforceable or is unreasonable, arbitrary or against public policy, the
Restricted Activity and the related Restrictive Covenant shall be considered
divisible both as to time and geographic area, if applicable, so that the
Employer shall be authorized to enforce such Restrictive Covenant for such
lesser time and if applicable lesser geographic area as the court determines to
be reasonable, non-arbitrary and not against public policy. In the event of a
breach or violation or threatened breach or violation by Employee of the
provisions of any of these Restrictive Covenants, Employer shall be entitled to
an injunction (without the provision of bond by Employer) restraining Employee
from directly or indirectly engaging in the Restricted Activities in breach or
violation of these Restrictive Covenants, and restraining Employee from
rendering any services to or participating with any person, firm, corporation,
association, partnership, venture or other entity which would constitute a
violation of a Restrictive Covenant. Nothing herein shall be construed as
prohibiting Employer from pursuing any other remedies available to it by law or
by this Agreement for breach, violation or threatened breach or violation of
the provisions of these Restrictive Covenants, including, by way of
illustration and not by way of limitation, the recovery of damages from
Employee or any other person, firm, corporation or entity. The provisions of
these Restrictive Covenants shall survive the termination of this Agreement for
the purpose of providing Employer with the protection of the covenants of
Employee provided herein. Should an action have to be brought by Employer
against
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Employee to enforce the Restrictive Covenants, the period of restriction
applicable to such covenant shall be deemed to begin running on the date of
entry of an order granting Employer preliminary injunctive relief and shall
continue uninterrupted for the original intended period of the applicable
Restrictive Covenant. Employee acknowledges and agrees that the intent and
purpose of the Restrictive Covenants is to preclude Employee from engaging in
the Restricted Activities for the full term of the applicable Restrictive
Covenant and that such purpose and effect would be frustrated by measuring the
period of restriction from the date the applicable Restrictive Covenant took
effect where Employee failed to honor these Restrictive Covenants until
directed to do so by court order.
11. CESSATION OF BENEFITS. In the event that (i) Employee
materially breaches Employee's agreements contained herein after a severance
benefit becomes payable hereunder and such breach is not cured to Employer's
satisfaction within ten (10) days of written notice thereof, (ii) Employee
asserts in any litigation that the Restrictive Covenants or the Employee
Release is unenforceable for any reason, or (iii) facts come to the attention
of the Employer which prove Employee, while employed by Employer, was guilty of
committing an act involving embezzlement, misappropriation, theft or fraud, in
addition to any other remedy which Employer may have as a result thereof,
Employer shall be entitled to stop paying any severance benefit then not paid
and recover from Employee the payment of any severance benefits already paid to
Employee hereunder.
12. RELEASE. Employee hereby completely and unconditionally
releases the Employer from any and all claims which the Employee may have
against the Employer as the result of any occurrence during Employee's
employment up to the date of this Agreement. This release also binds the
Employee's heirs, personal representatives, spouse, beneficiaries, and assigns.
This Release also completely releases the Employer's parents, subsidiaries,
predecessors, successors, and affiliates, as well as its former, present, and
future officers, directors, employees, shareholders, employee benefits plans,
and counsel.
13. NOTICES. Any notices, consents, approvals or waivers which are
to be given to any party to this Agreement by any other party or parties to
this Agreement shall be in writing, shall be properly addressed to the party to
whom such notice is directed, and shall be either actually delivered to such
party or sent by United States mail, return receipt requested. Notices shall
be addressed to the parties as follows:
If to Employer: Consolidated Group, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: President
If to Employee: Xxxxxxx X. Xxxxxxxx
00 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
14. LITIGATION FORUM. The parties hereto agree that this Agreement
shall be deemed for all purposes to have been entered into in Massachusetts.
The parties hereto agree that all actions or proceedings, directly or
indirectly, arising out of or related to this Agreement or contesting the
validity or applicability of this Agreement shall be litigated exclusively in
the Superior Court Department of the Massachusetts Trial Court, or the United
States District Court for the District of Massachusetts.
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15. EXPENSES OF ENFORCEMENT. In the event of any legal proceeding
arising directly or indirectly from this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees and costs from the non-prevailing
party (at both the trial and appellate court levels).
16. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, including all
exhibits and schedules hereto as referenced herein, constitutes the
entire agreement between the parties hereto pertaining to the subject
matters hereof, and supersedes all negotiations, preliminary
agreements, and all prior and contemporaneous discussions and
understandings of the parties in connection with the subject matters
hereof. Except as otherwise herein provided, no covenant,
representation or condition not expressed in this Agreement, or in an
amendment hereto made and executed in accordance with the provisions
of subsection b. of this Section, shall be binding upon the parties
hereto or shall affect or be effective to interpret, change or
restrict the provisions of this Agreement.
(b) AMENDMENTS AND WAIVERS. No change, modification,
waiver or termination of any of the terms, provisions, or conditions
of this Agreement shall be effective unless made in writing and signed
or initialed by all parties hereto. Any waiver of any breach of any
provision of this Agreement shall operate only as to the specific
breach waived and shall not be deemed a waiver of any other breach,
whether occurring before or after such waiver.
(c) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
(d) SEPARABILITY. Except as provided in Section 10
hereof, if any section, subsection or provision of this Agreement or
the application of such section, subsection or provision is held
invalid, the remainder of this Agreement and the application of such
section, subsection or provision to persons or circumstances, other
than those with respect to which it is held invalid, shall not be
affected thereby.
(e) HEADINGS AND CAPTIONS. The titles or captions of
sections and subsections contained in this Agreement are provided for
convenience of reference only, and shall not be considered a part
hereof for purposes of interpreting or applying this Agreement; and,
therefore, such titles or captions do not define, limit, extend,
explain, or describe the scope or extent of this Agreement or any of
its terms, provisions, representations, warranties, conditions, etc.,
in any manner or way whatsoever.
(f) GENDER AND NUMBER. All pronouns and variations
thereof shall be deemed to refer to the masculine, feminine or neuter
and to the singular or plural as the identity of the person or entity
or persons or entities may require.
(g) BINDING EFFECT ON SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs and assigns,
provided that the rights and obligations of Employee hereunder are
personal to Employee and may not be assigned or transferred without
the consent of Employer except in the event of a transfer upon death
pursuant to a will or the laws of intestate succession.
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(h) CONTINUANCE OF AGREEMENT. The rights,
responsibilities and duties of the parties hereto and the covenants
and agreements herein contained shall survive the execution hereof,
shall continue to bind the parties hereto, and shall continue in full
force and effect until each and every obligation of the parties
hereto, pursuant to this Agreement, shall have been fully performed.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above-written.
WITNESSES: CONSOLIDATED GROUP, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxx, X. Xxxxxx, III
--------------------------------- ----------------------------------
Xxxxx X. Xxxxxx, III
Its: Duly Authorized Officer
WITNESSES: GROUP BENEFIT ADMINISTRATORS
INSURANCE AGENCY, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxx, X. Xxxxxx, III
--------------------------------- ----------------------------------
Xxxxx X. Xxxxxx, III
Its: Duly Authorized Officer
WITNESSES: CONSOLIDATED GROUP CLAIMS, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxx, X. Xxxxxx, III
--------------------------------- ----------------------------------
Xxxxx X. Xxxxxx, III
Its: Duly Authorized Officer
WITNESSES: CONSOLIDATED HEALTH COALITION, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxx, X. Xxxxxx, III
--------------------------------- ----------------------------------
Xxxxx X. Xxxxxx, III
Its: Duly Authorized Officer
"EMPLOYER"
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/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxx, individually
"EMPLOYEE"
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