Exhibit 10.10
EMPLOYMENT AND NONCOMPETITION AGREEMENT
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THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT ("Agreement") is made and
entered into as of this 1st day of June, 2001, by and between PLANVISTA
CORPORATION, a Delaware corporation and the companies identified on Exhibit A
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attached hereto (hereinafter collectively called the "Employer"), and XXXXXXX X.
XXXXXX (hereinafter called "Employee").
WHEREAS, the Employee is an employee of the Employer; and
WHEREAS, as consideration for Employee's promotion to the position of
President and Chief Operating Officer, Employer has requested that, effective as
of the date of such promotion, 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 1, 2001
and shall terminate on May 31, 2002; provided that this Agreement shall
automatically renew for one year on each anniversary date unless either party
provides one hundred twenty (120) days advance written notice of termination
prior to the end of the then applicable term.
3. Duties. The Employee is engaged as the Employer's President and
Chief Operating Officer and shall have such duties, responsibilities and
accommodations as may be assigned to him, from time to time, by the Board of
Directors or Chief Executive Officer, if applicable, 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.
4. Extent of Service. Employee shall exclusively devote his entire
working time, energy and attention to his duties in connection with Employer.
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 first seven months of the term of this Agreement
(whether initial or renewal) an annual salary of no less than $220,000.00
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 payable in accordance with the bonus plan of the
Employer will be formulated by the Compensation Committee of the Board
of Directors.
(ii) Participate in the employee benefit plans of Employer
in existence from time to time;
(iii) 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 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 (as defined below), for death or
Permanent Disability, 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. 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
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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 up to five (5) hours per week during
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 instituted 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.
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, or
(ii) by the Employee as a result of the 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, then upon the occurrence of such event Employer
shall pay to the Employee (or the Employee's estate in the event of death
after termination), 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, an amount which is equal to (y) one
(1) times Employee's Annual Base Salary plus (z) the aggregate amount of
Employee's Annual Base Salary which is due during the remaining portion of
the then current term hereof; 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) 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
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Employer from any of its post termination obligations under this Agreement
or under any employee benefit plan of the Employer. Such severance benefit
shall be paid within ten (10) days following the effective date of such
termination. As used in this Agreement:
(A) the term "Cause" means (i) the Employee's violation of his
fiduciary duty to the Employer, (ii) gross or willful failure by the
Employee to perform the duties of Employee's position, (iii) the
Employee's habitual unexcused absence over an extended period, (iv)
embezzlement or misappropriation of Employer funds by the Employee, or
(v) the Employee's conviction of a felony;
(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, or
authority, or the nonpayment by Employer of compensation due and owing
to the Employee 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.
In the event that such continued participation is not possible, the
Employer shall obtain and pay for comparable individual coverage for the
Employee.
(c) The expiration of the term of this Agreement shall not constitute
a termination for purposes of Section 6 hereof. However, if, after the
expiration or nonrenewal of this Agreement, the Employee continues to serve
as an employee of the Employer and if Employee is terminated by Employer
for any reason other than Cause, Employee shall be entitled to receive his
Annual Base Salary for a period of twelve (12) months, payable within ten
(10) days after the effective date of such termination.
8. Non-Competition.
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(a) For a period equal to the term of this Agreement and one year
after the termination of employment for any reason, 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
preferred provider organization or claims repricing services on behalf of
health care payors or networks, 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.
(b) During the term of this Agreement and 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 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 and its
subsidiaries and its affairs in any Board of Directors meeting of the
Employer or its parent or subsidiary corporations and, during such
period as Employee may be a stockholder of Employer, at any
stockholders' meeting thereof;
(iii) willfully 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, 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,
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. 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.
For purposes of the foregoing, the term Trade Secret has the
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meaning ascribed thereto in Section 688.002(4), Florida 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 five years with respect to disclosure of Confidential Information, and the
period during which a claim may be brought under Chapter 688, Florida Statutes,
or any revision or successor thereto with respect to disclosure of 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 Covenant 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. The running of the period of restriction applicable to any Restrictive
Covenant shall be suspended during any period in which Employee is in breach of
such 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
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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: PlanVista Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: General Counsel
If to Employee: Xxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
14. Litigation Forum. The parties hereto agree that this Agreement shall
be deemed for all purposes to have been entered into in Florida. 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 Circuit Court of
Hillsborough County, Tampa, Florida, or the United States District Court for the
Middle District of Florida, Tampa Division.
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
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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 State of Florida.
(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.
(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above-written.
WITNESSES: PLANVISTA CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chairman and Chief
Executive Officer
"EMPLOYER"
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, individually
"EMPLOYEE"
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EXHIBIT A
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Companies who are a party to the Employment and Noncompetition Agreement
(collectively, the "Employer"):
PlanVista Corporation Subsidiaries
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National Network Services, Inc.
PlanVista Solutions, Inc.
Quality Medical Administrators, Inc.
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