EXHIBIT 10.23
FORM OF EMPLOYEE RETENTION AGREEMENT
This Retention Agreement (this "Agreement") is made and entered into by
and between PACE Health Management Systems, Inc., an Iowa corporation (the
"Company"), with its principal offices at 0000 Xxxxxxxx Xxxxx, Xxxx Xxx Xxxxxx,
Xxxx 00000 and INSERT NAME (the "Employee"), residing in Des Moines, Iowa.
WHEREAS, this Agreement is intended to specify the financial
arrangements that the Company will provide to the Employee upon the Employee's
separation from employment with the Company under any of the circumstances
described herein and upon the occurrence of certain other events; and
WHEREAS, this Agreement is entered into by the Company in the belief
that it is in the best interest of the Company to provide stable conditions of
employment for the Employee notwithstanding the possibility, threat, or
occurrence of certain types of changes in control or other events, thereby
enhancing the Company's ability to attract and retain highly qualified people;
NOW, THEREFORE, in consideration of the mutual covenants, promises,
payments, and undertakings of the parties hereto, the parties agree as follows:
1. Effect of Agreement; Term. The Employee shall be employed on an
at-will basis. This Agreement is not, and shall not be construed as, an
employment contract affecting in any way the duration of the Employee's
employment or any terms and conditions thereof except those set forth herein.
Except as set forth herein, the Employee or the Company may terminate their
employment relationship at any time, for any reason, or for no reason.
This Agreement will commence on the date hereof and shall
continue in effect until the earlier of June 30, 1998, termination of
Employee's employment for any reason, or a Change in Control (as defined
in Section 2.1 hereof).
2. Definitions. When the following terms are used in this Agreement
with initial capital letters, they shall have the following meanings.
2.1. A "Change in Control" shall mean any of the following: (a) a sale
of all or substantially all of the assets of the Company; (b) any
person or group of persons acting in concert, except a Permitted
Shareholder as hereinafter defined, becomes the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934),
directly or indirectly, of more than 50% of the combined voting power
of the Company's then outstanding securities; (c) a consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
outstanding capital stock are converted into cash, securities or other
property, other than a consolidation or merger of the Company in which
Company shareholders immediately prior to the consolidation or merger
have the same proportionate ownership of voting capital stock of the
surviving corporation immediately after the consolidation or merger;
(d) approval by the shareholders of the Company of any plan or proposal
for the liquidation or dissolution of the Company; or (e) the Board of
Directors of the Company, in its sole and absolute discretion,
determines that there has been a sufficient change in the share
ownership of the Company to constitute a change of effective ownership
or control of the Company. A "Permitted Shareholder" means Xxxx X.
Xxxxxxxxx, Xxxxx Xxxxxxx, IAI Investment Funds,
FBL Investment Advisory Services, Inc. (or any shareholder for which
FBL makes investment decisions), Edgewater Private Equity Fund, L.P.,
and any person who is an officer or director of the Company on the date
hereof, and any affiliate of any of the foregoing.
2.2. "Good Reason" shall mean the occurrence of any of the following
events, except for the occurrence of such an event in connection with
the termination or reassignment of the Employee's employment by the
Company for Cause (as defined in Section 2.3 hereof), due to the
Employee's Disability (as defined in Section 2.6 hereof), or due to the
Employee's death: (a) the assignment to the Employee of employment
responsibilities which are not of comparable responsibility and status
as the employment responsibilities held by the Employee on the date of
this Agreement or the failure to pay such base salary within three
business days of the date due; (b) a reduction by the Company in
Employee's base salary as in effect on the date of this Agreement; (c)
the Company's requiring Employee to be based at a location that is in
excess of 30 miles from the location of Employee's principal office on
the date of this Agreement; (d) the failure by the Company to provide
employee benefit plans, programs, policies and practices (including,
without limitation, retirement plans and medical, dental, life and
disability insurance coverage) to Employee and Employee's family and
dependents (if applicable) that provide substantially similar benefits,
in terms of aggregate monetary value, to Employee and Employee's family
and dependents (if applicable) at substantially similar costs to
Employee as the benefits provided by those plans, programs, policies
and practices in effect on the date of this Agreement.
2.3. "Cause" shall mean: (a) repeated neglect by the Employee of any of
Employee's duties or Employee's repeated failures or omissions to carry
out lawful and reasonable orders which, in the reasonable judgment of
the Company, are willful and deliberate and which are not cured within
a reasonable period after the Employee's receipt of written notice
thereof from the Company, (b) any act or acts of personal dishonesty by
the Employee intended to result in the personal enrichment of the
Employee at the expense of the Company, (c) any willful and deliberate
misconduct that is materially and demonstrably injurious to the
Company, or (d) any criminal indictment, presentment, charge or
conviction (including a plea of guilty or no contest) of Employee for a
felony, whether or not the Company is the victim of such offense.
2.4. "Notice of Termination" shall mean a written notice which sets
forth the date of termination of employment and, in reasonable detail,
the facts and circumstances claimed to provide a basis, if any, for
termination of Employee's employment.
2.5. "Disability" shall mean any physical or mental condition, which
causes the Employee to fail to render services to the Company for a
period of ninety (90) days during any one hundred eighty (180) day
period. The existence or nonexistence of the Employee's Disability will
be determined in good faith by the Board of Directors after notice in
writing given to the Employee at least thirty (30) days prior to such
determination. During such thirty (30) day period, the Employee shall
be permitted to make a presentation to the Board of Directors for its
consideration.
3. Termination Procedures. Any purported termination of Employee's
employment by the Company or Employee (other than by reason of Employee's death)
during the term of this Agreement shall be communicated by a Notice of
Termination in accordance with Section 8 hereof. No purported termination by the
Company of Employee's employment during the term of this Agreement shall be
effective if it is not pursuant to a Notice of Termination. Failure by Employee
to provide Notice of Termination shall not limit any of Employee's rights under
this Agreement except to the extent the Company can demonstrate that it suffered
actual damages by reason of such failure.
4. Qualification for Benefits. Employee shall be eligible for payments
pursuant to the terms of this Agreement at the occurrence of the earliest of (a)
June 30, 1998 if Employee is employed by the Company on such date, (b) the date
of a Change in Control if Employee is employed by the Company on such date, (c)
termination of employment by the Company for any reason other than Cause, or (d)
termination of employment by Employee for Good Reason; provided, however, that
Employee shall not receive any payments or benefits under this Agreement unless
and until Employee executes an effective general release of all claims against
the Company and its affiliates in the form and manner prescribed by the Company;
and provided further, that failure to execute such a general release within one
month of Employee's date of termination of employment shall result in the loss
of any rights to receive payments or benefits under this Agreement.
Notwithstanding the foregoing, no severance benefits become payable pursuant to
this Agreement in the event of termination of employment upon Employee's death
or Disability.
5. Benefits. Within 30 days following qualification for benefits
pursuant to Section 4 hereof, the Company shall pay to the Employee, out of
funds deposited in a trust fund at Firstar Bank Iowa, N.A., a lump sum cash
amount equal to _________________ ________________________________. Such payment
shall be subject to any applicable payroll or other taxes required by law to be
withheld and shall be distributed by the Company or a payroll service designated
by the Company. In the event that qualification for benefits pursuant to Section
4 hereof is in connection with a termination of employment, such payment shall
be in lieu of any other severance program then in place with respect to the
Company; PROVIDED, HOWEVER, that if the time of such termination of employment
Employee would be entitled to a greater payment pursuant to any severance
program then applicable and for which Employee qualifies for payment, Employee
may elect to receive payments under such severance program in lieu of payments
pursuant to this Agreement.
6. 280G Limitation. In the event that any payment or benefit received
or to be received by Employee in connection with a change in control of the
Company or termination of Employee's employment (whether payable pursuant to the
terms of this Agreement or any other plan, contract, agreement or arrangement
with the Company, with any person whose actions result in a change in control of
the Company or with any person constituting a member of an "affiliated group" as
defined in Section 280G(d)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), with the Company or with any person whose actions result in a
change in control of the Company) (collectively, the "Total Payments") would not
be deductible (in whole or in part) by the Company or such other person making
such payment or providing such benefit solely as a result of Section 280G of the
Code, the amount payable to Employee pursuant to Section 5 hereof shall be
reduced until no portion of the Total Payments is not deductible solely as a
result of Section 280G of the Code or such amount payable to Employee pursuant
to Section 5 is reduced to zero. For purposes of this limitation, (a) no portion
of the Total Payments shall be taken into account which in the opinion of tax
counsel selected by the Company does not constitute a "parachute payment" within
the meaning of Section 280G(b)(2) of the Code (such as payments payable pursuant
to the Company's standard or general severance policies); (b) the payment
pursuant to Section 5 shall be reduced only to the extent necessary so that the
Total Payments (other than those referred to in the immediately preceding clause
(a)) in their entirety constitute reasonable compensation within the meaning of
Section 280G(b)(4)(B) of the Code, in the opinion of the tax counsel referred to
in the immediately preceding clause (a); and (c) the value of any other non-cash
benefit or of any deferred cash payment included in the Total Payments shall be
determined by the Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. In case of uncertainty as
to whether all or some portion of a payment is or is not payable to Employee
under this Agreement, the Company shall
initially make the payment to the Employee, and Employee agrees to refund to the
Company any amounts ultimately determined not to have been payable under the
terms hereof.
7. Amendment of Stock Options. Notwithstanding any provision of any
existing stock option agreement between the Company and the Employee, in the
event the Employee becomes entitled to receive a payment under Section 4 of this
Agreement, any stock options vested as of the date of such entitlement shall
terminate on the later of (a) two (2) years from the date of such entitlement or
(b) the date specified in the stock option agreement. This Section shall not
affect the vesting, manner of exercise or any provision of such options other
than the termination date.
8. Successors.
(A) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(B) This Agreement shall inure to the benefit of and be
enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and
legatees. If Employee should die while any amount would still be
payable to Employee hereunder if Employee had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement, to Employee's devisee,
legatee or other designee or, if there is no such designee, to
Employee's estate or, if no estate, in accordance with applicable law.
9. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when actually delivered or when mailed by United
States registered mail, postage prepaid, addressed to the other party as
follows:
If to the Company, to:
PACE Health Management Systems, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx Xxxxxx, Xxxx 00000
ATTENTION: Xxxxx X. Xxxxxxx or Xxxx X. Xxxxxx
If to Employee, to:
INSERT NAME
STREET
CITY, STATE ZIP
PHONE
Either party to this Agreement may change its address for
purposes of this Section 8 by giving 15 days' prior notice to the other party
hereto.
10. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and the Company. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws of
the State of Iowa.
11. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement by their signatures below.
PACE HEALTH MANAGEMENT SYSTEMS, INC.
By
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Xxxx X. Xxxxxxxx, Chairman of the Board
EMPLOYEE NAME
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Signed
