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Exhibit 10(r)
EMPLOYMENT AGREEMENT
This agreement is made as of July 1, 1996, at Columbus, Ohio, between
Health Power Management Corporation, an Ohio corporation (the "Company"), and
Xxxxxx X. Xxxxx (the "Employee"), who hereby agree as follows:
ss.1. EMPLOYMENT AND TERM. The Company hereby continues the Employee's
employment, and the Employee hereby accepts such continued employment by the
Company, upon the terms and subject to the conditions set forth in this
agreement. The term of the Employee's employment by the Company as continued
pursuant to this agreement shall begin on the date of this agreement and shall
end, unless sooner terminated in accordance with the provisions of ss.9, below,
on June 30, 1997 (the "Initial Term"). The term of the Employee's employment
under this agreement shall be automatically renewed upon the same terms and
conditions contained in this agreement, or upon such other terms and conditions
to which the parties may mutually agree in writing, for successive one-year
periods (each a "Renewal Term"), commencing on the day following the termination
date of the Initial Term or the preceding Renewal Term (as applicable) and
ending, unless sooner terminated in accordance with the provisions of ss.9,
below, on the first anniversary of the applicable termination date.
ss.2. SERVICES. The Employee shall be responsible to perform the
services set forth in ss.3, below, and such other services as may be reasonably
assigned to the Employee from time to time by the Chief Executive Officer or the
President of the Company. The Employee shall report to the President of the
Company. The Employee shall devote his full business time, attention, energy,
and skill to the Company's business, provided that he shall be entitled to
attend business and trade conventions and meetings and to take vacations and
sick leaves as may be provided generally for the Company's personnel pursuant to
policies established by the Company's Board of Directors (the "Board"), its
Chief Executive Officer, or its President from time to time. 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.
ss.3. RESPONSIBILITIES. The Employee shall be responsible for the
supervision, coordination, and administration of the accounting and financial
operations of the Company in accordance with the policies and operating
programs, budgets, procedures, and directions established or changed from time
to time by the Board or the Chief Executive Officer or the President of the
Company. Such responsibilities shall include, without limitation, supervising
the Company's accounting functions, operations, and management, developing and
implementing the Company's internal auditing methods, controls, and procedures,
developing and implementing the Company's financial and investment policies,
planning and developing the Company's operating budgets, developing and
implementing the Company's underwriting guidelines, supervising the payment of
medical claims and distributions to the Company's medical providers, supervising
and training employees involved in the foregoing operations, and participating
in the hiring and discharging of such employees.
ss.4. AUTHORITY. The Employee shall have such authority to act on
behalf of the Company as may be delegated to him from time to time by the
President.
ss.5. COMPENSATION. The Employee shall receive the following
compensation:
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(a) A base salary of $83,512 per annum, or such other amount
as may be approved by the President from time to time, payable in
accordance with the Company's general policies for payment of
compensation to its salaried personnel; provided, however, that if the
Employee's employment is terminated pursuant to the provisions of ss.9,
below, the base salary shall cease as of the day of termination.
(b) A cash bonus, the amount of which shall be determined
under, and paid pursuant to, the Profit Sharing Plan maintained for the
benefit of the employees of Health Power, Inc., a Delaware corporation
("Health Power") and its subsidiaries (Health Power and its
subsidiaries, including the Company, are hereinafter collectively
referred to as the "Health Power Companies"). As a condition to
receiving such cash bonus, the Employee must be an employee of the
Company at the time of the distribution.
ss.6. PERFORMANCE REVIEW. On at least an annual basis, the President of
the Company shall meet with the Employee in order to review and evaluate the
Employee's performance.
ss.7. FRINGE BENEFITS. The Employee shall be entitled to fringe
benefits and perquisites as may be generally provided by the Company to its
salaried personnel pursuant to policies established from time to time by the
Board or the Chief Executive Officer or the President of the Company.
ss.8. SEVERANCE PAY. If the Employee's employment is terminated or not
renewed at the end of the Initial Term or any Renewal Term as a result of a
Change in Control (as defined below) of Health Power during the first three
years after the date of this agreement, the Employee shall receive the
following:
(a) Severance pay in the amount equal to 1 1/2 times his then
current base salary, payable over a one-year period in the same manner
as the base salary is paid.
(b) Fringe benefits as set forth in ss.7, above, until the
earlier of one year from the date of termination or the date any such
fringe benefit is provided by another employer.
(c) Payment or reimbursement of reasonable expenses incurred
by the Employee for executive outplacement services for no more than a
six-month period from the date of termination.
For purposes of this agreement, a Change in Control shall be deemed to
occur:
(i) When any "person" as defined in ss.3(a)(9) of the
Securities Exchange Act of 1934 (the "Exchange Act") and as used in
ss.ss.13(d) and 14(d) thereof, including a "group" as defined in
ss.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;
(ii) When, during any period of 24 consecutive months during
the term of this agreement, the individuals who, at the beginning of
such period, constitute the Board (the "Incumbent Directors") cease for
any reason other than death to constitute at least a
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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 ss.9(ii); or
(iii) 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.
ss.9. TERMINATION OF EMPLOYMENT. The Employee's employment under this
agreement may be terminated:
(a) By the Employee with or without cause at the end of the
Initial Term or any Renewal Term upon giving not less than 90 days
advance written notice prior to the end of the Initial Term or the
Renewal Term then in effect, provided that the Employee shall continue
to perform all services under this agreement until the earlier of:
(i) The expiration date of such 90-day period; or
(ii) Any earlier date which may be specified by the
Company.
(b) By the Company with or without cause at the end of the
Initial Term or any Renewal Term upon giving not less than 90 days
advance written notice prior to the end of the Initial Term or the
Renewal Term then in effect, or by the Company upon the occurrence of
any one of the following events or at any time thereafter:
(i) The Employee's immediate discharge "for
cause," which includes, but is not limited to:
(A) Any act of habitual drunkenness;
(B) Controlled substance abuse;
(C) Dishonesty;
(D) Criminal conduct (excluding minor
traffic offenses);
(E) Failure of good behavior;
(F) Acts of violence or willful destruction
of Company property;
(G) Falsification of any Company records or
intentional withholding of any relevant information;
(H) Unethical or immoral behavior;
(I) Being intoxicated or using intoxicants
(drugs) not prescribed by a physician during working
hours;
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(J) Theft, including unauthorized possession
of Company property;
(K) Conviction of any felony while employed
by the Company;
(L) Failure to operate the Company's
business in accordance with the policies, programs,
budgets, procedures and directions established from
time to time by the Company and failure to correct
such failure within 10 days after notice from the
Company to do so or, if it is impossible to correct
such failure within such 10 days, failure to commence
all possible actions to correct such failure within
such 10 days and thereafter to continue to pursue
such actions until correction of such failure, or
having corrected any such failure, fails to so
operate appropriately at any time in the future
(without the requirement of any additional notice
from the Company);
(M) Failure to fully perform and observe all
obligations and conditions to be performed and
observed by the Employee under this agreement, or
under any other agreement between the Employee and
the Company, and failure by the Employee to correct
such failure within 10 days after notice to do so or,
if it is impossible to correct such failure within
such 10 days, failure to commence all possible
actions to correct such failure within such 10 days
and thereafter to continue to pursue such actions
until correction of such failure, or having corrected
any such failure, fails to perform and observe all
such obligations and conditions at any time in the
future (without the requirement of any additional
notice from the Company); and
(ii) The Employee is under a long-term disability; or
(iii) The death of the Employee.
For purposes of this agreement, a long-term disability shall mean that:
(1) Because of physical or mental incapacity, it is probable,
in the opinion of a licensed physician selected by the Company, that
the Employee will not be able to engage actively in full-time
employment by the Company for a period of 120 days or longer; or
(2) The Company selects such a licensed physician and the
Employee fails within a reasonable time to submit to any examinations
reasonably requested by that licensed physician.
ss.10. NONCOMPETITION AND CONFIDENTIALITY.
In consideration of the severance arrangements set forth in ss.7 of
this agreement, the Employee agrees to abide by the following terms and
conditions:
(a) The Employee shall not at any time, either during the term
of his employment with the Company or any of the other Health Power
Companies, or after the termination of such employment for whatever
reason,
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(i) Disclose to anyone (except to the extent
necessary as a benefit to the Company in the performance of
his duties and with prior written authorization by the
Company) any trade secrets or confidential information of the
Health Power Companies, or
(ii) Solicit or seek to employ any of the employees
of the Health Power Companies to leave such employment, or
(iii) Solicit, recruit, or otherwise attempt to
persuade any members or providers of any Health Power Company
to leave such Company and do business with competing
organizations.
(b) During the Initial Term and any Renewal Term, and for six
months following the termination of his employment, for whatever
reason, the Employee agrees that he shall not, directly or indirectly,
on his own behalf, or as a member of any partnership, or as an officer,
director, shareholder, agent, consultant or employee of any other
corporation or entity, compete with the Company or any of the other
Health Power Companies or be engaged in, loan money or credit to, own
any interest in, be employed by or otherwise participate in any other
business which competes with the Company or any of the other Health
Power Companies in any geographic location or within any business or
economic market where the Company or any of the other Health Power
Companies conduct, or intend to conduct, their business during the term
of the Employee's employment with the Company.
(c) The Employee understands that this section is an essential
element of this agreement and that the Company would not have entered
into this agreement without this section being included in it. The
Employee has consulted with his legal counsel and has been fully
advised concerning the reasonableness and propriety of this section in
the specific context of the operations and business of the Company, and
the Employee acknowledges that this section is reasonable and
appropriate in all respects. In the event of any violation or attempted
violation of this section, Employee specifically acknowledges and
agrees that the Company's remedy at law will be inadequate, that the
Company, its business and business relationships will suffer
irreparable injury and, therefore, the Company shall be entitled to
injunctive relief upon such breach in addition to any other remedy to
which it may be entitled, either in law or in equity, without the
necessity of proof of actual damage.
(d) As used in this agreement, the terms "trade secrets" and
"confidential information" shall mean any information which is not
generally known to the public and which, if relevant to unauthorized
persons, would be detrimental to the reputation or business interests
of the Company and the other Health Power Companies and includes, but
is not limited to, any information relating to the Company's and the
other Health Power Companies' business operations and structure, sales
methods, practices and techniques, technical know-how, advertising, or
marketing methods and practices, their provider relationship and
membership lists (including customer names and addresses), and the
Company's and the other Health Power Companies' relationships with
suppliers, providers, and potential providers, employees, members and
potential members or other persons or entities doing business with such
Companies.
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ss.11. RETURN OF RECORDS. Upon termination of employment, the Employee
will deliver to the Company all records, reports, data, memoranda, notes,
models, and equipment of any nature that are in the Employee's possession or
under the Employee's control prepared or acquired in the course of the
Employee's employment relationship with the Company. The Employee further agrees
not to take any such information or data, or reproductions of such information
or data, that relate to the business activities of the Company or to parties in
a contract relationship with the Company.
ss.12. EMPLOYEE'S CAPACITY. The Employee represents and warrants to the
Company that he has the capacity and right to enter into this agreement and
perform all his services under this agreement without any restriction whatsoever
by any other agreement, other document, or otherwise.
ss.13. COMPLETE AGREEMENT. This document contains the entire agreement
between the parties and supersedes any prior discussions, negotiations,
representations, or agreements between them relating to employment of the
Employee. No additions or other changes to this agreement shall be made or be
binding on either party unless made in writing and signed by each party to this
agreement.
ss.14. NOTICES. Any notice or other communication required or desired
to be given to any party under this agreement shall be in writing and shall be
deemed given:
(a) In the case of the Employee, when delivered personally to
the Employee or when deposited in the United States mail, first-class
postage prepaid, addressed to the Employee at 000 Xxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxx 00000, or any other address thereafter designated by the
Employee in notice theretofore given to the Company; and
(b) In the case of the Company, when deposited in the United
States mail, first-class postage prepaid, addressed to the Company at
000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, attention President, or at
any other address hereafter designated by the Company in notice
theretofore given to the Employee, with copy to Xxxx Xxxxxxxx, Esq.,
Xxxxx & Xxxxxxxxx, Xxxxx 0000, 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000.
ss.15. GOVERNING LAW. All questions concerning the validity, intention,
or meaning of this agreement or relating to the rights and obligations of the
parties with respect to performance hereunder shall be construed and resolved
under the laws of Ohio.
ss.16. SEVERABILITY. The intention of the parties to this agreement is
to comply fully with all laws and public policies, and this agreement shall be
construed consistently with all laws and public policies to the extent possible.
If and to the extent that any court of competent jurisdictions determines that
it is impossible or violative of any legal prohibition to construe any provision
of this agreement consistently with any law, legal prohibition, or public policy
and consequently holds that provision to be invalid or prohibited, that shall in
no way affect the validity of the other provisions of this agreement which shall
remain in full force and effect.
ss.17. NONWAIVER. No failure by any party to insist upon strict
compliance with any term of this agreement, to exercise any option, enforce any
right, or seek any remedy upon any default of any other party shall affect, or
constitute a waiver of, the first party's right to insist upon such strict
compliance, exercise that option, enforce that right, or seek that remedy with
respect to that default or any prior, contemporaneous, or subsequent default;
nor shall any custom or practice of the parties at variance with any provision
of this agreement affect or
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constitute a waiver of, any party's right to demand strict compliance with all
provisions of this agreement.
ss.18. CAPTIONS. The captions of the various sections of this agreement
are not part of the context of this agreement, but are only labels to assist in
locating those sections, and shall be ignored in construing this agreement.
ss.19. SUCCESSORS. This agreement shall be personal to the Employee and
no rights or obligations of the Employee under this agreement may be assigned by
him. Except as described in the preceding sentence, this agreement shall be
binding upon, inure to the benefit of, and be enforceable by and against the
respective heirs, legal representatives, successors, and assigns of each party
to this agreement.
HEALTH POWER MANAGEMENT
CORPORATION
/s/ Xxxxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxx, Xx.
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XXXXXX X. XXXXX Xxxxxx X. Xxxxx, Xx., President
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