Exhibit 6.6
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made this 28 day of February, 1997, between
PENNSYLVANIA PHYSICIANS CARE SERVICE CORP., a Pennsylvania corporation
("Employer"), and XXXX X. XXXXX ("Executive").
The parties hereto, intending to be legally bound hereby,
agree upon the following terms of employment of Executive by Employer:
1. Employment and Term. Employer hereby employs Executive and
Executive hereby accepts employment for a term commencing March 17, 1997 and
ending Xxxxx 00, 0000 (xxx "Xxxxxxx Xxxx"); subject to extension as provided
herein. (March 16, 1998, or the last day of any extended term as provided herein
is hereinafter called the "Termination Date.") This Agreement shall
automatically be extended for additional periods of one year ("Renewal Term"),
unless notification is given by one party to the other to the contrary by
providing written notice at least sixty (60) days prior to the Termination Date
in accordance with the procedures outlined in Section 12 regarding notice.
2. Duties. Employer is an affiliate of Pennsylvania Physician
Healthcare Plan, Inc. ("PPHP"). Executive shall perform the duties of Vice
President of Sales and Marketing for such managed care affiliates of PPHP as
Employer shall designate from time to time and such additional executive duties
for Employer and its affiliates as may be requested of Executive by Employer.
Executive's place of employment shall be at the principal offices of Employer,
now Harrisburg, Pennsylvania. Executive shall accept and perform the duties of
such offices and directorships of Employer and its affiliates to which Executive
may from time to time be elected or appointed.
3. Extent of Services. Executive shall devote his full time
and best efforts to the performance of his duties hereunder. He shall not engage
in any business or perform any services in any capacity whatsoever other than
for Employer and its affiliates.
4. Compensation.
a. Salary. For all duties to be performed by
Executive in any capacity hereunder, Executive shall receive an annual salary of
One Hundred and Forty Thousand Dollars ($140,000) per year ("Annual Salary")
payable in installments twice per month, in accordance with Employer's regular
practice for executive employees. Upon renewal of this contract in accordance
with Section 1 hereof, Executive's annual salary for such renewal term shall not
be less than the Annual Salary. A performance review and review of Executive's
Annual Salary will be performed annually and shared with Executive.
b. Commission. Executive shall be entitled to receive
commissions equal to $2.00 per member for each member enrolled in all of
Executive's managed care products, other than members enrolled pursuant to
self-insured employer agreements or arrangements. Commissions earned under this
Section 4b. shall be payable to Executive monthly.
c. Vacation. Executive shall be entitled to three (3)
weeks paid vacation during each full year that this Agreement is in force.
d. Fringe Benefits. Executive shall be entitled to
receive (i) the insurance and pension benefits provided pursuant to the
provision of plans as established and revised by Employer from time to time and
generally made available to executives of Employer; (ii) an automobile expense
allowance of $500 per month; and (iii) all other fringe benefits made available
to Salaried employees generally from time to time by Employer.
e. Bonus. Executive shall be eligible for an annual
bonus of up to fifteen percent (15%) of Annual Salary, based on mutually agreed
performance criteria to be established within ninety (90) days of the
commencement of the term of this Agreement. The bonus shall be paid to Executive
within forty-five (45) days after each anniversary date of this Agreement. If
Executive's employment terminates for Good and Sufficient Cause, Executive shall
forfeit all rights to the bonus described in this Section 4d. A review of
Executive's bonus and bonus criteria will be performed annually and shared with
Executive.
f. Signing Bonus. If Executive commences employment
on or before March 17, 1997, he shall be paid a signing bonus of Twenty Thousand
Dollars ($20,000) within ten (10) days of the commencement of employment.
g. Expenses. It is understood that Executive will
from time to time incur reasonable expenses in conjunction with his employment.
Employer will reimburse him for any such expenses (including automobile expenses
of $.16 per mile incurred as a result of Executive's duties herein) in
accordance with Employer's regular practice for reimbursement of its executive
employees. In addition, Employer shall reimburse Executive for the following
expenses:
(1) reasonable expenses for one (1) trip to
Harrisburg, Pennsylvania for Executive and his spouse for the purpose of
identifying permanent housing opportunities;
(2) temporary living expenses in the amount of
$2,000 per month until permanent residence is secured;
(3) reasonable expenses of relocation of
Executive's belongings from Westerville, Ohio to Harrisburg, Pennsylvania upon
presentation of appropriate receipts, and Employer will make all arrangements
regarding such relocation after consultation with Executive, but Employer is
assuming no liability of whatever nature regarding such relocation or the making
of the arrangements therefor;
(4) payment of reasonable closing costs including
but not limited to the application fee, up to three (3) mortgage points, Title
Insurance and 1% Pennsylvania real estate transfer tax, upon presentment of
appropriate documentation, in connection with the purchase of a permanent
residence in Harrisburg, Pennsylvania or its immediate vicinity;
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(5) payment of reasonable closing costs, including
Realtor fees up to
6%, upon presentment of appropriate documentation, in connection with the sale
of Executive's current residence in Westerville, Ohio ("Current Residence");
(6) payment of an amount equal to the amount of
federal, state and Medicare income tax liability due by Executive on all
payments made for costs and expenses referred to in subparagraphs (4) and (5)
above, except those items which are ordinarily deductible for federal income tax
purposes.
h. Reduction of "Asking Price" for Current
Residence". Executive shall receive, within one week after closing on his
Current Residence, a payment of $20,000, plus an amount equal to the federal,
state and Medicare income tax liability due by Executive on such amount. The
purpose of this payment is to enable Executive to lower the "asking price" of
the Current Residence to the extent of such amount. The "asking price" shall be
an amount equal to the average of two (2) independent appraisals of the Current
Residence less $20,000. Each of Executive and Employer agree to obtain one such
appraisal at Employer's cost. In the event that Executive's Selling price
exceeds the "asking price" as determined hereunder, the amount to be paid
Executive pursuant to this Section 5h. shall be reduced on a dollar for dollar
basis to the extent of any such excess.
5. Termination.
a. Notwithstanding any other provisions hereof, this
Agreement shall be terminated immediately upon the death or Disability of
Executive or Executive's discharge by Employer upon Good and Sufficient Cause.
In such event, Employee shall not be entitled to any payment or benefit
hereunder or any other compensation, other than the portion of the applicable
Annual Salary accrued to the date of termination. Termination of employment
under this Section 5, or otherwise, shall not diminish the obligations of
Executive pursuant to Sections 6 and 7 hereof, except as otherwise provided
herein.
b. "Disability" shall mean inability of Executive due
to illness or accident to perform the duties required to be performed by him
pursuant hereto for a continuing period in excess of ninety (90) days.
c. "Good and Sufficient Cause" shall include but not
be limited to:
(1) any misconduct or dishonesty detrimental to
the best interests of Employer or any of its
affiliates;
(2) willful disloyalty to Employer or any of its
affiliates;
(3) willful or intentional neglect by
Executive to perform his duties and
responsibility hereunder;
(4) conviction of a felony or crimes of moral
turpitude;
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(5) failure to perform the duties under this
agreement or breach of any provisions of this
Agreement.
d. If Employer terminates the Agreement prior to the
end of the Initial Term or the first Renewal Term (ending March 16, 1999),
except for Good and Sufficient Cause, then Employer shall pay Executive, as
Executive's sole remedy and in full satisfaction of any and all payments or
damages due under any agreement, $140,000. Such payment shall be made in
installments over one (1) year in accordance with Employees regular payroll
schedule. If the Employer terminates the Agreement prior to the end of any
Renewal Term beginning on or after March 17, 1999, except for Good and
Sufficient Cause, then Employer shall pay Executive as Executive's sole remedy
and in full satisfaction of any or all payments or damages due under such
agreement an amount equal to one half of the Executive's base salary at time of
termination. Such payment shall be made in installments over six (6) months in
accordance with Employer's regular payroll schedule.
6. Disclosure of Information. Executive will not, during the
term of this Agreement or during the period of non-competition defined in
Section 7 hereof or during the period in which Executive is receiving payments
under Section 5d hereof, whichever is longer, without written authorization of
Employer, disclose to, or make use of for himself or for any person,
corporation, or other entity, any trade secret or other confidential or
proprietary information concerning the business, clients, methods, operations,
financing or services of Employer or its affiliates. Trade secrets and
confidential information shall mean information disclosed to Executive or known
by him as a consequence of his employment by Employer, whether or not pursuant
to this Agreement, and not generally known in the industry.
7. Covenant Not to Compete.
a. For a period of one year after the termination of
his employment if the cause of termination is pursuant to Section 5(a) hereof,
or for a period equal to the period Executive is receiving payments under
Section 5(d) hereof if the cause of termination is pursuant to such Section,
Executive agrees that he will not, within the Employer Territory (as defined
below), engage in any business or perform any Service, directly or indirectly,
in competition with or proposed to be in competition with the Business of
Employer, or have any interest, whether as proprietor, partner, employee,
principal, agent, consultant, director, officer or in any other similar capacity
or manner whatsoever, in any enterprise which shall so engage or is proposing to
so engage. "Employer Territory" shall mean any Pennsylvania county or county of
other state in which, at the time of the termination of Executive's employment,
the Employer or its affiliates is doing business or is licensed or has a license
application pending with an agency of the Commonwealth of Pennsylvania or other
state.
b. In furtherance of the foregoing, and not in
limitation thereof, Executive shall not, during the period of non-competition
and within the geographical area herein set forth, directly or indirectly:
(1) solicit or service in any way, on behalf of
himself or on behalf of or in conjunction with others, any client or customer,
or prospective client or customer, which has been solicited or serviced by
Employer or any affiliate of Employer within one year prior to the termination
of his employment; or
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(2) solicit for employment, employ or engage as an
independent contractor, any person who was employed by Employer or any affiliate
of Employer at the date of termination of employment of Executive, or induce any
such person to leave the employ of Employer or any such affiliate.
c. If Executive violates this restrictive covenant
and Employer brings legal action for injunctive or other relief, Employer shall
not, as a result of the time involved in obtaining such relief, be deprived of
the benefit of the full period of the restrictive covenant. Accordingly, the
restrictive covenant shall be deemed to have the duration specified in
subparagraph A hereof, computed from the date such relief is granted but reduced
by the time expired between the date the period of restriction began to run and
the date of the first violation of the covenant by Executive.
d. If any court shall determine that the duration or
geographical limits of any restriction contained in this paragraph are
unenforceable, it is the intention of the parties that the restrictive covenant
set forth herein shall not thereby be terminated, but shall be deemed amended to
the extent required to render it valid and enforceable, such amendment to apply
only with respect to the operation of this paragraph in the jurisdiction of the
court which has made Such adjudication. The covenants on the part of Executive
in this Section 7 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
of Executive against Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Employer of
these covenants.
8. Remedies of Employer. As an executive of Employer,
Executive may have access to customer lists, trade secrets and other
confidential information of Employer. Moreover, his continued employment will be
instrumental to the continuity and development of Employer's business.
Executive, therefore, acknowledges that the restrictions contained in Sections 6
and 7 of this Agreement are a reasonable and necessary protection of the
legitimate interests of Employer, that any violation of them would cause
substantial injury to Employer, and that Employer would not have entered into
this Agreement with Executive without receiving the additional consideration of
Executive's binding himself to said restrictions. In the event of any actual or
threatened violation of the said restrictions, Employer shall be entitled, in
addition to any other remedy, to preliminary and permanent injunctive relief.
9. Surrender of Books and Records. Executive acknowledges that
all lists, books, records, literature, products and any other materials owned by
Employer or its affiliates or used by them in connection with the conduct of
their business, shall at all times remain the property of Employer and its
affiliates and that upon termination of employment hereunder, irrespective of
the time, manner or cause of said termination, Executive will surrender to
Employer and its affiliates all such lists, books, records, literature, products
and other materials.
10. Business of Employer. "Business of Employer" Referred to
in this Agreement shall mean all business of Employer and its affiliates,
whether presently conducted or hereafter engaged in by Employer or any affiliate
at any time during the term of this Agreement.
11. Severability. If any provision of this Agreement shall be
held invalid or unenforceable, the remainder of this Agreement shall,
nevertheless, remain in full force and effect. If any
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provision is held invalid or unenforceable with respect to particular
circumstances, it shall, nevertheless, remain in full force and effect in all
other circumstances.
12. Notice. All notices required to be given under the terms
of this Agreement shall be in writing, shall be effective upon receipt (except
that if delivery of certified mail is refused, delivery shall be deemed made
Five (5) days after the date of mailing), and shall be delivered to the
addressee in person or mailed by certified mail, return receipt requested:
If to Employer, addressed to the Chief Executive Officer,
at the principal office of Employer with a copy to Xxxxxx & Xxxxx, P.C., Xxx
Xxxxxxx Xxxxx, 00xx Xxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Xxxxxxxx X. Xxxxxxxxx, Esquire; and if to Executive,
addressed to the last known address on the records of Employer; or to such other
address as a party shall have designated by notice given in accordance with this
paragraph.
13. Representations of Executive. Executive represents
covenants and warrants to Employer that as of the date hereof and during the
term of this Agreement:
a. Neither the execution and delivery of this Agreement
nor the performance by Executive of his obligations under this Agreement will
constitute a default under any term or provision, including any
covenant-not-to-compete, of any agreement to which Executive is a party, nor any
statute, administrative interpretation, regulation or decision of any court,
administrative agency or tribunal to which Executive is subject.
b. Executive has retained and has the benefit of counsel
of Xxxxx Xxx, Esquire, as his attorney, who has fully explained to Executive the
provisions of this Agreement. Executive acknowledges that he has received
independent legal advice from such counsel of his own selection and has been
fully informed as to his legal rights and obligations under this Agreement.
14. Benefit. This Agreement shall inure to and shall be
binding upon the parties hereto, the successors and assigns of Employer and the
heirs and personal representatives of Executive.
15. Waiver. The waiver by either party of any breach or
violation of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach or violation hereof.
16. Governing Law. This Agreement has been negotiated and
executed in the Commonwealth of Pennsylvania and the law of that state shall
govern its construction and validity. Any legal actions concerning this
Agreement shall be brought in the Court of Common Pleas of Dauphin County,
Pennsylvania or the United States District Court for the Middle District of
Pennsylvania; the parties submit to the jurisdiction of such courts and waive
any right they may have to transfer or change the venue of any litigation
brought therein by either of them.
17. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto. No change, addition, or amendment shall be
made except by written agreement signed by the parties hereto.
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18. Definition of Affiliates. For purposes of this Agreement,
"affiliate" shall mean any entity controlling, controlled by, or under common
control with Employer.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date and year first above written.
PENNSYLVANIA PHYSICIANS CARE SERVICE CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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"Employer"
By: /s/ Xxxx X. Xxxxx
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"Executive"
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