EXHIBIT 10.11
AGREEMENT
THIS AGREEMENT is made by and between Carl F. Pollard ("Pollard"), and
Columbia Healthcare Corporation, a Delaware corporation and successor of
Columbia Hospital Corporation, a Nevada corporation (individually or jointly
"Columbia").
W I T N E S E T H :
WHEREAS, Pollard has entered into that certain employment agreement,
dated August 31, 1993, regarding his employment with Columbia (the "Columbia
Employment Agreement"); and
WHEREAS, the parties desire to enter into this Agreement to modify,
preserve and secure certain of Pollard's benefits under the Columbia
Employment Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained and other valuable
consideration, the parties agree as follows:
1. CONTINUED BOARD SERVICE. Pollard agrees to continue to serve
on Columbia's Board of Directors in the capacity as Chairman of the Executive
Committee and devote his best efforts to serving Columbia in that role.
2. CONFIDENTIAL INFORMATION.
(i) Pollard recognizes and acknowledges that during the term of
his employment, he has or will develop, have access to and come into
possession of trade secrets and confidential information of Columbia,
including, without limitation, software systems, specifications,
programs and documentation, the methods and data which Columbia owns,
plans or develops, whether for its own use or for use by its clients,
developments, designs, inventions and improvements, trade secrets and
works of authorship, customer lists, supplier lists, proposals,
marketing plans and procedures, all of which are confidential and are
the property of Columbia. Pollard further recognizes and acknowledges
that in order to enable Columbia to perform services for its customers,
those customers may furnish to Columbia confidential information
concerning their business affairs, property, methods of operation or
other data and that the goodwill afforded to Columbia and its employees
requires keeping
such services and information confidential. All of these materials and
information including, without limitation, those relating to Columbia's
systems and customers, will be referred to below as "Proprietary
Information."
(ii) Pollard agrees that during the term of Pollard's employment
with Columbia and thereafter, Pollard will keep any and all Proprietary
Information confidential and will not disclose any Proprietary
Information, directly or indirectly, to any third person or entity,
without the prior written consent of Columbia. Pollard further agrees
that, during the term of Pollard's employment with Columbia and
thereafter, Pollard will not use, handle, copy or duplicate, in part or
in whole, any Proprietary Information, except as directed by Columbia
and in the ordinary course of Columbia's business. This confidentiality
covenant has no temporal, geographic or territorial restriction.
(iii) Pollard agrees that upon request by Columbia, and in any
event immediately upon termination of Pollard's employment, Pollard
shall turn over to Columbia all property, keys, notes, memoranda,
writings, lists, files, reports, customer lists, correspondence, tapes,
software, cards, surveys, maps, logs, machines, technical data, work
product or any other tangible product or document which has been
produced by, received by or otherwise submitted or made available to
Pollard during or prior to Pollard's employment with Columbia.
(iv) Pollard understands and agrees that all Proprietary
Information is and shall remain the property of Columbia and that
Pollard has not and will not appropriate for Pollard's own use or for
the use of any third party any Proprietary Information. Furthermore,
Pollard hereby assigns and agrees to assign to Columbia or its
subsidiaries or affiliates, as appropriate, its successors, assigns or
nominees, Pollard's entire right, title and interest in any
developments, designs, patents, inventions and improvements, trade
secrets, trademarks, copyrightable subject matter or other Proprietary
Information which Pollard has made or conceived, or may make or
conceive, either solely or jointly with others, while providing services
to Columbia, or with the use of time, material or facilities of Columbia
or relating to any actual or anticipated business, research,
development, product, service or activity of Columbia known to Pollard
while employed at Columbia, or suggested by or resulting from any task
assigned to Pollard or work performed by Pollard for or on behalf of
Columbia, whether or not such work was performed prior to the date of
this Agreement.
(v) For purposes of the foregoing, service by the Pollard with
Galen and Humana Inc. will be deemed service with Columbia.
3. COVENANT NOT TO COMPETE. Pollard agrees that because of the
confidential and sensitive nature of the Proprietary Information and because
the use of, or even the appearance to Columbia and its reputation, or to
customers of Columbia, Pollard will not, from the date of this Agreement until
the expiration of one (1) year after the date on which
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Pollard's employment as an employee of Columbia terminates for any reason,
directly or indirectly, own, manage, operate, join, control, be employed by,
or participate in the ownership, management, operation or control of or be
connected in any manner, including as director, officer, consultant,
independent contractor, employee, partner, or investor with any business,
enterprise, organization or other individual or entity which solicits
business, performs services or delivers goods that are comparable to or
competitive with any business of Columbia; provided, however, that the
ownership of less than five percent (5%) of the outstanding capital stock of
any entity with securities registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, shall not be prohibited by this Section 3.
4. NON-SOLICITATION. Pollard agrees that during the term of
Pollard's employment with Columbia and for a period of three (3) years
thereafter, Pollard will not interfere with Columbia's relationship with, or
endeavor to employ or entice away from Columbia, any business, enterprise,
organization or other individual or entity, which is an employee, customer or
supplier of Columbia, or which maintains a business relationship with any
business of Columbia.
5. BENEFITS ON AND AFTER TERMINATION. In consideration of
Pollard's promises contained herein and his termination as an employee of
Columbia, and in fulfillment of Columbia's obligations under the Columbia
Employment Agreement, the parties agree to the following:
(i) At the time of Pollard's resignation, he shall be paid a lump
sum cash payment equal to eighty nine thousand, two hundred fifty
dollars multiplied by the number of months (and fraction thereof),
remaining between the effective date of Pollard's resignation and
February 28, 1997.
(ii) Columbia shall continue to carry at its expense life
insurance coverage on Pollard's life to age sixty-five (65) in the
amount of one million, seven hundred and fifty thousand dollars
($1,750,000.00) payable to Pollard's beneficiary.
(iii) Columbia shall continue health insurance coverage for
Pollard and his family, under an insured health program available to
Columbia employees, until Pollard's age sixty-five (65). The cost to
Pollard for such coverage shall be the cost under the Consolidated
Omnibus Budget Reconciliation Act (COBRA) minus the cost for such
coverage Columbia would pay if Pollard were an employee. (i.e. The
normal Company portion shall be paid by the Company.) Pollard's spouse
shall also be entitled, as Pollard's dependent, to continuation of
health insurance coverage until she reaches age sixty-five (65) under
the same plans as Pollard and subject to the same terms and cost of
coverage under those plans as Pollard, however once Pollard reaches the
age of sixty-five and is entitled to coverage under Medicare (or its
successor), he shall not be entitled to dependent coverage under his
spouse's coverage. While Pollard is a Director of the Company, he may
choose to receive health insurance benefits under the Company's then
current Directors' plan, if any.
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(iv) There shall be immediate and full vesting of any of
Pollard's stock options which are not otherwise exercisable or payable
as of the date of termination of employment. Pollard shall be treated
as retiring from the employ of the Company so that such stock options
and any other vested but unexercised options shall not expire until two
years from the date of such retirement. This paragraph shall not apply
to the stock option referenced in subparagraph (v) below.
(v) Pollard shall be granted stock options to purchase three
hundred thousand (300,000) shares of Columbia stock at the earliest
possible date. Such options shall (A) be at a purchase price equal to
the stock's fair market value at date of grant, (B) be immediately
exercisable, and (C) have a ten (10) year term.
(vi) Pollard shall be supplied office space and equipment and
secretarial help under the following terms:
(A) Columbia shall lease office space of Pollard's
choosing (of approximately one thousand (1,000) square feet) for a
period of five (5) years from Pollard's resignation with an option
for another five (5) years; such option to renew by the Company
shall be at Pollard's sole discretion. The cost of such
(including three (3) parking spaces) shall be at Columbia's
expense except that any tenant improvements over and above the
landlord's tenant allowance shall be split equally between
Columbia and Pollard.
(B) Pollard shall have the use of all his current office
furniture and fixtures for the duration of the lease.
(C) Pollard's current secretary shall continue in such
capacity in such leased space. She shall remain an employee of
Columbia during the term of such lease with all the benefits of a
Columbia employee and shall be considered a third party
beneficiary of this Agreement. She shall be entitled to annual
pay increases equal to at least the average percentage pay
increases of all other executive secretaries. If at any time
during the ten (10) year period following Pollard's resignation,
his current secretary ceases for any reason to serve as his
secretary and elects to return to a job at the Company's corporate
headquarters or at one of its facilities, she shall be entitled to
an offer of a position comparable in grade and salary to her then
current position. Should this occur, she shall be subject to the
same terms and conditions of employment as all other Columbia
employees. Pollard shall have the use of all her current office
furniture and fixtures during the term of the lease. If she
should leave Columbia's employ or otherwise cease to serve as
Pollard's secretary during such ten (10) year period, Columbia
shall pay Pollard at the rate of twenty-five thousand per year for
him to obtain secretarial help.
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