exv10w21









EXHIBIT 10.21




Confidential




EMPLOYMENT AGREEMENT — Sean Curtin




     THIS EMPLOYMENT AGREEMENT (the “Agreement”), made this 31st day of August, 2006, is entered
into by Health Management Systems, Inc., a New York corporation (“HMS” or the “Company”), and Sean
Curtin, an individual residing at New York (the “Executive”).



     WHEREAS, HMS Holdings Corp., a New York Corporation (“HMS Holdings”) and parent of HMS, is
directly or indirectly purchasing (the “Purchase”) substantially all of the assets used by Public
Consulting Group, a Massachusetts corporation (“PCG”), in PCG’s Benefits Solutions Practice Area
(“BPSA”) and certain other business lines, pursuant to that certain Asset Purchase Agreement, dated
as of June 22, 2006, by and among HMS Holdings, HMS, and PCG (the “Purchase Agreement”);



     WHEREAS, the Purchase Agreement expressly contemplates that the Executive will enter into this
Agreement before but effective upon the “Closing Date” (as defined in the Purchase Agreement) of
the Purchase;



     WHEREAS, the Executive is an employee of PCG and has agreed to enter into an employment
relationship with the Company upon the Closing Date pursuant to the terms and conditions set forth
in this Agreement;



     WHEREAS, the Company wishes to enter into an agreement with the Executive governing the terms
and conditions of Executive’s employment, and the Executive is willing to be employed on the terms
and conditions hereinafter set forth.



     NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged
by the parties hereto, the parties agree as follows:


1. Employment by Company. The Company hereby agrees to employ the Executive, and the
Executive hereby accepts such employment with the Company, upon the terms set forth in this
Agreement, as of the Closing Date (the “Effective Date”) and ending in accordance with the
provisions set forth in Paragraph 4 below. This Agreement assumes, is contingent on, and only
binds the parties upon the “Closing” as defined in the Purchase Agreement, and is otherwise of no
force and effect.



2. Title and Capacity. The Executive shall serve as the Company’s Senior Vice President
- North. The Executive shall be responsible for such duties as may from time to time be assigned
to him by the Company, which will include P&L and client management responsibility for existing
accounts (initially consisting of the Executive’s BPSA clients). The Executive shall report to the
President of HMS. The Executive agrees to devote his entire business time, loyalty, attention and
energies to the business and interests of the Company during his employment with the Company and
understands and agrees that he/she will be based at the Company’s Albany, New York office. The
Executive agrees to abide by the rules, regulations,
instructions, personnel





 









 







practices and policies of the Company and any changes therein that the
Company may be adopt from time to time.



3. Compensation and Benefits.





	 	a.	 	Salary. The Company shall pay the Executive a monthly salary of
$16,666.66 (which annualizes to a “Base Salary” of $200,000.00), paid on a bi-weekly
basis. The Executive’s annualized base salary shall be reviewed in December 2007 and
may be adjusted in the sole discretion of the Company. A salary adjustment, if any,
made in December 2007 would become effective in the first payroll cycle of January
2008. Thereafter, the Executive’s salary shall be reviewed and subject to adjustment
from time to time in accordance with normal business practices and in the sole
discretion of the Company.
	 
	 	b.	 	Equity.






	 	i.	 	Initial Equity. On the Effective Date, the
Company shall grant to the Executive an option under and subject to the
Company’s 2006 Stock Plan (the “2006 Plan”) to purchase 150,000 shares of
Common Stock of the Company at an exercise price equal to the “Fair Market
Value” (as defined in the 2006 Plan) of the Company’s Common Stock on the
Effective Date (the “Option”). The Option shall be subject to all terms,
vesting schedules, limitations, restrictions and termination provisions set
forth in the 2006 Plan and the option agreement delivered by the Company to
evidence the grant of such Option, provided that the Option shall become
exercisable in four equal installments beginning on the one-year anniversary
of the Effective Date and continuing on each of the following three
anniversary dates, so long as the Company continues to employ the Executive
on each such anniversary date.
	 
	 	ii.	 	2007, 2008, 2009 Equity. Assuming Executive
remains employed at each such date and that the Company has capacity to make
grants under a shareholder-approved plan, the Company shall, on or around the
three anniversaries next following the Effective Date, grant to the Executive
an option under and subject to the 2006 Plan or a successor plan to purchase
40,000 shares of Common Stock of the Company at an exercise price equal to
the “Fair Market Value” (as determined under the applicable plan) of the
Company’s Common Stock on the future dates of grant (the “Future Options”).
The Future Options shall be subject to all terms, vesting schedules,
limitations, restrictions and termination provisions set forth in the
applicable plan and the option agreement delivered by the Company to evidence
the grant of such Future Option, provided that each Future Option shall
become exercisable in four equal installments beginning on the one-year
anniversary of its respective date of grant and continuing on each of the
following three anniversary dates of such date of grant, so long as the
Company continues to employ the Executive on each such anniversary date.




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	 	c.	 	Fringe Benefits. The Executive shall be eligible to participate in all
benefit programs that the Company establishes and makes available to its employees, to
the extent that the Executive is eligible under (and subject to the provisions of) the
plan documents governing those programs. The Company may modify or terminate the
benefits made available to the Executive and the rules, terms and conditions for
participation in such benefit plans at any time without advance notice to the
Executive. The Executive shall be given past service credit for his employment at PCG
for all purposes including 401(k) vesting, other than for vacation accruals.
	 
	 	d.	 	Vacation. The Executive shall be eligible for up to twenty (20) days
of paid vacation per calendar year, to be taken at such times as may be approved in
advance by the President of HMS. The number of vacation days for which the Executive
is eligible shall accrue in accordance with Company policy and shall be subject to the
applicable accrual cap and any use or lose provisions in the policy, except that the
Executive may carry any unused vacation days accrued from the Effective Date through
the end of 2006 into 2007 for use in 2007.1
	 
	 	e.	 	Discretionary Annual Performance Bonus. Following the end of each
calendar year beginning after 2006 in which the Company employs the Executive and
subject to the approval of the Board or the Compensation Committee, the Executive shall
be eligible for a target bonus of 50% of his Base Salary, provided that he meets the
targets or objectives set forth in his bonus plan and the Company exceeds its fiscal
year performance targets, as determined by the Board or its Compensation Committee in
its sole discretion; his actual bonus will be determined based on actual performance
with no minimum bonus and no cap on the maximum bonus. The Executive shall work with
the President of HMS (or any other executive to whom the Company assigns this task) to
set forth his bonus plan targets and objectives. If no bonus plan is agreed upon, the
Executive’s bonus plan and/or his bonus will be determined in the sole and exclusive
discretion of the Board or its Compensation Committee. The Executive must be an active
employee of the Company on the date any bonus is distributed to be eligible for and to
earn any bonus award.




4. At-Will Employment. The Executive acknowledges that this Agreement should not be
construed as an agreement, either express or implied, to employ him for any stated term, and shall
in no way alter the Company’s policy of employment at-will, under which both the Company and the
Executive remain free to end the employment relationship for any or no reason, at any time, with or
without notice.



5. Termination.





	 	a.	 	Certain Definitions. Solely for purposes of this Agreement, the
following terms shall have the following respective meanings:






	 	i.	 	“Disability” means a determination by a physician of the
Company’s choosing that the Executive is unable to perform the essential
functions of his position by







 




			
	1	 	Parties to discuss treatment of accrued
vacation from PCG.




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	 	 	 	reason of any mental or physical illness or
impairment, with or without any reasonable accommodation, for a period
greater than ninety (90) days, whether or not consecutive, during any 360-day
period.
	 
	 	ii.	 	“Cause” means (I) a conviction of the Executive of, or a
plea of guilty or nolo contendere by the Executive to, any misdemeanor
relating to the Company or to any felony; (II) a violation by the Executive
of federal or state securities laws; (III) willful misconduct or gross
negligence by the Executive; (IV) a material violation by the Executive of
the Company’s Code of Ethics and Business Conduct, or a material breach of
this Agreement; or (V) fraud, embezzlement, theft or dishonesty by the
Executive against the Company.




6. Effect of Termination.





	 	i.	 	Termination by the Company for Cause or by the
Executive. If the Company terminates the Executive’s employment for Cause
or the Executive terminates his employment, the Company shall pay to the
Executive the Base Salary and regular (non-incentive) benefits that would
otherwise be payable to the Executive up to the last day of the Executive’s
employment.
	 
	 	ii.	 	Termination for Death or Disability. If the
Executive’s employment is terminated by death or because of Disability pursuant
to Paragraph 5(a)(i), the Company shall pay to the estate of the Executive or
to the Executive, as the case may be, the Base Salary and regular
(non-incentive) benefits that would otherwise be payable to the Executive up to
the last day of the Executive’s employment.
	 
	 	iii.	 	Termination by the Company Without Cause. If the
Company terminates Executive’s employment without Cause and Executive then
executes and does not revoke a severance agreement and release, the form of
which is provided by the Company: (a) the Company shall pay the Executive, in
accordance with the Company’s regular payroll practices, the Executive’s Base
Salary, as then in effect, as severance pay for twelve (12) months from the
date of termination; and (b) provided that the Executive is eligible for and
elects to continue receiving continuation health coverage pursuant to the
federal “COBRA” law, 29 U.S.C. § 1161 et seq., the Company shall, for
twelve (12) months, continue to pay the share of the premium for such coverage
that is paid by the Company for active and similarly-situated employees (and,
to the extent applicable, their dependents) who receive the same type of
coverage. The remaining balance of any premium costs, and all premium costs
after the twelve (12) month period shall be paid by the Executive on a monthly
basis for as long as, and to the extent that, he remains eligible for and
elects to receive COBRA continuation.




7. Proprietary and Confidential Information, Developments and Non-Solicitation
Agreement. As a condition of employment, the Executive shall execute a customary agreement
protecting confidentiality and trade secrets, confirming that intellectual property created will be
long to the Company, and prohibiting solicitation of customers or employees for one year after
employment




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ends, among other customary provisions (the “Nonsolicitation Agreement”). The
provisions of the Nonsolicitation Agreement shall survive the termination of this Agreement.



8. No Conflict or Other Agreements. The Executive represents that he is not bound by
any employment contracts, restrictive covenants or other restrictions that prevent him from
entering into employment with, or carrying out his responsibilities for, the Company, or that are
in any way inconsistent with any of the terms of this Agreement.



9. Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, whether written or oral, relating
to the subject matter of this Agreement.



10. Amendment. This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Executive.



11. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York (without reference to the conflict of laws provisions
thereof).



12. Dispute Resolution. The Company and Executive mutually agree that any claim or
controversy arising out of or relating to this Agreement, or any breach thereof, or otherwise
arising out of or relating to the Executive’s employment, compensation and benefits with the
Company or the termination thereof including any claim for discrimination under any local, state or
federal employment discrimination law, except as specifically excluded herein, shall be settled by
arbitration in New York City, New York administered by the American Arbitration Association under
its National Rules for the Resolution of Employment Disputes. Any claim or controversy not
submitted to arbitration in accordance with this Paragraph 12 shall be waived, and thereafter, no
arbitration panel or tribunal or court shall have the power to rule or make any award on any such
claim or controversy. The award rendered in any arbitration proceeding held under this Paragraph
12 shall be final and binding, and judgment upon the award may be entered in any court having
jurisdiction thereof. Claims for workers’ compensation or unemployment compensation benefits are
not covered by this Paragraph 12. Also not covered by this Paragraph 12 are claims by the Company
or by the Executive for temporary restraining orders or preliminary injunctions (“temporary
equitable relief”) in cases in which such temporary equitable relief would be otherwise authorized
by law, including but not limited to claims for equitable relief arising out of a breach of the
Nonsolicitation Agreement referenced in Paragraph 7 of this Agreement. Both the Company and the
Executive expressly waive any right that any party either has or may have to a jury trial of any
dispute arising out of or in any way related to the Executive’s employment with or termination from
the Company.



13. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of both parties and their respective successors and assigns, including any corporation with
which or into which the Company may be merged or which may succeed to its assets or business;
provided, however, that the obligations of the Executive are personal and shall not be assigned by
him. The Company may assign its rights and obligations under this Agreement to
any of its affiliates or to any business entity that at any time by merger, consolidation, or
otherwise acquires a majority of the Company’s (or HMS Holdings’) stock or assets or to which the
Company transfers a majority of its assets or that acquires a majority of the stock or assets of
the division or subsidiary to which





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the Executive primarily provides services. The Executive
specifically agrees that the assignment will, unless the Company provides otherwise, include the
restrictive covenants of the Nonsolicitation Agreement.



14. Acknowledgment. The Executive states and represents that he has had an opportunity
to fully discuss and review the terms of this Agreement with an attorney. The Executive further
states and represents that he has carefully read this Agreement, understands the contents herein,
freely and voluntarily assents to all of the terms and conditions hereof, and signs his name of his
own free will.



15. Withholding Taxes; Section 409A. All payments hereunder shall be subject to any
and all applicable withholdings and taxes. The Executive acknowledges and agree that Company may
revise the timing of payments in this Agreement to the extent necessary to comply with Section 409A
of the Internal Revenue Code of 1986 (the “Code”) (although the parties agree that the provisions
of this Agreement are not intended to be deferred compensation subject to such section).



16. Miscellaneous.





	 	a.	 	No delay or omission by the Company in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver or consent
given by the Company on any one occasion shall be effective only in that instance and
shall not be construed as a bar to or waiver of any right on any other occasion.
	 
	 	b.	 	The captions of the paragraphs of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or substance of any
paragraph of this Agreement.
	 
	 	c.	 	In case any provision of this Agreement shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby.





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set
forth above.



[One signature page follows]






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	HEALTH MANAGEMENT SYSTEMS, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ William C. Lucia
 

William C. Lucia
	 	 
	 

	 	President	 	 
	 
	 	 	 	 
	EXECUTIVE	 	 
	 
	 	 	 	 
	/s/ Sean Curtin	 	 
	 	 	 
	Sean Curtin	 	 
	 
	 	 	 	 
	HMS HOLDINGS
CORP. (AS TO PARAGRAPH 3(B)	 	 
	 
	 	 	 	 
	By:

	 	/s/ Robert Holster
 

	 	 
	CEO	 	 







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