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Exhibit 10.1
CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT is entered into by and between The
TriZetto Group, Inc. (the "Company") and ______________ (the "Executive"), as of
this 18th day of February 2000. For purposes of this Agreement, employment with
the Company shall include employment with any of the Company's Affiliates.
Capitalized terms not otherwise defined shall have the meanings set forth in
Section 10 below.
RECITALS
Whereas, the Company's Board of Directors (the "Board") has determined
that it is in the best interests of the Company and its stockholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change in Control of
the Company.
Now therefore, in consideration of the mutual covenants contained
herein, the parties hereby agree as follows:
AGREEMENT
1) EMPLOYMENT PERIOD.
a) The Company hereby agrees to continue to employ the Executive,
and the Executive hereby agrees to remain employed by the
Company, subject to the terms and conditions of this
Agreement, for the period commencing on the Effective Date and
ending on the _____ anniversary of such Effective Date (the
"Employment Period").
b) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement
between the Executive and the Company, the employment of the
Executive by the Company is "at will" and, subject to Section
10(i) hereof, prior to the Effective Date, the Executive's
employment and/or this Agreement may be terminated by either
the Executive or the Company at any time prior to the
Effective Date, in which case the Executive may have no
further rights under this Agreement.
2) TERMS OF EMPLOYMENT.
a) POSITION AND DUTIES.
i) During the Employment Period, the Executive's
position (including status, offices, titles and
reporting requirements), authority, duties and
responsibilities shall be at least commensurate in
all material respects with the most significant of
those held, exercised and assigned at any time during
the 120-day period immediately preceding the
Effective Date.
ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the
Executive is entitled, the
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Executive agrees to devote reasonable attention and
time during normal business hours to the business and
affairs of the Company and, to the extent necessary
to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the
Employment Period, it shall not be a violation of
this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements or
teach at educational institutions, and (C) manage
personal investments, so long as such activities do
not significantly interfere with the performance of
the Executive's responsibilities as an employee of
the Company in accordance with this Agreement. To the
extent that the Executive prior to the Effective Date
has conducted any such activities prior to the
Effective Date, the continued conduct of such
activities (or the conduct of activities similar in
nature and scope thereto) subsequent to the Effective
Date shall not be deemed to interfere with the
performance of the Executive's responsibilities to
the Company.
b) COMPENSATION.
i) BASE SALARY. During the Employment Period, the
Executive shall receive an annual base salary
("Annual Base Salary"), which shall be paid at a
monthly rate, at least equal to twelve times the
highest monthly base salary paid or payable,
including any base salary which has been earned but
deferred, to the Executive by the Company and its
Affiliates in respect of the twelve month period
immediately preceding the month in which the
Effective Date occurs. During the Employment Period,
the Annual Base Salary shall be reviewed no more than
twelve months after the last salary increase awarded
to the Executive prior to the Effective Date and
thereafter at least annually. Any increase in Annual
Base Salary shall not serve to limit or reduce any
other obligation to the Executive under this
Agreement. Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so
increased.
ii) OTHER BENEFITS. During the Employment Period, the
Executive shall be entitled to participate in all
incentive, savings, retirement, welfare benefit,
vacation and sick leave plans, practices, policies
and programs applicable generally to other peer
executives of the Company and its Affiliates.
3) TERMINATION OF EMPLOYMENT.
a) DEATH OR DISABILITY. The Executive's employment shall
terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith
that the Disability of the Executive has occurred during the
Employment Period, it may give the Executive written notice in
accordance with Section 11(b) of this
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Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the
Company shall terminate effective on the 30th day after
receipt of such notice by the Executive (the "Disability
Effective Date"); provided that, within the 30 days after such
receipt, the Executive shall not have returned to full-time
performance of the Executive's duties.
b) CAUSE. The Company may terminate the Executive's employment
during the Employment Period for "Cause" based upon any of the
following occurrences:
i) The willful and continued failure of the Executive to
perform substantially the Executive's duties with the
Company or its Affiliates (other than any such
failure resulting from incapacity due to physical or
mental illness), after a written demand for
substantial performance is delivered to the Executive
by the Board or the Chief Executive Officer of the
Company which specifically identifies the manner in
which the Board or Chief Executive Officer believes
that the Executive has not substantially performed
the Executive's duties; or
ii) The willful engaging by the Executive in illegal
conduct or gross misconduct that is materially and
demonstrably injurious to the Company.
For purposes of this subsection, no act or failure to act, on
the part of the Executive, shall be considered "willful"
unless it is done, or omitted to be done, by the Executive in
bad faith or without reasonable belief that the Executive's
action or omission was in the best interests of the Company.
Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or other senior
officer of the Company or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of
the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy
of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the Board at a meeting of the
Board called and held for such purpose (after reasonable
notice is given to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board,
the Executive is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
c) GOOD REASON. The Executive may terminate the Executive's
employment for Good Reason.
i) "Good Reason" shall mean any of the following
occurrences:
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(1) The assignment to the Executive of any
duties inconsistent in any material respect
with the Executive's position (including
status, offices, titles and reporting
requirements), authority, duties or
responsibilities as contemplated by Section
2(a) of this Agreement, or any other action
by the Company which results in material
diminution in such position, authority,
duties or responsibilities;
(2) Any failure by the Company to comply with
any of the provisions of Section 2(b) of
this Agreement, other than an isolated
insubstantial and inadvertent failure not
occurring in bad faith and which is remedied
by the Company promptly after receipt of
notice thereof given by the Executive;
(3) Any purported termination by the Company of
the Executive's employment otherwise than as
expressly permitted by this Agreement;
(4) Any failure by the Company to comply with
and satisfy Section 9(c) of this Agreement;
or
(5) The required move of the Executive's
principal place of employment outside of
[Newport Beach, California/ ___________].
ii) Any claim or controversy arising out of or relating
to any determination of Good Reason made by the
Executive shall be settled by arbitration in Orange
County, California, in accordance with the following:
(1) Each party shall appoint its own arbitrator
and the two arbitrators shall choose a
third, impartial arbitrator as umpire before
the date set for the hearing. If a party
fails to appoint its arbitrator within 30
days after having either received or given
the notice requesting arbitration, the other
shall appoint the second arbitrator. If the
two arbitrators fail to appoint the umpire
within 30 days after their appointments,
either party may apply to the Orange County
Superior Court of the State of California to
appoint an impartial umpire. The umpire
shall promptly notify all parties to the
arbitration of his selection.
(2) The arbitration shall be conducted pursuant
to the provisions of the California Code of
Civil Procedure, including the rules
pertaining to discovery.
(3) Within a reasonable time after completion of
the arbitration, the arbitrators shall
prepare a written opinion, a copy of which
shall be delivered to each party.
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(4) The parties shall share equally the expenses
of arbitration, including the arbitrator's
fee, provided however, that the arbitrators,
in their discretion, may award costs to the
prevailing party.
d) NOTICE OF TERMINATION. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be
communicated by Notice of Termination to the other party
hereto given in accordance with Section 11(b) of this
Agreement.
4) OBLIGATIONS OF THE COMPANY OR EXECUTIVE UPON TERMINATION.
a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH, OR DISABILITY. If
during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause, Death or
Disability, or the Executive shall terminate for Good Reason,
such termination, for purposes of this Section 4(a), shall
constitute separation from, and cessation of duties for, the
Company as of the Date of Termination. Under such
circumstances, the Company shall pay to the Executive the
following payments and benefits:
i) Bi-weekly salary continuation at the Executive's
Annual Base Salary as if the Executive had remained
employed through the end of the Employment Period;
ii) Medical and dental coverage continuation as if the
Executive had remained employed through the end of
the Employment Period at the Executive's benefit
level as of the Date of Termination;
iii) Life insurance coverage continuation, through the end
of the Employment Period at the Executive's benefit
level as of the Date of Termination;
iv) Outplacement services consistent with the Company's
outplacement policy, if any, for a person at the
Executive's job classification or position;
v) A payment on the last day of the Employment Period in
an amount equal to the sum of (A) the additional
contributions that would have been allocated to the
Executive's 401(k) account, if any, if the Executive
had remained employed through the end of the
Employment Period;
vi) Payment within 30 days of the Date of Termination of
all accrued vacation, holiday and personal leave days
as of the Date of Termination; and
vii) Payment of any unpaid incentive compensation that
Executive earned through the date of Termination in
accordance with the terms of any applicable incentive
compensation plan.
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The Company reserves the right to deduct from any applicable sum those
amounts required by law. Any money owed to the Company by Executive may
be deducted from the amounts payable pursuant to this Section 5(a). All
accruals of vacation, holiday and personal leave shall end on the Date
of Termination. The payments called for in this Section 5(a) shall be
in lieu of and discharge any obligations of the Company to Executive
for compensation, accrued vacation, accrued personal leave days,
accrued holidays, incentive compensation, car allowances, or any other
expectations or remuneration or benefit on the part of the Executive.
b) DEATH. If the Executive's employment is terminated by reason
of the Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive's legal representatives under this Agreement, other
than for payment of accrued obligations and the timely payment
or provision of other benefits under any plan, program, policy
or practice of TriZetto in accordance with the terms of such
plan, program, policy or practice (the "Other Benefits").
Accrued obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30
days of the Date of Termination.
c) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment
Period, this Agreement shall terminate without further
obligations to the Executive, other than for payment of
accrued obligations and the timely payment or provision of
Other Benefits. Accrued obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of
Termination.
d) CAUSE, OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Employment
Period, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay
to the Executive (i) his or her Annual Base Salary through the
Date of Termination, (ii) the amount of any compensation
previously deferred by the Executive, and (iii) Other
Benefits, in each case to the extent unpaid. If the Executive
voluntarily terminates employment during the Employment
Period, except a termination for Good Reason, this Agreement
shall terminate without further obligations to the Executive,
other than for accrued obligations and the timely payment or
provision of Other Benefits. In such case, all accrued
obligations shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination.
e) ACCELERATION OF OPTIONS. The Board has determined that a
Change of Control as defined herein will constitute a Change
in Control Event for purposes of Section 3.3.2 of the
Company's 1998 Plan. Therefore, if the Executive's employment
is terminated other than voluntarily, for Cause, Death or
Disability prior to the end of the Employment Period, then,
subject to Section 5 of this Agreement, all of the Executive's
outstanding options granted under the 1998 Plan which have not
otherwise become exercisable shall become immediately
exercisable on the Date of Termination, and all substantial
risks of forfeiture and restrictions on
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transfer relating to any of the Executive's shares of
restricted stock issued pursuant to the 1998 Plan shall be
terminated on the Date of Termination. For purposes of this
provision, any termination of the Executive's employment other
than voluntarily, or for Cause, Death or Disability shall be
deemed to be a termination for the convenience of the Board;
accordingly, any options granted to the Executive which are or
become exercisable as of the Date of Termination shall
terminate 90 days after the Date of Termination.
f) DUTY TO COOPERATE. During the Employment Period and
thereafter, Executive agrees to cooperate with and assist the
Company, upon reasonable notice, in the defense of any
litigation or governmental investigation arising from events
that occurred while Executive was employed by the Company.
Such cooperation and assistance shall include, but not be
limited to, the Executive's full participation in locating,
producing, collecting, analyzing and preparing documents and
other informational materials; in preparing for and
participating in depositions, hearings and trials; and in
responding to document production requests, interrogatories,
and other discovery. If it becomes necessary for Executive to
testify in any judicial or other administrative proceedings,
the Company shall reimburse Executive for any reasonable
travel expenses (including transportation, food and lodging),
which are incurred (or are to be incurred) in connection with
such testimony (including preparation therefore). The Company
shall not be required to pay Executive any additional
consideration, including but not limited to, consulting or
witness fees, in connection with any cooperation, assistance
or testimony required of or provided by Executive pursuant to
this Agreement. In addition, from the Date of Termination to
the end of the Employment Period, the Executive shall devote a
reasonable amount of time cooperating with and assisting the
Company in maintaining and improving its relationships with
its customers.
5) CERTAIN REDUCTIONS OF PAYMENTS BY THE COMPANY.
a) The payments (including for this purpose the value of the
acceleration described in Section 4(e) or elsewhere) made to
the Executive hereunder shall be subject to the provisions of
3.3.4 of the 1998 Plan.
b) All determinations required to be made under this Section 5 as
to whether a Payment or benefit would be deductible by the
Company shall be made by the Company's independent auditors
(the "Accounting Firm") which shall provide detailed
supporting information both to the Company and the Executive
within 30 business days following the Date of Termination or
such earlier time as is requested by the Company. The
Accounting Firm shall make a determination as to whether a
Disqualification would occur at least 10 days prior to a
Change of Control. Any such determination by the Accounting
Firm shall be binding upon the Company and the Executive.
c) In the event that any option which is outstanding on the
Executive's Date of Termination has not become exercisable
because of the application of
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this Section 5, such option shall become exercisable in such
manner and such times as the option would have become
exercisable if the Executive had not terminated employment,
and the portion of any such option which becomes exercisable
pursuant to this Section 5(c) shall remain exercisable until
the earlier of the date which is 90 days following the date on
which the option first becomes exercisable or the original
expiration date of the option.
6) NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or its Affiliates
and for which the Executive may qualify, nor, subject to Section 1(b),
shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or
its Affiliates. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or
any of its Affiliates at or subsequent to the Date of Termination shall
be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
7) FULL SETTLEMENT. Except as stated herein, the Company's obligation to
make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which
the Company may have against the Executive or others. In no event shall
the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and such amounts shall
not be reduced whether or not Executive obtains other employment.
8) CONFIDENTIAL INFORMATION. The Executive shall continue to be bound by
the Intellectual Property and Technical Information Agreement.
Following termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process,
communicate or divulge any confidential information to anyone other
than the Company and its Affiliates or others designated by the
Company.
9) SUCCESSORS.
a) This Agreement is personal to the Executive and may not be
assigned by the Executive without the prior written consent of
the Company, except by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and
be enforceable by the Executive's legal representatives.
b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
c) The Company will require any successor (whether direct or
indirect, by reason of purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company to assume
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expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
10) CERTAIN DEFINITIONS.
a) "AFFILIATES" shall mean any company controlled by, controlling
or under common control with the Company.
b) "BUSINESS COMBINATION" shall mean any reorganization, merger
or consolidation or sale or other disposition of all or
substantially all of the assets of the Company.
c) "CHANGE OF CONTROL" shall mean any of the following
occurrences:
i) The acquisition whether by Business Combination,
tender offer, or otherwise, of any individual, entity
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act (a "Person") of
beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 50% or
more of either: (A) the then outstanding shares of
common stock of the Company (the "Outstanding Common
Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Voting Securities"). For purposes of
this Agreement, the following acquisitions of
Outstanding Common Stock or Outstanding Voting
Securities shall not constitute a Change in Control:
(A) any acquisition by the Company, (B) any
acquisition by any employee benefit plan or related
trust sponsored or maintained by the Company or any
corporation controlled by the Company, or (C) any
acquisition by any corporation pursuant to a
transaction which complies with clauses (1), (2) and
(3) of subsection (iii) below.
ii) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the
Board; provided, however, that any individual
becoming a director subsequent to the date hereof
whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at
least a majority of the directors then comprising the
Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result
of an actual or threatened election contest with
respect to the election or removal of directors or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board; or
iii) Consummation of a Business Combination, unless
following such Business Combination, each of the
following conditions are met:
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(1) All or substantially all of the individuals
and entities who are the beneficial owners,
respectively, of the Outstanding Common
Stock and Outstanding Voting Securities
immediately prior to such Business
Combination beneficially own, directly or
indirectly, more than 50% of, respectively,
the then outstanding shares of common stock
and the combined voting power of the then
outstanding voting securities entitled to
vote generally in the election of directors,
as the case may be, of the corporation
resulting from such Business Combination
(including, without limitation, a
corporation which as a result of such
transaction owns the Company or all or
substantially all of the Company's assets
either directly or through one or more
subsidiaries) in substantially the same
proportions as their ownership, immediately
prior to such Business Combination of the
Outstanding Common Stock and Outstanding
Voting Securities, as the case may be;
(2) No Person (excluding any employee benefit
plan or related trust of the Company or such
corporation resulting from such Business
Combination) beneficially owns, directly or
indirectly, 50% or more of, respectively,
the then outstanding shares of common stock
of the corporation resulting from such
Business Combination or the combined voting
power of the then outstanding voting
securities of such corporation except to the
extent that such ownership existed prior to
the Business Combination;
(3) At least a majority of the members of the
Board of Directors of the corporation
resulting from such Business Combination
were members of the Incumbent Board at the
time of the execution of the initial
agreement, or of the action of the Board,
providing for such Business Combination.
iv) Approval of the stockholders of the Company of a
complete liquidation or dissolution of the Company.
d) "CHANGE OF CONTROL PERIOD" shall mean the period commencing on
the date hereof and ending on the second anniversary of the
date hereof.
e) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
f) "COMPANY" shall mean The TriZetto Group, Inc. and its
Affiliates. In addition to the foregoing definition, Company
shall also include any successor to the Company's business
and/or assets which assumes and agrees to perform this
Agreement by operation of law or otherwise.
g) "DATE OF TERMINATION" shall mean:
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i) if the Executive's employment is terminated by the
Company for Cause, or by the Executive for Good
Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as
the case may be; or
ii) if the Executive's employment is terminated by the
Company other than for Cause or Disability, the Date
of Termination shall be the date on which the Company
notifies the Executive of such termination; or
iii) if the Executive's employment is terminated by reason
of Death or Disability, the Date of Termination shall
be the date of Death or the Disability Effective
Date, as the case may be.
h) "DISABILITY" shall mean the absence of Executive from the
Executive's duties with the Company on a full-time basis for
180 consecutive business days as a result of incapacity due to
mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its
insurers and reasonably acceptable to the Executive or the
Executive's legal representative.
i) "EFFECTIVE DATE" shall mean the first date during the Change
of Control Period on which a Change of Control occurs.
Notwithstanding anything in this Agreement, if a Change of
Control occurs and if the Executive's employment with the
Company is terminated prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably
calculated to effect a Change of Control, or (ii) otherwise
arose in connection with or anticipation of a Change of
Control, then for all purposes of this Agreement, the
Effective Date shall mean the date immediately prior to the
date of such termination.
j) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
k) "NOTICE OF TERMINATION" shall mean a written notice which:
i) indicates the specific termination provision in this
Agreement relied upon;
ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment
under the provision so indicated; provided, however,
that the failure to set forth such information shall
not waive any right of the Executive or the Company
hereunder, or preclude either party from asserting
such fact or circumstance in enforcing their
respective rights hereunder; and
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iii) if the Date of Termination is other than the date of
receipt of such notice, specifies the termination
date, which shall not be more than 30 days after the
giving of such notice.
l) "1998 PLAN" shall mean the Company's 1998 Stock Incentive
Plan, as amended.
11) MISCELLANEOUS PROVISIONS.
a) GOVERNING LAW. Except for the determination of "Good Reason"
pursuant to Section 3(c)(ii), this Agreement will be governed
by, and construed and enforced in accordance with the laws of
the State of Delaware as applied to contracts that are
executed and performed in Delaware, without regard to the
principles of conflicts of law thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting in Orange County, California, for
the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any
such court, that such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party
at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
b) NOTICES. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified; (b) when sent
by confirmed facsimile if sent during normal business hours of
the recipient, if not, then on the next business day; (c) five
days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (d) two days
after deposit with a nationally recognized overnight courier,
specifying two day delivery, with written verification of
receipt. All communications shall be sent to the parties at
the following addresses or facsimile numbers specified below
(or at such other address or facsimile number for a party as
shall be designated by ten days advance written notice to the
other parties hereto):
If to TriZetto:
The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Ph: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxx.xxxxxxxx@xxxxxxxx.xxx
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If to Executive:
____________________________
____________________________
____________________________
Ph: ___________________
Fax: ___________________
E-mail: ___________________
c) AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto, or their
respective successors and legal representatives.
d) HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
e) SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule
of law, or public policy, all other conditions and provisions
of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of
the parties as closely as possible, in an acceptable manner,
to the end that transactions contemplated hereby are fulfilled
to the extent possible.
f) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings
(other than the Executive's Intellectual Property and
Technical Information Agreement and Stock Option Agreement)
both oral and written, among the parties, or any of them, with
respect to the subject matter hereof and, except as otherwise
expressly provided herein.
g) WITHHOLDINGS. The Company may withhold from any amounts
payable hereunder, such Federal, state, local or foreign taxes
as shall be required to be withheld pursuant to any applicable
law or regulation.
h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall
constitute one and the same agreement. This Agreement shall
become effective when
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counterparts have been signed by each of the parties and
delivered by facsimile or other means to the other party.
i) FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the
part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any obligation or
agreement herein, nor shall any single or partial exercise of
any such right preclude other or further exercise thereof or
of any other right.
IN WITNESS WHEREOF, the parties have caused this Change of Control
Agreement to be executed as of the date first written above.
THE TRIZETTO GROUP, INC
By: ____________________________
Name: ____________________________
Title: ____________________________
EXECUTIVE
By: ____________________________
Name: ____________________________
Title: ____________________________
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