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EXHIBIT 10.40
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT (this "Agreement") is entered into
as of the ___________ day of ___________ , _ _, by and between RightCHOICE
Managed Care, Inc., a Delaware corporation ("RightCHOICE"), and ________ (the
"Executive").
W I T N E S S E T H:
WHEREAS, RightCHOICE has engaged the services of Executive as an
"at-will" employee of RightCHOICE; and
WHEREAS, RightCHOICE and Executive have entered into an Officer
Severance Agreement dated __ , _ (the "Officer Agreement") under which, as a
condition of Executive's employment, Executive has agreed to be bound by certain
covenants set forth in the Officer Agreement and RightCHOICE has agreed to
provide Executive certain severance benefits upon the terms and conditions set
forth in the Officer Agreement;
WHEREAS, the Compensation Committee of RightCHOICE's Board of Directors
believes that the concerns applicable to senior executives when certain
corporate events occur are such that, in order to facilitate senior executives'
focusing on management issues in a manner that best serves the interests of all
stakeholders, such executives of RightCHOICE should have the protections set
forth herein in the event that a Change of Control (as defined herein) occurs.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound, the parties hereto do hereby agree
as follows:
SECTION 1
TERM OF AGREEMENT
This Agreement shall be effective as of the date first written above
and shall continue in effect until terminated in accordance with the provisions
of Section 5 hereof.
SECTION 2
DEFINITIONS
The following definitions shall apply for purposes of this Agreement:
A. Affiliate. "Affiliate" shall have the same meaning as it is given in
the Officer Agreement.
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B. Annual Compensation. "Annual Compensation" shall mean the highest
aggregate amount of the following items of compensation paid in cash (or which
would have been paid in cash if they were not deferred pursuant to any qualified
or nonqualified deferred compensation arrangement or contributed to a welfare
benefit plan pursuant to an election under a cafeteria plan) to Executive by
Company during a calendar year which is in the most recent
five-consecutive-calendar-year period (or such shorter period of consecutive
calendar years during which Executive has been employed by Company) ending on or
before the date of a Change of Control:
(i) base salary; and
(ii) payments under any of the following incentive
programs:
- Management Incentive Plan (MIP);
- ABCBS Incentive Plan (AIP);
- Sign-On Bonus;
- Sales Incentive Plan; and
- payments under any other incentive
programs to the extent that the
Compensation Committee of the
RightCHOICE Managed Care, Inc.
Board of Directors specifically
approves payments under such
incentive programs for inclusion in
Annual Compensation for purposes of
this Agreement.
For purposes of clarity and without limiting the generality of the foregoing
definition, no amounts paid to Executive pursuant to any qualified or
nonqualified deferred compensation arrangement, any cafeteria plan or any other
benefit plan qualify for inclusion in Annual Compensation, regardless of the
source of any such amounts, and no award of stock options, restricted stock or
other rights under the 1994 Equity Incentive Plan, the 2001 Stock Incentive
Plan, or any other Stock Incentive Plan, nor any amounts received or income
recognized in connection with receipt of any such award or exercise of any
rights under any such award, shall be included in Annual Compensation.
C. Base Pay. "Base Pay" shall have the same meaning as that term is
given under the Officer Agreement.
D. Cause. "Cause" shall have the same meaning as that term is given
under the Officer Agreement.
E. Change of Control. A "Change of Control" of Company shall be deemed
to have occurred upon the happening of any of the following events:
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(i) the acquisition, other than from Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"))
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either the then outstanding
shares of Common Stock of Company or the combined voting power of the
then outstanding voting securities of Company entitled to vote
generally in the election of directors, but excluding, for this
purpose, any such acquisition by (A) Company or any of its
Subsidiaries, or (B) any employee benefit plan (or related trust) of
Company or its Subsidiaries, or (C) any corporation with respect to
which, following such acquisition, more than 60% of, respectively, the
then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Common Stock and voting
securities of Company immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior
to such acquisition, of the then outstanding shares of Common Stock of
Company or the combined voting power of the then outstanding voting
securities of Company entitled to vote generally in the election of
directors, as the case may be;
(ii) individuals who, as of the date hereof, constitute the
Board (as of the date hereof the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by 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 is
in connection with an actual or threatened election contest relating to
the election of the directors of Company (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act);
(iii) consummation of (a) a reorganization, merger or
consolidation of Company, in each case, with respect to which all or
substantially all of the individuals and entities who were the
respective beneficial owners of the Common Stock and voting securities
of Company immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 60%
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 reorganization, merger
or consolidation or (b) the sale, lease, exchange, or other disposition
of all or substantially all of the assets of Company to any other
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corporation or entity (except a subsidiary or parent corporation as
defined in Section 424 of the Code); or
(iv) approval by the stockholders of Company of a complete
liquidation or dissolution of Company; or
(v) Company ceases to have its Common Stock listed on a
nationally recognized stock exchange or quoted on the Nasdaq National
Market (or any successor quotation system) for any reason other than
the price of the Company's Common Stock or the Company's market
capitalization.
As used in this definition of Change of Control, (i) the term "Board" means the
Board of Directors of Company, (ii) "Common Stock" means the common stock, $0.01
par value per share of Company, and (iii) "Subsidiary" means any corporation or
other entity, whether domestic or foreign, in which Company has or obtains,
directly or indirectly, a proprietary interest of 50% or more by reason of stock
ownership or otherwise.
F. Code. "Code" shall have the same meaning as that term is given under
the Officer Agreement.
G. Company. "Company" shall mean RightCHOICE, except that, if any
person or entity other than RightCHOICE employs Executive and is obligated by
agreement, operation of law or otherwise to abide by and be bound by the
provisions of this Agreement, then "Company" shall mean that person or entity;
provided, however, that the substitution of another person or entity as
"Company" under this Agreement shall not be construed as removing from, or
eliminating with respect to, RightCHOICE or any other person or entity that
subsequently employs Executive and becomes bound by the provisions of this
Agreement, any of the protections, rights and remedies accruing to the "Company"
under the provisions of Section 4 of this Agreement. Notwithstanding the
foregoing, for purposes of the definition of "Change of Control" as used herein,
the term "Company" shall refer only to RightCHOICE and its successors.
H. Date of Termination. "Date of Termination" shall mean the effective
date of Executive's termination of employment with Company. If Executive
delivers a Notice of Termination hereunder to Company, then the Date of
Termination shall be thirty (30) days following the date such Notice of
Termination is delivered or mailed to Company in accordance with Section 6(B)
hereof; provided, however, that in such event Company shall have the right to
accelerate such Date of Termination by written notice of such acceleration
delivered or mailed to Executive in accordance with Section 6(B) hereof. If
Company delivers or mails a Notice of Termination hereunder to Executive in
accordance with Section 6(B) hereof, then the Date of Termination shall be the
date specified by Company in such Notice of Termination.
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I. Designated Beneficiary. "Designated Beneficiary" shall mean the
beneficiary designated by Executive in accordance with the Officer Agreement.
J. Disabled. "Disabled" shall have the same meaning as that term is
given under the Officer Agreement.
K. Employee Statement. "Employee Statement" shall have the same meaning
as that term is given under the Officer Agreement.
L. Executive Severance Benefits. "Executive Severance Benefits" shall
mean the benefits described in Section 3(B) hereof.
M. Good Reason. "Good Reason" shall mean the occurrence, without the
written consent of Executive and within twenty-four (24) months following a
Change of Control, of any one or more of the following events (provided,
however, that none of the following events shall constitute Good Reason if at
the time of the occurrence of such event, or during the three-month period prior
to such occurrence, there is Cause):
(i) the assignment to Executive of any
duties or responsibilities inconsistent with Executive's
status as a senior executive (that is, an executive holding
the position of Senior Vice President or above) of Company or
a substantial adverse alteration in the nature or status of
Executive's responsibilities, job title or position from those
in effect immediately prior to the Change of Control;
(ii) a reduction by Company in the annual
base salary that was applicable to Executive immediately prior
to the Change of Control, a change to the short-term bonus
formula that was applicable to Executive immediately prior to
the Change of Control that reduces the amount payable at
target level of performance, or a change to the long-term
incentive formula that was applicable to Executive immediately
prior to the Change of Control that reduces the stock options
(or other award) at target level of performance;
(iii) the relocation of Executive's
principal place of performing his duties as an employee of
Company to a location in excess of seventy-five (75) miles
from the location that was, immediately prior to the Change of
Control, Executive's principal place of performing his duties
as an employee of Company;
(iv) a material reduction in the benefits
and perquisites provided to Executive by Company or which
Executive was eligible to receive from Company immediately
prior to the Change of Control; or
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(v) Company's terminating this Agreement in
violation of Section 5 hereof.
N. Good Reason Termination. "Good Reason Termination" shall mean
Executive's terminating employment with Company following the occurrence of an
event constituting Good Reason, but only if:
(i) Executive, within sixty (60) days after being
notified of or becoming aware of such event, objects to such event by
delivering Notice of Termination to Company in accordance with Section
6(B) hereof;
(ii) Company, having received Notice of Termination
pursuant to Section 2(N)(i), does not reverse the action or otherwise
remedy the situation cited in the Notice of Termination as constituting
Good Reason within ten (10) days after receiving such Notice of
Termination; and
(iii) Executive terminates employment within three
(3) months after being notified of or becoming aware of the occurrence
of the event cited as constituting Good Reason in the Notice of
Termination.
O. Involuntary Termination. "Involuntary Termination" shall mean the
termination of Executive's employment by action of Company within twenty-four
(24) months following a Change of Control for any reason other than Cause;
provided, however, that the termination of Executive's employment by Company
shall not be an Involuntary Termination if, immediately following such
termination of employment, Executive is employed by another employer that is to
abide by the provisions of this Agreement as described in Section 2(G) hereof.
P. Notice of Termination. "Notice of Termination" shall mean:
(i) a notice from Executive to Company advising
Company of Executive's decision to terminate Executive's employment; or
(ii) a notice from Company to Executive advising
Executive of Company's decision to terminate Executive's employment.
A Notice of Termination shall be delivered or mailed in accordance with Section
6(B) hereof. If a Notice of Termination is from Executive to Company and if
Executive believes such termination is for Good Reason, then such Notice of
Termination shall specify that such termination is a termination for Good
Reason, the event(s) which Executive believes constitute Good Reason and the
facts and circumstances supporting such belief of Executive. If a Notice of
Termination is
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from Company to Executive and if Company believes such termination is for Cause,
then such Notice of Termination shall specify that such termination is for Cause
and shall set forth in reasonable detail the facts and circumstances supporting
such belief of Company.
Q. Standard Severance Benefits. "Standard Severance Benefits" shall
mean the benefits described in Section 3(A) of the Officer Agreement.
SECTION 3
SEVERANCE BENEFITS
A. Standard Severance Benefits. No benefits shall be payable to
Executive under this Agreement unless and until all conditions specified herein
are met, including, without limitation, the occurrence of a Change of Control
with the necessary subsequent effect on Executive's employment. Prior to the
occurrence of a Change of Control, any severance benefits due to Executive upon
termination of employment with Company will be determined solely under the
Officer Agreement. Executive agrees that, if at any time Executive qualifies for
benefits under this Agreement, the Officer Agreement will terminate
automatically and the terms of the Officer Agreement will be given no further
effect whatsoever (except to the extent such terms are incorporated herein or
items in this Agreement are determined with reference to such terms), Executive
will have no rights whatsoever arising under or in connection with the Officer
Agreement, no payment of any benefits provided for in the Officer Agreement will
be made to Executive and this Agreement will constitute the sole and exclusive
authority for payment of severance benefits to Executive. Regardless of anything
to the contrary in the preceding sentence, if at any time Executive begins
receiving Standard Severance Benefits, this Agreement will terminate
automatically and its terms will be given no further effect whatsoever,
Executive will have no rights whatsoever arising under or in connection with
this Agreement, no payment of any benefits provided for herein will be made to
Executive and the Officer Agreement will constitute the sole and exclusive
authority of payment of severance benefits to Executive.
B. Executive Severance Benefits. Subject to Sections 3(C), 3(D), 3(E)
and 4(D)(ii) hereof, in the event of Executive's Involuntary Termination or Good
Reason Termination, Company shall (a) pay for outplacement services for
Executive of the type customarily provided by Company to senior executives at
the time of Executive's Involuntary Termination or Good Reason Termination; (b)
during the thirty (30) months starting on Date of Termination, continue to
provide executive life insurance that is equivalent to the coverage that Company
provides on behalf of similarly situated executives employed by Company; and (c)
shall pay executive an amount equal to the greater of:
(i) two (2) times Executive's Annual Compensation; or
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(ii) (x) three (3) times Executive's Base Pay, plus, (y)
for a period of thirty (30) months starting on the
Date of Termination, an amount equal to the portion
of the premiums (to the extent such premiums are due)
for Executive's health, dental, and vision that is
equivalent to the portion of the premiums for such
coverages that Company pays on behalf of similarly
situated executives employed by Company during such
thirty (30) month period.
Such Executive Severance Benefits will commence as soon as practicable following
the Date of Termination, and (1) in the case of Executive Severance Benefits
under Section 3(B)(c)(i) above, will be paid in twenty-four (24) substantially
equal monthly installments, or (ii) in the case of Executive Severance Benefits
under Section 3(B)(c)(ii)(x) above, in thirty-six (36) substantially equal
monthly installments and, in the case of Executive Severance Benefits under
Section 3(B)(c)(ii)(y) above, in thirty (30) substantially equal monthly
installments. Company's obligation to pay the amounts specified in Section
3(B)(c)(ii)(y) above shall be reduced by any and all amounts Company pays toward
Executive's health, dental and vision with respect to periods after the Date of
Termination.
C. Suspension or Termination of Severance Benefits: Nonentitlement.
(i) Dispute. If at any time a party to this Agreement
notifies the other party pursuant to Section 6(B) hereof that one party
disputes the position of the other party with respect to any provision
of this Agreement, then Company may at any time elect to suspend some
or all payments hereunder with respect to Executive (or elect not to
commence such payments if payments have not yet commenced) until such
dispute is finally resolved either by mutual written agreement of the
parties or a binding arbitration award pursuant to Section 6(H) hereof.
If pursuant to such resolution of the dispute, retroactive payments are
to be made to Executive or payments representing reimbursements are to
be made to Company, then unless otherwise provided under such
resolution, such payments shall bear interest at the rate provided in
Section 1274(d)(2)(B) of the Code commencing at the time such payments
would have been made absent dispute (in the case of retroactive
payments) or commencing at the time such payments were made (in the
case of reimbursements).
(ii) Subsequent Employment. If at any time while
Executive is entitled to Executive Severance Benefits hereunder,
Executive is employed (including employment by Company or an Affiliate
of Company, employment by any other employer or any form of
self-employment) then (a) Company may in its discretion at any time
following the date of commencement of such employment, pay to Executive
the aggregate remaining amounts to be paid to Executive under Section
3(B)(c)(i) or 3(B)(c)(ii)(x) hereof in a lump sum; and (b) payments for
outplacement services under Section 3(B)(a) and
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payments under Section 3(B)(c)(ii)(y) hereof shall cease as of the date
of commencement of such employment, but if payments for outplacement
services under Section 3(B)(a) and/or payments under Section
3(B)(c)(ii)(y) are made by Company subsequent to such date then Company
may withhold the amount of any such payments from the amount otherwise
to be paid pursuant to Section 3(B)(c)(ii)(x) hereof, and Executive
shall pay to Company on demand any such excess amount not so withheld,
with such excess amount to bear interest at the rate provided in
Section 1274(d)(2)(B) of the Code commencing thirty (30) days after
such demand.
(iii) Disability. If Executive is Disabled during any
period while Executive is entitled to Executive Severance Benefits
hereunder, then, during any such period that Executive is Disabled, any
amounts payable under Section 3(B) hereof during such period shall be
reduced (but not to less than zero) by the amounts paid or to be paid
with respect to such period to Executive pursuant to any long-term
disability plan maintained by Company.
(iv) Death. If Executive dies during any period while
Executive is entitled to Executive Severance Benefits hereunder, then a
lump sum amount equal to the total remaining amounts payable to
Executive at the time of Executive's death under Section 3(B) hereof
shall be paid to Executive's Designated Beneficiary; provided, however,
that such lump sum amount shall be reduced, but not to less than zero,
by any amounts payable on account of Executive's death to any
beneficiary designated by Executive other than Company under any
Company life insurance program.
(v) Criminal Charges. If at any time after Executive
Severance Benefits become payable hereunder and prior to the completion
of the payment of such benefits Executive is charged with a felony, or
other crime involving moral turpitude, which crime relates to
activities of Executive occurring during the period Executive was
employed by Company or its predecessor(s) under this Agreement, then
Company may suspend such payments until such criminal charge is
resolved. Company shall resume payments and make any retroactive
payments (with interest on such retroactive payments at the rate
provided in Section 1274(d)(2)(B) of the Code) commencing at the time
such payments would have been made absent suspension under this Section
3(C)(v) after such criminal charge is resolved; provided, however, that
such payments shall cease and no further payments shall be made at any
time Executive is convicted of, or enters a guilty plea to, such crime
by or before a court of competent jurisdiction.
D. Code Limitations on Benefits. In the event that the aggregate of any
amounts payable to or on behalf of Executive under this Agreement and under any
other plan, agreement or policy of Company or any Affiliate of Company would
otherwise result in the imposition of tax under Section 4999 of the Code due to
an excess parachute payment, as determined by
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Company's independent auditors, then the amounts payable to or on behalf of
Executive under this Agreement shall be reduced to the extent necessary (but not
below zero) so that such aggregate amounts shall not be a parachute payment. For
purposes of determining any limitation under this Section 3(D): (a) no portion
of any benefit the receipt or enjoyment of which Executive shall have
effectively waived in writing shall be taken into account, and (b) the value of
any non-cash benefit or any deferred payment or benefit shall be determined by
Company's independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code. If Company's independent auditors determine that
payment that would be a parachute payment has been made to Executive hereunder,
then the excess of (a) the amount of such payment actually made hereunder over
(b) the amount that could be paid hereunder without any amount payable hereunder
being a parachute payment, shall constitute a loan by Company to Executive,
payable to Company upon demand with interest at the rate provided in Section
1274(d)(2)(B) of the Code commencing as of the date or dates of payment by
Company of such excess amount.
E. General Waiver and Release. Notwithstanding any provision to the
contrary in this Agreement, Executive acknowledges that in addition to other
conditions set forth in this Agreement, Executive Severance Benefits shall be
conditioned upon the prior execution by Executive of a general waiver and
release (hereinafter referred to as "Waiver") as described in this Section 3(E),
and Executive shall not be eligible for Executive Severance Benefits unless and
until Executive has executed the Waiver within twenty-one (21) days following
the later of Executive's termination of employment. The Waiver shall be
substantially in the form attached hereto as Exhibit A and shall generally waive
all claims Executive has or may have against Company or an Affiliate of Company,
and any successors or predecessors thereto, and shall release Company and all
Affiliates of Company, and any successors and predecessors thereto, from all
liability with respect to any such claims; provided, however, that Executive
shall not waive, and there shall be no release with respect to, any claim (other
than a claim disputing the validity of this Section 3(E) or the Waiver) of
Executive to enforce any one or more of the provisions of this Agreement. The
foregoing notwithstanding, the Waiver attached hereto as Exhibit A may be
modified by Company at any time during the term of this Agreement.
SECTION 4
EXECUTIVE'S COVENANTS
A. Employee Statement. Executive agrees to abide by the Employee
Statement (including, but not limited to, the Company Statement of Corporate
Ethics).
B. Covenant Not To Disclose. Executive acknowledges that during the
course of Executive's employment with Company, Executive has or will have access
to and knowledge of certain information and data which Company considers
confidential, and that the release of such information or data to unauthorized
persons could be detrimental to Company or an Affiliate of
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Company. As a consequence, Executive hereby agrees and acknowledges that
Executive owes a duty to Company not to disclose, and agrees that, during and
after the term of Executive's employment, Executive will not communicate,
publish or disclose to any person anywhere or use any Confidential Information
(as defined below) for any purpose except in accordance with the prior written
consent of Company, where necessary or appropriate to carry out Executive's
duties as an employee of Company, or as required by law or legal process.
Executive will use Executive's best efforts at all times to hold in confidence
and to safeguard any Confidential Information from becoming known by any
unauthorized person and, in particular, will not permit any Confidential
Information to be read, duplicated or copied except in accordance with the prior
written consent of Company, where necessary or appropriate to carry out
Executive's duties as an employee of Company, or as may be required by law or
legal process. Executive will return to Company all Confidential Information in
Executive's possession or under Executive's control when the duties of Executive
as an employee of Company no longer require Executive's possession thereof, or
whenever Company shall so request, and, in any event, will promptly return all
such Confidential Information if Executive's employment with Company terminates
and will not retain any copies thereof. For the purpose of this Agreement,
"Confidential Information" shall mean any information or data used by or
belonging or relating to Company or an Affiliate of Company which, if disclosed,
could be detrimental to Company or an its Affiliate, including, but not limited
to, any such information relating to Company's, or its Affiliate's, members or
insureds, trade secrets, proprietary data and information relating to Company's,
or its Affiliate's, past, present or future business, price lists, client lists,
processes, procedures or standards, know-how, manuals, business strategies,
records, drawings, specifications, designs, financial information, whether or
not reduced to writing, or any other information or data which Company advises
Executive is Confidential Information.
C. Covenant Not to Compete.
(i) Executive agrees that during the term of
Executive's employment by Company and for a period consisting of the
greater of: (i) the period over which any Executive Severance Benefits
are to be paid under this Agreement (whether or not payment is
accelerated hereunder), or (ii) one year from and after the termination
of Executive's employment (such term of employment and applicable
subsequent period are referred to collectively herein as the
"Noncompetition Period"), Executive will not directly or indirectly,
without the express prior written consent of Company:
(a) own or have any interest in or
act as an officer, director, partner, principal, employee,
agent, representative, consultant to or independent contractor
of, any person, firm, corporation, partnership, business
trust, limited liability company or any other entity or
business located in or doing business in Company's geographic
market which during the Noncompetition Period is engaged in
competition in any substantial manner with Company or an
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Affiliate of Company, provided Executive in any such capacity
directly or indirectly performs services in an aspect of such
business which is competitive with Company or an Affiliate of
Company;
(b) divert or attempt to divert
clients, customers or accounts of Company which are clients,
customers or accounts during the Noncompetition Period; or
(c) hire, or attempt to solicit to
hire, for any other person, firm, company, corporation,
partnership, business trust, limited liability company or any
other entity, whether or not owned (in whole or in part) by
Executive, any current employee of Company as of the time of
such hire (or attempt to solicit to hire) or former employee
of Company who has been employed by Company within the twelve
(12) month period immediately preceding the date of such hire
or attempt to solicit to hire.
(ii) With respect to Executive's obligations under
this Section 4(C), Executive acknowledges that Company's geographic
market is: (a) the State of Missouri; and (b) a seventy-five (75) mile
radius surrounding each of St. Louis, Missouri and Kansas City,
Missouri.
(iii) The restrictions contained in this Section 4(C)
are considered by the parties hereto to be fair, reasonable and
necessary for the protection of the legitimate business interests of
Company.
(iv) Executive acknowledges that Executive's
experience and capabilities are such that, notwithstanding the
restrictions imposed in this Section 4(C), he believes that he can
obtain employment reasonably equivalent to his position with Company,
and an injunction against any violation of the provisions of this
Section 4(C) will not prevent Executive from earning a livelihood
reasonably equivalent to that provided through his position with
Company.
D. Certain Remedies.
(i) Recognizing that irreparable injury will result
to Company in the event of the breach or threatened breach of any of
the foregoing covenants and assurances by Executive contained in this
Section 4, and that Company's remedies at law for any such breach or
threatened breach will be inadequate, if after written notice of breach
delivered or mailed to Executive in accordance with Section 6(B) hereof
Executive takes no satisfactory action to remedy such breach and abide
by this Agreement, or absent such notice in the event such breach
cannot be remedied, then Company, in addition to such
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other rights or remedies which may be available to it (including,
without limitation, recovery of monetary damages from Executive), shall
be entitled to an injunction, including a mandatory injunction, to be
issued by any court of competent jurisdiction ordering compliance with
this Agreement or enjoining and restraining Executive, and each and
every person, firm or company acting in concert or participation with
Executive, from the continuation of such breach and, in addition
thereto, Executive shall pay to Company all ascertainable damages,
including costs and reasonable attorneys' fees, sustained by Company by
reason of the breach or threatened breach of said covenants and
assurances.
(ii) In addition to the remedies described in Section
4(D)(i), in the event of a material breach of this Agreement by
Executive Company shall no longer be obligated to pay any benefits to
Executive under this Agreement.
(iii) The covenants and obligations of Executive
under this Section 4 are each independent covenants and are in addition
to and not in lieu of or exclusive of any other obligations and duties
of Executive to Company, whether express or implied in fact or in law.
SECTION 5
AMENDMENT OR TERMINATION OF AGREEMENT
Company may terminate this Agreement effective as of any date by giving
Executive, in accordance with Section 6(B) hereof, at least one hundred eighty
(180) days' prior written notice of such termination of this Agreement,
specifying the effective date of such termination; provided, however, that
Company may not terminate this Agreement within twenty-four (24) months
following a Change of Control, even if notice of termination of this Agreement
was given prior to such Change of Control. No notice of termination of this
Agreement shall be given any effect whatsoever, and Executive's and Company's
obligations under this Agreement shall continue as if such notice of termination
had not been given, in the event that, while this Agreement remains in effect
during the notice period, a Change of Control occurs and/or Executive incurs
termination for Cause, Involuntary Termination or Proper Reason Termination.
Regardless of anything to the contrary in this Agreement, no termination of this
Agreement shall terminate Executive's obligations under Sections 4(A) and (B) of
this Agreement. Company and Executive may amend this Agreement at any time by
written instrument signed by Company and Executive.
SECTION 6
MISCELLANEOUS
A. Employment. This Agreement does not, and shall not be construed to,
give Executive any right to be retained in the employ of Company, and no rights
granted under this
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Agreement shall be construed as creating a contract of employment. The right and
power of Company to dismiss or discharge Executive "at will" is expressly
reserved.
B. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Company:
Human Resources Department
Attention: Vice President of Human Resources
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
If to Executive:
Last known address shown on records of Company
or to such other address as either party may have furnished to the other in
writing, except that notice of change of address shall be effective only upon
receipt.
C. Entire Agreement. This Agreement cancels and supersedes all previous
and contemporaneous agreements (other than the Officer Agreement) relating to
the subject matter of this Agreement, written or oral, between the parties
hereto (including the Prior Agreement (as defined below)) and contains the
entire understanding of the parties hereto and shall not be amended, modified or
supplemented in any manner whatsoever except as otherwise provided herein. The
term "Prior Agreement" means that certain Executive Severance Agreement, dated
_________, ____, between Executive and RightCHOICE Managed Care, Inc., a
Missouri corporation ("Old RightCHOICE").
D. Effect of 2000 Reorganization. Company and Executive acknowledge and
agree that the reorganization of RightCHOICE's predecessor, Old RightCHOICE, on
November 30, 2000, constituted a "Change in Control" under the Prior Agreement
and shall, anything to the contrary in this Agreement notwithstanding,
constitute a "Change of Control" under this Agreement. Company and Executive
also acknowledge and agree that, as a result of the occurrence of the Change of
Control, in the event of Executive's Involuntary Termination or Good Reason
Termination prior to November 30, 2002, Executive shall, subject to the terms
and conditions hereof, be entitled to the severance benefits and payments
described in this Agreement, and Executive shall not be entitled to any
severance benefits or other payments under the Prior Agreement (which has been
cancelled and superseded by this Agreement). Company and
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Executive further acknowledge and agree that the prior occurrence of a Change of
Control under this Agreement on November 30, 2000 shall not be deemed to limit
additional future Changes of Control under this Agreement.
E. Captions. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
otherwise modify any of the terms or provisions hereof.
F. Governing Law. This Agreement and all rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Missouri without regard to that
state's choice of law provisions.
G. Assignment. This Agreement is personal and not assignable by
Executive, but it may be assigned by Company, without notice to or consent of
Executive, to any assignee provided such assignee agrees to abide by and be
bound by the provisions of this Agreement and this Agreement shall thereafter be
enforceable by such assignee. During Executive's lifetime this Agreement and all
rights and obligations of Executive hereunder shall be enforceable by and
binding upon Executive's guardian or other legal representative in the event
Executive is unable to act on his own behalf for any reason whatsoever, and upon
Executive's death this Agreement and all rights and obligations of Executive
hereunder shall inure to the benefit of and be enforceable by and binding upon
Executive's Designated Beneficiary.
H. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
I. Binding Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration in St. Louis, Missouri, in accordance with the rules of the American
Arbitration Association then in effect; provided, however, that, regardless of
anything to the contrary in the rules of the American Arbitration Association,
the arbitrator shall have authority to review all findings of fact,
determinations of benefits and interpretations of this Agreement made by Company
and to overturn same, and substitute a different finding of fact, determination
of benefits or interpretation of this Agreement therefor, if the arbitrator
determines, based on the record in such arbitration and such other factors as he
determines are relevant, that he would have made a different finding of fact,
determination of benefits or interpretation of this Agreement than Company made
in any particular instance. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
J. Invalidity of Provisions. In the event that any provision of this
Agreement is adjudicated to be invalid or unenforceable under applicable law,
the validity or enforceability of
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the remaining provisions shall be unaffected. To the extent that any provision
of this Agreement is adjudicated to be invalid or unenforceable because it is
overbroad, that provision shall not be void but rather shall be limited only to
the extent required by applicable law and shall be enforced as so limited.
K. Waiver of Breach. Failure of Company to demand strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of that term, covenant or condition, nor shall any waiver or
relinquishment by Company of any right or power hereunder at any one time or
more times be deemed a waiver or relinquishment of that right or power at any
other time or times.
L. Pronouns. Pronouns in this Agreement used in the masculine gender
shall also include the feminine gender.
M. Withholding of Taxes. Company shall cause taxes to be withheld from
amounts paid pursuant to this Agreement as required by law, and to the extent
deemed necessary by Company may withhold from amounts payable to Executive by
Company outside of this Agreement amounts equal to any taxes required to be
withheld from payments made pursuant to this Agreement, unless Executive has
previously remitted the amount of such taxes to Company.
N. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of any successors and/or assigns of Company.
O. Legal Expenses. Company shall reimburse Executive for all reasonable
legal and other fees and expenses incurred to secure, preserve or establish
entitlement to severance benefits under this Agreement. Company shall reimburse
Executive for such fees and expenses on a monthly basis within ten (10) days
after Executive's request for reimbursement accompanied by evidence that the
fees and expenses were incurred. Company's reimbursement shall include a tax
gross-up payment in respect of the federal, state and local taxes incurred by
Executive with respect to the reimbursement of fees and expenses received under
this Section 6(O).
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
IN WITNESS WHEREOF, Company has caused this Agreement to be duly executed in
duplicate, and Executive has hereunto set his hand, on the day and year first
above written.
RIGHTCHOICE MANAGED CARE, INC.
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By
---------------------------------
Title
------------------------------
Subscribed and sworn to before me, a Notary Public,
this day of , .
---------- --------- -----
-------------------------------------
Notary Public
My Commission Expires:
----------------------------
----------------------------------
EXECUTIVE
Subscribed and sworn to before me, a Notary Public,
this day of , .
--------- --------- -----
------------------------------------
Notary Public
My Commission Expires:
----------------------------
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EXHIBIT A
GENERAL WAIVER AND RELEASE AGREEMENT
This General Waiver and Release Agreement ("Agreement") is made and
entered into by and among ________________ (hereinafter, "Officer") and
RightCHOICE Managed Care, Inc. (which is an independent licensee of the Blue
Cross and Blue Shield Association). (RightCHOICE Managed Care, Inc. and its
affiliates and subsidiaries are referred to, collectively and/or individually,
as appropriate in the context, as the "Company").
WHEREAS, Officer's active employment ended on ___/___/___; and
WHEREAS, Officer and the Company on ___/___/___ entered into an Officer
Severance Agreement (attached at Tab A) and Executive Severance Agreement
(attached at Tab B) (collectively, "Severance Agreement"); and Officer wants to
begin receiving benefits under the Severance Agreement; and
WHEREAS, among other conditions, the Severance Agreement specifically
requires Officer to execute a Waiver in order to receive such benefits; and
WHEREAS, Officer and the Company wish to resolve all matters and
disputes between and among them related to the employment of Officer and his/her
separation from employment;
NOW THEREFORE, for and in consideration of the covenants and
understandings set forth herein, and for other good and valuable consideration,
which each party hereby acknowledges, it is agreed as follows:
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1. Termination. Officer's termination of employment with the
Company qualifies as [describe applicable type of termination] within
the meaning of the Severance Agreement. Officer agrees that he/she will
not apply for rehire or otherwise seek reinstatement at the Company,
its subsidiaries or affiliates. Officer expressly waives any
requirement of a Notice of Termination or any other notice or process,
if any, as may be required under the Severance Agreement. The parties
agree that Officer's last day of active employment with the Company is
________ ("last day of active employment").
2. Compensation and Benefits. [To be completed based upon type of termination.]
3. Non-Competition and Non-Disclosure Restrictions. Officer and the Company
acknowledge that a non-competition restriction contained in Section 4 of the
Officer Severance Agreement (attached at Tab A) and Executive Agreement
(attached at Tab B), characterized as a "Covenant Not to Compete," is
incorporated by reference herein and is reaffirmed by this Agreement and
shall be in full force and effect for a period of ________ months,
commencing on the effective date of this Agreement. Officer also reaffirms
and agrees to abide by the non-disclosure provisions, characterized as a
"Covenant Not to Disclose," contained in Section 4 of the aforementioned
Officer Severance Agreement and Executive Agreement and incorporated by
reference herein. Officer recognizes and agrees that a substantial part of
the consideration identified in Paragraph 2 of this Agreement is
consideration for Officer's agreement to abide by the non-competition and
non-disclosure restrictions identified in this Paragraph 3. Further,
pursuant to Section 4(B) of the Severance Agreement, Officer will promptly
return to the Company all Confidential Information (as that term is defined
in the Severance Agreement) in Officer's possession and will not retain any
copies thereof.
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4. Non-Disparagement. Officer agrees that he/she will not make
derogatory or negative comments, whether true or false, pertaining to
the Company or any of its subsidiaries or other affiliated entities, or
their respective current or former officers, directors and/or
employees. Officer further agrees that he/she will not make or cause to
be made any comments, statements or the like to the media or to others
that may be considered to be derogatory or detrimental to the good name
or business reputation of the Company or the aforementioned persons or
entities. The Company specifically reserves the right to suspend or
terminate benefits under this Agreement and the Severance Agreement,
if, subsequent to the execution of this Waiver, the Company becomes
aware of information, or an event occurs, which indicates noncompliance
with this paragraph or which would otherwise result in a suspension or
termination of such benefits in accordance with the provisions of the
Severance Agreement.
5. Confidentiality of Agreement. Officer agrees that he/she
will not disclose, publicize, or cause to be publicized in any manner,
by statements or by conduct, directly or indirectly, any terms or
condition of this Agreement, any underlying facts and circumstances
pertaining to this Agreement, or any payments or other actions taken by
the Company pursuant to this Agreement, except to Officer's attorneys
or professional tax advisors as required for purposes of compliance
with tax laws or as required by order of a court of competent
jurisdiction. The attorneys and professional tax advisors of Officer
will be made aware of these confidentiality provisions prior to any
disclosure and shall be required to comply with said provisions.
Officer agrees to advise the Company of any attempt to
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compel testimony regarding the terms and conditions of this Agreement,
the underlying facts and circumstances of this Agreement, or any
payments or other actions taken by the Company pursuant to this
Agreement as soon as practicable, and in any event prior to so
testifying, so as to allow challenge to compelling said testimony.
Officer agrees that if anyone except those persons specifically
excepted above makes any inquiries concerning the terms and conditions
of this Agreement, the underlying facts and circumstances giving rise
to this Agreement, or any payments or other actions taken by the
Company pursuant to this Agreement, he/she will respond only that "the
matter has been amicably resolved." This provision and this Agreement
are entered into by the Company based upon the material express
representations of Officer that no publication or public presentation
of the facts or circumstances surrounding this dispute or its
settlement is planned or pending as a result of disclosure by Officer,
his/her attorney (if any), physicians, counselors, associates, personal
friends, or family members. For purposes of this Agreement,
"Disclosure" shall mean any communication, including, but not limited
to, conversations, interviews, speeches, articles, writings, or notes.
6. Release. For and in consideration of the covenants, terms
and conditions set forth in this Agreement, Officer, for
himself/herself and his/her heirs, agrees to and does hereby waive,
covenant not to xxx, releases, and forever discharges the Company, and
each and every one of the Company's subsidiaries and other affiliated
entities, and their respective agents, officers, executives, employees,
successors, predecessors, attorneys, trustees, directors, and assigns
(hereafter in this Paragraph 6, all of the
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foregoing shall be included in the term "Company"), from and with
respect to all matters, claims, charges, demands, damages, causes of
action, debts, liabilities, controversies, judgments, and suits of
every kind and nature whatsoever, foreseen or unforeseen, known or
unknown, arising prior to the date this Agreement becomes effective and
including, but not limited to, those in any way related to Officer's
employment and/or termination of employment. This release expressly
includes, but is not limited to, any claim or cause of action related
to the Severance Agreement, any claim based on alleged breach of an
actual or implied contract of employment between Officer and Company,
any claim based on alleged unjust or tortious discharge, claims arising
out of tort, contract or implied contract, equity, implied covenant,
invasion of privacy, defamation, personal injury, wrongful discharge,
emotional distress, discrimination (whether based on race, sex, age,
color, national origin, religion, disability, or any other class
protected by law), harassment, retaliation, claims for workers'
compensation benefits, claims for unpaid wages, any claim under the Age
Discrimination in Employment Act, 29 U.S.C. Section 621 et seq., 42
U.S.C. Section 1981, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. Section 2000e et seq., the Civil Rights Act of 1866,
42 U.S.C. Section 1981, the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq., the Employee Retirement Income Security Act of
1974, as amended, 29 U.S.C. Section 1001, et seq., the Family Medical
Leave Act, 29 U.S.C. Section 2601 et seq., the Missouri Service Letter
Statute, Section 290.140 RSMo, the Missouri Human Rights Act, Section
213.010 RSMo et seq. any claim under the Fair Labor Standards Act of
1938, 29 U.S.C. Section 201 et seq., any claim under common law, and
any claim under any federal, state or local
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statute, regulation, constitution, order or executive order, and/or any
other basis, including damages of any type or description, (including,
without limitation, punitive, compensatory or statutory), and expenses
of any type or description, including but not limited to attorneys'
fees or costs. Officer further agrees that in the event that any person
or entity should bring a charge, claim, complaint, or action on his/her
behalf, he/she hereby waives and forfeits any right to recovery under
said claim and will exercise every good faith effort to have such claim
dismissed.
Notwithstanding the above, Officer shall not waive, and there
shall be no release with respect to, any claim (other than a claim
disputing the validity of Section 3(D) of the Officer Severance
Agreement and Section 3(E) of the Executive Severance Agreement or the
provisions of this Waiver) of Officer to enforce any one or more of the
provisions of the Severance Agreement.
7. Affirmation. Officer affirms that he/she has made no
charge, claim, complaint or action against the Company in any
government agency or court and that no such matter is pending
8. Knowing and Voluntary Waiver. Officer hereby acknowledges
that he/she is entering into this Agreement knowingly and voluntarily
and understands that he/she is waiving valuable rights to which he/she
may otherwise be entitled. Officer hereby acknowledges that he/she has
been advised to consult with an attorney regarding this Agreement.
Officer further acknowledges that he/she can take up to twenty-one (21)
calendar days to execute this
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Agreement (up to 5 p.m. on ______, ____) and fully understands the
effect of signing this document.
If Officer is age 40 or over, Officer acknowledges that he/she
will have seven (7) days after executing this Agreement in which to
rescind it and that this Agreement will not become effective (and that
he/she is entitled to no compensation or other benefits under this
Agreement) until eight (8) days after its execution. Officer
acknowledges that a significant part of the salary continuation and
other benefits and reimbursements provided in this Agreement is
consideration for waiving any claim of age discrimination under the Age
Discrimination in Employment Act, 29 U.S.C. Section 621 et seq.
9. Cooperation. Officer agrees to cooperate in a reasonable
manner with representatives of the Company, including counsel, in legal
matters for three years following the execution of this Agreement.
Officer agrees to make himself/herself available upon three days notice
from the Company, or its attorneys, to meet with and consult with
representatives and/or counsel and to be interviewed by same, to
provide documents, to be deposed, to testify at a hearing or trial or
to accede to any other reasonable request by the Company in connection
with any threatened legal claim or any lawsuit either currently pending
against the Company or any lawsuit filed after Officer's separation
that involves issues relating to Officer's actions, job
responsibilities or to decisions made by him/her during his/her
employment with the Company.
10. Injunctive Relief. In the event of a breach or threatened
breach of any of Officer's duties and obligations under this Agreement,
the Company shall be entitled, in addition to any other legal or
equitable remedies the Company may have in connection
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therewith (including any right to damages that the Company may suffer),
to a temporary, preliminary and/or permanent injunction restraining
such breach or threatened breach. Officer agrees that he will pay the
reasonable attorney's fees, costs and expert fees, as they are incurred
by the Company, in the event of a breach or threatened breach of this
Agreement. Notwithstanding the preceding, the parties agree that
nothing in this Paragraph 10 shall be construed to require Officer to
pay Company's attorneys' fees, expert witness fees or damages (except
as attorneys' fees, expert witness fees or damages are allowed by
existing law (including but not limited to awards for frivolous or bad
faith litigation)) as the result of Officer initiating a claim, charge
or suit under the Age Discrimination Employment Act ("ADEA") or
otherwise challenging the waiver in this Agreement of a claim under the
ADEA.
11. Invalidity of Provisions. In the event that any provision
of this Agreement is adjudicated to be invalid or unenforceable under
applicable law, the validity or enforceability of the remaining
provisions shall be unaffected. To the extent that any provision of
this Agreement is adjudicated to be invalid or unenforceable because it
is overbroad, that provision shall not be void but rather shall be
limited only to the extent required by applicable law and enforced as
so limited.
12. Governing Law. This Agreement shall be construed and
governed by the laws of the State of Missouri.
13. Disclosure. Officer hereby represents, acknowledges, and
warrants that Officer has disclosed to Company any information known to
Officer concerning any conduct involving
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Company that Officer has any reason to believe may be unlawful or
involve any false claims to the United States.
14. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of any successors or assigns of the
Company and the heirs and personal representatives of Officer.
15. Non-Admission. No actions taken by the Company, either
previously or in connection with this Agreement, shall be deemed or
construed to be an admission of the truth or falsity of any allegation
or claim, or any acknowledgment by and of the Company of any liability
to Officer or to any person for any other claim, demand or action, all
liability being expressly denied by the Company.
16. Entire Agreement. This Agreement and any attachments
hereto constitute the entire agreement of the parties pertaining to the
subject matter addressed herein. The parties fully understand and agree
to the terms and provisions of this Agreement. This Agreement may not
be modified, amended or waived without the express prior written
consent of both the Company and the Officer.
17. Miscellaneous. Separate copies of the document shall
constitute original documents which may be signed separately but which
together will constitute one single agreement.
IN WITNESS WHEREOF, the undersigned have executed this General Waiver
and Release Agreement.
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I HAVE READ THIS GENERAL WAIVER AND RELEASE, UNDERSTANDING ALL ITS
TERMS, AND SIGN IT AS MY FREE ACT AND DEED.
Date:
------------------------------- -----------------------------------
Officer:
Subscribed and sworn to before me, a Notary Public, this ________ day
of ____________, ____.
-----------------------------------
Notary Public
My Commission Expires:
------------------------------
I HAVE READ THIS GENERAL WAIVER AND RELEASE, UNDERSTANDING ALL ITS
TERMS, AND SIGN IT ON BEHALF OF THE COMPANY AS THE FREE ACT AND DEED OF THE
COMPANY WITH FULL AUTHORITY TO EXECUTE THIS DOCUMENT ON BEHALF OF THE COMPANY.
Date:
-------------------------------
COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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Subscribed and sworn to before me, a Notary Public, this day
---------
of , .
---------- ----
-----------------------------------
Notary Public
My Commission Expires:
--------------------------------------
Revised March, 2001
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