Exhibit 10.1
[Form of Agreement with Xxxxxx X. Xxxxx, Xx. and certain
other executive officers]
TRIGON INSURANCE COMPANY
EXECUTIVE CONTINUITY AGREEMENT
This Executive Continuity Agreement (the "Agreement") is made as of
September 16, 1998, between TRIGON INSURANCE COMPANY (the "Company") and XXXXXX
X. XXXXX, XX. ("Executive").
RECITALS
Executive is currently employed by the Company as President and
Chief Operating Officer. The purpose of this Agreement is to encourage Executive
to continue his employment with the Company both before and after a Change of
Control and to recognize the prior service of Executive if his employment is
terminated under certain circumstances after a Change of Control.
NOW THEREFORE, in consideration of the premises, the parties agree
as follows:
Article I
DEFINITIONS
As used herein, the following terms have the meanings indicated.
1.1 "Affiliate" means any corporation or other legal entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company.
1.2 "Applicable Compensation" has the meaning set forth in Section
2.3.
1.3 "Beneficial Ownership" has the meaning Rule 13d-3 promulgated
under the Securities Exchange Act of 1934.
1.4 "Change of Control" means any event described in subparagraphs
(a) through (e) below:
(a) The acquisition by any Person of Beneficial Ownership of
20% or more of the Stock or the Voting Power of Trigon Healthcare, but excluding
for this purpose any acquisition by the Company (or an Affiliate) or by an
employee benefit plan sponsored by the Company (or an Affiliate). When two or
more persons act in concert for the purpose of acquiring Stock or Voting Power
of Trigon Healthcare, such Persons shall be deemed to be a single Person.
(b) Individuals who are Incumbent Directors cease to
constitute at least a
majority of the Board of Directors of Trigon Healthcare.
(c) Approval by the shareholders of Trigon Healthcare of a
reorganization, merger or consolidation, if after such transaction, the Persons
who had Beneficial Ownership of the Stock and Voting Power of Trigon Healthcare
before such transaction will not have Beneficial Ownership of at least 50% of
the Stock and Voting Power of the corporation resulting from such transaction.
(d) A complete liquidation or dissolution of Trigon
Healthcare, or the sale or other disposition of all or substantially all of the
assets of Trigon Healthcare.
(e) The sale or other disposition by Trigon Healthcare of 50%
or more of the Stock of the Company, or any other transaction pursuant to which
Trigon Healthcare ceases to control the Company.
1.5 "Code" shall mean the Internal Revenue Code of 1986.
1.6 "Compensable Termination" means either (i) the termination
of Executive's employment by the Company within three months before or within
three years after a Change of Control for any reason other than for Good Cause,
or (ii) the termination of Executive's employment by Executive within three
years after a Change of Control for Good Reason.
1.7 "Compensation" has the meaning set forth in Section 2.4.
1.8 "Good Cause" means:
(a) fraud, embezzlement or misappropriation by Executive
involving the business or assets of the Company,
(b) the persistent and willful failure by Executive
substantially to perform his duties and responsibilities to the Company, which
failure continues after Executive receives written notice of such failure, or
(c) Executive's conviction of a felony or crime involving
moral turpitude.
1.9 "Good Reason" means any of the following actions or events that
occur after a Change of Control and without Executive's express written consent:
(a) any reduction in Executive's base salary;
(b) any reduction in Executive's opportunity to earn
incentive compensation, unless comparable reductions in incentive opportunities
are shared generally by other executives of the Company;
(c) any material reduction in Executive's welfare benefits or
perquisites as in effect at the time of the Change of Control;
(d) any material reduction in Executive's duties,
responsibilities or authority, any adverse change in Executive's job title, or
any other action that constitutes a demotion of Executive; or
(e) the Company changes the location of Executive's principal
office to a location that is more than 50 miles distant from Executive's
principal office at the time of the Change of Control.
1.10 "Incumbent Director" means any person who serves on the Board
of Directors of Trigon Healthcare as of the date of this Agreement and any
person who is added to the Board thereafter with the approval of a majority of
the persons who are then Incumbent Directors.
1.11 "Person" means a natural person and any corporation,
partnership, trust, limited liability company or other legal entity.
1.12 "Retirement Plan" means the Company's Non-Contributory
Retirement Plan for Certain Employees of Blue Cross and Blue Shield of Virginia
or any successor plan, including any successor Cash Balance Plan.
1.13 "Salary Continuation Benefit" has the meaning set forth in
Section 2.2.
1.14 "SERP" means the Company's Supplemental Retirement Program for
Certain Employees of Blue Cross and Blue Shield of Virginia or any successor
program.
1.15 "Stock" means the then outstanding Class A Common Stock of
Trigon Healthcare.
1.16 "Trigon Healthcare" means Trigon Healthcare, Inc., a Virginia
corporation that, as of the date of this Agreement, owns all of the issued and
outstanding Stock of the Company.
1.17 "Voting Power" means the combined voting power of all
outstanding voting securities of Trigon Healthcare.
1.18 "Welfare Plan" means any health plan, dental plan, disability
plan, survivor income plan, life insurance plan or other welfare benefit plan as
defined in ss. 3(1) of the Employee Retirement Income Security Act of 1974,
currently or hereafter made available by the Company in which the Executive is
eligible to participate.
Article II
SALARY CONTINUATION BENEFIT
2.1 If a Compensable Termination occurs, then the Company shall pay
the Salary Continuation Benefit to Executive on or before the tenth business day
following the day on which Executive's employment terminates. The Salary
Continuation Benefit shall be paid in one lump sum, net of all required federal
and state withholding taxes.
2.2 The Salary Continuation Benefit shall be a sum equal to three
times the Applicable Compensation of Executive.
2.3 The Applicable Compensation of Executive shall mean the greater
of (i) the highest amount of Compensation earned by Executive for any one of the
three full calendar years ended immediately before Executive's employment
terminates, or (ii) an amount equal to 155% of Executive's annual base salary
for the year in which Executive's employment terminates.
2.4 The Compensation earned by Executive for any calendar year shall
mean (i) the amount of Executive's annual base salary for such calendar year,
without any reduction for any amounts that Executive may have deferred under the
Company's 401(k) Plan, 401(k) Restoration Plan, Deferred Benefit Plan for
Officers, or otherwise, (ii) the amount of any cash bonus or cash incentive
award (annual, long-term, or otherwise) that is earned for a period of
performance ending in such calendar year, even though such bonus or award may be
paid after such calendar year, and (iii) the fair market value (determined as of
the date of the award) of any bonus or incentive award (annual, long-term, or
otherwise) that is made in property other than cash and that is earned for a
period of performance ending in such calendar year, even though such bonus or
award may be made after such calendar year. For purposes of clause (iii) of the
preceding sentence, (i) the granting or vesting of stock options shall not be
deemed to be a bonus or incentive award, and (ii) in the case of any bonus or
incentive award made in restricted stock of the Company, the fair market value
of such stock shall be determined without regard to the restriction.
Article III
WELFARE BENEFITS
3.1 If a Compensable Termination occurs, then the Company will,
subject to the provisions of Section 3.2, continue the coverage of Executive and
his dependents under all Welfare Plans in which they participated immediately
before the termination of Executive's employment for a period of three years
following the termination of Executive's employment.
3.2 Notwithstanding Section 3.1, (i) if the Company amends or
terminates any Welfare Plan in which Executive is participating in a manner that
is generally applicable to all executives of the Company, then such amendment or
termination shall also be applicable to Executive, (ii) Executive shall continue
to contribute to the cost of the Welfare Plans on substantially the same basis
as he did before the termination of his employment, (iii) if Executive's
continued participation in any Welfare Plan is not possible because of the terms
of the plan or any provision of law, then the Company will at its expense
provide Executive with an alternative benefit of substantially equal value and
utility through cash payments, an alternative insurance arrangement, or
otherwise, and (iv) the obligation of the Company to continue Executive's
coverage under any Welfare Plan shall cease if Executive becomes covered under a
welfare plan sponsored by a subsequent employer that provides substantially
equal or greater benefits.
3.3 In lieu of the welfare benefits provided for in Section 3.1,
Executive may, at his option, elect to receive a lump sum amount in cash such
that, after Executive pays any taxes on such lump sum amount, Executive will
retain on an after-tax basis an amount equal to the present value of such
benefits. Any such election must be made by Executive by written notice provided
to the Company within 60 days of the date that a Compensable Termination occurs.
Present value shall be determined using a discount rate equal to the Federal
mid-term rate under Section 1274(d) of the Code.
3.4 If a Compensable Termination occurs, then for the purpose of
determining Executive's eligibility for retiree benefits under any Welfare Plan,
(i) Executive's age shall be deemed to be Executive's actual age plus three
years, and (ii) Executive's years of service with the Company shall be deemed to
be the actual number of years of service plus three years.
Article IV
SUPPLEMENTAL RETIREMENT BENEFITS
4.1 If a Compensable Termination occurs, then the Company will
provide Executive with the supplemental retirement benefits described in this
Article 4.
4.2 The Company will pay to Executive within ten business days after
the termination of Executive's employment in one lump sum an amount equal to the
difference between the (i) actuarial equivalent of the amount that Executive
would have received under the Retirement Plan and SERP if (a) Executive's
employment with the Company had continued for an additional five years (with
five additional years of age and service credit, if applicable) and (b)
Executive had received annual Compensation in each such year equal to
Executive's Compensation during the last calendar year before Executive's
employment terminated, and (iii) the actuarial equivalent of the amount that
Executive will actually receive under the Retirement Plan and SERP.
4.3 The Company will pay to Executive within ten business days after
the termination of Executive's employment in one lump sum the actuarial
equivalent of Executive's accrued benefit under the SERP.
4.4 For purposes of Section 4.2 and 4.3, actuarial equivalents shall
be determined as follows. If Executive's benefit under the Retirement plan is
based on a defined benefit formula, then actuarial equivalents shall be
determined in accordance with the provisions of such plan relating to lump sum
payments. If Executive's benefit under the Retirement Plan is based on a cash
balance formula, then actuarial equivalents shall be determined by assuming that
the interest rates that would be applicable to contribution credits in future
years would be equal to the discount rates used to compute the present value of
such future contribution credits.
4.5 Immediately upon the termination of Executive's employment, (i)
Executive shall, if not already full vested, become fully vested in the Trigon
Blue Cross Blue Shield 401(k) Restoration Plan, (ii) if Executive is not already
full vested in the Employees' Thrift Plan of Trigon Blue Cross Blue Shield, the
Company will make an additional contribution to the 401(k) Restoration Plan
equal to the amount that was forfeited from Executive's account in the Thrift
Plan, and (iii) the Company will make an additional contribution to the 401(k)
Restoration Plan equal to three times the contributions that the Company made to
the Thrift Plan and to the 401(k) Restoration Plan for Executive for the
calendar year immediately before the termination of Executive's employment.
Within 10 business days after the termination of Executive's employment, the
Company will pay to Executive in one lump sum his account balance in the 401(k)
Restoration Plan (including the additional contributions described in the
preceding sentence).
Article V
INCENTIVE COMPENSATION
5.1 If a Change of Control occurs, then for the calendar year in
which the Change of Control occurs, the Company will pay Executive an award
under each of the Company's Annual Incentive Plan and Long-Term Performance Plan
equal to the greater of (i) the award computed in accordance with the terms of
such plan or (ii) the award computed as if the Company and the Executive had
achieved the target level of performance with respect to each performance
criterion under such plan.
5.2 If Executive is not employed by the Company at the end of the
calendar year in which a Change of Control occurs, then, notwithstanding any
provision to the contrary in the Annual Incentive Plan or the Long-Term
Performance Plan, the Company will pay to Executive the pro rata portions of the
awards computed in accordance with Section 5.1 that correspond to the portion of
the calendar year that Executive was employed by the Company.
5.3 If a Change of Control occurs, Executive shall immediately
become fully vested in any outstanding stock options, restricted stock, stock
rights or other stock-based compensation programs.
Article VI
OUTPLACEMENT SERVICES
6.1 If a Compensable Termination occurs, then the Company will
provide Executive with complete outplacement services, including job search and
interview skill services. Such services shall be provided by a nationally
recognized outplacement organization selected by Executive and shall continue
until the earlier of (i) the date on which Executive finds other suitable
employment or (ii) two years after the termination of Executive's employment.
Article VII
ADDITIONAL PAYMENT FOR EXCISE TAXES
7.1 If Executive receives any amount from the Company, pursuant to
this Agreement or otherwise, that is determined to be an "excess parachute
payment" subject to the excise tax imposed by ss. 4999 of the Code, then the
Company will pay to Executive an additional amount (herein referred to as a
"Gross-Up Payment") such that, after Executive has paid all federal and state
income and excise taxes imposed on such excess parachute payment and on such
Gross-Up Payment, Executive will retain an after-tax amount equal to the amount
that Executive would have retained if such excise tax had not been imposed.
7.2 When Executive's employment with the Company terminates, the
amount of any Gross-Up Payment that the Company is required to pay under Section
7.1 shall be determined by the independent certified public accounting firm then
regularly employed by the Company. Within 15 business days following the
termination of Executive's employment, or earlier if requested by the Company
the accounting firm shall deliver to the Company and Executive a report
calculating in reasonable detail the amount of any Gross-Up Payment required by
Section 7.1. The amount of the required Gross-Up payment as so determined by the
accounting firm shall be binding on the Company and Executive, and within 10
business days following receipt of the report from the accounting firm, the
Company will pay the required Gross-Up Payment to Executive. If the accounting
firm determines that no Gross-Up Payment is required because no excise tax is
payable by Executive, it shall furnish Executive a written opinion to that
effect. All fees and expenses of the accounting firm shall be paid by the
Company.
7.3 Because of uncertainties in the application of ss. 4999 of the
Code, it is possible that the amount of the Gross-Up Payment as initially
determined by the accounting firm pursuant to Section 7.2 may be inadequate to
comply with the requirements of Section 7.1. If at any time Executive is
required to pay any additional excise tax not covered by the initial Gross-Up
Payment, then the Company will immediately pay to Executive an additional
Gross-Up Payment so that the requirements of Section 7.1 are complied with.
Article VIII
MISCELLANEOUS
8.1 Termination of Prior Executive Continuity Agreement. This
Agreement supercedes and replaces the Executive Continuity Agreement between the
Company and Executive dated April 30, 1997, and such Agreement is hereby
terminated and canceled.
8.2 Coordination with Prior Employment Agreement. Executive and the
Company are parties to an Employment Agreement dated as of December 12, 1990
(the "Prior Agreement"). If a Compensable Termination occurs, then the Prior
Agreement shall be terminated and canceled effective as of the date on which
Executive's employment terminates, and neither party to the Prior Agreement
shall have any obligation thereunder to the other. If Executive's employment
terminates under circumstances that do not constitute a Compensable Termination,
then the Prior Agreement shall remain in full force and effect.
8.3 No Setoff. Executive is entitled to all of the benefits of this
Agreement whether or not Executive obtains subsequent employment and
irrespective of any compensation that Executive may receive from such subsequent
employment. The Company shall have no right to set off against any sum owed to
Executive hereunder any amount that Executive may owe the Company. If the
Company effects any setoff in violation of the preceding sentence, then the
Company and Executive agree that as reasonable liquidated damages therefor, the
Executive will be entitled to recover from the Company an amount equal to twice
the amount of such setoff.
8.4 Legal Fees. If any dispute arises in connection with this
Agreement or the enforcement or interpretation of Executive's rights under this
Agreement, the Company shall pay all reasonable legal fees and expenses incurred
by Executive in connection with such dispute, irrespective of the outcome of
such dispute.
8.5 Rights Not Exclusive. Executive's rights under this Agreement
are not exclusive, and, except as provided in Sections 8.1 and 8.2, nothing in
this Agreement shall limit any rights that Executive may have under any other
plan, contract, arrangement, custom, policy, practice or program of the Company.
8.6 Notices. Any notice required or permitted hereunder shall be in
writing and shall be deemed given if delivered personally or mailed, registered
or certified mail, as follows:
(a) If to the Company, to:
Chairman of the Executive Committee
Blue Cross and Blue Shield of Virginia
0000 Xxxxxxx Xxxx Xxxx
Post Office Box 27401
Xxxxxxxx, Xxxxxxxx 00000
(b) If to Executive, to his last address shown on the records
of the Company.
8.7 Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, representatives,
and successors, including, without limitation, any person acquiring directly or
indirectly all or substantially all of the assets of the Company, whether by
merger, consolidation, sale, or otherwise, but neither this Agreement nor any
right hereunder may be otherwise assigned or transferred by either party hereto.
8.8 Severability. If any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions shall not be affected
thereby.
8.9 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of Virginia.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
TRIGON INSURANCE COMPANY
By: ____________________________________________
____________________________________________
Executive
