Exhibit 10(q)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of December 1, 1998 by and between HUMANA INC.
(hereinafter "Company"), a Delaware corporation having its principal place of
business in Louisville, Kentucky, and Xxxxxxx X. Xxxx (hereinafter "Employee"):
WITNESSETH:
WHEREAS, Employee desires to render faithful and efficient service to the
Company; and
WHEREAS, the Company desires to receive the benefit of Employee's service;
and
WHEREAS, Employee is willing to be employed by the Company; and
WHEREAS, both Company and Employee desire to formalize the conditions of
Employee's employment by written agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties agree as follows:
1. Office. The Company hereby employs Employee and as President and
------
Chief Executive Officer and Employee hereby agrees to serve the
Company in such capacity.
2. Term of Employment. Employee's employment shall be for the "Employment
------------------
Period" with the initial term commencing on December 1, 1998 and
extending through December 31, 2000. The initial term shall be
automatically renewed and extended upon the expiration thereof for
successive periods of one (1) year until such time as the Employment
Period shall terminate pursuant to the terms of this Agreement, or
until the Company on the one hand, or Employee on the other hand, shall
terminate the Employment Period by giving written notice to the other
party on or before sixty (60) days prior to the expiration date of the
initial or any renewal term. The renewal and extension of this
Agreement shall also be referred to as the "Employment Period." The
effective date of Employee's termination of employment for whatever
reason under this Agreement shall be the "Termination Date."
3. Responsibilities. During the Employment Period, Employee shall devote
----------------
his entire business time and attention, except during reasonable
vacation periods, to, and exert his best efforts to promote, the
affairs of the Company, and shall render such services to the Company
as may be required by the Board of Directors of the Company
("Board") consistent with his employment as Chief Executive Officer.
Nothing herein contained shall preclude service by Employee on a
reasonable number of boards of directors or trustees of other entities
not engaged in any business competitive with the business of the
Company, provided that Employee shall discuss any such board service in
advance with the Company's Board.
4. Incapacity. If, during the Employment Period, Employee should be
----------
prevented from performing his duties or fulfilling his responsibilities
by reason of any incapacity or disability for a continuous period of
six (6) months, then the Company's Board, in its sole and absolute
discretion, may, based on the opinion of a qualified physician,
consider such incapacity or disability to be total and may on ninety
(90) days written notice to Employee terminate the Employment Period.
Benefits and payments shall be made under this Agreement following
incapacity as if it were a termination without Good Cause in accordance
with Section 8(a).
5. Death. The Employment Period shall automatically terminate upon the
-----
death of Employee, and payments will be made to the Employee's estate
as if it was a termination without Good Cause in accordance with
Section 8(a).
6. Compensation. During the Employment Period, Employee shall (i)
------------
receive a base salary (hereinafter "Annual Base Salary") that shall be
an annual amount of not less than Eight Hundred Thousand Dollars
($800,000) payable in accordance with the payroll practices of the
Company, and shall (ii) participate in an incentive plan providing for
a target incentive compensation amount of not less than one hundred
percent (100%) of his Annual Base Salary.
7. Benefit Plans and Programs. During the Employment Period, Employee
--------------------------
shall be eligible for participation in all benefit plans and programs,
including those for executive employees, made available by the Company
to its respective employees.
8. Severance Payments.
------------------
(a) In the event that Employee's employment is terminated by (i) the
Company while this Agreement is in effect without Good Cause as
defined in Sections 8(c)(1), (2) or (3) hereof, (ii) by the
Company for Good Cause as defined in Section 8(c)(4) hereof, (iii)
because the Company terminates the Employment Period pursuant to
Section 2 of this Employment Agreement, (iv) by reason of
incapacity or disability in accordance with Section 4, or (v) by
reason of death in accordance with Section 5:
2
(1) The Company shall pay to Employee or his estate, no later
than thirty (30) calendar days after such Termination Date,
an amount equal to any unpaid current Annual Base Salary
accrued through the Termination Date, his bonus, calculated
at one hundred percent (100%) of his Annual Base Salary
prorated for the current fiscal year through the Termination
Date, plus one (1) times the sum of his then current Annual
Base Salary and bonus, calculated at one hundred percent
(100%) of his Annual Base Salary. The Company shall
continue to keep in full force and effect all plans or
policies of medical, accident and life insurance benefits
with respect to Employee and his dependents with the same
level of coverage available to employees under the terms of
those employee benefit plans for a period of twelve (12)
months, upon the same terms, costs and otherwise to the same
extent as such plans are in effect for employees of the
Company who were similarly situated to Employee as of the
Termination Date.
(2) All restricted shares previously awarded to Employee but not
yet vested shall become vested and non-forfeitable as of the
Termination Date.
(3) To the extent stock options granted to Employee have not
become fully vested and exercisable as of the Termination
Date, such options shall become fully vested and all vested
stock options shall be exercisable for two (2) years
commencing on the Termination Date.
(b) In the event that Employee's employment is terminated by the
Company for Good Cause as defined in Sections 8(c)(1), (2) or
(3):
(1) The Company shall pay to Employee, no later than thirty (30)
calendar days after the Termination Date, an amount equal to
his then current Annual Base Salary accrued but unpaid
through the Termination Date; and Employee shall have a
period of ninety (90) days after such Termination Date in
which to exercise any exercisable vested stock options,
subject to the provisions of any applicable stock option
agreement.
(2) Any restricted shares or stock options previously granted
but still subject to restriction or unvested at the
Termination Date shall be forfeited.
3
(c) Good Cause shall mean the Company's Board has determined in good
faith, without being bound by the Company's progressive
discipline policy for employees:
(1) that Employee has engaged in acts or omissions against the
Company or any of its subsidiaries constituting dishonesty,
intentional breach of fiduciary obligation or intentional
wrongdoing or misfeasance; or
(2) that Employee has been arrested or indicted in a possible
criminal violation involving fraud or dishonesty; or
(3) that Employee has intentionally and in bad faith acted in a
manner which results in a material detriment to the assets,
business or prospects of the Company or any of its
subsidiaries; or
(4) that Employee has failed to perform on a prolonged basis,
where such failure is considered to be substantial and where
corporate performance expectations have been previously
agreed upon with the Employee on an annual basis. Further,
the failure to perform must be because of things considered
to be within the reasonable control of the Employee,
generally of an operating or strategic nature, and excluding
performance primarily resulting from things clearly beyond
the reasonable control of Employee, such as the following:
(A) a drop in the Company's stock share price as a result of
an overall market correction,
(B) severe national economic conditions, or
(C) adverse problems intrinsic to the Company's industry.
(d) In the event that Employee's employment is terminated (i) because
the Employee terminates the Employment Period pursuant to Section
2 of this Employment Agreement or (ii) because Employee
voluntarily leaves the employ of the Company during the
Employment Period, then the Company shall pay to Employee, no
later than thirty (30) calendar days after such Termination Date,
an amount equal to any unpaid current Annual Base Salary accrued
through the Termination Date, plus one (1) times his then current
Annual Base Salary. Any bonus finally determined to be payable at
the end of the fiscal year in which the Termination Date is
included shall be prorated for the period up to and including the
Termination Date and shall be promptly paid to Employee at the
same time any other similar bonuses are paid to any
4
other employee of the Company for such fiscal year. The Company
shall continue to keep in full force and effect all plans or
policies of medical, accident and life insurance benefits with
respect to Employee and his dependents with the same level of
coverage available to employees under the terms of those employee
benefit plans for a period of twelve (12) months, upon the same
terms, costs and otherwise to the same extent as such plans are
in effect for employees of the Company who were similarly
situated to Employee as of the Termination Date.
(e) Following the Employment Period, Employee shall be eligible for
continuation of health and dental insurance coverage pursuant to
the Consolidated Omnibus Budget Reconciliation Act (COBRA) for
eighteen (18) months. For the first twelve (12) months,
Employee's cost will be an amount equal to the normal employee
contribution. Thereafter, the cost will be an amount equal to the
COBRA cost of such coverage. During the first eighteen (18)
months, Employee may elect any of the coverages available to
Humana employees. Thereafter, Humana agrees that Employee may
elect coverage under any of the insured products offered by
Humana's health insurance or HMO subsidiaries for Employee, his
spouse as of the date hereof ("Spouse"), and any eligible
dependent until the later of Employee's age sixty-five (65) or
eligibility for Medicare coverage (hereinafter "Extended
Coverage"). At the earlier of Employee attaining Medicare
eligibility or death, Employee's Spouse and any now current
eligible dependent of Employee and Spouse will be eligible for
Extended Coverage until the later of Spouse's age sixty-five (65)
or Medicare coverage eligibility. If at any time during which the
Extended Coverage is in effect Employee or his Spouse obtains
Medicare or becomes eligible for other employee group health
insurance coverage which does not exclude a pre-existing
condition of Employee, Spouse or dependent, Humana's obligation
will cease as to the one who has obtained Medicare or, in the
case of other employee group health coverage, as to that person
and their eligible dependents. Employee's premium for the
Extended Coverage and Spouse's premium, if she retains Extended
Coverage, will be amount equal to the COBRA cost of such
coverage. If Humana hereafter adopts a retiree health insurance
program and Humana still has obligations under this provision,
Employee will be offered the option of participating in that
program in lieu of the Extended Coverage described herein. The
health and dental insurance benefits hereunder shall be
administered in conjunction with any other similar benefits which
the Employee has from the Company but in no case shall be
duplicative.
5
9. Termination After A Change in Control. In the event of a "Change in
-------------------------------------
Control" of the Company (as defined as of the date hereof in the
Company's 1996 Stock Incentive Plan for Employees), if, within twenty-
four (24) months following the closing of such a Change in Control (or
at any time prior thereto but in contemplation thereof):
(i) There is a material reduction in the Employee's title, authority
or responsibilities, including reporting responsibilities;
(ii) The Employee's Annual Base Salary is reduced;
(iii) The Employee's office at which he is to perform his duties is
relocated to a location more than thirty (30) miles from the
location at which the Employee performed his duties prior to the
Change in Control;
(iv) The Company fails to continue in effect any incentive, bonus or
other compensation plan in which the Employee participates,
unless the Company substitutes a substantially equivalent
benefit;
(v) The Company fails to continue in effect any employee benefit
plan (including any medical, hospitalization, life insurance,
dental or disability benefit plan in which the Employee
participated) or any material fringe benefit or perquisite
enjoyed by the Employee at the time of the Change in Control,
unless the Company substitutes benefits which, in the aggregate,
are substantially equivalent;
(vi) The Company breaches any material provision of this Employment
Agreement; or
(vii) The Company fails to obtain a satisfactory agreement from any
successor or assign of the Company to assume and agree to
perform this Employment Agreement;
Then the Employee shall have the option to voluntarily terminate his
employment and the Company shall:
(a) Pay the Employee his full base salary earned but not yet paid
through the Termination Date at the greater of the rate in effect
at the time of the Change in Control or the Termination Date
("Higher Annual Base Salary"), plus any bonuses or incentive
compensation which, pursuant to the terms of any compensation or
benefit plan, have been earned and are payable as of the
6
Termination Date. For purposes of this Agreement, bonuses and
incentive compensation shall be considered payable if all
conditions for earning them have been met and any requirement
that Employee be actively employed as of the date of payment
shall be disregarded.
(b) Pay the Employee a lump sum in an amount equal to two and one-
half (2 1/2) times the amount equal to the sum of (1) the
Employee's Higher Annual Base Salary plus (2) the maximum target
bonus or incentive compensation which could have been earned by
the Employee calculated as if all relevant goals had been met
during the then current fiscal year of the Company pursuant to
the terms of the incentive compensation plan in which he
participates. If there is no incentive compensation plan in
effect as of the Termination Date, then for purposes of this
Agreement it shall be assumed that the amount of incentive
compensation to be paid to the Employee shall be the maximum
target amount under any incentive compensation plan in which he
participated at the date of the Change in Control or the most
recent plan participated in, whichever would be greater.
(c) Maintain in full force and effect for the benefit of the Employee
and the Employee's dependents and beneficiaries, at the Company's
expense, all life insurance, health insurance, dental insurance,
accidental death and dismemberment insurance and disability
insurance under plans and programs in which the Employee and/or
the Employee's dependents and beneficiaries participated
immediately prior to the Termination Date, provided that
continued participation is possible under the general terms and
provisions of such plans and programs ("Extended Benefits"). The
Extended Benefits shall be continued until the earlier of (A) the
second (2nd) anniversary of the Termination Date, (B) the
effective date of the Employee's coverage under equivalent
benefits from a new employer (provided that no such equivalent
benefits shall be considered effective unless and until all pre-
existing condition limitations and waiting period restrictions
have been waived or have otherwise lapsed), or (C) the death of
the Employee. If participation in any such plan or program is
barred, the Company shall arrange at its own expense to provide
the Employee with benefits substantially similar to those which
he was entitled to receive under such plans and programs. At the
end of the period of coverage, the Employee shall have the right
to have assigned to him, at no cost and with no apportionment of
prepaid premiums, any assignable insurance policy relating
specifically to him. Employee shall be entitled to continuation
coverage as provided by COBRA at the conclusion of the coverage
provided under this Section.
7
The amount of any payment or benefit provided for in this Section 9
shall be offset by any lump sum cash payments due the Employee upon
termination under any other provisions of this Employment Agreement.
(d) To the extent that any amounts or payments in the nature of
compensation [within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated
thereunder ("Section 280G")] to or for the benefit of the
Employee under this Employment Agreement or otherwise (or any
part of such amount or other payment) constitutes an "excess
parachute payment" within the meaning of Section 280G and Section
4999 of the Internal Revenue Code, then the Company shall pay to
Employee an additional sum such that, after all taxes applicable
to the receipt of such amount have been subtracted therefrom, the
remaining amount will equal the sum of the amount of tax imposed
with respect to the "excess parachute payment," plus any interest
and penalties thereon (other than those caused solely by
Employee's action or inaction). Therefore, the effect shall be to
maintain the Employee in the same financial position that he
would have been in had no tax under Section 280G been imposed.
10. Restrictive Covenants. Employee shall not during the Employment
---------------------
Period, directly or indirectly, alone or as a member of a partnership
or association, or as an officer, director, advisor, consultant, agent
or employee of any other company, be engaged in or concerned with any
other duties or pursuits requiring his personal services except with
the prior consent of the Company's Board. Nothing herein contained
shall preclude the ownership by Employee of stocks or other investment
securities.
11. Confidential Information and Trade Secrets.
------------------------------------------
(a) Employee recognizes that Employee's position with the Company
requires considerable responsibility and trust, and, in reliance
on Employee's loyalty, the Company may entrust Employee with
highly sensitive confidential, restricted and proprietary
information involving Trade Secrets and Confidential Information.
(b) For purposes of this Agreement, a "Trade Secret" is any
scientific or technical information, design, process, procedure,
formula or improvement that is valuable and not generally known
to competitors of the Company. "Confidential Information" is any
data or information, other than Trade Secrets, that is important,
competitively sensitive, and not generally known by the public,
including, but not limited to, the Company's business plans,
business prospects, training manuals, product development plans,
bidding and
8
pricing procedures, market strategies, internal performance
statistics, financial data, confidential personnel information
concerning employees of the Company, supplier data, operational
or administrative plans, policy manuals, and terms and conditions
of contracts and agreements. The terms "Trade Secret" and
"Confidential Information" shall not apply to information which
is (i) already in Employee's possession (unless such information
was used in connection with formulating the Company's business
plans, obtained by Employee from the Company or was obtained by
Employee in the course of Employee's employment by the Company),
or (ii) required to be disclosed by any applicable law.
(c) Except as required to perform Employee's duties hereunder,
Employee will not use or disclose any Trade Secrets or
Confidential Information of the Company during employment, at any
time after termination of employment and prior to such time as
they cease to be Trade Secrets or Confidential Information
through no act of Employee in violation of this Section 11.
(d) Upon the request of Company and, in any event, upon the
termination of employment hereunder, Employee shall surrender to
the Company all memoranda, notes, records, plans, manuals or
other documents pertaining to the Company's business or
Employee's employment (including all copies thereof). Employee
will also leave with the Company all materials involving Trade
Secrets or Confidential Information of the Company. All such
information and materials, whether or not made or developed by
Employee, shall be the sole and exclusive property of the
Company, and Employee hereby assigns to the Company all of
Employee's right, title and interest in and to any and all of
such information and materials.
12. Covenant Not To Compete. Employee hereby covenants and agrees that
-----------------------
for a period commencing on the date hereof and ending twelve (12)
months after ceasing employment with the Company for whatever reason,
he shall not:
(a) Compete in any way with the Company without the Company's prior
written consent.
(b) Interfere with the relationship of the Company and any employee,
agent or representative.
(c) Divert, or attempt to cause the diversion from the Company, any
business with which the Company has been actively engaged in
during any part of the past two (2) year period preceding the
Termination Date, nor interfere with
9
relationships of the Company with policyholders, dealers,
distributors, marketers, sources of supply or customers.
Employee further specifically acknowledges that the geographic area to
which the covenants contained in this Section 12 apply is the same
geographic area in which the Company transacted its business during
any part of the twelve (12) month period immediately prior to the
Termination Date. The time period during which the prohibitions set
forth in this Section 12 apply shall be tolled and suspended as to
Employee for a period equal to the aggregate quantity of time during
which Employee violates such prohibitions in any respect.
13. Specific Enforcement. Employee specifically acknowledges and agrees
--------------------
that the restrictions set forth in Sections 11 and 12 hereof are
reasonable and necessary to protect the legitimate interest of the
Company and that the Company would not have entered into this
Agreement in the absence of such restrictions. Employee further
acknowledges and agrees that any violation of the provisions of
Sections 11 or 12 hereof will result in irreparable injury to the
Company, that the remedy at law for any violation or threatened
violation of such Sections will be inadequate and that in the event of
any such breach, the Company, in addition to any other remedies or
damages available to it at law or in equity, shall be entitled to
temporary injunctive relief before trial from any court of competent
jurisdiction as a matter of course, and to permanent injunctive relief
without the necessity of proving actual damages.
14. Effect of Termination of the Employment Period. Upon the termination
----------------------------------------------
of the Employment Period, this Agreement shall terminate, and all of
the parties' obligations hereunder shall forthwith terminate, except
that rights and remedies accruing prior to such termination or arising
out of this Agreement shall survive.
15. Notice. Any notice required to be given by the Company hereunder to
------
Employee shall be in proper form and signed by an officer or Director
of the Board of the Company. Until one party shall advise the other
in writing to the contrary, notices shall be deemed delivered:
(a) To the Company if delivered to the Chairman of the Board of the
Company, or if mailed, certified or registered mail postage
prepaid, to Humana Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000; Attention: Chairman of the Board, with a copy to
the Company's General Counsel.
(b) To employee if delivered to Employee, or if mailed to him by
certified or registered mail, postage prepaid, to Xxxxxxx X.
Xxxx, 000 Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxxxxx 00000.
10
16. Benefit. This Agreement shall bind and inure to the benefit of the
-------
Company and the Employee, their respective heirs, successors and
assigns.
17. Severability. If a judicial determination is made that any of the
------------
provisions of this Employment Agreement constitutes an unreasonable or
otherwise unenforceable restriction against Employee, such provision
shall be rendered void only to the extent that such judicial
determination finds such provisions to be unreasonable or otherwise
unenforceable. In this regard, the parties hereto hereby agree that
any judicial authority construing this Employment Agreement shall be
empowered to sever any portion of the territory or prohibited business
activity from the coverage of Sections 11 or 12 and to apply the
provisions to the remaining portion of the territory or the remaining
business activities not so severed by such judicial authority.
Moreover, notwithstanding the fact that any provisions of this
Employment Agreement are determined not to be specifically
enforceable, the Company shall nevertheless be entitled to recover
monetary damages as a result of the breach of such provision by
Employee.
18. Other. This Employment Agreement shall, as of its effective date,
replace and supercede the Employment Agreement dated December 1, 1997
between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ATTEST: HUMANA INC.
BY:________________________________ BY:________________________________
Corporate Secretary Xxxxx X. Xxxxx
Chairman of the Board
WITNESS: "EMPLOYEE"
___________________________________ ___________________________________
Xxxxxxx X. Xxxx
11
