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Exhibit 10(p)
Xxxxxx Xxxxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
EMPLOYMENT AGREEMENT
AGREEMENT dated as of September 1, 2000, by and between OXFORD HEALTH
PLANS, INC. (the "Corporation"), having a principal office in Trumbull,
Connecticut, and Xxxxxx X. Xxxxxxxx (the "Employee") of Auburn, New Hampshire.
WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions for the employment relationship of the Corporation and
the Employee.
Now, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Corporation and the Employee agree as follows:
1. Employment. During the Term, defined below, the Employee shall be
employed as Executive Vice President, General Counsel and Secretary of the
Corporation and shall render services to the Corporation of the type customarily
performed by persons serving in a similar executive officer capacity, subject to
the powers by law vested in the Board and in the Corporation's stockholders. The
Employee shall report to the Chief Executive Officer of the Corporation and
shall perform such other related duties as the Chief Executive Officer of the
Corporation may from time to time reasonably direct or request. The Employee
shall devote substantially all of his working time to the performance of his
duties hereunder. The Employee's place of Employment during the Term of this
Agreement (as defined below) shall be at the Trumbull Connecticut office of the
Corporation, provided that during the period December 31, 2000 to June 30, 2002
the Employee may work one day per week in Hooksett, New Hampshire. The Employee
shall at times during the term hereof render services as described herein to the
Corporation, which entity shall be the entity reporting to the Securities and
Exchange Commission ("SEC) pursuant to the Securities Act of 1934 ("Exchange
Act).
The Employee shall perform his duties and responsibilities under this
Agreement faithfully, diligently and to the best of the Employee's ability, and
in compliance with all applicable laws and the Corporation's Certificate of
Incorporation and Bylaws, as they may be amended from time to time.
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2. Term. The initial term of employment under this Agreement shall be
for a period of four (4) years commencing on December 31, 2000 (the "Effective
Date"); provided, however, that the term of this Agreement shall be extended
automatically for additional two-year terms on the fourth anniversary of the
Effective Date and on each anniversary thereafter, unless either the Corporation
or the Employee gives written notice to the other of an intent not to extend the
term not less than ninety (90) days in advance of such anniversary of the
Effective Date. References herein to the "Term" shall refer both to such initial
term and such successive terms. Upon a "Change in Control" (as defined in
Section 7(a)) of the Corporation, the Term shall be extended to two (2) years
from the date of such Change in Control, unless notice to terminate the Term has
been properly provided prior to the date of such Change in Control, and such
Change in Control date shall be treated as the Effective Date for purposes of
renewals of this Agreement. The Term shall end upon the termination of the
Employee's employment under this Agreement.
Notwithstanding the Effective Date of December 31, 2000, during the
period beginning on December 1, 2000 through December 30, 2000 (the "Initial
Period"), the Employee shall be expected to devote substantially all of his
working time to commencing his employment with the Corporation, provided that it
is understood that employee may work up to one day per week in Hooksett, New
Hampshire.
3. Compensation. (a) Base Salary. The Corporation agrees to pay the
Employee during the Initial Period and the Term an annual base salary of no less
than $400,000 ("Base Salary"). The Base Salary shall be reviewed at least
annually, during the Term, by the Compensation Committee of the Board (the
"Committee") and the Employee shall receive such increases in Base Salary, if
any, as the Committee in its absolute discretion may determine. Participation
with respect to discretionary bonuses, retirement and other employee benefit
plans and fringe benefits shall not reduce the Base Salary payable to the
Employee under this Section 3. The Base Salary shall be payable to the Employee
in equal installments in conformity with the Corporation's normal payroll
practices for its senior officers, but no less frequently than monthly.
(b) Annual Bonus. During the Term, the Employee shall be eligible to
receive an annual performance bonus consistent with the Corporation's management
incentive program, as recommended by the Chief Executive Officer of the
Corporation and approved by the Committee and the Chairman of the Corporation;
provided, however, that for each year during the Term, the Employee's bonus
shall be at least $250,000 ("Minimum Bonus"). The bonus described in this
Section 3(b) shall be payable in a manner consistent with the payment of bonuses
for other senior officers of the Corporation but in no event later than the end
of the first quarter after the end of the fiscal year to which the bonus
relates. For the period December 1, 2000 through December 30, 2000, the Employee
shall be eligible to receive 1/12 of the bonus described in the first sentence
of this Section 3 (b) or $20,833, whichever is greater; such bonus to be paid no
later then the first quarter of 2001 when other executives bonuses are paid.
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(c) Sign-on Bonus. As soon as practicable after commencement of
employment, but in no event later than thirty (30) days from the Effective Date,
and subject to the execution by the Employee of this Agreement and the
Corporation's Confidentiality Agreement, the Corporation shall pay the Employee
a sign-on bonus in the amount of $50,000. The Corporation shall pay the Employee
an additional sign-on bonus in the amount of $100,000 upon purchase of the
Connecticut Residence as described in Subsection (f) below.
(d) Stock Options. Effective as of December 1, 2000, the Employee is
hereby granted a nonqualified stock option (the "Option") to purchase 125,000
shares of the Corporation's common stock ("Common Stock") pursuant to the terms
of the Option Agreement. These options will vest annually over the following
four (4) year period, or such vesting schedule that may be more favorable as
part of the corporation's 2001 executive stock option grant.
(e) Reimbursement of Expenses. The Corporation will reimburse the
Employee for all reasonable and documented business travel expenses during the
Term, in accordance with the corporation's expense reimbursement policy as in
effect from time to time. The Corporation shall also reimburse the Employee for
certain professional expenses, including reimbursement of all bar fees and fees
and expenses related to continuing legal education.
(f) Relocation Expenses. In connection with commencement of employment
with the Corporation, the Corporation shall provide the Employee, the following:
(1) a furnished corporate apartment in Connecticut provided at the Corporation's
expense for a period ending on the earlier of the date of the purchase of a new
home in Connecticut or September 1, 2001, (2) a housing allowance of $5,000 per
month for a period beginning with the purchase of the Connecticut Residence and
ending on June 30, 2002, (3) costs incurred in connection with the moving of
Employee's personal property and household goods from the New Hampshire
residence to the Connecticut Residence provided that (x) in the case of clause
(3) reimbursement shall be made only if the Employee uses the Corporation's
relocation company services, and (y) in all events reimbursement shall be made
only upon presentation of satisfactory receipts in accordance with the
Corporation's normal business expenses reimbursement practices and procedures,
and (4) the Employee shall be entitled to be reimbursed for round trip business
class airline tickets every week for travel to and from New Hampshire for a
period ending on June 30, 2002, and for one additional trip back to New
Hampshire to close on the sale of his home, provided that if the Employee so
chooses in any given week, in lieu of reimbursement for air travel, he shall be
entitled to reimbursement for any travel by car and driver or travel with his
own automobile. Except for the housing allowance in (2) above, the amount
provided and reimbursed under this paragraph (f) shall be on a grossed-up basis
such that after taking into account federal and state income taxes on such
amounts, the net after tax recovery by the Employee equals the amount of
expenses incurred.
(g) Relocation Loan. As soon as practical after commencement of
employment, but in no event later than the date of purchase of Employee's
Connecticut
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residence, the Corporation shall lend to the Employee the sum of $200,000.00
(the "Loan"). The Loan shall be evidenced by a Promissory Note (the "Note")
containing terms and in a form mutually acceptable to the Employee and the
Corporation. Among other things, the Note will provide that: (1) the Loan shall
bear the lowest interest rate permitted by federal law to avoid the imputation
of income, (2) the Loan shall be repaid in one installment of principal,
together with accrued interest, no later than three (3) years from the making of
the loan by the Corporation and (3) the Loan plus accrued unpaid interest will
be forgiven if the Employee is terminated without Cause or terminates his
employment for Good Reason following a Change of Control. The Employee has the
option of paying back the principal plus any accrued interest at any time.
4. Withholding Obligation. The Corporation shall have the right to
withhold from the compensation otherwise due to the Employee under this
agreement any Federal income tax, Federal Insurance Contributions Act (FICA)
tax, Federal Unemployment Tax Act (FUTA) tax, or other amounts required to be
withheld from compensation from time to time under the Internal Revenue Code of
1986, as amended (the "Code"), or under any state or municipal laws or
regulations.
5. Fringe Benefits.
(a) Vacation and Leave. During the Term, the Employee shall be entitled
to an annual paid select time of twenty-three (23) days per year and seven (7)
company paid holidays or such longer period as the Committee may approve. The
Employee shall schedule the timing of paid vacations in a reasonable manner. The
Employee shall also be entitled to such other leave, with or without
compensation, as shall be mutually agreed upon by the Committee and the
Employee.
(b) Participation in Retirement and Employee Benefit Plans. During the
Term, the Employee shall be entitled to participate, on a basis not less
favorable than is applicable to other executive employees, in the Corporation's
1991 Stock Option Plan, annual incentive compensation plan, 1996 Equity
Incentive Compensation Plan and any other plan of the Corporation or its
subsidiaries relating to stock options, stock appreciation, stock purchases,
pension, thrift, deferred compensation, profit sharing, group life insurance,
medical coverage, education or other retirement or employee benefits that the
Corporation may adopt from time to time for the benefit of its executive
employees.
(c) Other Benefits. During the Term, the Employee shall be entitled to
participate in any other fringe benefits which are or may become applicable to
the Corporation's executive employees (and on a basis that is not less favorable
than is applicable to such employees), including the payment of reasonable
expenses for attending annual and periodic meetings of trade associations, and
any other benefits maintained by the Corporation from time to time which are
commensurate with the duties and responsibilities to be performed by the
Employee under this Agreement.
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6. Termination of Employment. The Employee's employment hereunder may
be terminated under the circumstances set forth in paragraphs (a) through (e)
below:
(a) Death. The Employee's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
hereunder on a full-time basis for the entire period of six (6) months in any
twelve (12) month period, and within thirty (30) days after written Notice of
Termination is given (which may occur before or after the end of such six (6)
months period) shall not have returned to the performance of his duties
hereunder on a full-time basis, the Corporation may terminate the Employee's
employment hereunder for "Disability."
(c) Cause. The Corporation may terminate the Employee's employment
hereunder for Cause or without Cause. Prior to a Change in Control, termination
for Cause shall mean termination because the Employee (i) engages in the
following conduct in connection with his employment with the Corporation:
personal dishonesty, willful misconduct, breach of fiduciary duty involving
personal profit, material breach of a restrictive covenant against competition,
willful disclosure of material confidential information of the Corporation,
consistent intentional failure to perform stated duties after notice, or (ii)
willfully violates any law, rule, or regulation (other than traffic violations
or similar offenses), which willful violation materially impacts the Employee's
performance of his duties to the Corporation.
(d) Good Reason. The Employee may terminate his employment hereunder
with or without Good Reason; provided, however, that the employee agrees not to
terminate his employment hereunder (other than for Good Reason or for
retirement) during the ninety-day period following a Change in Control. Prior to
a Change in Control, for purposes of this Agreement "Good Reason" shall mean the
occurrence of the following without the Employee's written consent: (i) a
material or adverse change by the Corporation of the Employee's role with the
Corporation, a change in Employee's place of work, a removal from or failure to
reappoint employee as Executive Vice President, General Counsel and Secretary to
the Corporation or a material or adverse change in the nature and/or scope of
the Employee's duties and responsibilities with the Corporation, in each case
other that for Cause or Disability, (ii) a reduction in the Employee's Base
Salary or bonus opportunity, in each case other than for Cause or Disability, or
(iii) any material breach by the Corporation of this Agreement. For purposes of
this Agreement, "Good Reason" under clauses (i) and (ii) above shall not exist
until after the Employee has given the Company written notice of the asserted
basis for a "Good Reason" termination within 90 days of such event and the
asserted basis for a "Good Reason" termination is not remedied within 30 days
after receipt of such written notice; provided, however, that if the asserted
basis for a "Good Reason" termination cannot reasonably be remedied within such
30-day period and the Corporation commences reasonable steps within such 30-day
period to remedy such asserted basis and diligently continues such steps
thereafter until a remedy is effected, such event shall not constitute "Good
Reason",
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provided that such asserted basis is remedied within 60 days after receipt of
such written notice.
(e) Date of Termination. For purpose of this Agreement, "Date of
Termination" means (1) the effective date on which the Employee's employment by
the Corporation terminates as specified in a Notice of Termination by the
Corporation or the Employee, as the case may be, or (2) if the Employee's
employment terminates by reason of death, the date of death of the Employee.
Notwithstanding the previous sentence, if the Employee's employment is
terminated for Disability (as defined in Section 6(b)), then the Date of
Termination shall be no earlier than thirty (30) days following the date on
which a Notice of Termination is received.
(f) Payment Upon Termination. Upon any termination of employment
hereunder, the Corporation shall pay the Employee, within ten (10) days
following his Date of Termination, a lump sum cash amount equal to the sum of
(i) the Employee's unpaid Base Salary through the Date of Termination, (ii) any
bonus payments which have become payable (other than the deferred amounts), to
the extent not theretofore paid, and (iii) any vacation pay owed with respect to
accrued, but unused, vacation.
(g) Termination Without Cause, For Good Reason or Upon Failure to
Renew. In addition to the payments set forth in Section 6(f) hereof, in the
event that the Employee's employment with the Corporation terminates before the
second anniversary of the Effective Date either (1) prior to a Change in Control
or (2) following the two year period immediately subsequent to a Change in
Control (including as a result of a notice of a non-renewal of the Term by the
Corporation provided during such two year period), in each case as a result of
(i) a termination by the Employee for Good Reason, (ii) a termination by the
Corporation without Cause (other than for Disability) or (iii) notice by the
Corporation of non-renewal of the Term, then the Corporation shall pay to the
Employee an amount (the "Severance Amount") equal to two times the sum of: (i)
the Base Salary earned by the Employee from the Corporation and its subsidiaries
during the twelve-month period immediately preceding the Employee's Date of
Termination plus (ii) the bonus provided for in Section 3(b) (determined without
regard to any reduction that would give rise to Good Reason) (the "Recent
Compensation"). The Severance Amount shall be paid over the course of two years
in conformity with the Company's normal payroll practices for senior officers.
The corporation shall also continue to provide for a period of two (2) years
following the date of termination, health benefits for the Employee (and the
Employee's dependants if applicable).
(h) In the event that the Employee's employment with the Corporation
terminates either (1) prior to a Change in Control or (2) following the two year
period immediately subsequent to a Change in Control (including as a result of a
notice of a non-renewal of the Term by the Corporation provided during such two
year period), but following the second anniversary of the Effective Date as a
result of the circumstances listed in (i), (ii) or (iii) above, the Severance
Amount shall be equal to one times the Recent Compensation and shall be paid by
the Corporation to the Employee over the course of one year in conformity with
the Company's normal payroll practices for senior
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officers. The Corporation shall also continue to provide for a period of one (1)
year following the date of termination, health benefits for the Employee (and
the Employee's dependants if applicable).
7. Termination of Employment Following a Change in Control.
(a) Change in Control Defined. For purposes of this Agreement, a
"Change in Control" shall be deemed to have taken place if:
(i) any "person" (as defined below) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934 (the "Exchange Act")), directly or indirectly, of
securities of the Corporation representing 30% or more of the total
voting power represented by the Corporation's then outstanding voting
securities;
(ii) a change in the composition of the Board of Directors of
the Corporation occurs, as a result of which fewer than two-thirds
(2/3) of the incumbent directors are directors who either (A) had been
directors of the Corporation on the "look-back date" or (B) were
elected, or nominated for election, to the Board of Directors of the
Corporation with the affirmative votes of at least a majority of the
directors who had been directors of the Corporation on the "look-back
date" and who were still in office at the time of the election or
nomination;
(iii) the stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, other than
a merger or consolidation which would result in the voting securities
of the Corporation outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least 80% of the total
voting power represented by the voting securities of the Corporation or
such surviving entity outstanding immediately after such a merger or
consolidation; or
(iv) the stockholders of the Corporation approve (A) a plan of
complete liquidation of the Corporation or (B) an agreement for the
sale or disposition by the Corporation of all or substantially all of
the Corporation's assets.
For purpose of paragraph (a)(i), the term "person" shall have the same meaning
as when used in sections 13(d) and 14(d) of the Exchange Act, but shall exclude
(1) a trustee or other fiduciary holding securities under an employee benefit
plan of the Corporation or of a parent or subsidiary of the Corporation or (2) a
corporation owned directly or indirectly by the stockholders of the Corporation
in substantially the same proportions as their ownership of the common stock of
the Corporation. For purposes of paragraph (a)(ii), the term "look-back date"
shall mean the date twenty-four (24) months prior to the change in the
composition of the Board. The term "Change in Control" shall not include either
of the following events, if undertaken at the election of the Corporation:
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(x) a transaction, the sole purpose of which is to change
the state of the Corporation's incorporation; or
(y) a transaction, the result of which is to sell all or
substantially all of the assets of the Corporation to
another corporation (the "surviving corporation");
provided that the voting power represented by the
surviving corporation is owned directly or indirectly
by the stockholders of the Corporation immediately
following such transaction in substantially the same
proportions as their ownership of the Corporation's
Common Stock immediately preceding such transaction;
and provided, further, that the surviving corporation
expressly assumes this Agreement.
Notwithstanding anything to this Agreement to the contrary, if the Employee's
employment terminates prior to a Change in Control, and the Employee reasonably
demonstrates that such termination was at the request or suggestion of a third
party who has indicated an intention or taken steps reasonably calculated to
effect a Change in Control (a "Third Party"), then for all purposes of this
Agreement, the date of a Change in Control shall mean the date immediately prior
to the date of such termination of employment.
(b) Cause. During the two-year period following a Change in Control,
"Cause" shall mean (i) the willful and continued failure of the Employee to
substantially perform his duties with the Corporation (other than any such
failure resulting from the Employee's incapacity due to physical or mental
illness or any such failure subsequent to the Employee being delivered a notice
of termination without Cause by the Corporation or delivering a notice of
termination for Good Reason to the Corporation) after a written demand for
substantial performance is delivered to the Employee by the Board which
specifically identifies the manner in which the Board believes that the Employee
has not substantially performed the Employee's duties, or (ii) the willful
engaging by the Employee in illegal conduct or gross misconduct which is
demonstrably and materially injurious to the Corporation or its subsidiaries.
For purpose of this paragraph (b), no act or failure to act by the Employee
shall be considered "willful" unless done or omitted to be done by the Employee
in bad faith and without reasonable belief that the Employee's action or
omission was in the best interests of the Corporation or its affiliates. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board and based upon the advice of counsel for the Corporation,
shall be conclusively presumed to be done, or omitted to be done, by the
Employee in good faith and in the best interests of the Corporation. Cause shall
not exist unless and until the Corporation has delivered to the Employee a copy
of a resolution duly adopted by two-thirds (2/3) of the entire Board at a
meeting of the Board called and held for such purpose (after reasonable notice
to the Employee and an opportunity for the Employee, together with counsel, to
be heard before the Board), finding that in the good faith opinion of the Board
an event set forth in clause (i) or (ii) has occurred and specifying the
particulars thereof in detail. Following a Change in Control, the Corporation
must notify the Employee of any
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event constituting Cause within ninety (90) days following the Corporation's
knowledge of its existence or such event shall not constitute Cause under this
Agreement.
(c) Good Reason. During the two-year period following a Change in
Control, "Good Reason" shall mean, without the Employee's express written
consent, the occurrence of any of the following events:
(1) The assignment to the Employee of any duties or
responsibilities (including reporting responsibilities)
inconsistent in any material and adverse respect with the
Employee's duties and responsibilities with the Corporation
immediately prior to such Change in Control (including any
diminution of such duties or responsibilities); or (ii) a
material and adverse change in the Employee's reporting
responsibilities, titles or offices (other than membership on
the Board) with the Corporation as in effect immediately prior
to such Change in Control;
(2) a reduction by the Corporation in the Employee's rate of
annual Base Salary or annual target bonus opportunity
(including any adverse change in the formula for such annual
bonus target) as in effect immediately prior to such Change in
Control or as the same may be increased from time to time
thereafter;
(3) any requirement of the Corporation that the Employee (i) be
based anywhere more than thirty (30) miles from the office
where the Employee is located at the time of the Change in
Control or (ii) travel on the Corporation's business to an
extent substantially greater than the travel obligations of
the Employee immediately prior to such Change in Control;
(4) the failure of the Corporation to (i) continue in effect any
employee benefit plan, compensation plan, welfare benefit plan
or material fringe benefit plan in which the Employee is
participating immediately prior to such Change in Control, or
the taking of any action by the Corporation which would
adversely affect the Employee's participation in or reduce the
Employee's benefit under any such plan, unless the Employee is
permitted to participate in other plans providing the Employee
with substantially equivalent aggregate benefits (at
substantially comparable cost with respect to welfare benefit
plans), or (ii) provide the Employee with paid vacation in
accordance with the most favorable plans, policies, programs
and practices of the Corporation and its affiliated companies
as in effect for the Employee immediately prior to such Change
in Control;
(5) the failure of the Corporation to obtain the assumption
agreement from any successor as contemplated in Section 11(a)
hereof; or
(6) any event that would constitute "Good Reason" under Section 6
(d).
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(7) if the employee does not continue as the Executive Vice
President, General Counsel and Secretary to the ultimate
parent entity following a Change in Control which reports to
the SEC pursuant to the Exchange Act.
Any event or condition described in Section 7(c)(1) through (4) or Section
7(c)(6) or Section 7(c)(7), which occurs prior to a Change in Control, but with
respect to which the Employee is able to reasonably demonstrate was at the
request of suggestion of a Third Party, shall constitute Good Reason following a
Change in Control for purposes of this Agreement (as if a Change in Control had
occurred immediately prior to the occurrence of such event or condition)
notwithstanding that it occurred prior to the Change in Control. An isolated,
insubstantial and inadvertent action taken in good faith and which is remedied
by the Corporation promptly after receipt of notice thereof given by the
Employee shall not constitute Good Reason. The Employee's right to terminate
employment for Good Reason shall not be affected by the Employee's incapacity
due to mental or physical illness and the Employee's continued employment shall
not constitute consent to, or a waiver of rights with respect to, any event or
condition constituting Good Reason. Following a Change in Control, the Employee
must provide notice of termination of employment within ninety (90) days of the
Employee's knowledge of an event constituting Good Reason or such event shall
not constitute Good Reason under this Agreement.
(d) In addition to the payments set forth in Section 6(f) above, in the
event the Employee's employment with the Corporation terminates within two (2)
years following a Change in Control either (i) by the Corporation without Cause
(other than for Disability) or (ii) by the Employee for Good Reason, then the
Corporation shall (1) pay to the Employee, within ten (10) days following the
Employee's Date of Termination, a lump sum cash amount equal to two (2) times
the sum of (i) the highest annual rate of Base Salary of the Employee during the
three-year period immediately preceding the Employee's Date of Termination and
(ii) the highest annual bonus earned by the Employee in respect of the three (3)
fiscal years of the Corporation immediately preceding the year in which the
Employee's Date of termination occurs (provided that if the Employee has not
been employed by the Corporation for such three year period) the greater of (x)
the target annual bonus (without regard to any reduction that would rise to Good
Reason) for the year in which the employee's Date of Termination occurs, (y) the
amount otherwise determined under this clause (ii) with out regard to this
parenthetical and (z) the Minimum Bonus, and (2) continue to provide, for a
period of two (2) years following the Date of Termination, the Employee (and the
Employee's dependents if applicable) with the same level of medical, dental,
accident, disability, and life insurance benefits upon substantially the same
terms and conditions (including cost of coverage to the Employee) as existed
immediately prior to the Employee's Date of Termination (or, if more favorable
to the Employee, as such benefits and terms and conditions existed immediately
prior to the Change in Control); provided, that if the Employee cannot continue
to participate in the Corporation plans providing such benefits, the Corporation
shall otherwise provide such benefits on the same after-tax basis as if
continued participation had been permitted. Notwithstanding the foregoing, in
the event the
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Employee becomes reemployed with another employer and becomes eligible to
receive welfare benefits from such employer, the welfare benefits described
herein shall be secondary to such benefits during the period of the Employee's
eligibility, but only to the extent that the Corporation reimburses the Employee
for any increased cost and provides any additional benefits necessary to give
the Employee the benefits hereunder.
(a)(i) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution, or any acceleration of vesting of any benefit or award, by the
Corporation or its affiliated companies to or for the benefit of the Employee
(whether paid or payable, distributed or distributable or accelerated or subject
to acceleration pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
7(e)) (a "Payment") would be subject to the excise tax imposed by Section 4999
of the Code, or any interest or penalties are incurred by the Employee with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Employee of all taxes
imposed upon the Gross-Up Payment and any interest or penalties imposed with
respect to such taxes, the Employee retains an amount of the Gross-Up Payment
equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the
product of any deductions disallowed because of the inclusion of the Gross-Up
Payment in the Employee's adjusted gross income and the highest applicable
marginal rate of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made. For purposes of determining the amount of the
Gross-Up Payment, the Employee shall be deemed to (A) pay federal income taxes
at the highest marginal rates of federal income taxation for the calendar year
in which the Gross-Up Payment is to be made, (B) pay applicable state and local
income taxes at the highest marginal rate of taxation for the calendar year in
which the Gross-Up Payment is to be made, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and
local taxes and (C) have otherwise allowable deductions for federal income tax
purposes at least equal to those which could be disallowed because of the
inclusion of the Gross-Up Payment in the Employee's adjusted gross income. The
payment of a Gross-Up Payment under this Section 7(e) shall in no event be
conditioned upon the Employee's termination of employment or the receipt of
severance benefits under this Agreement.
(ii) Subject to the provisions of Section 7(a)(i), all determinations
required to be made under this Section 7(a), including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
the public accounting firm that is retained by the Corporation as of the date
immediately prior to the Change in Control (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Corporation and the
Employee within fifteen (15) business days of the receipt of notice from the
Corporation or the Employee that there has been a Payment, or such earlier time
as is requested by the Corporation (collectively, the "Determination"). In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group
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effecting the Change in Control, the Employee may appoint another nationally
recognized public accounting firm to make the determinations required hereunder
(which accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be borne solely
by the Corporation and the Corporation shall enter into any agreement requested
by the Accounting Firm in connection with the performance of its services
hereunder. The Gross-Up Payment under this Section 7(a) with respect to any
Payment shall be made no later than thirty (30) days following such Payment. If
the Accounting Firm determines that no Excise Tax is payable by the Employee, it
shall furnish the Employee with a written opinion to such effect, and to the
effect that failure to report the Excise Tax, if any, on the Employee's
applicable federal income tax return will not result in the imposition of a
negligence or similar penalty. The Determination by the Accounting Firm shall be
binding upon the Corporation and the Employee. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the Determination, it
is possible that Gross-Up Payments which will not have been made by the
Corporation should have been made ("Underpayment") or Gross-Up Payments are made
by the Corporation which should not have been made ("Overpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Employee thereafter is required to make payment of any additional Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Corporation
to or for the benefit of the Employee. In the event the amount of the Gross-Up
Payment exceeds the amount necessary to reimburse the Employee for his Excise
Tax, the Accounting Firm shall determine the amount of the Overpayment that has
been made and any such Overpayment (together with interest at the rate provided
in Section 1274(b)(2) of the Code) shall be promptly paid by the Employee to or
for the benefit of the Corporation. The Employee shall cooperate, to the extent
his expenses are reimbursed by the Corporation, with any reasonable requests by
the Corporation in connection with any contests or disputes with the Internal
Revenue Service in connection with the Excise Tax.
8. Covenants Not to Compete; Confidentiality.
(a) The Employee covenants that if he voluntarily terminates his employment
with the Corporation prior to the end of the term of this Agreement, unless such
termination either is approved by the Board or is within the two-year period
following a Change in Control, he shall not, for a period of one (1) year
following such Date of Termination:
(1) engage or be interested, whether alone or together with or on
behalf or through any other person, firm, association, trust, venture, or
corporation, whether as sole proprietor, partner, shareholder, agent,
officer, director, employee, adviser, consultant, trustee, beneficiary or
otherwise, in any business principally and directly engaged in the operation
of health maintenance organizations or the health insurance business or in
the management of specialty medical care through case rate contracting; which
business operates in a geographic area in which, at the time of such
termination of employment, the Corporation is conducting business or plans to
conduct business (a "competing business");
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(2) assist others in conducting any competing business;
(3) directly or indirectly recruit or induce or hire any
person who is an employee of the Corporation or any of its
subsidiaries, or solicit any of the Corporation's customers, clients or
providers; or
(4) own any capital stock or any other securities of, or have
any other direct or indirect interest in, any entity which owns or
operates a competing business, other than the ownership of (i) less
than five percent (5%) of any such entity whose stock is listed on a
national securities exchange or traded in the over-the-counter market
and which is not controlled by the Employee or any affiliate of the
Employee or (ii) any limited partnership interest in such an entity.
Nothing contained in this section, however, shall prohibit the
Employee from taking any of the actions set forth in clause (1), (2),
(3) or (4) above if (i) the Employee's employment has been terminated
other than for Cause, or (ii) the Employee has terminated employment
for Good Reason.
(b) In the event that the Employee breaches or threatens to
breach any of the terms of this Section 8, the Employee acknowledges
that the Corporation's remedy at law would be inadequate and that the
Corporation shall be entitled to an injunction restraining the Employee
from committing or continuing such breach.
9. Payment Obligation Absolute; No Mitigation. Except with respect to
continued welfare benefits provided for under Section 7(d)), the Corporation's
obligation to pay the Employee the compensation and other benefits provided
herein shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Corporation may have against the
Employee. All amounts payable by the Corporation hereunder shall be paid without
notice or demand. The Corporation further agrees that the Employee is not
required to seek other employment or to attempt in any way to reduce any amounts
payable to the Employee by the Corporation pursuant to this Agreement. Further,
the amount of any payment or benefit provided for in this Agreement (except with
respect to continued welfare benefits provided for under Section 7(d)), shall
not be reduced by any compensation earned by the Employee in respect of any
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Employee to the Corporation, or otherwise.
10. Notice.
(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five (5) days after deposit in
the United States mail, certified and return receipt requested, postage prepaid,
addressed as follows:
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If to the Employee:
Xxxxxx Xxxxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
If to the Corporation:
Oxford Health Plans
00 Xxxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attn: President
Or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice (a "Notice of Termination") of the Employee's Date
of Termination by the Corporation or the Employee, as the case may be, to the
other, shall (i) indicate the specific termination provision in this Agreement
relied upon (ii) to the extent applicable, set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated and (iii) specify the
Date of Termination. The failure by the employee or the Corporation to set forth
in such notice any particular fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Employee or the
Corporation hereunder or preclude the Employee or the Corporation from asserting
such fact or circumstance in enforcing the Employee's or the Corporation's
rights hereunder.
11. General Provisions.
(a) No Assignments. This Agreement is personal to each of the parties
hereto. Neither party may assign or delegate any of his or its rights or
obligations hereunder without first obtaining the written consent of the other
party; provided, however, that the Corporation agrees that concurrently with any
merger, consolidation or other transaction or sale of assets which would
constitute a Change in Control hereunder, it will cause any successor or
transferee unconditionally to assume all of the obligations of the Corporation
hereunder. This Agreement shall insure to the benefit of and be enforceable by
the Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Employee shall
die while any amounts would be payable to the Employee hereunder had the
Employee continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to such person or
persons appointed in writing by the Employee to receive such amounts or, if no
person is so appointed, to the Employee's estate.
(b) Governing Law. This Agreement shall be governed by the laws of the
State of Connecticut as to all matters including, but not limited to, matters of
validity, construction, effect and practice.
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(c) Employment with Subsidiaries. Employment with the Corporation for
purposes of this Agreement shall include employment with any subsidiary of the
Corporation.
(d) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
(e) Section Headings. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(g) Indemnification of Employee. In the event the employment of the
Employee is terminated by the Corporation without Cause or by the Employee for
Good Reason hereof and the Corporation fails to make timely payment of the
amounts then owed to the Employee under this Agreement, the Employee shall be
entitled to indemnification for all reasonable costs (as such costs are
incurred), including attorneys' fees and disbursements, incurred by the Employee
in taking action to collect such amounts or otherwise to enforce this Agreement,
plus interest on all such amounts at the annual rate of one percent above the
prime rate (defined as the base rate on corporate loans at large U.S. money
center commercial banks as published by the Wall Street Journal), compounded
monthly, for the period from the time payment is due until payment is made to
the Employee. The Employee shall also be entitled to interest (at the rate
described in the immediately preceding sentence) on such reasonable costs
incurred from the date the Employee delivers a receipt to the Corporation for
such costs until the date they are reimbursed to the Employee. Such
indemnification and interest shall be in addition to all rights to which the
Employee is otherwise entitled under this Agreement.
(h) Entire Agreement. This Agreement contains the entire understanding
of the parties hereto with respect to the transactions contemplated hereby and
supersedes all prior oral and written agreement, memoranda, understandings, and
undertakings between the parties hereto relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
OXFORD HEALTH PLANS, INC.
By:
/s/ XXXX XXXXXXXX
-----------------------------
Xxxx Xxxxxxxx
EVP Operations & Corp. Services
Agreed & Accepted by:
/s/ XXXXXX XXXXXXXX
--------------------------------
Xxx Xxxxxxxx
September 16, 2000
--------------------------------
Date:
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Exhibit 10(p) (cont'd)
Amendment to Employment Agreement of
Xxxxxx Xxxxxxxx
This Amendment to the Employment Agreement dated as of September 1,
2000 (the "Agreement") between Oxford Health Plans, Inc. ("Oxford") and Xxxxxx
Xxxxxxxx ("Employee") is entered as of the 30th day of October, 2000. The
parties hereto agree Section 3(d) of the Agreement shall be replaced in its
entirety with the following language:
(h) "(d) Stock Options. Effective as of December 1, 2000, the Employee
is hereby granted a nonqualified stock option (the "Option") to purchase
125,000 shares of the Corporation's common stock ("Common Stock") pursuant
to the terms of the Option Agreement attached hereto as Exhibit A. These
options will vest annually over the following four (4) year period, or such
vesting schedule that may be more favorable as part of the Corporation's
2001 executive stock option grant. As promptly as practicable, and in any
event prior to the first vesting date of the Option, the Corporation shall,
at its expense, cause all shares subject to the Option to be registered
under the Securities Act of 1933, as amended (the "Securities Act"), and
registered or qualified under applicable state laws, to be freely resold.
The Corporation shall maintain the effectiveness of such registration and
qualifications for so long as the Employee holds the Option or owns the
underlying shares of Common Stock or until such earlier dates as all such
shares without such registration or qualification may be freely sold
without any restrictions under the Securities Act. In connection with such
registration and qualification, the Corporation will provide customary
indemnification to the Employee and take such other actions as are
customary in connection with such registration and qualification."
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
Oxford Health Plans, Inc.
By: /s/ XXXX XXXXXXXX
---------------------
/s/ XXXXXX XXXXXXXX
-------------------------
Xxxxxx Xxxxxxxx
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