EXHIBIT 3.3
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement (this "Agreement") is made as of October
24, 1996, by and among Pioneer Financial Service, Inc., a Delaware corporation
("PFS"), and Xxxxxxx X. Xxxx ("Xxxx").
Recitals:
Preferred Health Choice, Inc., an Illinois corporation and a subsidiary of PFS
("PHC"), and United Payors & United Providers, Inc., a Delaware corporation
("Buyer"), have entered into that certain Stock Purchase Agreement, dated
October 22, 1996, but effective as of September 30, 1996 (the "Stock Purchase
Agreement"), providing generally for the sale of PHC s equity interest in
National Health Services, Inc, a Wisconsin corporation ("NHS"), to Buyer.
PFS and Xxxx are parties to that certain Employment Agreement, dated as of
January 1, 1996 (the "Employment Agreement"), and that certain related letter
agreement, dated as of September 7, 1995, from PFS to Xxxx, which provides,
among other things, for certain compensation to be payable to Xxxx in the event
of the sale of Preferred Health Choice, Inc. (the "Letter Agreement").
Xxxx has executed and delivered to PFS that certain Promissory Note, dated
July 1, 1994, in the principal amount of $75,000 (the "Note").
In connection with the sale of NHS to Buyer, the parties hereto desire to
(x) terminate the Employment Agreement, the Letter Agreement and the Note, and
(y) release each other from certain obligations and liabilities.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Termination of the Employment Agreement. Effective as of the date
hereof, the Employment Agreement is hereby terminated pursuant to Section 7(c)
thereof; Xxxx acknowledges and agrees that (x) such termination is not for
"good reason" as defined in the Employment Agreement, and (y) that he is not
entitled to any compensation other than for services rendered thereunder prior
to the date hereof as provided in said Section 7(c); and both parties
acknowledge and agree that neither party has any right, obligation or liability
thereunder except that Xxxx s obligations under Sections 10, 11 and 12 survive
termination of the Employment Agreement.
2. Termination of the Letter Agreement. Effective as of the date hereof,
the Letter Agreement is hereby terminated; and neither party thereto shall have
any right, obligation or liability thereunder.
3. Forgiveness of Note. Effective as of September 30, 1996, PFS hereby
forgives or will cause to be forgiven all outstanding indebtedness owed by Xxxx
under the Note.
4. Vesting of Options. All options heretofore issued by PFS to Xxxx
shall be fully vested effective as of the date hereof.
5. Releases.
(a) PFS, on behalf of itself and its affiliates and their respective
successors and assigns, (collectively, the "PFS Releasing Parties"), hereby
fully and forever release, discharge, disclaim and renounce any and all claims,
demands, actions, causes of action and or suits in law or equity now or
hereafter existing, whether known or unknown ("Claims") against Xxxx and his
respective assigns and legal representatives (herein collectively referred to as
the "Xxxx Released Parties"), including without limitation any Claims arising
under the Employment Agreement, the Letter Agreement and the Note except for (x)
Claims arising hereunder, (y) Claims arising under Sections 10, 11 or 12 of the
Employment Agreement, and (z) Claims arising under that certain affidavit, dated
as of October 23, 1996, delivered by Xxxx in connection with the transactions
contemplated in the Stock Purchase Agreement. PFS, on behalf of itself and its
affiliates, hereby represents and warrants that they have not assigned or
otherwise transferred any claim, demand, action or cause of action released by
this Section 5(a).
(b) Xxxx, on behalf of himself and his legal representatives and
assigns (collectively, the "Xxxx Releasing Parties"), hereby fully and forever
releases, discharges, disclaims and renounces any and all claims, demands,
actions, causes of action and or suits in law or equity now or hereafter
existing, whether known or unknown ("Claims") against PFS and its affiliates,
directors, officers, shareholders, agents and employees and their respective
successors, assigns and legal representatives (herein collectively referred to
as the "PFS Released Parties"), including without limitation any Claims arising
under the Employment Agreement or the Letter Agreement, except for Claims
arising hereunder. Xxxx represents and warrants, on behalf of himself and his
successors and personal representatives, that he has not assigned or otherwise
transferred any claim, demand, action or cause of action released by this
Section 4(b).
5. Condition to Effectiveness. Notwithstanding anything in the foregoing
to the contrary, this Termination and Release Agreement is conditioned upon, and
shall be effective only upon, the closing of the Stock Purchase Agreement.
6. Miscellaneous.
(a) Neither this Agreement nor any of the rights, interest or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of each other party hereto.
(b) The descriptive headings of the sections of this Agreement are
for convenience only and do not constitute a part of this Agreement.
(c) The parties acknowledge that each has had the benefit of counsel
of its own choice and has been afforded an opportunity to review this Agreement
with chosen counsel. The parties further acknowledge that they have, through
their respective counsel, participated in the preparation of this Agreement, and
it is understood that no provision of this Agreement shall be construed against
any of the parties or their attorneys because of their participation in the
preparation of this Agreement.
(d) This Agreement, together with Sections 10, 11 and 12 of the
Employment Agreement and the affidavit referred to above, constitute the entire
agreement between the parties hereto and supersede all prior written and oral
agreements with respect to the matters covered by this Agreement. This
Agreement may not be amended except by an instrument in writing signed by each
of the parties hereto.
(e) The parties hereto acknowledge and agree that irreparable damage
would occur in the event any of the provisions of this agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this agreement, and shall
be entitled to enforce specifically the provisions of this agreement, in
addition to any other remedy to which the parties may be entitled under this
agreement or at law or in equity.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DATE
FIRST SET FORTH ABOVE.
___________________________________
Xxxxxxx X. Xxxx
PIONEER FINANCIAL SERVICES, INC.
By: ________________________________
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