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EXHIBIT 10.44
OFFICER SEVERANCE AGREEMENT
THIS OFFICER SEVERANCE AGREEMENT (this "Agreement") is entered into as
of the __ day of _______ , ______, by and between RightCHOICE Managed Care,
Inc., a Delaware corporation ("RightCHOICE"), and __________ (the "Officer").
W I T N E S S E T H:
WHEREAS, RightCHOICE has engaged the services of Officer as an
"at-will" employee of RightCHOICE; and
WHEREAS, as a condition of Officer's employment, Officer agrees to be
bound by certain covenants set forth herein and RightCHOICE agrees to provide
Officer certain severance benefits upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound, RightCHOICE and Officer do hereby
agree as follows:
SECTION 1
TERM OF AGREEMENT
This Agreement shall be effective as of the day first written above and
shall continue in effect until terminated in accordance with the provisions of
Section 5 hereof.
SECTION 2
DEFINITIONS
The following definitions shall apply for purposes of this Agreement:
A. Affiliate. "Affiliate" shall mean any corporation or other legal
entity that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person or
entity specified; provided, however, that no corporation or entity shall be
considered an Affiliate solely because of its direct or indirect ownership of an
interest in The Epoch Group, L.C.; and, provided further, that no person or
entity that is regularly in the business of lending money shall be deemed to be
an Affiliate solely because, under the terms of an agreement executed in
connection with extending financing, the lender has the right to enforce
covenants requiring certain financial ratios or business practices to be
maintained, so long as such requirements are typical of the covenants required
by lenders generally in connection with financing similar to that provided in
connection with such agreement; and, provided further, that The Missouri
Foundation of Health shall not be deemed to be an Affiliate of RightCHOICE for
purposes of this Agreement.
Revised March 2001
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B. Base Pay. "Base Pay" shall mean the dollar amount equal to the
highest annual base salary rate applicable to Officer during the two (2) years
immediately prior to Officer's Date of Termination.
C. Cause. "Cause" shall mean any one or more of the following:
(i) Company's becoming aware of, or being notified of,
Officer's conviction of, or Officer's entry of a guilty plea to, a
felony or any other crime involving moral turpitude by or before a
court of competent jurisdiction;
(ii) gross failure by Officer to perform Officer's expected
duties with Company (other than any such failure resulting from
Officer's incapacity due to physical or mental illness or any such
actual or anticipated failure occurring after, and not before, the
issuance of a Notice of Termination by Officer for Proper Reason which
is not thereafter successfully disputed by Company) which gross failure
occurs or continues after: (a) Company delivers to Officer a written
demand for substantial performance that specifically identifies the
expected duties of Officer, the manner in which Company believes that
Officer has not substantially performed Officer's duties, and the time
by which Officer must demonstrate that he is performing or has resumed
performance of such duties in order to avoid a determination that a
gross failure by Officer to perform such duties has occurred, and (b)
the Officer has failed to demonstrate that he is performing or has
resumed performance of the duties specified in such notice by the time
specified in such notice;
(iii) Company's becoming aware of, or being notified of,
Officer's willfully engaging in conduct which Company determines is
likely to be materially damaging or detrimental to Company or to an
Affiliate of Company; or
(iv) Company's becoming aware of, or being notified of,
Officer's willfully engaging in conduct which Company determines
constitutes a material violation by Officer of the Employee Statement.
D. Code. "Code" shall mean the Internal Revenue Code of 1986 as from
time to time amended.
E. Company. "Company" shall mean RightCHOICE, except that, if any
person or entity other than RightCHOICE employs Officer and is obligated by
agreement, operation of law or otherwise to abide by and be bound by the
provisions of this Agreement, then "Company" shall mean that person or entity;
provided, however, that the substitution of another person or entity as
"Company" under this Agreement shall not be construed as removing from, or
eliminating with respect to, RightCHOICE or any other person or entity that
subsequently employs Officer and becomes bound by the provisions of this
Agreement, any of the protections, rights and remedies accruing to the "Company"
under the provisions of Section 4 of this Agreement.
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Notwithstanding the foregoing, for purposes of the definition of "Change of
Control" as used herein, the term "Company" shall refer only to RightCHOICE and
its successors.
F. Date of Termination. "Date of Termination" shall mean the effective
date of Officer's termination of employment with Company. If Officer delivers a
Notice of Termination hereunder to Company, then the Date of Termination shall
be thirty (30) days following the date such Notice of Termination is delivered
or mailed to Company in accordance with Section 6(B) hereof; provided, however,
that in such event Company shall have the right to accelerate such Date of
Termination by written notice of such acceleration delivered or mailed to
Officer in accordance with Section 6(B) hereof. If Company delivers or mails a
Notice of Termination hereunder to Officer in accordance with Section 6(B)
hereof, then the Date of Termination shall be the date specified by Company in
such Notice of Termination.
G. Designated Beneficiary. "Designated Beneficiary" shall mean one or
more individuals or legal entities designated by Officer on Exhibit A to this
Agreement, but if there is no such effective beneficiary designation at the time
of Officer's death, then Designated Beneficiary shall mean the legal
representative of Officer's estate. Exhibit A to this Agreement may be revoked
by Officer at any time by written instrument delivered to Company, in which
event a new Exhibit A may be completed and executed by Officer and shall be
effective upon receipt by Company prior to the date of Officer's death.
H. Disabled. "Disabled" shall mean Officer is receiving, or is
currently entitled to receive pursuant to a determination made by Company,
benefits under Company's long-term disability plan, if any.
I. Employee Statement. "Employee Statement" shall mean Company's Code
of Business Conduct, or, with respect to any periods during which such Code of
Business Conduct is not applicable, any predecessor or successor thereto, or any
other set of rules and guidelines serving a similar purpose that may become
applicable, as each may be amended from time to time.
J. Involuntary Termination. "Involuntary Termination" shall mean the
termination of Officer's employment by action of Company for any reason other
than Cause; provided, however, that the termination of Officer's employment by
Company shall not be an Involuntary Termination if immediately following such
termination of employment Officer is employed by another employer that is to
abide by the provisions of this Agreement as described in Section 2(E) hereof.
K. Notice of Termination. "Notice of Termination" shall mean:
(i) a notice from Officer to Company advising Company of
Officer's decision to terminate Officer's employment; or
(ii) a notice from Company to Officer advising Officer of
Company's decision to terminate Officer's employment.
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A Notice of Termination shall be delivered or mailed in accordance with Section
6(B) hereof. If a Notice of Termination is from Officer to Company and if
Officer believes such termination is a Proper Reason Termination, then such
Notice of Termination shall specify that such termination is a Proper Reason
Termination, the event(s) which Officer believes constitute Proper Reason and
the facts and circumstances supporting such belief of Officer. If a Notice of
Termination is from Company to Officer and if Company believes such termination
is for Cause, then such Notice of Termination shall specify that such
termination is for Cause and shall set forth in reasonable detail the facts and
circumstances supporting such belief of Company.
L. Proper Reason. "Proper Reason" shall mean (i) the reduction of
Officer's normal base salary rate by twenty percent (20%) or more, or (ii) a
change in a short-term or long-term incentive formula (e.g., a change in the
percentage of base salary to be awarded at target level of achievement) which
directly results in a reduction of twenty percent (20%) or more in the overall
target compensation which applies to Officer in a given period compared to the
overall target compensation which would have applied to Officer during that
period without such change in bonus formula, or (iii) a change in Officer's
primary work location of more than seventy-five (75) miles from the Officer's
former primary work location; provided, however, that no base salary rate
reduction or bonus formula change or change in primary work location shall
constitute Proper Reason if:
(i) Officer consents in writing to such reduction or change;
or
(ii) at the time of such reduction or change, or during the
three-month period prior to the effective date of such reduction or
change, there is Cause; or
(iii) such reduction or change similarly affects all officers
of Company.
M. Proper Reason Termination. "Proper Reason Termination" shall mean
Officer's termination of his employment with Company following the occurrence of
an event constituting Proper Reason, but only if:
(i) Officer, within sixty (60) days after being notified of or
becoming aware of, whichever is earlier, such event, objects to such
event by delivering Notice of Termination to Company in accordance with
Section 6(B) hereof;
(ii) Company, having received Notice of Termination pursuant
to Section 2(M)(i), does not reverse the action or otherwise remedy the
situation cited in the Notice of Termination as constituting Proper
Reason within ten (10) days after receiving such Notice of Termination;
and
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(iii) Officer terminates employment within three (3) months
after being notified of or becoming aware of, whichever is earlier, the
occurrence of the event cited as constituting Proper Reason in the
Notice of Termination.
X. Xxxxxxxxx Benefits. "Severance Benefits" shall mean the benefits
described in Section 3(A) hereof.
SECTION 3
SEVERANCE BENEFITS
X. Xxxxxxxxx Benefits. Subject to Sections 3(B), 3(C), 3(D) and
4(D)(ii) hereof, in the event of Officer's Involuntary Termination or Officer's
Proper Reason Termination, Company will:
(i) pay to Officer an amount equal to the multiple of
Officer's Base Pay specified in Exhibit B hereto, payable in the number
of substantially equal monthly installments specified in Exhibit B, and
commencing as soon as practicable following the Date of Termination;
(ii) pay to Officer, for a period of twelve (12) months
starting on the Date of Termination, an amount equal to the portion of
the monthly premiums (to the extent such premiums are due) for
Officer's health, dental, and vision that is equivalent to the portion
of the monthly premiums for such coverages that Company pays on behalf
of similarly situated officers employed by Company during such twelve
(12) month period; and
(iii) provide executive life insurance for a period of twelve
(12) months in the same manner that Company provides such coverage on
behalf of similarly situated officers employed by Company during such
twelve (12) month period; and
(iv) pay for outplacement services for Officer of the type
customarily provided by Company to officers at the time of Officer's
Involuntary Termination or Proper Reason Termination.
Company's obligation to pay the amounts specified in Section 3(A)(ii) above
shall be reduced by any and all amounts Company pays toward Officer's health,
dental, and vision with respect to periods after the Date of Termination.
B. Suspension or Termination of Severance Benefits: Nonentitlement.
(i) Dispute. If at any time a party to this Agreement notifies
the other party pursuant to Section 6(B) hereof that one party disputes
the position of the other party with respect to any provision of this
Agreement, then Company may at any time
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elect to suspend some or all payments hereunder with respect to Officer
(or elect not to commence such payments if payments have not yet
commenced) until such dispute is finally resolved either by mutual
written agreement of the parties or a binding arbitration award
pursuant to Section 6(H) hereof. If pursuant to such resolution of the
dispute, retroactive payments are to be made to Officer or payments
representing reimbursements are to be made to Company, then unless
otherwise provided under such resolution, such payments shall bear
interest at the rate provided in Section 1274(d)(2)(B) of the Code
commencing at the time such payments would have been made absent
dispute (in the case of retroactive payments) or commencing at the time
such payments were made (in the case of reimbursements).
(ii) Subsequent Employment. If at any time while Officer is
entitled to Severance Benefits hereunder Officer is employed (including
employment by Company, employment by any other employer or any form of
self-employment) then (a) Company may in its discretion at any time
following the date of commencement of such employment, pay to Officer
the aggregate remaining amounts to be paid to Officer under Section
3(A)(i) hereof in a lump sum; (b) benefits provided under Section
3(A)(iii) shall terminate, and (c) payments under Sections 3(A)(ii) and
3(A)(iv) hereof shall cease as of the date of commencement of such
employment, but if payments under Sections 3(A)(ii) and 3(A)(iv) are
made by Company subsequent to such date then Company may withhold the
amount of any such payments from the amount otherwise to be paid
pursuant to Section 3(A)(i) hereof, and Officer shall pay to Company on
demand any such excess amount not so withheld, with such excess amount
to bear interest at the rate provided in Section 1274(d)(2)(B) of the
Code commencing thirty (30) days after such demand.
(iii) Disability. If Officer is Disabled during any period
while Officer is entitled to Severance Benefits hereunder, then during
any such period that Officer is Disabled, any amounts payable under
Section 3(A)(i) hereof during such period shall be reduced (but not to
less than zero) by the amounts paid or to be paid with respect to such
period to Officer pursuant to any long-term disability plan maintained
by Company.
(iv) Death. If Officer dies during any period while Officer is
entitled to Severance Benefits hereunder, then a lump sum amount equal
to the total remaining amounts payable to Officer at the time of
Officer's death under Section 3(A)(i) hereof shall be paid to Officer's
Designated Beneficiary; provided, however, that such lump sum amount
shall be reduced, but not to less than zero, by any amounts payable on
account of Officer's death to any beneficiary other than Company under
any Company life insurance program.
(v) Criminal Charges. If at any time after Severance Benefits
become payable hereunder and prior to the completion of the payment of
such benefits Officer is charged with a felony, or other crime
involving moral turpitude, which crime relates to activities of Officer
occurring during the period Officer was employed by Company or its
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predecessor(s) under this Agreement, then Company may suspend such
payments until such criminal charge is resolved. Company shall resume
payments and make any retroactive payments (with interest on such
retroactive payments at the rate provided in Section 1274(d)(2)(B) of
the Code) commencing at the time such payments would have been made
absent suspension under this Section (3)(B)(v) after such criminal
charge is resolved; provided, however, that such payments shall cease
and no further payments shall be made at any time Officer is convicted
of, or enters a guilty plea to, such crime by or before a court of
competent jurisdiction.
C. Code Limitations. In the event that the aggregate of any amounts
payable to or on behalf of Officer under this Agreement and under any other
plan, agreement or policy of Company or any Affiliate of Company would otherwise
result in the imposition of tax under Section 4999 of the Code due to an excess
parachute payment, as determined by Company's independent auditors, then the
amounts payable to or on behalf of Officer under this Agreement shall be reduced
to the extent necessary (but not below zero) so that such aggregate amounts
shall not be a parachute payment. For purposes of determining any limitation
under this Section 3(C): (a) no portion of any benefit the receipt or enjoyment
of which Officer shall have effectively waived in writing shall be taken into
account, and (b) the value of any non-cash benefit or any deferred payment or
benefit shall be determined by Company's independent auditors in accordance with
the principles of Sections 280G(d)(3) and (4) of the Code. If Company's
independent auditors determine that payment that would be a parachute payment
has been made to Officer hereunder, then the excess of (a) the amount of such
payment actually made hereunder over (b) the amount that could be paid hereunder
without any amount payable hereunder being a parachute payment, shall constitute
a loan by Company to Officer, payable to Company upon demand with interest at
the rate provided in Section 1274(d)(2)(B) of the Code commencing as of the date
or dates of payment by Company of such excess amount.
D. General Waiver and Release. Notwithstanding any provision to the
contrary in this Agreement, Officer acknowledges that in addition to other
conditions set forth in this Agreement, Severance Benefits shall be conditioned
upon the prior execution by Officer of a general waiver and release (hereinafter
"Waiver") as described in this Section 3(D), and Officer shall not be eligible
for Severance Benefits unless and until Officer has executed the Waiver within
twenty-one (21) days following Officer's termination of employment. The Waiver
shall be substantially in the form attached hereto as Exhibit C and shall
generally waive all claims Officer has or may have against Company, any
Affiliate of Company, and any successors or predecessors thereto, and shall
release Company and all Affiliates of Company, and any successors and
predecessors thereto, from all liability with respect to any such claims;
provided, however, that Officer shall not waive, and there shall be no release
with respect to, any claim (other than a claim disputing the validity of this
Section 3(D) or the Waiver) of Officer to enforce any one or more of the
provisions of this Agreement. The foregoing notwithstanding, the Waiver attached
hereto as Exhibit C may be modified by Company at any time during the term of
this Agreement.
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SECTION 4
OFFICER'S COVENANTS
A. Employee Statement. Officer agrees to abide by the Employee
Statement (including, but not limited to, the Company Statement of Corporate
Ethics).
B. Covenant Not To Disclose. Officer acknowledges that during the
course of Officer's employment with Company, Officer has or will have access to
and knowledge of certain information and data which Company considers
confidential, and that the release of such information or data to unauthorized
persons could be detrimental to Company or an Affiliate of Company. As a
consequence, Officer hereby agrees and acknowledges that Officer owes a duty to
Company not to disclose, and agrees that, during and after the term of Officer's
employment, Officer will not communicate, publish or disclose to any person
anywhere or use any Confidential Information (as defined below) for any purpose
except in accordance with the prior written consent of Company, where necessary
or appropriate to carry out Officer's duties as an employee of Company, or as
required by law or legal process. Officer will use Officer's best efforts at all
times to hold in confidence and to safeguard any Confidential Information from
becoming known by any unauthorized person and, in particular, will not permit
any Confidential Information to be read, duplicated or copied except in
accordance with the prior written consent of Company, where necessary or
appropriate to carry out Officer's duties as an employee of Company, or as may
be required by law or legal process. Officer will return to Company all
Confidential Information in Officer's possession or under Officer's control when
the duties of Officer as an employee of Company no longer require Officer's
possession thereof, or whenever Company shall so request, and in any event will
promptly return all such Confidential Information if Officer's employment with
Company terminates and will not retain any copies thereof. For the purpose of
this Agreement, "Confidential Information" shall mean any information or data
used by or belonging or relating to Company or an Affiliate of Company which, if
disclosed, could be detrimental to Company or an Affiliate of Company,
including, but not limited to any such information relating to Company's, or its
Affiliate's, members or insureds, trade secrets, proprietary data and
information relating to Company's, or its Affiliate's past, present or future
business, price lists, client lists, processes, procedures or standards,
know-how, manuals, business strategies, records, drawings, specifications,
designs, financial information, whether or not reduced to writing, or any other
information or data which Company advises Officer is Confidential Information.
C. Covenant Not to Compete.
(i) Officer agrees that during the term of Officer's
employment by Company and for a period consisting of the greater of:
(a) the period over which any Severance Benefits are to be paid under
this Agreement (whether or not payment is accelerated hereunder), or
(b) one year from and after the termination of Officer's employment
(such term of employment and applicable subsequent period are referred
to collectively herein as the "Noncompetition Period"), Officer will
not directly or indirectly, without the express prior written consent
of Company:
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(a) own or have any interest in or act as an officer,
director, partner, principal, employee, agent, representative,
consultant to or independent contractor of, any person, firm,
corporation, partnership, business trust, limited liability
company or any other entity or business located in or doing
business in Company's geographic market which during the
Noncompetition Period is engaged in competition in any
substantial manner with Company or an Affiliate of Company,
provided Officer in any such capacity directly or indirectly
performs services in an aspect of such business which is
competitive with Company or an Affiliate of Company; or
(b) divert or attempt to divert clients, customers or
accounts of Company which are clients, customers or accounts
during the Noncompetition Period; or
(c) hire, or attempt to solicit to hire, for any
other person, firm, company, corporation, partnership,
business trust, limited liability company or any other entity,
whether or not owned (in whole or in part) by Officer, any
current employee of Company as of the time of such hire (or
attempt to solicit to hire) or former employee of Company who
has been employed by Company within the twelve (12) month
period immediately preceding the date of such hire or attempt
to solicit to hire.
(ii) With respect to Officer's obligations under this Section
4(C), Officer acknowledges that Company's geographic market is: (a) the
State of Missouri; and (b) a seventy-five (75) mile radius surrounding
each of St. Louis, Missouri and Kansas City, Missouri.
(iii) The restrictions contained in this Section 4(C) are
considered by the parties hereto to be fair, reasonable and necessary
for the protection of the legitimate business interests of Company.
(iv) Officer acknowledges that Officer's experience and
capabilities are such that, notwithstanding the restrictions imposed in
this Section 4(C), he believes that he can obtain employment reasonably
equivalent to his position with Company, and an injunction against any
violation of the provisions of this Section 4(C) will not prevent
Officer from earning a livelihood reasonably equivalent to that
provided through his position with Company.
D. Certain Remedies.
(i) Recognizing that irreparable injury will result to Company
in the event of the breach or threatened breach of any of the foregoing
covenants and assurances
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by Officer contained in this Section 4, and that Company's remedies at
law for any such breach or threatened breach will be inadequate, if,
after written notice of breach delivered or mailed to Officer in
accordance with Section 6(B) hereof Officer takes no satisfactory
action to remedy such breach and abide by this Agreement, or absent
such notice in the event such breach cannot be remedied, then Company,
in addition to such other rights or remedies which may be available to
it (including, without limitation, recovery of monetary damages from
Officer), shall be entitled to an injunction, including a mandatory
injunction, to be issued by any court of competent jurisdiction
ordering compliance with this Agreement or enjoining and restraining
Officer, and each and every person, firm or company acting in concert
or participation with Officer, from the continuation of such breach
and, in addition thereto, Officer shall pay to Company all
ascertainable damages, including costs and reasonable attorneys' fees,
sustained by Company by reason of the breach or threatened breach of
said covenants and assurances.
(ii) In addition to the remedies described in Section 4(D)(i),
in the event of a material breach of this Agreement by Officer, Company
shall no longer be obligated to pay any benefits to Officer under this
Agreement.
(iii) The covenants and obligations of Officer under this
Section 4 are each independent covenants and are in addition to and not
in lieu of or exclusive of any other obligations and duties of Officer
to Company, whether express or implied in fact or in law.
SECTION 5
AMENDMENT OR TERMINATION OF AGREEMENT
A. Termination and Amendment Procedures. Company may terminate this
Agreement effective as of any date by giving Officer, in accordance with Section
6(B) hereof, at least one hundred eighty (180) days' prior written notice of
such termination of this Agreement, specifying the effective date of such
termination; provided, however, that Company may not terminate this Agreement
within twenty-four (24) months following a Change of Control, even if notice of
termination of this Agreement was given prior to such Change of Control. No
notice of termination of this Agreement shall be given any effect whatsoever,
and Officer's and Company's obligations under this Agreement shall continue as
if such notice of termination had not been given, in the event that, while this
Agreement remains in effect during the notice period, a Change of Control occurs
and/or Officer incurs termination for Cause, Involuntary Termination or Proper
Reason Termination. Regardless of anything to the contrary in this Agreement, no
termination of this Agreement shall terminate Officer's obligations under
Sections 4(A) and (B) of this Agreement. Company and Officer may amend this
Agreement at any time by written instrument signed by Company and Officer.
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B. Definition of Change of Control. For purposes of this Section 5, a
"Change of Control" of Company shall be deemed to have occurred upon the
happening of any of the following events:
(i) the acquisition, other than from Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act"))
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either the then outstanding
shares of Common Stock of Company or the combined voting power of the
then outstanding voting securities of Company entitled to vote
generally in the election of directors, but excluding, for this
purpose, any such acquisition by (A) Company or any of its
Subsidiaries, or (B) any employee benefit plan (or related trust) of
Company or its Subsidiaries, or (C) any corporation with respect to
which, following such acquisition, more than 60% of, respectively, the
then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Common Stock and voting
securities of Company immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior
to such acquisition, of the then outstanding shares of Common Stock of
Company or the combined voting power of the then outstanding voting
securities of Company entitled to vote generally in the election of
directors, as the case may be;
(ii) individuals who, as of the date hereof, constitute the
Board (as of the date hereof the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to
the election of the directors of Company (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act);
(iii) consummation of (a) a reorganization, merger or
consolidation of Company, in each case, with respect to which all or
substantially all of the individuals and entities who were the
respective beneficial owners of the Common Stock and voting securities
of Company immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 60%
of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting
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from such reorganization, merger or consolidation or (b) the sale,
lease, exchange, or other disposition of all or substantially all of
the assets of Company to any other corporation or entity (except a
subsidiary or parent corporation as defined in Section 424 of the
Code); or
(iv) approval by the stockholders of Company of a complete
liquidation or dissolution of Company; or
(v) Company ceases to have its Common Stock listed on a
nationally recognized stock exchange or quoted on the Nasdaq National
Market (or any successor quotation system) for any reason other than
the price of the Company's Common Stock or the Company's market
capitalization.
C. Other Definitions. As used in this Section 5, (i) the term "Board"
means the Board of Directors of Company, (ii) "Common Stock" means the common
stock, $0.01 par value per share of Company, and (iii) "Subsidiary" means any
corporation or other entity, whether domestic or foreign, in which Company has
or obtains, directly or indirectly, a proprietary interest of 50% or more by
reason of stock ownership or otherwise.
SECTION 6
MISCELLANEOUS
A. Employment. This Agreement does not, and shall not be construed to,
give Officer any right to be retained in the employ of Company, and no rights
granted under this Agreement shall be construed as creating a contract of
employment. The right and power of Company to dismiss or discharge Officer at
will is expressly reserved.
B. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested postage prepaid addressed as follows:
If to Company:
Human Resources Department
Attention: Vice President of Human Resources
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
If to Officer:
Last known address shown on records of
Company
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or to such other address as either party may have furnished to the other in
writing, except that notice of change of address shall be effective only upon
receipt.
C. Entire Agreement. Except as set forth in the next sentence, this
Agreement cancels and supersedes all previous and contemporaneous agreements
relating to the subject matter of this Agreement, written or oral, between the
parties hereto (including the Prior Agreement (as defined below)) and contains
the entire understanding of the parties hereto. This Agreement does not cancel
or supercede that certain Executive Severance Agreement, [of even date
herewith/or/dated ______, 2001], between Officer and RightCHOICE. This Agreement
shall not be amended, modified or supplemented in any manner whatsoever except
as otherwise provided herein. The term "Prior Agreement" means that certain
Officer Severance Agreement, dated _________, ____, between Officer and
RightCHOICE Managed Care, Inc., a Missouri corporation ("Old RightCHOICE").
D. Effect of 2000 Reorganization. Company and Officer acknowledge and
agree that the reorganization of RightCHOICE's predecessor, Old RightCHOICE, on
November 30, 2000, constituted a "Change in Control" under the Prior Agreement
and shall, anything to the contrary in this Agreement notwithstanding,
constitute a "Change of Control" under this Agreement. Company and Officer
further acknowledge and agree that the prior occurrence of a Change of Control
under this Agreement on November 30, 2000 shall not be deemed to limit
additional future Changes of Control under this Agreement.
E. Captions. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
otherwise modify any of the terms or provisions hereof.
F. Governing Law. This Agreement and all rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Missouri without regard to that
state's choice of law provisions.
G. Assignment. This Agreement is personal and not assignable by
Officer, but it may be assigned by Company, without notice to or consent of
Officer, to any assignee provided such assignee agrees to abide by and be bound
by the provisions of this Agreement and this Agreement shall thereafter be
enforceable by such assignee. During Officer's lifetime, this Agreement and all
rights and obligations of Officer hereunder shall be enforceable by and binding
upon Officer's guardian or other legal representative in the event Officer is
unable to act on his own behalf for any reason whatsoever, and, upon Officer's
death, this Agreement and all rights and obligations of Officer hereunder shall
inure to the benefit of and be enforceable by and binding upon Officer's
Designated Beneficiary.
H. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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I. Binding Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration in St. Louis, Missouri, in accordance with the rules of the American
Arbitration Association then in effect; provided, however, that, regardless of
anything to the contrary in the rules of the American Arbitration Association,
the arbitrator shall have authority to review all findings of fact,
determinations of benefits and interpretations of this Agreement made by Company
and to overturn same, and substitute a different finding of fact, determination
of benefits or interpretation of this Agreement therefor, if the arbitrator
determines, based on the record in such arbitration and such other factors as he
determines are relevant, that he would have made a different finding of fact,
determination of benefits or interpretation of this Agreement than Company made
in any particular instance. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
J. Invalidity of Provisions. In the event that any provision of this
Agreement is adjudicated to be invalid or unenforceable under applicable law,
the validity or enforceability of the remaining provisions shall be unaffected.
To the extent that any provision of this Agreement is adjudicated to be invalid
or unenforceable because it is overbroad, that provision shall not be void but
rather shall be limited only to the extent required by applicable law and shall
be enforced as so limited.
K. Waiver of Breach. Failure of Company to demand strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of that term, covenant or condition, nor shall any waiver or
relinquishment by Company of any right or power hereunder at any one time or
more times be deemed a waiver or relinquishment of that right or power at any
other time or times.
L. Pronouns. Pronouns in this Agreement used in the masculine gender
shall also include the feminine gender.
M. Withholding of Taxes. Company shall cause taxes to be withheld from
amounts paid pursuant to this Agreement as required by law, and to the extent
deemed necessary by Company may withhold from amounts payable to Officer by
Company outside of this Agreement amounts equal to any taxes required to be
withheld from payments made pursuant to this Agreement, unless Officer has
previously remitted the amount of such taxes to Company.
N. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of any successors and/or assigns of Company.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY
THE PARTIES.
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IN WITNESS WHEREOF, Company has caused this Agreement to be duly executed in
duplicate, and Officer has hereunto set his hand, on the day and year first
above written.
RIGHTCHOICE MANAGED CARE, INC.
By:
------------------------
Title:
------------------------
Subscribed and sworn to before me, a Notary Public,
this day of , .
---------- -------------- ---------
------------------------------
Notary Public
My Commission Expires:
---------------------
OFFICER
-------------------------------
(Signature)
-------------------------------
(Print Name)
Subscribed and sworn to before me, a Notary Public,
this day of , .
---------- -------------- ----------
------------------------------
Notary Public
My Commission Expires:
---------------------
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EXHIBIT A
DESIGNATION OF BENEFICIARY
PURSUANT TO OFFICER SEVERANCE AGREEMENT
Name of Officer
----------------------------------------------------------------
Original Date of Agreement
-----------------------------------------------------
I hereby designate the following as my Designated Beneficiary. I agree that
unless instructed differently by me in writing below, if I designate multiple
beneficiaries they shall receive equal shares of the total benefits payable upon
my death. I ACKNOWLEDGE THAT THIS BENEFICIARY DESIGNATION WILL APPLY ONLY TO
PAYMENT OF ANY SALARY CONTINUATION AMOUNTS THAT MAY BE PAYABLE FOLLOWING MY
DEATH AND DOES NOT AFFECT ANY BENEFICIARY DESIGNATION I HAVE OR WILL MAKE WITH
RESPECT TO ANY LIFE INSURANCE OR OTHER BENEFITS I MAY OBTAIN THROUGH COMPANY OR
OTHERWISE.
NAME OF BENEFICIARY RELATIONSHIP ADDRESS
-------------------- --------------------------- ----------------------
-------------------- --------------------------- ----------------------
-------------------- --------------------------- ----------------------
-------------------- --------------------------- ----------------------
Date Officer's Signature
---------------------- ------------------
Receipt acknowledged on behalf of Company.
Date RIGHTCHOICE MANAGED CARE, INC.
----------------------
By
---------------------------------
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EXHIBIT B
SEVERANCE BENEFITS
The multiple of Officer's Base Pay which is specified for purposes of Section
3(A)(i) of this Agreement is _ XXXXX_. If the benefit determined by application
of such multiple becomes payable to Officer, such benefit shall be payable in
_XXXXX_ substantially equal monthly installments, as provided in this Agreement.
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EXHIBIT C
GENERAL WAIVER AND RELEASE AGREEMENT
This General Waiver and Release Agreement ("Agreement") is made and
entered into by and among ________________ (hereinafter, "Officer") and
RightCHOICE Managed Care, Inc. (which is an independent licensee of the Blue
Cross and Blue Shield Association). (RightCHOICE Managed Care, Inc. and its
affiliates and subsidiaries are referred to, collectively and/or individually,
as appropriate in the context, as the "Company").
WHEREAS, Officer's active employment ended on ___/___/___; and
WHEREAS, Officer and the Company on ___/___/___ entered into an Officer
Severance Agreement (attached at Tab A) and Executive Severance Agreement
(attached at Tab B) (collectively, "Severance Agreement"); and Officer wants to
begin receiving benefits under the Severance Agreement; and
WHEREAS, among other conditions, the Severance Agreement specifically
requires Officer to execute a Waiver in order to receive such benefits; and
WHEREAS, Officer and the Company wish to resolve all matters and
disputes between and among them related to the employment of Officer and his/her
separation from employment;
NOW THEREFORE, for and in consideration of the covenants and
understandings set forth herein, and for other good and valuable consideration,
which each party hereby acknowledges, it is agreed as follows:
1. Termination. Officer's termination of employment with the
Company qualifies as [describe applicable type of termination] within
the meaning of the Severance Agreement. Officer agrees that he/she will
not apply for rehire or otherwise seek reinstatement
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at the Company, its subsidiaries or affiliates. Officer expressly
waives any requirement of a Notice of Termination or any other notice
or process, if any, as may be required under the Severance Agreement.
The parties agree that Officer's last day of active employment with the
Company is ________ ("last day of active employment").
2. Compensation and Benefits. [To be completed based upon type
of termination.]
3. Non-Competition and Non-Disclosure Restrictions. Officer
and the Company acknowledge that a non-competition restriction
contained in Section 4 of the Officer Severance Agreement (attached at
Tab A) and Executive Agreement (attached at Tab B), characterized as a
"Covenant Not to Compete," is incorporated by reference herein and is
reaffirmed by this Agreement and shall be in full force and effect for
a period of ________ months, commencing on the effective date of this
Agreement. Officer also reaffirms and agrees to abide by the
non-disclosure provisions, characterized as a "Covenant Not to
Disclose," contained in Section 4 of the aforementioned Officer
Severance Agreement and Executive Agreement and incorporated by
reference herein. Officer recognizes and agrees that a substantial part
of the consideration identified in Paragraph 2 of this Agreement is
consideration for Officer's agreement to abide by the non-competition
and non-disclosure restrictions identified in this Paragraph 3.
Further, pursuant to Section 4(B) of the Severance Agreement, Officer
will promptly return to the Company all Confidential Information (as
that term is defined in the Severance Agreement) in Officer's
possession and will not retain any copies thereof.
4. Non-Disparagement. Officer agrees that he/she will not make
derogatory or negative comments, whether true or false, pertaining to
the Company or any of its subsidiaries or other affiliated entities, or
their respective current or former officers, directors and/or
employees. Officer further agrees that he/she will not make or cause to
be made any
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comments, statements or the like to the media or to others
that may be considered to be derogatory or detrimental to the good name
or business reputation of the Company or the aforementioned persons or
entities. The Company specifically reserves the right to suspend or
terminate benefits under this Agreement and the Severance Agreement,
if, subsequent to the execution of this Waiver, the Company becomes
aware of information, or an event occurs, which indicates noncompliance
with this paragraph or which would otherwise result in a suspension or
termination of such benefits in accordance with the provisions of the
Severance Agreement.
5. Confidentiality of Agreement. Officer agrees that he/she
will not disclose, publicize, or cause to be publicized in any manner,
by statements or by conduct, directly or indirectly, any terms or
condition of this Agreement, any underlying facts and circumstances
pertaining to this Agreement, or any payments or other actions taken by
the Company pursuant to this Agreement, except to Officer's attorneys
or professional tax advisors as required for purposes of compliance
with tax laws or as required by order of a court of competent
jurisdiction. The attorneys and professional tax advisors of Officer
will be made aware of these confidentiality provisions prior to any
disclosure and shall be required to comply with said provisions.
Officer agrees to advise the Company of any attempt to compel testimony
regarding the terms and conditions of this Agreement, the underlying
facts and circumstances of this Agreement, or any payments or other
actions taken by the Company pursuant to this Agreement as soon as
practicable, and in any event prior to so testifying, so as to allow
challenge to compelling said testimony. Officer agrees that if anyone
except those persons specifically excepted above makes any inquiries
concerning
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the terms and conditions of this Agreement, the underlying facts and
circumstances giving rise to this Agreement, or any payments or other
actions taken by the Company pursuant to this Agreement, he/she will
respond only that "the matter has been amicably resolved." This
provision and this Agreement are entered into by the Company based upon
the material express representations of Officer that no publication or
public presentation of the facts or circumstances surrounding this
dispute or its settlement is planned or pending as a result of
disclosure by Officer, his/her attorney (if any), physicians,
counselors, associates, personal friends, or family members. For
purposes of this Agreement, "Disclosure" shall mean any communication,
including, but not limited to, conversations, interviews, speeches,
articles, writings, or notes.
6. Release. For and in consideration of the covenants, terms
and conditions set forth in this Agreement, Officer, for
himself/herself and his/her heirs, agrees to and does hereby waive,
covenant not to xxx, releases, and forever discharges the Company, and
each and every one of the Company's subsidiaries and other affiliated
entities, and their respective agents, officers, executives, employees,
successors, predecessors, attorneys, trustees, directors, and assigns
(hereafter in this Paragraph 6, all of the foregoing shall be included
in the term "Company"), from and with respect to all matters, claims,
charges, demands, damages, causes of action, debts, liabilities,
controversies, judgments, and suits of every kind and nature
whatsoever, foreseen or unforeseen, known or unknown, arising prior to
the date this Agreement becomes effective and including, but not
limited to, those in any way related to Officer's employment and/or
termination of employment. This release expressly includes, but is not
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limited to, any claim or cause of action related to the Severance
Agreement, any claim based on alleged breach of an actual or implied
contract of employment between Officer and Company, any claim based on
alleged unjust or tortious discharge, claims arising out of tort,
contract or implied contract, equity, implied covenant, invasion of
privacy, defamation, personal injury, wrongful discharge, emotional
distress, discrimination (whether based on race, sex, age, color,
national origin, religion, disability, or any other class protected by
law), harassment, retaliation, claims for workers' compensation
benefits, claims for unpaid wages, any claim under the Age
Discrimination in Employment Act, 29 U.S.C. Section 621 et seq., 42
U.S.C. Section 1981, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. Section 2000e et seq., the Civil Rights Act of 1866,
42 U.S.C. Section 1981, the Americans With Disabilities Act, 42
U.S.C. Section 12101, et seq., the Employee Retirement Income Security
Act of 1974, as amended, 29 U.S.C. Section 1001, et seq., the Family
Medical Leave Act, 29 U.S.C. Section 2601 et seq., the Missouri Service
Letter Statute, Section 290.140 RSMo, the Missouri Human Rights
Act, Section 213.010 RSMo et seq. any claim under the Fair Labor
Standards Act of 1938, 29 U.S.C. Section 201 et seq., any claim under
common law, and any claim under any federal, state or local statute,
regulation, constitution, order or executive order, and/or any other
basis, including damages of any type or description, (including,
without limitation, punitive, compensatory or statutory), and expenses
of any type or description, including but not limited to attorneys'
fees or costs. Officer further agrees that in the event that any person
or entity should bring a charge, claim, complaint, or action on his/her
behalf, he/she hereby waives and forfeits any right to recovery under
said claim and will exercise every good faith effort to have such claim
dismissed.
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Notwithstanding the above, Officer shall not waive, and there shall be
no release with respect to, any claim (other than a claim disputing the
validity of Section 3(D) of the Officer Severance Agreement and Section
3(E) of the Executive Severance Agreement or the provisions of this
Waiver) of Officer to enforce any one or more of the provisions of the
Severance Agreement.
7. Affirmation. Officer affirms that he/she has made no
charge, claim, complaint or action against the Company in any
government agency or court and that no such matter is pending
8. Knowing and Voluntary Waiver. Officer hereby acknowledges
that he/she is entering into this Agreement knowingly and voluntarily
and understands that he/she is waiving valuable rights to which he/she
may otherwise be entitled. Officer hereby acknowledges that he/she has
been advised to consult with an attorney regarding this Agreement.
Officer further acknowledges that he/she can take up to twenty-one (21)
calendar days to execute this Agreement (up to 5 p.m. on ______, ____)
and fully understands the effect of signing this document. If Officer
is age 40 or over, Officer acknowledges that he/she will have seven (7)
days after executing this Agreement in which to rescind it and that
this Agreement will not become effective (and that he/she is entitled
to no compensation or other benefits under this Agreement) until eight
(8) days after its execution. Officer acknowledges that a significant
part of the salary continuation and other benefits and reimbursements
provided in this Agreement is consideration for waiving any claim of
age discrimination under the Age Discrimination in Employment Act, 29
U.S.C. Section 621 et seq.
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9. Cooperation. Officer agrees to cooperate in a reasonable
manner with representatives of the Company, including counsel, in legal
matters for three years following the execution of this Agreement.
Officer agrees to make himself/herself available upon three days notice
from the Company, or its attorneys, to meet with and consult with
representatives and/or counsel and to be interviewed by same, to
provide documents, to be deposed, to testify at a hearing or trial or
to accede to any other reasonable request by the Company in connection
with any threatened legal claim or any lawsuit either currently pending
against the Company or any lawsuit filed after Officer's separation
that involves issues relating to Officer's actions, job
responsibilities or to decisions made by him/her during his/her
employment with the Company.
10. Injunctive Relief. In the event of a breach or threatened
breach of any of Officer's duties and obligations under this Agreement,
the Company shall be entitled, in addition to any other legal or
equitable remedies the Company may have in connection therewith
(including any right to damages that the Company may suffer), to a
temporary, preliminary and/or permanent injunction restraining such
breach or threatened breach. Officer agrees that he will pay the
reasonable attorney's fees, costs and expert fees, as they are incurred
by the Company, in the event of a breach or threatened breach of this
Agreement. Notwithstanding the preceding, the parties agree that
nothing in this Paragraph 10 shall be construed to require Officer to
pay Company's attorneys' fees, expert witness fees or damages (except
as attorneys' fees, expert witness fees or damages are allowed by
existing law (including but not limited to awards for frivolous or bad
faith litigation)) as the result of Officer initiating a claim, charge
or suit under the Age Discrimination Employment Act ("ADEA") or
otherwise challenging the waiver in this Agreement of a claim under the
ADEA.
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11. Invalidity of Provisions. In the event that any provision
of this Agreement is adjudicated to be invalid or unenforceable under
applicable law, the validity or enforceability of the remaining
provisions shall be unaffected. To the extent that any provision of
this Agreement is adjudicated to be invalid or unenforceable because it
is overbroad, that provision shall not be void but rather shall be
limited only to the extent required by applicable law and enforced as
so limited.
12. Governing Law. This Agreement shall be construed and
governed by the laws of the State of Missouri.
13. Disclosure. Officer hereby represents, acknowledges, and
warrants that Officer has disclosed to Company any information known to
Officer concerning any conduct involving Company that Officer has any
reason to believe may be unlawful or involve any false claims to the
United States.
14. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of any successors or assigns of the
Company and the heirs and personal representatives of Officer.
15. Non-Admission. No actions taken by the Company, either
previously or in connection with this Agreement, shall be deemed or
construed to be an admission of the truth or falsity of any allegation
or claim, or any acknowledgment by and of the Company of any liability
to Officer or to any person for any other claim, demand or action, all
liability being expressly denied by the Company.
16. Entire Agreement. This Agreement and any attachments
hereto constitute the entire agreement of the parties pertaining to the
subject matter addressed
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herein. The parties fully understand and agree to the terms and
provisions of this Agreement. This Agreement may not be modified,
amended or waived without the express prior written consent of both the
Company and the Officer.
17. Miscellaneous. Separate copies of the document shall
constitute original documents which may be signed separately but which
together will constitute one single agreement.
IN WITNESS WHEREOF, the undersigned have executed this General
Waiver and Release Agreement.
I HAVE READ THIS GENERAL WAIVER AND RELEASE, UNDERSTANDING ALL
ITS TERMS, AND SIGN IT AS MY FREE ACT AND DEED.
Date:
------------------- --------------------------------------
Officer:
Subscribed and sworn to before me, a Notary Public, this day of
--------
, .
-------------------- ----
--------------------------------------
Notary Public
My Commission Expires:
-------------------------
I HAVE READ THIS GENERAL WAIVER AND RELEASE, UNDERSTANDING ALL ITS
TERMS, AND SIGN IT ON BEHALF OF THE COMPANY AS THE FREE ACT AND DEED OF THE
COMPANY WITH FULL AUTHORITY TO EXECUTE THIS DOCUMENT ON BEHALF OF THE COMPANY.
Date:
-------------------
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COMPANY
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Subscribed and sworn to before me, a Notary Public, this day of
---------
, .
----------------- ----
--------------------------------------
Notary Public
My Commission Expires:
--------------------------
