Exhibit 10.69
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT (the "Agreement") is
entered into as of the 5th day of January, 1998, by and between
RightCHOICE Managed Care, Inc., a Missouri corporation
("RightCHOICE"), and Xxxxxxx Xxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, RightCHOICE has engaged the services of Executive
as an "at-will" employee of RightCHOICE; and
WHEREAS, RightCHOICE and Executive have entered into an
Officer Severance Agreement dated January 5, 1998 (the "Officer
Agreement") under which, as a condition of Executive's
employment, Executive has agreed to be bound by certain covenants
set forth in the Officer Agreement and RightCHOICE has agreed to
provide Executive certain severance benefits upon the terms and
conditions set forth in the Officer Agreement;
WHEREAS, the Compensation Committee of RightCHOICE's Board
of Directors believes that the concerns applicable to senior
executives when certain corporate events occur are such that, in
order to facilitate senior executives' focusing on management
issues in a manner that best serves the interests of all
stakeholders, such executives of RightCHOICE should have the
protections set forth herein in the event that a Change in
Control, as defined herein, occurs;
NOW, THEREFORE, in consideration of the mutual promises
herein contained, and intending to be legally bound, the parties
hereto do hereby agree as follows:
SECTION 1
TERM OF AGREEMENT
The Agreement shall be effective as of the date 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 the
Agreement:
A. Affiliate. "Affiliate" shall have the same meaning as
it is given in the Officer Agreement.
B. Annual Compensation. "Annual Compensation" shall mean
the highest aggregate amount of the following items of
compensation paid in cash (or which would have been paid in cash
if they were not deferred pursuant to any qualified or
nonqualified deferred compensation arrangement or contributed to
a welfare benefit plan pursuant to an election under a cafeteria
plan) to Executive by the Company during a calendar year which is
in the most recent five-consecutive-calendar-year period (or such
shorter period of consecutive calendar years during which
Executive has been employed by the Company) ending on or before
the date of a Change in Control:
(i) base salary; and
(ii) payments under any of the following incentive programs:
- Supplemental Income Plan;
- Short Term Public Offering Bonus;
- Management Incentive Plan (MIP);
- ABCBS Incentive Plan (AIP);
- Long Term Incentive Program;
- Sign-On Bonus;
- Equity 2000;
- Cost Reduction Incentive Plan;
- Sales Incentive Plan; and
- payments under any other incentive programs to the extent
that the Compensation Committee of the RightCHOICE Managed Care,
Inc. Board of Directors specifically approves payments under such
incentive programs for inclusion in Annual Compensation for
purposes of this Agreement.
For purposes of clarity and without limiting the generality of
the foregoing definition, no amounts paid to Executive pursuant
to any qualified or nonqualified deferred compensation
arrangement, any cafeteria plan or any other benefit plan qualify
for inclusion in Annual Compensation, regardless of the source of
any such amounts and no award of stock options, restricted stock
or other rights under the Equity Incentive Plan, nor any amounts
received or income recognized in connection with receipt of any
such award or exercise of any rights under any such award, shall
be included in Annual Compensation.
C. Base Pay. "Base Pay" shall have the same meaning as
that term is given under the Officer Agreement.
D. Cause. "Cause" shall have the same meaning as that
term is given under the Officer Agreement.
E. Change in Control. "Change in Control" shall mean the
occurrence, while Executive is employed by Company and this
Agreement is in effect, of any one or more of the following
events:
(i) the merger, consolidation or other
reorganization of Company in which any class of the
outstanding common stock of Company is converted into or
exchanged for a different class of securities of the
Company, a class of securities of any other issuer, except
an Affiliate, cash or other property (provided, however,
that, regardless of anything to the contrary in this
Agreement, the conversion or exchange of the outstanding
Class B common stock of RightCHOICE Managed Care, Inc. into
or for Class A common stock of RightCHOICE Managed Care,
Inc. shall not be deemed to be a Change in Control);
(ii) the sale, lease or exchange of all or
substantially all of the assets of Company or Parent to any
other corporation or entity (except an Affiliate);
(iii) the final adoption, in a manner making
such plan legally effective without any higher level of
approval or action, of a plan of complete liquidation and
dissolution of the Company or Parent;
(iv) the acquisition (other than acquisition
pursuant to any other clause of this definition) by any
person or entity (including without limitation a
partnership, limited partnership, syndicate or other group),
of more than fifty (50) percent (based on total voting
power) of any class of Company's or Parent's outstanding
stock (or other equity ownership interests); provided,
however, that nothing in this Section 2(E)(iv) shall be
construed as deeming a Change in Control to have occurred if
any such person or entity that is considered to own more
than fifty (50) percent (based on total voting power) of
such class of Company's or Parent's outstanding stock (or
other equity ownership interests) prior to such acquisition,
acquires additional shares of such class of stock (or other
equity ownership). Where an entity does not have
outstanding stock (such as the Parent), the above will be
deemed to have occurred if a transaction occurs in which the
entity becomes subject to the direction or oversight by a
person that is not an Affiliate, and such direction or
oversight includes the ability of the person to set policy
for the entity, and/or govern the operations of the Parent,
and/or control the entity's assets or the stock the entity
owns in RightCHOICE Managed Care, Inc.
(v) as a result of, or in connection with, a
contested election of directors of the Company, the persons
who were directors of Company before such election cease to
constitute a majority of the directors of Company;
(vi) as a result of, or in connection with, an
election of directors of Parent, the persons who were
directors of Parent before such election cease to constitute
a majority of the directors of Parent; or
(vii) RightCHOICE Managed Care, Inc. ceasing
to have a class of its stock listed and actively traded on a
nationally recognized stock exchange.
In the event that no single transaction or event has occurred
that qualifies as a Change in Control under the foregoing
definition, in determining whether a Change in Control has
occurred, a series of transactions and/or events may be
considered to be a single transaction or event; provided,
however, that elections occurring during no more than eighteen
(18) months shall be aggregated for purposes of determining
whether a series of transactions or events qualifies as a Change
in Control under Section 2(E)(v) or 2(E)(vi). If a series of
transactions and/or events is deemed to constitute a single
transaction or event constituting a Change in Control under the
preceding sentence, such Change in Control will be deemed to
occur on the date of completion of the last transaction or event
included in the series of transactions and/or events constituting
such Change in Control or such earlier date after the beginning
of such series or transactions and/or events as Executive elects.
Any person or entity that is regularly in the business of lending
money may, under the terms of an agreement executed in connection
with extending financing, be granted 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, without a Change in Control being deemed to
have occured. For purposes of this definition only, no entity
shall be considered a Parent or an Affiliate unless such entity
had that status prior to the transaction or event (or the first
in a series of transactions and/or events aggregated as a single
transaction or event pursuant to this paragraph) that would have
constituted a Change in Control.
F. Code. "Code" shall have the same meaning as that term
is given under the Officer Agreement.
G. Company. "Company" shall mean RightCHOICE, except
that, if any person or entity other than RightCHOICE employs
Executive 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 Executive
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.
H. Date of Termination. "Date of Termination" shall mean
the effective date of Executive's termination of employment. If
Executive 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 Executive in accordance with
Section 6(B) hereof. If Company delivers or mails a Notice of
Termination hereunder to Executive in accordance with Section
6(B) hereof, then the Date of Termination shall be the date
specified by Company in such Notice of Termination.
I. Designated Beneficiary. "Designated Beneficiary" shall
mean the beneficiary designated by Executive in accordance with
the Officer Agreement.
J. Disabled. "Disabled" shall have the same meaning as
that term is given under the Officer Agreement.
K. Employee Statement. "Employee Statement" shall have
the same meaning as that term is given under the Officer
Agreement.
L. Executive Severance Benefits. "Executive Severance
Benefits" shall mean the benefits described in Section 3(B)
hereof.
M. Good Reason. "Good Reason" shall mean the occurrence,
without the written consent of Executive and within twenty-four
(24) months following a Change in Control, of any one or more of
the following events (provided, however, that none of the
following events shall constitute Good Reason if at the time of
the occurrence of such event, or during the three-month period
prior to such occurrence, there is Cause):
(i) the assignment to Executive of any
duties or responsibilities inconsistent with
Executive's status as a senior executive (that is, an
executive holding the position of Senior Vice President
or above) of Company or a substantial adverse
alteration in the nature or status of Executive's
responsibilities, job title or position from those in
effect immediately prior to the Change in Control;
(ii) a reduction by Company in the annual
base salary that was applicable to Executive
immediately prior to the Change in Control, a change to
the short-term bonus formula that was applicable to
Executive immediately prior to the Change in Control
that reduces the amount payable at target level of
performance, or a change to the long-term incentive
formula that was applicable to Executive immediately
prior to the Change in Control that reduces the stock
options (or other award) at target level of
performance;
(iii) the relocation of Executive's
principal place of performing his duties as an employee
of the Company to a location in excess of seventy-five
(75) miles from the location that was, immediately
prior to the Change in Control, Executive's principal
place of performing his duties as an employee of
Company;
(iv) a material reduction in the
benefits and perquisites provided to Executive by
Company or which Executive was eligible to receive from
Company immediately prior to the Change in Control; or
(v) Company's terminating the Agreement in
violation of Section 5 hereof.
N. Good Reason Termination. "Good Reason Termination"
shall mean Executive's terminating employment with the Company
following the occurrence of an event constituting Good Reason,
but only if:
(i) Executive, within sixty (60) days after being
notified of or becoming aware of 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(N)(i), does not reverse
the action or otherwise remedy the situation cited in the
Notice of Termination as constituting Good Reason within ten
(10) days after receiving such Notice of Termination; and
(iii) Executive terminates employment within
three (3) months after being notified of or becoming aware
of the occurrence of the event cited as constituting Good
Reason in the Notice of Termination.
O. Involuntary Termination. "Involuntary Termination"
shall mean the termination of Executive's employment by action of
Company within twenty-four (24) months following a Change in
Control for any reason other than Cause; provided, however, that
the termination of Executive's employment by Company shall not be
an Involuntary Termination if, immediately following such
termination of employment, Executive is employed by another
employer that is to abide by the provisions of this Agreement as
described in Section 2(G) hereof.
P. Notice of Termination. "Notice of Termination" shall
mean:
(i) a notice from Executive to Company advising
Company of Executive's decision to terminate Executive's
employment; or
(ii) a notice from Company to Executive
advising Executive of Company's decision to terminate
Executive's employment.
A Notice of Termination shall be delivered or mailed in
accordance with Section 6(B) hereof. If a Notice of Termination
is from Executive to Company and if Executive believes such
termination is for Good Reason, then such Notice of Termination
shall specify that such termination is a termination for Good
Reason, the event(s) which Executive believes constitute Good
Reason and the facts and circumstances supporting such belief of
Executive. If a Notice of Termination is from Company to
Executive 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.
Q. Parent. "Parent" shall mean any entity owning,
directly or indirectly, fifty percent (50%) or more (based on
voting power) of the Company's outstanding stock or other equity
ownership interests.
R. Standard Severance Benefits. "Standard Severance
Benefits" shall mean the benefits described in Section 3(A) of
the Officer Agreement.
SECTION 3
SEVERANCE BENEFITS
A. Standard Severance Benefits. No benefits shall be
payable to Executive under this Agreement unless and until all
conditions specified herein are met, including, without
limitation, the occurrence of a Change in Control with the
necessary subsequent effect on Executive's employment. Prior to
the occurrence of a Change in Control, any severance benefits due
to Executive upon termination of employment with Company will be
determined solely under the Officer Agreement. Executive agrees
that, if at any time Executive qualifies for benefits under this
Agreement, the Officer Agreement will terminate automatically and
the terms of the Officer Agreement will be given no further
effect whatsoever (except to the extent such terms are
incorporated herein or items in this Agreement are determined
with reference to such terms), Executive will have no rights
whatsoever arising under or in connection with the Officer
Agreement, no payment of any benefits provided for in the Officer
Agreement will be made to Executive and this Agreement will
constitute the sole and exclusive authority for payment of
severance benefits to Executive. Regardless of anything to the
contrary in the preceding sentence, if at any time Executive
begins receiving Standard Severance Benefits, this Agreement will
terminate automatically and its terms will be given no further
effect whatsoever, Executive will have no rights whatsoever
arising under or in connection with this Agreement, no payment of
any benefits provided for herein will be made to Executive and
the Officer Agreement will constitute the sole and exclusive
authority of payment of severance benefits to Executive.
B. Executive Severance Benefits. Subject to Sections
3(C), 3(D), 3(E) and 4(D)(ii) hereof, in the event of Executive's
Involuntary Termination or Good Reason Termination, Company shall
pay for outplacement services for Executive of the type
customarily provided by Company to senior execuitves at the time
of Executive's Involuntary Termination or Good Reason Termination
and shall pay Executive an amount equal to the greater of:
(i) two (2) times Executive's Annual Compensation; or
(ii) an amount equal to:
(a) three (3) times Executive's Base Pay plus,
(b) for a period of twelve (12) months
starting on the Date of Termination, an amount
equal to the portion of the premiums (to the
extent such premiums are due) for Executive's
health, dental, vision and life insurance that is
equivalent to the portion of the premiums for such
coverages that the Company pays on behalf of
similarly situated executives employed by Company
during such twelve (12) month period.
Such Executive Severance Benefits will commence as soon as
practicable following the Date of Termination, and will be paid
in twenty-four (24) substantially equal monthly installments, in
the case of Executive Severance Benefits under Section 3(B)(i)
above, or in thirty-six (36) monthly installments, in the case of
Executive Severance Benefits under Section 3(B)(ii) above, with
the first 12 such installments equaling 1/36th of the amount
determined under Section 3(B)(ii)(a) plus 1/12th of the amount
determined under Section 3(B)(ii)(b) above and the remaining such
installments equaling 1/36th of the amount determined under
Section 3(B)(ii)(a). Company's obligation to pay the amounts
specified in Section 3(B)(ii)(b) above shall be reduced by any
and all amounts Company pays toward Executive's health, dental,
vision and life insurance with respect to periods after the Date
of Termination.
C. 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 elect to suspend some or all
payments hereunder with respect to Executive (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 Executive 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 Executive is entitled to Executive Severance Benefits
hereunder, Executive is employed (including employment by
the Company or an Affiliate, 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 Executive the
aggregate remaining amounts to be paid to Executive under
Section 3(B)(i) or 3(B)(ii)(a) hereof in a lump sum; and (b)
payments for outplacement services and payments under
Section 3(B)(ii)(b) hereof shall cease as of the date of
commencement of such employment, but if payments for
outplacement services and/or under Section 3(B)(ii)(b) 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(B)(ii)(a) hereof,
and Executive 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 Executive is Disabled
during any period while Executive is entitled to Executive
Severance Benefits hereunder, then, during any such period
that Executive is Disabled, any amounts payable under
Section 3(B) 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 Executive pursuant to any
long-term disability plan maintained by Company.
(iv) Death. If Executive dies during any
period while Executive is entitled to Executive Severance
Benefits hereunder, then a lump sum amount equal to the
total remaining amounts payable to Executive at the time of
Executive's death under Section 3(B) hereof shall be paid to
Executive'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 Executive's death
to any beneficiary designated by Executive other than
Company under any Company life insurance program.
(v) Criminal Charges. If at any time after
Executive Severance Benefits become payable hereunder and
prior to the completion of the payment of such benefits
Executive is charged with a felony, or other crime involving
moral turpitude, which crime relates to activities of
Executive occurring during the period Executive was employed
by Company or its 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(C)(v) after
such criminal charge is resolved; provided, however, that
such payments shall cease and no further payments shall be
made at any time Executive is convicted of, or enters a
guilty plea to, such crime by or before a court of competent
jurisdiction.
D. Limitations on Benefits.
(i) Code Limitations. In the event that the
aggregate of any amounts payable to or on behalf of
Executive under the Agreement and under any other plan,
agreement or policy of Company or any Affiliate 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 Executive under the
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(D)(ii): (a) no portion of
any benefit the receipt or enjoyment of which Executive
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 the
Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. If
the Company's independent auditors determine that payment
that would be a parachute payment has been made to Executive
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
Executive, 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.
E. General Waiver and Release. Notwithstanding any
provision to the contrary in the Agreement, Executive
acknowledges that in addition to other conditions set forth in
the Agreement, Executive Severance Benefits shall be conditioned
upon the prior execution by Executive of a general waiver and
release (hereinafter referred to as "Waiver") as described in
this Section 3(E), and Executive shall not be eligible for
Executive Severance Benefits unless and until Executive has
executed the Waiver within ninety (90) days following the later
of Executive's termination of employment. The Waiver shall be
substantially in the form attached hereto as Exhibit A and shall
generally waive all claims Executive has or may have against
Company or an Affiliate, and any successors or predecessors
thereto, and shall release Company and all Affiliates, and any
successors and predecessors thereto, from all liability with
respect to any such claims; provided, however, that Executive
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(E) or the Waiver) of Executive to enforce any one or
more of the provisions of the Agreement.
SECTION 4
EXECUTIVE'S COVENANTS
A. Employee Statement. Executive agrees to abide by the
Employee Statement (including, but not limited to, the Company
Statement of Corporate Ethics).
B. Covenant Not To Disclose. Executive acknowledges that
during the course of Executive's employment with Company,
Executive 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. As a
consequence, Executive hereby agrees and acknowledges that
Executive owes a duty to Company not to disclose, and agrees
that, during and after the term of Executive's employment,
Executive 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
Executive's duties as an employee of Company, or as required by
law or legal process. Executive will use Executive'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 the Company, where necessary or
appropriate to carry out Executive's duties as an employee of
Company, or as may be required by law or legal process. Executive
will return to Company all Confidential Information in
Executive's possession or under Executive's control when the
duties of Executive as an employee of the Company no longer
require Executive's possession thereof, or whenever Company shall
so request, and, in any event, will promptly return all such
Confidential Information if Executive'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 which, if disclosed, could be detrimental
to Company or an Affiliate, including, but not limited to, any
such information relating to Company's, or an Affiliate's,
members or insureds, trade secrets, proprietary data and
information relating to Company's, or an 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 Executive is
Confidential Information.
C. Covenant Not to Compete.
(i) Executive agrees that during the term of
Executive s employment by Company and for a period
consisting of the greater of: (i) the period over which any
Executive Severance Benefits are to be paid under this
Agreement (whether or not payment is accelerated hereunder),
or (ii) one year from and after the termination of
Executive's employment (such term of employment and
applicable subsequent period are referred to collectively
herein as the "Noncompetition Period"), Executive will not
directly or indirectly, without the express prior written
consent of Company:
(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,
provided Executive in any such capacity directly or
indirectly performs services in an aspect of such
business which is competitive with Company or an
Affiliate;
(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 Executive, 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-month period
immediately preceding the date of such hire or attempt
to solicit to hire.
(ii) With respect to Executive's obligations
under this Section 4(C), Executive 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) Executive acknowledges that Executive'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 Executive 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 by
Executive 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 Executive in accordance with Section
6(B) hereof Executive 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 Executive), 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
Executive, and each and every person, firm or company acting
in concert or participation with Executive, from the
continuation of such breach and, in addition thereto,
Executive 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 Executive Company shall no longer be obligated
to pay any benefits to Executive under this Agreement.
(iii) The covenants and obligations of
Executive 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 Executive
to the Company, whether express or implied in fact or in
law.
SECTION 5
AMENDMENT OR TERMINATION OF AGREEMENT
Company may terminate this Agreement effective as of any
date by giving Executive, 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 in Control, even if notice of termination of this
Agreement was given prior to such Change in Control. No notice of
termination of this Agreement shall be given any effect
whatsoever, and Executive'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 in Control occurs
and/or Executive 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 Executive's obligations under Sections
4(A) and (B) of this Agreement. Company and Executive may amend
this Agreement at any time by written instrument signed by
Company and Executive.
SECTION 6
MISCELLANEOUS
A. Employment. This Agreement does not, and shall not be
construed to, give Executive 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 Executive "at
will" is expressly reserved.
B. Notice. For the purpose of this Agreement, notices and
all other communications provided for in the 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 the Company:
Human Resources Department
Attention: Vice President of Human Resources
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00X00-0000
If to Executive:
Last known address shown on records of Company
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. This Agreement cancels and
supersedes all previous and contemporaneous agreements (other
than the Officer Agreement) relating to the subject matter of
this Agreement, written or oral, between the parties hereto and
contains the entire understanding of the parties hereto and shall
not be amended, modified or supplemented in any manner whatsoever
except as otherwise provided herein.
D. 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.
E. 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.
F. Assignment. This Agreement is personal and not
assignable by Executive, but it may be assigned by Company,
without notice to or consent of Executive, to any assignee
provided such assignee agrees to abide by and be bound by the
provisions of the Agreement and the Agreement shall thereafter be
enforceable by such assignee. During Executive's lifetime the
Agreement and all rights and obligations of Executive hereunder
shall be enforceable by and binding upon Executive's guardian or
other legal representative in the event Executive is unable to
act on his own behalf for any reason whatsoever, and upon
Executive's death the Agreement and all rights and obligations of
Executive hereunder shall inure to the benefit of and be
enforceable by and binding upon Executive's Designated
Beneficiary.
G. 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.
H. 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 the
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 the Company made in any particular instance.
Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
I. Invalidity of Provisions. In the event that any
provision of the 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 the 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.
J. 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.
K. Pronouns. Pronouns in this Agreement used in the
masculine gender shall also include the feminine gender.
L. Withholding of Taxes. Company shall cause taxes to be
withheld from amounts paid pursuant to the Agreement as required
by law, and to the extent deemed necessary by Company may
withhold from amounts payable to Executive by Company outside of
the Agreement amounts equal to any taxes required to be withheld
from payments made pursuant to the Agreement, unless Executive
has previously remitted the amount of such taxes to Company.
M. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of any successors and/or
assigns of the Company.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, Company has caused this Agreement to be duly
executed in duplicate, and Executive has hereunto set his hand,
on the day and year first above written.
RIGHTCHOICE MANAGED CARE, INC.
By /s/ Xxxxxx Xxx Xxxxxx
Title EVP & COO
Subscribed and sworn to before me, a Notary Public, this
20th day of Jan., 1998.
/s/ Xxxxxxxx X. Xxxxxxx
Notary Public
My Commission Expires: August 29, 1999
/s/ Xxxxxxx Xxxx
Executive
Subscribed and sworn to before me, a Notary Public, this 5th
day of Jan. , 1998.
/s/ Xxxxxxxx X. Xxxxxxx
Notary Public
My Commission Expires: August, 29, 1999
EXHIBIT A
GENERAL WAIVER AND RELEASE
This General Waiver and Release ("Waiver") is made and
entered into by and among __________________ ("Officer") and
RightCHOICE Managed Care, Inc. including its affiliates,
officers, directors, agents and employees (the "Company").
WHEREAS, Officer's active employment ended on
_______________, 19___ and Officer wants to begin receiving
benefits under the Officer Severance Agreement ("Severance
Agreement"), previously entered into between Officer and Company; and
WHEREAS, among other conditions, the Severance Agreement
specifically requires Officer to execute this Waiver in order to
receive such severance benefits;
NOW THEREFORE, for and in consideration of the covenants and
undertakings herein set forth, and for other good and valuable
consideration, which each party hereby acknowledges, it is agreed
as follows:
1. Officer represents and warrants that, as of the date of
this Waiver, to the best of his knowledge, no circumstances exist
or have existed which could result in Officer's termination for
Cause or a suspension or termination of benefits under the
Severance Agreement as provided in the Severance Agreement.
Regardless as to the reason for termination, Officer agrees not
to apply for rehire at the Company, it's subsidaries, affiliates
or parent.
2. Based on the representations and warranties provided by
Officer in clause No. 1 above, Company hereby acknowledges that
Officer's termination of employment with Company qualifies as
either an Involuntary Termination or a Proper Reason Termination
within the meaning of the Severance Agreement.
3. Officer agrees that he will not in any way disparage
the Company or its parent, subsidiary or other affiliated
entities, or their respective current or former officers,
directors and/or employees. Officer further agrees that he will
not make or solicit any 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 any of the
aforementioned parties or entities. Company specifically
reserves the right to suspend or terminate benefits under the
Severance Agreement, if, subsequent to the execution of this
Waiver, Company becomes aware of information, or an event occurs,
which indicates noncompliance with this section or which would
otherwise result in a suspension or termination of such benefits
in accordance with the provisions of the Severance Agreement.
4. Officer agrees to, and does hereby, remise, release,
and forever discharge Company, and each and every one of its
parent, subsidiary and other affiliated entities, and their
respective agents, officers, executives, employees, successors,
predecessors, attorneys, trustees, directors, and assigns
(hereafter in this Section 4, 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, which have arisen or may arise between Officer and
Company including, but not limited to, those in any way related
to Officer's employment and/or termination.
Officer further agrees that he will not file suit or
otherwise submit any other charge, claim, complaint, or action to
any agency, court, organization, or judicial forum (nor will he
permit any person, group of persons, or organization to take such
action on his behalf) against Company arising out of any actions
or non-actions that have occurred on the part of Company. Such
claims, complaints, and actions include, but are not limited to,
any based on alleged breach of an actual or implied contract of
employment between Officer and Company, or any claim based on
alleged unjust or tortious discharge (including any claim of
fraud, negligence, or intentional infliction of emotional
distress, any claim of discrimination and/or harassment based on
race, age, disability, taking a leave protected under the Family
and Medical Leave Act of 1993, and/or any other basis, any claim
of retaliation, any allegations of metal pain and suffering, loss
of reputation, humiliation or deprivation of Officer's legal
rights and any claim for lost salary, damages of any type or
description (including, without limitation, punitive,
compensatory or statutory), expenses of any type or description
(including, without limitation, attorney's fees)), any arising
under the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. Section 621 et
seq., the Fair Labor Standards Act of 1938, 29 U.S.C. Section 201 et
seq., the Rehabilitation Act of 1973, 29 U.S.C. Section 701 et seq.,
the Americans with Disabilities Act, 42 U.S.C. Section 2101, the Civil
Rights Act of 1871, 42 U.S.C. Section 1981, the Family and Medical
Leave Act of 1993, 19 U.S.C. Section 2601 et seq., the Missouri Human
Rights Act, Section 213.010 RSMo et seq., the Missouri Workers
Compensation law, Section 287 RSMo et seq., the Missouri Service Letter
Statute, Section 290.140 RSMo, or any other federal, state, or local
statutes or ordinances. Officer further agrees that in the event
that any person or entity should bring such a charge, claim,
complaint, or action on his behalf, he hereby waives and forfeits
any right to recovery under said claim and will exercise every
good faith effort to have such claim dismissed. Officer affirms
that he has no charge, claim, complaint or action against Company
pending in any government agency or court.
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 Severance
Agreement or the provisions of this Waiver) of Officer to enforce
any one or more of the provisions of the Severance Agreement.
5. Pending Lawsuit. Officer agrees to make himself
available upon three days notice from Company, or its attorneys,
to be deposed, to testify at a hearing or trial or to accede to
any other reasonable request by Company in connection with any
lawsuit either currently pending against Company or any lawsuit
filed after Officer's separation that involves issues relating to
Officer's job responsibilities or to decisions made by him during
his employment with Company.
6. Injunctive Relief. In the event of a breach or
threatened breach of any of Officer's duties and obligations
under this Waiver, Company shall be entitled, in addition to any
other legal or equitable remedies Company may have in connection
therewith (including any right to damages that Company may
suffer), to a temporary, preliminary and/or permanent injunction
restraining such breach or threatened breach.
7. Invalidity of Provisions. In the event that any
provision of this Waiver 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 Waiver 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.
8. Knowing and Voluntary Waiver. Officer hereby
acknowledges that he is entering into this Waiver knowingly and
voluntarily and understands that he is waiving valuable rights he
may otherwise be entitled to.
9. Governing Law. This Waiver shall be construed and
governed by the laws of the State of Missouri, excluding its
choice of law provisions.
10. Gender. Provisions in this Waiver used in the
masculine gender shall also include the feminine gender, as
appropriate.
11. Successors and Assigns. This Waiver shall be binding
upon and inure to the benefit of any successors or assigns of
Officer or Company.
12. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned to
them in the Severance Agreement.
13. Miscellaneous. The foregoing Waiver constitutes the
entire agreement among the parties and there are no other
understandings or agreements, written or oral, among them on this
subject. Separate copies of the document shall constitute
original documents which may be signed separately but which
together will constitute one single agreement. This Waiver will
not be binding on any party, however, until signed by all parties
or their representatives.
IN WITNESS WHEREOF, the undersigned have executed this
General Waiver and Release.
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 COMPANY AS THE FREE ACT
AND DEED OF COMPANY.
Date: ________________________
COMPANY
By: _________________________
Name: _________________________
Title: __________________________
Subscribed and sworn to before me, a Notary Public, this _____ day of
______________,_________.
_______________________________________
Notary Public
My Commission Expires:
