Exhibit 10.55
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of September 1, 1995, by and between RIGHTCHOICE
MANAGED CARE, INC., ("employer"), and XXXXXXX X. XXXXX
("Employee").
WHEREAS, Employer desires to continue to employ Employee,
and Employee desires to remain employed by Employer, upon the
terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and
agreements herein contained, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Term of Agreement. This Agreement shall continue in
full force and effect for a period (the "Term") continuing
through the date which is three (3) years from the date set forth
above, unless sooner terminated as hereinafter provided.
2. Employment. Employee shall serve as a Senior Vice
President of Employer, or in such other Senior Vice President
capacities as designated by Employer, subject to the reasonable
directions of Employer, and shall devote such of his working time
and effort to the business and affairs of Employer as shall be
reasonably necessary to faithfully discharge the duties and
responsibilities of his office. Employee shall be responsible
for such activities as Employer may designate from time to time.
3. Compensation. As compensation for the services to be
performed by the Employee, Employee's current base salary and
benefits shall continue and Employee's base salary shall be
reviewed by Employer from time to time at its discretion in
accordance with Employer's normal salary increase decision-making
process.
4. Benefits.
a. Health, Disability and Other Fringe Benefits. During
the Term of this Agreement, Employee shall be entitled to
participate in or receive benefits under Employer's health
insurance plans, life insurance plans, long-term disability,
401(k) and stock option plans, and all other employee benefit
plans and other fringe benefits in effect on the date hereof for
such a period of time as such plans and arrangements shall remain
in effect and subject to such contribution or qualification
requirements of such plans.
b. Vacation and Holidays. Employee shall be entitled to
paid vacations and holidays in accordance with the Employer's
policies and practices in effect from time to time.
c. Retirement Plan. In the event of termination of this
Agreement or non-renewal of this Agreement, and Employee's
employment hereunder for any reason, by Employee or by Employer,
Employee shall, regardless of the position held by Employee at
the time of such termination, be entitled to receive the benefits
provided to Senior Executives and other members of the Corporate
Staff under the terms of the Supplemental Executive Retirement
Plan or any other retirement plan which may be in effect at the
time of Employee's separation, whichever provides Employee with
the greatest payment(s).
x. Xxxxxxxxx Payments. In addition to, and not in lieu
of, any other benefits described herein, in the event this
Agreement is not renewed and Employee's employment terminates or
this Agreement terminates for any reason other than for cause as
defined in Section 7b, Employer shall either: (i continue to pay
Employee's salary at a rate equal to the higher of the rate in
effect as of the termination date or the rate paid to Employee as
of the date set forth above for a period of twenty-four (24)
months from the date of termination, and, during the same period,
continue to pay Employee all benefits described in Section 4(a)
hereof, or (ii)pay Employee in accordance with the Executive
Severance Agreements generally provided by Employer to senior
executives at any time during Employee's employment, whichever
method (4(d)(i) or 4(d)(ii)) provides Employee with the greatest
monetary benefit.
5. Expenses. During the term hereof, Employee shall be
entitled to receive prompt reimbursement of all reasonable
travel, entertainment, and other business expenses incurred by
Employee (in accordance with the policies and procedures from
time to time adopted by the Board of Directors of Employer) in
performing the services contemplated hereunder.
6. Confidentiality and Covenant Not to Compete.
a. Confidentiality. Employee acknowledges that during the
course of Employee's employment with Employer, Employee has or
will have access to and knowledge of certain information and data
which Employer considers confidential, and that the release of
such information or data to unauthorized persons could be
detrimental to Employer or a Subsidiary or Parent. As a
consequence, Employee hereby agrees and acknowledges that
Employee owes a duty to Employer not to disclose, and agrees
that, during or after the term of Employee's employment, without
the prior written consent of Employer, Employee will not
communicate, publish or disclose to any person anywhere or use
any Confidential Information (as defined below) for any purpose
except where necessary or appropriate to carry out Employee's
duties or as required by law or legal process. Employee will use
Employee'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
where necessary or appropriate to carry out Employee's duties or
as may be required by law or legal process. Employee will return
to Employer all Confidential Information in Employee's possession
or under Employee's control when the duties of Employee no longer
require Employee's possession thereof, or whenever employer shall
so request, and in any event will promptly return all such
Confidential Information if Employee's employment with Employer
is terminated 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
Employer or a Subsidiary or Parent which if disclosed could be
detrimental to Employer or a Subsidiary or Parent, including, but
not limited to any such information relating to Employer's, or a
Subsidiary's or Parent's, members or insureds, trade secrets,
propriety data and information relating to Employer's or
Subsidiary's or Parent'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
Employer advises Employee is Confidential Information.
b. Covenant Not to Compete.
(i) Employee agrees that during the term of Employee's
employment by Employer and for the period during which severance
payments are made to Employee under the provisions of Section
4(d), Employee will not without the express written consent of
Employer:
a. own or have any interest in or act as an
officer, director, partner, 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 Employer's geographic market (as defined below) which
during the Noncompetition Period is engaged in competition in any
substantial manner with Employer or a Subsidiary or Parent,
provided Employee in any such capacity directly or indirectly
performs services in an aspect of such business which is
competitive with Employer or a Subsidiary or Parent; or
b. divert or attempt to divert clients,
customers or accounts of Employer which are clients, customers or
accounts during the Noncompetition Period;
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 Employee, any current employee
of Employer as of the time such hire or attempt to solicit to
hire or former employee of Employer who has been employed by
Employer within the twelve-month period immediately preceding the
date of such hire or attempt to solicit to hire.
(ii) With respect to Employee's obligations under
Section 6(b), Employee acknowledges that Employer'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
6(b) are considered by the parties hereto to be fair, reasonable
and necessary for the protection of the legitimate business
interests of Company.
7. Termination.
a. Death. This Agreement and Employee's employment
hereunder shall terminate immediately upon death.
b. For Cause. Employer may terminate Employee's
employment hereunder at any time, effective immediately upon
written notice, for cause. For the purposes of this Agreement
"cause" shall mean:
(i) Employee's conviction of, or Employee'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) the gross failure by Employee to perform
Employee's expected duties with Company (other than any such
failure resulting from Employee's incapacity due to physical or
mental illness) after a written demand for substantial
performance is delivered to Employee by Employer, which demand
specifically identifies the expected duties of Employee, the
manner in which Employer believes that Employee has not
substantially performed Employee's duties and the time period by
which Employee must demonstrate performance of such duties before
Employer will determine there has been a gross failure by
Employee to perform such duties; provided, however, that in all
such cases Employee shall have a period of at least sixty (60)
days to cure such performance deficiencies; or
(iii) the willful engaging by Employee in conduct
which is materially damaging or detrimental to Employer or to a
Subsidiary or Parent.
(iv) a material violation by Employee of the Employee
Statement of Compliance, which incorporates Employer's Statement
of Corporate Ethics, as each may reasonably be amended from time
to time.
c. Disability. In the event that Employee shall be
unable to perform the services contemplated hereunder by reason
of a disability (as defined by the Americans with Disabilities
Act), such inability or failure to so perform such duties shall
not be grounds for terminating the employment of Employee by
Employer and Employee shall continue to be compensated during
such period of disability at his regular salary rate.
d. By Employee.
(i) Employee may resign his employment at any time
upon sixty (60) days notice to Employer, and upon resignation,
shall be entitled only to any earned but unpaid salary and
vacation pay, as well as any benefits due to Employee under the
provisions of Section 4(c) above.
8. General Provisions.
a. Any notice, request, demand or other communication
required or permitted hereunder shall be deemed to be properly
given when personally served in writing, when deposited in the
United States mail, postage prepaid, addressed to Employer or
Employee at their respective last known address. Either party
may change its address by written notice given in accordance with
this subparagraph.
b. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective
executors, administrators, successors, and assigns; provided,
however, that Employee may not assign any or all of Employee's
rights hereunder without the prior written consent of Employer.
c. This Agreement is made and entered into, is to be
performed primarily within, and shall be governed by and
construed in all respects in accordance with the laws of the
State of Missouri.
d. Captions and paragraph headings used herein are
for convenience only and are not a part of the Agreement and
shall not be used in construing it. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
e. Should any provision of this Agreement for any
reason be declared invalid, void, or unenforceable by a court of
competent jurisdiction, the validity and binding effect of any
remaining portions shall not be affected, and the remaining
portions of the Agreement shall remain in full force and effect
as if this Agreement has been executed with said provision
eliminated.
f. This Agreement contains the entire agreement of
the parties and supersedes all prior agreements between the
parties (other than the Supplemental Executive Retirement Plan as
specified herein), whether written or oral. Each party to this
Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not
embodied herein or therein, and that no other agreement,
statement or promise not contained herein or therein shall be
relied upon or be valid or binding. This Agreement may not be
modified or amended by oral agreements, but only by an agreement
in writing signed by Employer on the one hand, and by Employee on
the other hand.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
EMPLOYER RIGHTCHOICE MANAGED CARE, INC.
By: /s/Xxx X. Xxxxxxxxxx
Title: Chairman and CEO
By: /s/Xxxxxx X. Xxxx
Title: Vice Chairman
EMPLOYEE: /s/ Xxxxxxx X. Xxxxx
