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Exhibit 10(ii)(A)(5)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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EXECUTIVE VICE PRESIDENT
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CHOICECARE CORPORATION (the "ChoiceCare Parent") and CHOICECARE HEALTH
PLANS, INC. (the "ChoiceCare Operating Company" and with the ChoiceCare Parent
and the ChoiceCare Operating Company being collectively referred to as the
"Employer"), and XXXXXXX X. XXXXXX, M.D. ("Employee"), hereby agree as follows,
effective as of the 1st day of January, 1997:
1. RECITALS. Employer and Employee are currently parties to an
employment agreement, the original form of which was adopted on September 22,
1995 and the form of which was amended and/or restated certain times since then.
This Agreement amends and restates any prior employment agreement between
Employer and Employee in its entirety, and supersedes any prior employment
agreement between Employer and Employee, effective as of January 1, 1997.
2. EMPLOYMENT. Employer agrees to employ Employee, and Employee accepts
such employment, upon the terms and conditions set forth herein.
3. EMPLOYEE'S RESPONSIBILITIES.
3.1 Employee shall serve as an executive vice president of
both the ChoiceCare Parent and the ChoiceCare Operating Company. In such
position, Employee shall be responsible for the management and supervision of
Employer's operations within his area of responsibility and perform such other
duties and responsibilities as shall be requested by the Chief Executive
Officers or the boards of directors of Employer, including serving as a senior
executive and/or board member of any affiliated company. For purposes of this
Agreement, an "affiliated company" means any corporation (other than the
Employer) which, now or at any later time, is part of an unbroken chain of
corporations (i) that includes the Employer and (ii) in which each corporation
in such chain either owns at least 50% of the total combined voting power of all
classes of stock in one of the other corporations in such chain or has at least
50% of the total combined voting power of all classes of its stock owned by one
of the other corporations in such chain.
3.2 Employee shall devote his full time and best efforts to
his employment with Employer and perform diligently such duties as are required
by Employer from time to time, which duties shall be consistent with Employee's
position with Employer.
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3.3 Without the prior written consent of the ChoiceCare
Parent, which shall not be unreasonably withheld, during the term of this
Agreement Employee shall not, directly or indirectly, render services of a
business, professional or commercial nature to any other person or firm, for
compensation or otherwise, except in the ordinary course of the business of
Employer or any affiliated company. Notwithstanding the foregoing but subject to
the following provisions, Employee may serve as a director or trustee of any
company, on either a compensated or noncompensated basis, that is not a
competitor of Employer or any affiliated company. Employee may retain any
director fees, committee fees, stock options, restricted stock awards or other
remuneration paid or given to Employee by any such company for such services as
a director or trustee. Employee shall notify the ChoiceCare Parent of any
appointment to a board of directors or board of trustees, and, notwithstanding
the foregoing, Employee shall resign from any board upon the request of the
ChoiceCare Parent, provided that the request has a reasonable basis. Employee
may also retain any honoraria paid to him, provided that, if the honoraria to be
paid for any one appearance or presentation exceeds $2,000, the Chief Executive
Officer of the ChoiceCare Parent and the Chairman of the board of directors of
the ChoiceCare Parent shall determine, in their sole discretion, whether
Employee is entitled to retain the amount in excess of $2,000.
4. TERM.
4.1 The initial term of this Agreement shall begin January 1,
1997 and end December 31, 1999.
4.2 This Agreement shall automatically be renewed at the end
of its initial term (or at the end of any renewal term provided hereunder) for a
renewal term of three additional years, unless Employer gives Employee, or
unless Employee gives Employer, written notice by July 1 of the last contract
year of the initial term of this Agreement (or by July 1 of the last contract
year in which a renewal term of this Agreement is in effect) that this Agreement
shall terminate at the end of the then-current term. If this Agreement
terminates at the end of a then-current term by reason of Employer giving a
timely written notice to Employee that this Agreement shall terminate at the end
of the then-current term, then Employer shall be deemed to have terminated
Employee's employment for purposes of the other provisions of this Agreement. On
the other hand, if this Agreement terminates at the end of a then-current term
by reason of Employee giving a timely written notice to Employer that this
Agreement shall terminate at the end of the then-current term, then, except as
may otherwise be provided under subsection 14.1 below or any other provision of
this Agreement, Employee shall be deemed to have voluntarily resigned his
employment with Employer for purposes of the other provisions of this Agreement.
4.3 For all purposes of this Agreement, a "contract year"
means a calendar year, beginning January 1 and ending the following December 31,
which occurs during the term of this Agreement. Also, for all purposes of this
Agreement, a "contract term" means either the initial term of this Agreement or
any renewal term of this Agreement. In addition,
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also for all purposes of this Agreement, any reference to the "then-current
contract year" refers to the contract year which is then in effect and any
reference to the "then-current term" refers to the contract term which is then
in effect.
5. COMPENSATION AND BENEFITS: During the term of this Agreement:
5.1 Employee shall receive an initial base salary at the
annual rate of $234,000, payable in equal consecutive bi-weekly installments.
Such base salary shall be reviewed annually effective as of the first pay period
beginning on or after January 1 of each contract year after the initial contract
year of this Agreement, and shall be reviewed at other times if Employer
substantially changes the responsibilities of Employee, and shall be adjusted on
a basis consistent with the executive compensation philosophy of Employer. In no
event shall Employee's base salary be reduced for any contract year (whether or
not such contract year occurs in the initial term of this Agreement or in a
renewal term of this Agreement) below his base salary for the immediately
preceding contract year.
5.2 Employer may during the term of this Agreement, consistent
with its approach to the rest of its executive group:
(a) Award an annual incentive to Employee based on
Employer's overall success as a for-profit community
resource, Employer's accomplishment of strategic
imperatives, Employer's continuous improvements of
quality outcomes and Employee's performance of his
duties under this Agreement during the previous
contract year, in accordance with Employer's
Executive Annual Incentive Plan (the "Annual
Incentive Plan"), as amended from time to time by
the boards of directors of Employer. The amount of
any incentive under the Annual Incentive Plan shall
be determined by Employer's boards of directors in a
manner consistent with the terms and practices of
the Annual Incentive Plan. However, in the event of
a change in control, the overall value of the annual
incentive under the Annual Incentive Plan, as may be
reasonably determined by the Employer's boards of
directors (taking into account the possibility of
meeting the goals which are used under such plan to
determine if Employee is entitled to the incentive
as well as the potential amount of the incentive),
shall not be reduced for the contract year in which
the change in control occurs or any subsequent
contract year below the overall value of the annual
incentive under such plan which has been established
by the Employer prior to the change in control for
the contract year in which the change in control
occurs (or, if no annual incentive has been
established for such contract year by the time of
the change in control, for the next preceding
contract year);
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(b) Award an incentive to Employee pursuant to the
provisions of Employer's Executive Long-Term
Incentive Plan (the "Long-Term Plan"), as amended
from time to time by the boards of directors of
Employer. The amount of any incentive under the
Long-Term Plan shall be determined by Employer's
boards of directors in a manner consistent with the
terms and practices of the Long-Term Plan. However,
in the event of a change in control, in no event
shall the overall value of the incentive under the
Long-Term Plan which has been established by the
Employer prior to the change in control with respect
to the contract year which begins January 1, 1997,
as may be reasonably determined by the Employer's
boards of directors, be reduced; and
(c) Cause awards to be granted to Employee pursuant to
the provisions of Employer's 1996 Long Term Stock
Incentive Plan (the "Stock Incentive Plan"), as
amended from time to time by the boards of directors
of Employer. The amount of any award granted under
the Stock Incentive Plan shall be determined by
Employer's boards of directors in a manner
consistent with the terms and practices of the Stock
Incentive Plan.
5.3 Employee shall be entitled during the term of this Agreement to:
(a) Paid vacation as established under Employer's paid
time off policy. Vacation use and carryover rules
will be in accordance with the rules established for
other executives of Employer. However, in the event
of a change in control, the overall value of such
vacation benefits, as may reasonably be determined
by the Employer's boards of directors, shall not be
less at any time on or after the change in control
and while this Agreement is in effect than the value
of the vacation benefits provided Employee under
this Agreement immediately prior to the change in
control.
(b) Tax-qualified retirement plan benefits, disability
insurance benefits, group term life insurance
benefits, medical benefits, dental benefits and such
other similar employment privileges, perquisites and
benefits as are afforded generally from time to time
to other members of the executive management group
of Employer. However, in the event of a change in
control, the overall value of such benefits,
considered in the aggregate and as may be reasonably
determined by the Employer's boards of directors,
shall not be less at any time on or after the change
in control and while this Agreement is in effect
than the value of the tax-qualified retirement plan
benefits, disability insurance benefits,
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group term life insurance benefits, medical
benefits, dental benefits and such other similar
employment privileges, perquisites and benefits
provided Employee under this Agreement immediately
prior to the change in control.
(c) Participate in the Supplemental Executive Retirement
Plan ("SERP") attached hereto as Exhibit A, in
accordance with the terms of SERP. However, in event
of a change in control, the percent of Employee's
compensation allocated to the SERP shall not be
reduced for any contract year which ends after the
change in control below the percent of his
compensation which is allocated to the SERP for the
immediately preceding contract year.
Employee (or, if applicable, any other recipient of any
benefits provided under this subsection 5.3) shall be solely responsible and
liable for payment of any taxes imposed on Employee (or, if applicable, such
recipient) resulting from the provision of any benefits under this subsection
5.3, including but not limited to any life insurance benefits.
5.4 Employer shall reimburse Employee (or provide an expense
allowance) for travel, entertainment, continuing education and other expenses
which are reasonably incurred by Employee in the promotion of Employer's
business, provided Employee provides a proper accounting for such expenses.
6. TERMINATION; SEVERANCE BENEFITS.
6.1 Employer may terminate this Agreement and Employee's
employment hereunder at any time for Cause. If Employee's employment hereunder
is terminated for Cause, Employee shall not be entitled to any payments or
benefits hereunder except for (i) unpaid salary already earned and (ii) unpaid
benefits which are provided under subsection 5.3 above, have already become
vested and are payable upon such termination of employment under the terms and
practices of the plans or arrangements under which such benefits are provided.
For all purposes of this Agreement, "Cause" means:
(a) Employee's fraud, dishonesty or willful misconduct
in the performance of his duties to Employer; or
(b) Employee's material breach of any material provision
of this Agreement; provided that a material breach
shall not be deemed to have occurred if Employee's
breach relates to the receipt of a payment of money
and Employee cures such breach within thirty (30)
days of receipt by Employee of a written notice of
such breach.
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6.2 If Employee's employment hereunder terminates because of
his voluntary resignation as an employee of Employer, then, except as may
otherwise be provided under Section 8 below or any other provision of this
Agreement, Employee shall not be entitled to any payments or benefits hereunder
except for (i) salary already earned and (ii) unpaid benefits which are provided
under subsection 5.3 above, have already become vested and are payable upon such
termination of employment under the terms and practices of the plans or
arrangements under which such benefits are provided.
6.3 If Employee's employment hereunder terminates by reason of
his death, then, in addition to any other payment which may be provided under
subsection 8.2 below or any other provision of this Agreement, Employee's estate
(or, where applicable or the context requires, the surviving members of his
family or his beneficiaries) shall be entitled to (i) his unpaid salary which
has already been earned, (ii) an amount equal to the product obtained by
multiplying his targeted incentives with respect to the contract year in which
his termination occurs under the Annual Incentive Plan and the Long-Term Plan
(if any) by a fraction having a numerator equal to the number of days he was an
employee of Employer in such contract year and a denominator equal to the number
of days in such contract year, (iii) any incentives which have been earned for
prior contract years under the Long-Term Plan but have not yet been paid (since
an incentive earned for a contract year under such plan is not normally payable
until after a further period of continuous future employment), (iv) any benefits
due under any group term life insurance benefits in effect for him at the time
of his death under subsection 5.3(b) above and (v) any other unpaid benefits
which are provided under subsection 5.3 above, have already become vested (or
vest by reason of his death) and are payable upon such termination of employment
under the terms and practices of the plans or arrangements under which such
benefits are provided.
6.4 If Employee's employment hereunder terminates by reason of
his permanent disability, then, in addition to any other payment which may be
provided under subsection 8.2 below or any other provision of this Agreement,
Employee shall be entitled to (i) his unpaid salary which has already been
earned, (ii) an amount equal to the product obtained by multiplying his targeted
incentives with respect to the contract year in which his termination occurs
under the Annual Incentive Plan and the Long-Term Plan (if any) by a fraction
having a numerator equal to the number of days he was an employee of Employer in
such contract year and a denominator equal to the number of days in such
contract year, (iii) any incentives which have been earned for prior contract
years under the Long-Term Plan but have not yet been paid (since an incentive
earned for a contract year under such plan is not normally payable until after a
further period of continuous future employment), (iv) any benefits due him under
any disability insurance applicable to him and in effect at the time he becomes
permanently disabled under subsection 5.3(b) above and (v) any other unpaid
benefits which are provided under subsection 5.3 above, have already become
vested (or vest by reason of his permanent disability) and are payable upon such
termination of employment under the terms and practices of the plans or
arrangements under which such benefits are provided. For all purposes of this
Agreement, Employee shall be deemed to be "permanently disabled" and to have
incurred a "permanent disability" if he, by reason of his physical or mental
injury,
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illness or condition, is determined to be disabled for a period which is
expected will exist until his death under the disability insurance which is then
in effect for him under subsection 5.3(b) above.
6.5 Employer shall have the right to terminate Employee's
employment hereunder without Cause at any time. In the event Employee's
employment with Employer terminates for any reason other than Cause, Employee's
death or permanent disability or his voluntary resignation, then, except as may
otherwise be provided under Sections 7 and 8 below or any other provision of
this Agreement, Employee shall be entitled to (i) his unpaid salary which has
already been earned, (ii) an amount equal to the product obtained by multiplying
his targeted incentives with respect to the contract year in which his
termination occurs under the Annual Incentive Plan and the Long-Term Plan (if
any) by a fraction having a numerator equal to the number of days he was an
employee of Employer in such contract year and a denominator equal to the number
of days in such contract year, (iii) any incentives which have been earned for
prior contract years under the Long-Term Plan but have not yet been paid (since
an incentive earned for a contract year under such plan is not normally payable
until after a further period of continuous future employment) and (iv) any other
unpaid benefits which are provided under subsection 5.3 above, have already
become vested and are payable upon such termination of employment under the
terms and practices of the plans or arrangements under which such benefits are
provided. In addition, subject to the immediately following sentence and
provided Employee agrees not to file any administrative charge or lawsuit
relating to his prior employment with Employer and agrees to release Employer
and all of its then current and former directors, trustees, officers, employees,
agents, members and affiliated companies from any and all claims, in such form
as is determined by Employer and consistent with Employer's normal practices
concerning employee releases, Employer: (i) shall pay for executive outplacement
services for Employee, up to a maximum cost of $25,000 (adjusted annually in
accordance with the CPI), through a mutually agreeable outplacement consulting
firm; and (ii) shall make in this situation severance payments to Employee,
payable on a bi-weekly basis, equal to Employee's base rate of salary in effect
at the time of his termination of employment. The severance payments provided
under the immediately preceding sentence shall be made with respect to the
period following Employee's termination of employment until the end of the
twelve month period beginning on the date of Employee's termination of
employment with Employer.
6.6 At any time that Employee is receiving compensation or
payments pursuant to subsection 6.5 above, Employee shall continue to
participate in the health, disability and life insurance plans of Employer
applicable to executive employees of Employer or be provided comparable
benefits.
7. PAYMENT FOLLOWING A CHANGE IN CONTROL AND INVOLUNTARY TERMINATION.
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall apply in the event of a change in control (as is
defined below):
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7.1 In the event of a change in control and upon the request
of Employer, Employee agrees (i) that he shall remain as an employee of Employer
for a period ending no earlier than the earliest of the last day of the period
requested by Employer that Employee remain an employee after the change in
control, the day which is twelve months after the change in control or the last
day of the then-current term and (ii) that, should Employee voluntarily resign
from his employment with Employer after the change in control but before the
earliest of such days, he shall not be entitled to any benefits under this
Section 7.
7.2 Subject to the foregoing, if a change in control occurs
and Employee's employment with Employer terminates for any reason, other than
for Cause, Employee's death or permanent disability or his voluntary
resignation, during the period which begins six months prior to the date of the
change in control and ends one year after the date of the change in control,
Employee shall be entitled to a lump sum payment, which is made within 60 days
after the later of Employee's termination of employment or the change in
control, in an amount equal to three times the sum of: (i) Employee's
then-current annual base rate of salary; (ii) the amount set forth by Employer
as the target for Employee's incentive for the then-current contract year under
the Annual Incentive Plan; and (iii) if the contract year in which the change in
control occurs is 1997, the amount set forth by Employer as the target for
Employee's incentive for the 1997 contract year under the Long-Term Plan.
Notwithstanding the foregoing, the amount of any payment otherwise required by
the immediately preceding sentence shall be reduced by the amount of any payment
that Employee has previously received (or is entitled to receive within 60 days
of his termination of employment) under subsection 8.1, 8.2, 8.3 or 8.4 below.
Further, Employee shall also, if he is entitled to the payment described in the
foregoing sentences of this subsection 7.2, be paid an amount equal to the
product obtained by multiplying his targeted incentives with respect to the
contract year in which his termination occurs under the Annual Incentive Plan
and the Long-Term Plan (if any) by a fraction having a numerator equal to the
number of days he was an employee of Employer in such contract year and a
denominator equal to the number of days in such contract year, plus any
incentives which have been earned for prior contract years under the Long-Term
Plan but have not yet been paid (since an incentive earned for a contract year
under such plan is not normally payable until after a further period of
continuous future employment).
7.3 If a change in control payment described in subsection 7.2
above is made, then, notwithstanding any other provision of this Agreement to
the contrary, Employee shall not be entitled to any payments under Section 6
above that relate to any period which ends after his termination of employment
and that are based upon or calculated with respect to Employee's base salary,
then-current or otherwise, or the Annual Incentive Plan or Long-Term Plan.
7.4 For all purposes of this Agreement, a "change in control"
means and occurs on the date of: (i) the election of persons constituting more
than 33-1/3% of the whole number of directors of the ChoiceCare Parent, if such
persons were not nominated by the nominating committee of the ChoiceCare Parent
or, if so nominated, were not recommended by a majority of the directors in
office prior to being nominated by such nominating committee
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unless the person nominated is nominated to take the place of an individual
previously so recommended by the directors who has died, become disabled or
chose not to serve, in which event that nominee shall be deemed to be
recommended by the majority of the directors in office if such majority
recommends that nominee at the meeting of directors next following the
nomination of such person; (ii) any consolidation or merger of the ChoiceCare
Parent if, within two years after such consolidation or merger, individuals who
were directors of the ChoiceCare Parent immediately prior to such consolidation
or merger cease to constitute at least 66-2/3% of the board of directors of the
ChoiceCare Parent or its successor by consolidation or merger; (iii) any sale,
lease, exchange or other transfer, in one transaction or a series of related
transactions (and other than to a directly or indirectly majority-owned
subsidiary of the ChoiceCare Parent) of all, or substantially all, of the assets
of the ChoiceCare Parent; (iv) the sale, whether by outright purchase, merger,
consolidation, reorganization or other form of transaction (not including a
reorganization solely involving affiliated companies), or the execution of a
definitive agreement (subject only to regulatory approvals or other similar
conditions) for the sale, of at least 33-1/3% of the ownership and/or voting
interests in any direct or indirect subsidiary or subsidiaries of the ChoiceCare
Parent if such subsidiary or subsidiaries before such sale held assets that
constituted all or substantially all of the assets of the ChoiceCare Parent and
its direct and indirect subsidiaries on a consolidated basis; (v) the sale,
whether by outright purchase, merger, consolidation, reorganization or other
form of transaction (not including a reorganization solely involving affiliated
companies), or the execution of a definitive agreement (subject only to
regulatory approvals or other similar conditions) for the sale, of at least
33-1/3% of the ownership and/or voting interests in the ChoiceCare Parent to one
purchaser, related purchasers or several purchasers acting directly or
indirectly in concert; or (vi) the approval by the shareholders of the
ChoiceCare Parent of any plan or proposal for the liquidation of dissolution of
the ChoiceCare Parent.
8. RETENTION INCENTIVE. If a change in control (as defined in
subsection 7.4 above) or a strategic investor purchase (as is defined below)
occurs while this Agreement is in effect, then Employee will be eligible for a
retention incentive (in addition to any other payments or benefits provided
under the other provisions of this Agreement, including but not limited to the
provisions of Sections 5 and 6 above) in accordance with the following
provisions:
8.1 If Employee is continuously employed by Employer to the
end of the retention incentive period (as is defined below), then Employee shall
be entitled to a retention incentive under this Section 8 which is payable in a
lump sum within 60 days after the end of such retention incentive period and
which is equal to the lesser of (i) an amount equal to two and one-half (2.5)
times his annual base rate of salary in effect on the date of the change in
control or strategic investor purchase, as applicable and whichever is earlier,
or (ii) $750,000.
8.2 If Employee's employment with Employer is terminated after
the earlier of a change in control or a strategic investor purchase but prior to
the end of the retention incentive period by reason of his death or his
permanent disability (as defined in subsection 6.4 above), then Employee shall
be entitled to a retention incentive under this Section 8 which is
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payable in a lump sum within 60 days after Employee's death or the date Employer
reasonably determines Employee has incurred a permanent disability, as
appropriate, and which is equal to the product obtained by multiplying (i) the
retention incentive that would be paid Employee under subsection 8.1 above by
reason of the change in control or strategic investor purchase if Employee had
been continuously employed by Employer to the end of the retention incentive
period by (ii) a percentage which is determined in accordance with the
immediately following sentence. The percentage to be used in the immediately
preceding sentence shall be: (i) 20% if the duration of the period from the
earlier of the change in control or strategic investor purchase to the date of
Employee's termination of employment is less than one year; (ii) 50% if the
duration of the period from the earlier of the change in control or strategic
investor purchase to the date of Employee's termination of employment is at
least one year but less than two years; and (iii) 100% if the duration of the
period from the earlier of the change in control or strategic investor purchase
to the date of Employee's termination of employment is at least two years.
8.3 If, after a strategic investor purchase but prior to both
a change in control and the end of the retention incentive period, Employee's
employment with Employer is terminated for any reason other than Cause,
Employee's death or permanent disability or his voluntary resignation, then
Employee shall be entitled to a retention incentive under this Section 8 which
is payable in a lump sum within 60 days after Employee's termination of
employment and which is equal to the product obtained by multiplying (i) the
incentive that would be paid Employee under subsection 8.1 above by reason of
the strategic investor purchase if Employee had been continuously employed by
Employer to the end of the retention incentive period by (ii) a percentage which
is determined in accordance with the immediately following sentence. The
percentage to be used in the immediately preceding sentence shall be: (i) 20% if
the duration of the period from the strategic investor purchase to the date of
Employee's termination of employment is less than one year; (ii) 50% if the
duration of the period from the strategic investor purchase to the date of
Employee's termination of employment is at least one year but less than two
years; and (iii) 100% if the duration of the period from the strategic investor
purchase to the date of Employee's termination of employment is at least two
years.
8.4 If, after one year has expired after a change in control
but prior to the end of the retention incentive period, Employee's employment
with Employer is terminated for any reason other than Cause, Employee's death or
permanent disability or his voluntary resignation, then Employee shall be
entitled to a retention incentive under this Section 8 which is payable in a
lump sum within 60 days after Employee's termination of employment and which is
equal to the retention incentive that would be paid Employee under subsection
8.1 above by reason of the change in control or, if applicable, an earlier
strategic investor purchase if Employee had been continuously employed by
Employer to the end of the retention incentive period.
8.5 If, after one year has expired after a change in control
but prior to the end of the retention incentive period, Employee's employment
with Employer terminates by reason of his voluntary resignation, then, provided
Employee agrees not to file any administrative
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charge or lawsuit relating to his prior employment with Employer and agrees to
release Employer and all of its then current and former directors, trustees,
officers, employees, agents, members and affiliated companies from any and all
claims, in such form as is determined by Employer and consistent with Employer's
normal practices concerning employee releases, Employee shall be entitled to a
retention incentive under this Section 8 which is payable in installments, on a
bi-weekly basis, equal to Employee's base rate of salary in effect at the time
of his termination of employment. The payments provided under this subsection
8.5 shall be made with respect to the period following Employee's termination of
employment until the end of the one year period beginning on the date of
Employee's termination of employment with Employer.
8.6 Notwithstanding any other provision of this Section 8 to
the contrary, no more than one retention incentive may be paid under this
Section 8, and thus the payment of any retention incentive under any subsection
of this Section 8 shall terminate and nullify any right of Employee to any
additional incentive which may otherwise arise under another subsection of this
Section 8.
8.7 For purposes of this Agreement, a "strategic investor
purchase" means, and occurs on the date of, the purchase or obtaining by any
person, corporation, partnership or other organization of stock possessing less
than 33-1/3% of the total combined voting power of all classes of stock of the
ChoiceCare Parent together with the option or right to purchase in the future
additional stock of the ChoiceCare Parent which would permit such person,
corporation, partnership or other organization to own stock possessing 33-1/3%
or more of the total combined voting power of all classes of stock of the
ChoiceCare Parent. In addition, for purposes of this Agreement, the "retention
incentive period" means the period which begins on the date immediately
following the earlier of a change in control or a strategic investor purchase
(such date referred to herein as the "beginning date") and which ends on the
date which is three years after the beginning date.
9. NON-COMPETE COVENANTS AND CONFIDENTIAL INFORMATION.
9.1 Employee agrees that during the term of this Agreement and
for a period of one year after his termination of employment with Employer for
any reason whatsoever (or, if Employee either is entitled to a retention
incentive under Section 8 above after such termination of employment or has been
paid a retention incentive under Section 8 above prior to such termination of
employment, for a period of two years after such termination of employment),
Employee shall not, without the express written consent of Employer, anywhere in
the United States where the Employer was doing business or actively planning to
do business during Employee's term of employment: (i) compete with Employer in
the managed health care business; or (ii) interfere with, disrupt or attempt to
interfere with or disrupt the relationship between Employer and any person or
business that was a customer, supplier, lessor, contractor or employee of
Employer during Employee's term of employment with Employer. Notwithstanding the
above, Employee may, without breaching the provisions of this
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subsection 9.1, work for an employer in the managed health care business or an
employer that interferes, disrupts or attempts to interfere with or disrupt the
relationship between Employer and any person or business that was a customer,
supplier, lessor, contractor or employee of Employer during Employee's term of
employment with Employer, provided that: (i) no more than ten percent (10%) of
such new employer's business is conducted in areas where Employer is conducting
business as of the date of termination of the employment of Employee with
Employer; (ii) such new employer does not provide either health insurance or
managed care services to ten percent (10%) or more of the population in the
areas where Employer is conducting business as of the termination of employment
of Employee with Employer; or (iii) the markets in which Employer is conducting,
or actively planning to conduct, business as of the date of termination of
Employee's termination with Employer and for which Employee will have certain
duties or responsibilities with the new employer, as measured by revenues or
enrollment within such areas, do not exceed ten percent (10%) of all markets for
which Employee will have certain duties or responsibilities with the new
employer, as measured by revenues or enrollment within all such markets
(provided that this clause (iii) shall not apply if Employee has voluntarily
resigned his employment with Employer other than by a voluntary resignation
which still results in an amount being payable under subsection 8.5 above). For
purposes of this subsection 9.1, if Employee, at the time of Employee's
termination of employment with Employer, only has duties and responsibilities
with Employer as to certain specified, and not all, areas or markets in which
Employer then does business, then any reference to "Employer" in this subsection
9.1 shall be deemed to refer only to the part of the Employer which involves the
areas and markets in which Employee has duties and responsibilities at the time
of his termination of employment with Employer.
9.2 Employee agrees that, during the term of this Agreement or
at any time thereafter, Employee will not, directly or indirectly, disclose,
divulge, discuss, copy or otherwise use or suffer to be used in any manner, in
competition with or contrary to the interests of Employer or any affiliated
companies, the customer lists, proprietary organizational methods or other trade
secrets of Employer or any affiliated companies, it being acknowledged by
Employee that all such information regarding the business of Employer and
affiliated companies compiled or obtained by, or furnished to, Employee while
Employee shall have been employed by or associated with Employer is confidential
information and Employer's exclusive property.
9.3 Employee expressly agrees and understands that the remedy
at law for any breach by him of this Section 9 will be inadequate and that the
damages flowing from such breach are not readily susceptible to being measured
in monetary terms. Accordingly, it is acknowledged that, upon adequate proof of
Employee's violation of any legally enforceable provision of this Section 9,
Employer shall be entitled to immediate injunctive relief and may obtain a
temporary order and permanent injunction restraining any threatened or further
breach. However, nothing in this Section 9 shall be deemed to limit Employer's
remedies at law or in equity for any breach by Employee of any of the provisions
of this Section 9 which may be pursued or availed of by Employer.
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9.4 Employee has carefully considered the nature and extent of
the restrictions upon him and the rights and remedies conferred upon Employer
under the provisions of this Section 9, and hereby acknowledges and agrees that
the same are reasonable in time and territory, are designed to eliminate
competition which otherwise would be unfair to Employer, do not stifle the
inherent skill and experience of Employee, would not operate as a bar to
Employee's sole means of support, are fully required to protect the legitimate
interests of Employer and do not confer a benefit upon Employer disproportionate
to the detriment to Employee which is caused by the provisions of this Section
9.
10. SEVERABLE PROVISION. The provisions of this Agreement are
severable, and, if any one or more provisions are determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions of this
Agreement and any partially unenforceable provision of this Agreement, to the
extent enforceable in any jurisdiction, shall nevertheless be binding and
enforceable hereunder.
11. ASSIGNMENTS AND BINDING AGREEMENT. This Agreement may not be
assigned by one party hereto without the consent of the other, except that this
Agreement may be assigned by Employer to any affiliated company. Notwithstanding
the foregoing general restriction on voluntary assignments, the rights and
obligations of the parties under this Agreement shall inure to the benefit of,
and shall be binding upon, the parties hereto and their respective successors,
assigns, heirs, personal representatives and estates, which successors and
assigns in the case of Employer shall include (i) any affiliated company to
which this Agreement is assigned by Employer, (ii) any successor of the
ChoiceCare Parent or the ChoiceCare Operating Company by merger, combination or
reorganization in any manner, whether such successor is a corporation, limited
liability company, partnership (either general or limited), business trust or
other organization or person, and whether or not such successor is a successor
by operation of law, (iii) any recipient of materially all the assets and/or
business of Employer in liquidation or distribution or by way of contribution of
capital, (iv) any successor to materially all the assets and/or business of
Employer by purchase or exchange, either singly or in combination, or (v) any
combination of the foregoing. Employer covenants that it will make no
distribution or contribution of assets and/or business as described in clause
(iii) of the immediately preceding sentence nor enter into any agreement of sale
or exchange of assets and/or business as described in clause (iv) of the
immediately preceding sentence without requiring the recipient(s) of such assets
or business to assume the obligations of Employer in this Agreement as a
co-obligor.
12. NOTICES. Any notice to be given under this Agreement to any party
hereto shall be deemed duly given if it is personally delivered in writing or it
is posted in the United States mails, postage prepaid, registered or certified,
return receipt requested. Further, if mailed to Employer, such a notice shall be
addressed to the ChoiceCare Parent at its principal place of business. If mailed
to Employee, such a notice shall be addressed to him at his home address
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last shown on the records of Employer (or at such other address or addresses as
Employee may hereafter designate in writing to Employer).
13. WAIVER. The failure of any party hereto to this Agreement to
enforce any provision or provisions of this Agreement shall not in any way be
construed as a waiver of such provision or provisions as to any future
violations thereof nor prevent that party thereafter from enforcing each and
every other provision of this Agreement. The rights granted the parties herein
are cumulative and the waiver of any single remedy shall not constitute a waiver
of such party's right to assert all other legal remedies available to him or it
under the circumstances.
14. MISCELLANEOUS.
14.1 For all purposes of this Agreement, Employee's
resignation from his employment with Employer shall be deemed not to constitute
a voluntary resignation, and instead to be treated as a termination of his
employment by Employer, if: (i) such resignation occurs at least 120 days after,
and no more than 180 days after, Employer either (a) changes the principal party
to which Employee reports and which has the responsibility to evaluate
Employee's performance to a party which is not either the Chief Executive
Officer of the ChoiceCare Operating Company, the Chief Executive Officer of the
ChoiceCare Parent or the Chief Executive Officer of any corporation which owns
at least 80% of the ChoiceCare Parent or (b) reduces or changes Employee's
duties to those which are not consistent with an employment status which, if
held in comparable health care organizations in the U.S., would provide a level
of salary and benefits which is at least 90% of the level of total compensation
and benefits provided Employee under this Agreement (as determined under
reasonable employment surveys typically used by Employer in determining salary
and benefit levels for its executive group); or (ii) such resignation occurs
after Employer requires Employee to change his principal work location by at
least 50 miles and Employee refuses to make such move. In the event Employee's
resignation from his employment with Employer is treated as a termination of his
employment by Employer by reason of the provisions of clause (i) of the
immediately preceding sentence, then, for purposes of determining Employee's
rights to any change in control payment described in subsection 7.2 above or any
retention incentive payment under Section 8 above, Employee shall be deemed to
have had his employment with Employer terminated by Employer on the date that
Employer took the action described in clause (i) of the immediately preceding
sentence which is applicable to Employee's resignation.
14.2 The captions set forth in this Agreement are for
convenience and reference only and shall not be deemed to construe or interpret
any term or provision set forth in this Agreement. This Agreement supersedes all
prior agreements and understandings between the parties and may not be modified
or terminated orally. No modification, termination or attempted waiver of this
Agreement shall be valid unless in writing and signed
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15
by the party against whom the same is sought to be enforced. This Agreement
shall be governed by and construed according to the laws of the State of Ohio.
14.3 If the firm of independent outside auditors then used by
Employer (the "Auditors") determine that any payment or distribution by Employer
to or for the benefit of Employee, whether paid or payable (or distributed or
distributable) pursuant to the terms of this Agreement or otherwise, would be
subject to tax as an excess parachute payment pursuant to the provisions of
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
then, notwithstanding any other provision of this Agreement to the contrary,
Employer shall "gross up" such payment or distribution so that the net amount of
such payment or distribution, after taking into consideration the payment of the
tax imposed on Employee under Section 4999 of the Code, is the same as the
amount that such payment or distribution would be if no such tax applied.
15. ARBITRATION. Any dispute or disagreement among the parties hereto
shall be submitted to mandatory and binding arbitration at the election of any
party hereto. The arbitration shall be pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. The arbitration shall be held in
Cincinnati, Ohio. The ChoiceCare Parent and the ChoiceCare Operating Company
shall together select one arbitrator, Employee shall select one arbitrator and
the two selected arbitrators shall select a third arbitrator. The decision of
the arbitrators, and any award rendered therein, shall be final, conclusive and
binding upon the parties hereto and any judgment thereon may be entered and
enforced in any court of competent jurisdiction. Employer shall bear 50% of all
fees, costs and expenses of the arbitration, Employee shall bear 50% of all
fees, costs and expenses of the arbitration and each party will bear all the
fees, costs and expenses of his or its own attorneys, experts and witnesses.
Signed at Cincinnati, Ohio on the 25 day of April, 1997.
-- -----
EMPLOYER:
ChoiceCare Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
ChoiceCare Health Plans, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
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EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx MD
---------------------------------------
Xxxxxxx X. Xxxxxx, M.D.
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