EXHIBIT 10.61
[VISTAINFO LOGO]
CHANGE IN CONTROL SEVERANCE AGREEMENT
This Change in Control Severance Agreement ("Agreement") is made
effective as of April 20, 2001 by and between Vista Information Solutions, Inc.,
a Delaware corporation ("Vista") and Xxxx Xxxxxxx ("Employee").
A. Employee is currently employed by Vista as Senior Vice President,
Finance and Administration and Chief Financial Officer.
B. Vista is in discussions and negotiations to combine Vista, its assets
and operations with another company or companies to enhance the future
performance and financial stability of Vista and its businesses.
C. In order to ensure the continuity of Employee's performance of his
duties and for the continued management of Vista's business and operations
during any Change in Control, as defined below, Vista will provide a severance
package in the event Employee's employment is involuntarily terminated without
cause in connection with a Change in Control in accordance with the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Termination Upon a Change in Control.
1.1 Severance Package. If Employee's employment is involuntarily
terminated in connection with a Change in Control (as the term is defined below)
between May 1, 2001 through twelve (12) months after the Change in Control,
other than for Cause (as the term is defined below), Vista agrees to provide
Employee with the following "Severance Package," provided Employee complies with
the conditions set forth in section 1.2 below: (a) a severance payment equal to
twelve (12) months of Employee's then current base salary payable in
installments in accordance with Vista's normal payroll schedule; (b) continued
health benefits (including medical, dental, vision and section 125 plan
coverage) for twelve (12) months on the same terms as when Employee was working,
provided Vista's insurance carrier and benefit plans allow for such benefits
continuation. In the event Vista's insurance carrier or benefit plans do not
allow such coverage continuation, Vista agrees to pay the premiums required to
continue Employee's group health care coverage for the 12-month period, under
the applicable provisions of the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA"), provided that Employee elects to continue and remains
eligible for these benefits under COBRA, and does not obtain health coverage
through another employer during this period; (c) continued payment of the
premiums for Employee's life insurance policy on the same terms as during
Employee's employment for the 12-month period; (d) a prorated portion of
Employee's bonus under Vista's incentive compensation plan (the "Plan") based on
the achievement of Employee's incentive target measured as of the date of
termination, provided Employee remains eligible under the terms of the Plan; and
(e) accelerated vesting of all options granted to Employee under Vista's stock
option plans that, as of the date of termination without Cause remain
unexercised and unvested, to the extent permissible by law. The acceleration of
vesting provision set forth in this section 1.1 is notwithstanding and in
addition to any existing vesting provisions set forth in Vista's stock option
plans or Employee's stock option agreements granted pursuant to those plans.
Employee shall not be entitled to the Severance Package if Employee's employment
is voluntarily terminated by Employee, for any reason, terminated by Vista for
Cause or terminated more than twelve (12) months after a Change in Control. For
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purposes of this Agreement, "Cause" shall mean death, dishonesty, misconduct
(including but not limited to violations of law), failure or inability of
Employee to perform his job duties (with or without reasonable accommodation, if
required by law), or other conduct that has an adverse effect on the name or
public image of Vista or is otherwise detrimental to Vista's business interests.
1.2 Conditions to Receive Severance Package. The Severance Package
described above will be paid provided Employee meets the following conditions:
(a) Employee complies with all surviving provisions of any confidentiality or
proprietary rights agreement signed by Employee; and (b) Employee executes a
full general release, in a form acceptable to Vista, releasing all claims, known
or unknown, that Employee may have against Vista, and any subsidiary or related
entity, their officers, directors, employees and agents, arising out of or any
way related to Employee's employment or termination of employment with Vista.
1.3 280G. Notwithstanding section 1.1 above, if it is determined that
the amounts payable to Employee under this Agreement, when considered together
with any other amounts payable to Employee as a result of a Change in Control,
cause such payments to be treated as "excess parachute payments" within the
meaning of Section 280G of the Internal Revenue Code, Vista shall reduce the
amount payable to Employee under section 1.1 (to the least extent possible) to
an amount that will not subject Employee to the imposition of tax under Section
4999 of the Internal Revenue Code.
1.4 Change in Control. A Change in Control is defined as any one of
the following occurrences:
(a) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other than a
trustee or other fiduciary holding securities of Vista under an employee benefit
plan of Vista, becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of the securities
of Vista representing more than 50% (a) the outstanding shares of common stock
of Vista or (b) the combined voting power of the Vista's then-outstanding
securities; or
(b) the sale or disposition of all or substantially all of
Vista's assets (or any transaction having similar effect is consummated); or
(c) Vista is party to a merger or consolidation that results in
the holders of voting securities of Vista outstanding immediately prior thereto
failing to continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of Vista or such surviving entity
outstanding immediately after such merger or consolidation; or
(d) the dissolution or liquidation of Vista.
2. At-Will Employment. Employee acknowledges that Employee continues as
an at-will employee and agrees that nothing in this Agreement is intended to or
should be construed to contradict, modify or alter the Employee's at-will
employment relationship with Vista.
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3. No Other Severance Benefits. Employee acknowledges and agrees that
the Severance Package provided pursuant to this Agreement is in lieu of any
other severance benefits to which Employee may be eligible under any other
agreement and/or Vista severance plan or practice with regard to a Change in
Control.
4. Binding on Successors. The rights and obligations of Vista under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Vista. Employee shall not be entitled to assign any of Employee's
rights or obligations under this Agreement.
5. Applicable Law. The validity, interpretation and performance of this
Agreement shall be construed and interpreted according to the laws of the United
States of America and the State of California. Each of the parties irrevocably
consents to the exclusive jurisdiction of the federal and state courts located
in California, as applicable, for any matter arising out of or relating to this
Agreement.
6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to severance benefits in connection with a Change
in Control and supersedes all prior or simultaneous representations,
discussions, negotiations, and agreements, whether written or oral. This
Agreement may be amended or modified only by a written instrument executed by
all parties hereto. No oral waiver, amendment or modification will be effective
under any circumstances whatsoever.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
Dated: 4/27/01 /s/ XXXX X. XXXXXXX
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Xxxx Xxxxxxx
Dated: 4/20/01 By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Chief Executive Officer
Vista Information Solutions, Inc.
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