Exhibit 10.67
AGREEMENT OF INDEMNIFICATION
AGREEMENT OF INDEMNIFICATION, dated as of August
8, 1994, by and between BLUE CROSS AND BLUE SHIELD OF
MISSOURI, a Missouri not-for-profit corporation ("BCBSMo")
and RIGHTCHOICE MANAGED CARE, INC., a Missouri corporation
("RightCHOICE").
W I T N E S S E T H
WHEREAS, the parties have entered into that
certain Reorganization Agreement, dated as of August 8, 1994
(the "Reorganization Agreement'), by and among BCBSMo,
RightCHOICE and Healthy Alliance Life Insurance Company, a
Missouri insurance company;
WHEREAS, pursuant to the terms of the
Reorganization Agreement RightCHOICE has agreed to assume
certain liabilities and obligations of BCBSMo, and BCBSMo
has agreed to retain and discharge certain other liabilities
and obligations of BCBSMo;
WHEREAS, BCBSMo wishes to indemnify and hold
harmless RightCHOICE for any liabilities and obligations of
BCBSMo retained by BCBSMo pursuant to the terms of the
Reorganization Agreement;
WHEREAS, RightCHOICE wishes to indemnify and
hold harmless BCBSMo for any liabilities and obligations of
BCBSMo assumed by RightCHOICE pursuant to the terms of the
Reorganization Agreement;
WHEREAS, it is a condition precedent to the terms of
the Reorganization Agreement that the parties enter into
this Agreement;
WHEREAS, the parties hereto desire to satisfy
such condition by entering into this Agreement pursuant to
which each party will indemnify the other party and its
subsidiaries;
NOW, THEREFORE, in consideration of the
foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. Definitions. For purposes of this
Agreement, capitalized terms shall, unless otherwise
specified herein, have the meanings specified in the
Reorganization Agreement (such meanings to be equally
applicable to both the singular and plural forms of the
terms defined).
SECTION 1.02. Construction. In this Agreement,
unless the context otherwise requires:
(a) Articles and Sections referred to by
number shall mean the corresponding Articles and Sections of
this Agreement.
(b) The terms "hereby," "hereof," 'hereto,"
"herein," "hereunder," and any similar terms, as used in
this Agreement refer to this Agreement, and the term
"hereafter" shall mean after, and the term "heretofore"
shall mean before the date of execution of this Agreement.
(c) Words of the masculine gender shall be
deemed and construed to include correlative words of the
feminine and neuter genders. Words importing the singular
number shall include the plural number and vice versa, and
words importing persons shall include corporations and
associations, including public bodies, as well as natural
persons.
ARTICLE II
INDEMNIFICATION
SECTION 2.01. Indemnification.
(a) BCBSMo shall indemnify and hold
harmless RightCHOICE and each of its subsidiaries and their
respective officers, directors, shareholders, agents,
employees, representatives, successors and assigns from and
against any and all losses, claims, damages, obligations,
demands, assessments, judgments, liabilities (whether based
on contract, tort or otherwise) or expenses (including,
without limitation, settlement costs and reasonable legal or
other expenses for investigating or defending any action or
threatened action) based on, or directly or indirectly
resulting from or in connection with the Excluded
Liabilities .
(b) RightCHOICE shall indemnify and hold
harmless BCBSMo and each of its subsidiaries and their
respective officers, directors, shareholders, agents,
employees, representatives, successors and assigns from and
against any and all losses, claims, damages, obligations,
demands, assessments, judgments, liabilities (whether based
on contract, tort or otherwise) or expenses (including,
without limitation, settlement costs and reasonable legal or
other expenses for investigating or defending any action or
threatened action) based on, or directly or indirectly
resulting from or in connection with the Assumed
Liabilities.
SECTION 2.02 Procedure. All claims for
indemnification by a party under this Agreement (the party
claiming indemnification and the party against whom such
claims are asserted being hereinafter called the
"Indemnified Party" and the "Indemnifying Party,"
respectively) shall be asserted and resolved as follows:
(a) In the event that any claim or demand for which an
Indemnifying Party would be liable to an Indemnified Party
hereunder is asserted against or sought to be collected from
such Indemnified Party by a third party, such Indemnified
Party shall with reasonable promptness give notice (the
"Claim Notice'") to the Indemnifying Party of such claim or
demand, specifying the nature of and specific basis for such
claim or demand and the amount or the estimated amount
thereof to the extent then feasible (which estimate shall
not he conclusive of the final amount of such claim and
demand). The Indemnifying Party shall not be obligated to
indemnify an Indemnified Party under this Agreement with
respect to any such claim or demand if such Indemnified
Party fails to notify the Indemnifying Party thereof in
accordance with the provisions of this Agreement, and, as a
result of such failure, the Indemnifying Party's ability to
defend against the claim or demand is materially prejudiced.
The Indemnifying Party shall have thirty (30) days from the
delivery or mailing of the Claim Notice (the "Notice
Period") to notify an Indemnified Party (i) whether or not
it disputes the liability of the Indemnifying Party to such
Indemnified Party hereunder with
respect to such claim or demand, and (ii) whether or not it
desires, at the cost and expense of the Indemnifying Party,
to defend the Indemnified Party against such claim or
demand; provided, however, that any Indemnified Party is
hereby authorized, but is not obligated, prior to and during
the Notice Period, to file any motion, answer or other
pleading that it shall deem necessary or appropriate to
protect its interests or those of the Indemnifying Party. If
the Indemnifying Party notifies the Indemnified Party within
the Notice Period that it desires to defend the Indemnified
Party against such claim or demand, the Indemnifying Party
shall, subject to the last sentence of this paragraph, have
the right to control the defense against the claim by all
appropriate proceedings and any settlement negotiations. If
the Indemnified Party desires to participate in, but not
control, any such defense or settlement, it may do so at its
sole cost and expense. If the Indemnifying Party fails to
respond to the Indemnified Party within the Notice Period,
elects not to defend the Indemnified Party, or after
electing to defend fails to commence or reasonably pursue
such defense, then the Indemnified Party shall have the
right, but not the obligation, to undertake or continue the
defense of, and to compromise or settle (exercising
reasonable business judgment), the claim or other matter all
on behalf, for the account and at the risk of the
Indemnifying Party.
(b) If requested by an Indemnifying Party,
each Indemnified Party agrees, at the Indemnifying Party's
expense, to cooperate with the Indemnifying Party and its
counsel in contesting am claim or demand which the
Indemnifying Party elects to contest, or, if appropriate and
related to the claim in question, in making any counterclaim
against the person asserting the third party claim or
demand, or any cross-complaint against any person. No claim
as to which indemnification is sought under this Agreement
may be settled without the consent of the Indemnifying
Party, except as provided in paragraph (a) of this Section.
(c) If an Indemnified Party should have a
claim against an Indemnifying Parry hereunder which does nor
involve a claim or demand being asserted against or sought
to be collected from it by a third party, the Indemnified
Party shall send a Claim Notice with respect to such claim
to the Indemnifying Party. If the Indemnifying Party
disputes such claim, such dispute shall be resolved by
litigation in an appropriate court of competent
jurisdiction,
SECTION 2.03. Costs. If any legal action or
other proceeding is brought for the enforcement or
interpretation of any of the rights or provisions of this
Agreement, or because of an alleged dispute, default or
misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party shall
be entitled to recover reasonable attorneys' fees and all
other costs and expenses incurred in that action or
proceeding, in addition to any other relief to which it may
be entitled.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices. All notices, requests,
consents and other communications hereunder shall be in
writing and shall be deemed to have been duly given or
delivered if delivered personally or mailed by registered or
certified mail return receipt requested with first class
postage prepaid as follows:
If to BCBSMo:
Blue Cross and Blue Shield of Missouri
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn.: Executive Vice President
If to RightCHOICE:
RightCHOICE Managed Care, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn.: Chief Operating Officer
or such other address as any person may request by notice
given as aforesaid. Notices sent as provided herein shall be
deemed to have been delivered on the fifth business day
following the date on which it is so mailed,
SECTION 3.02. GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF MISSOURI WITHOUT REGARD TO SUCH STATE'S PROVISIONS
PERTAINING TO CHOICE OF LAW.
SECTION 3.03. Amendment. This Agreement,
including all other agreements and documents executed in
connection herewith, constitutes the entire agreement among
the parties hereto with respect to the subject hereof and no
amendment, alteration or modification of this Agreement
shall be valid unless in each instance such amendment,
alteration or modification is expressed in a written
instrument duly executed by each party hereto.
SECTION 3.04. Headings. The headings contained in
this Agreement have been inserted for the convenience of
reference only and shall in no way restrict or modify any of
the terms or provisions hereof.
SECTION 3.05. No Third Party Beneficiaries. Each
of the provisions of this Agreement is for the sole and
exclusive benefit of the parties hereto, respectively, as
their interests shall appear, and shall not be deemed to be
for the benefit of any other person or entity or group of
persons or entities.
SECTION 3.06. Successors and Assigns. This
Agreement shall bind and inure to the benefit of each party
hereto, and to each party's successors, assigns, agents and
representatives.
SECTION 3.07. Partial Invalidity. In the event
that any term or provision of this Agreement shall to any
extent be held by a court of proper jurisdiction to be
invalid or unenforceable for any reason, the remainder of
this Agreement shall not be
affected thereby, and the remaining terms and provisions
hereof shall remain in full force
and effect. The invalid or unenforceable provisions shall,
to the extent permitted by law, be deemed amended and given
such interpretation as will achieve the intent of this
Agreement.
SECTION 3.08. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have entered into
this Agreement as of the date hereinabove written.
BLUE CROSS AND BLUE SHIELD OF MISSOURI
By: /s/ Xxx X. Xxxxxxxxxx
Name: Xxx X. Xxxxxxxxxx
Title: Chief Executive Officer
RIGHTCHOICE MANAGED CARE, INC.
By: /s/ Xxx X. Xxxxxxxxxx
Name: Xxx X. Xxxxxxxxxx
Title: President and Chief
Executive Officer
