Exhibit 10.51
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") entered into on
this 27 day of February, 1997, by and between RIGHTCHOICE
MANAGED CARE, INC., a Missouri Corporation (hereinafter
"RightCHOICE") and XXXX X. X'XXXXXX (hereinafter "X'XXXXXX")
restates and amends, effective as of February 19, 1997, the terms
of that certain Employment Contract made and entered into as of
April, 1995, by and between HEALTHLINK, INC., an Illinois
Corporation (hereinafter "HEALTHLINK"), and X'XXXXXX.
WHEREAS, RightCHOICE desires to employ X'XXXXXX as
RightCHOICE's Chairman and Chief Executive Officer on the terms
and conditions hereinafter contained, and X'XXXXXX desires such
employment.
NOW THEREFORE, in consideration of the premises and the
mutual covenants contained herein the parties agree as follows:
1. EMPLOYMENT
RightCHOICE shall employ X'XXXXXX, and X'XXXXXX shall
render full-time professional services consistent with those of
the Chairman and Chief Executive Officer of RightCHOICE (as
applicable as of the effective date of this Agreement) and such
other roles and responsibilities that may be reasonably required
of X'XXXXXX by Blue Cross & Blue Shield of Missouri (hereinafter
"BCBSMo") during the term of this Agreement in accordance with
the terms and conditions hereinafter set forth.
2. SERVICES TO BE PROVIDED BY X'XXXXXX
X'XXXXXX shall render full-time professional services to
RightCHOICE and BCBSMo. His duties shall include, without
limitation, the following:
A. All professional services consistent with those of
the Chairman and Chief Executive Officer of RightCHOICE (as
applicable on January 1, 1997) and such other roles and
responsibilities that may be reasonably required of X'XXXXXX by
BCBSMo.
B. All duties that may be reasonably requested by the
Board of Directors of RightCHOICE consistent with the position of
Chief Executive Officer of RightCHOICE (as applicable on January
1, 1997).
C. The selection, employment, control and termination
of all RightCHOICE employees. Such selection, employment control
and termination shall be performed in accordance with authorized
budgets, RightCHOICE policies and applicable laws..
D. Attending all meetings of the Board of Directors
of RightCHOICE, all meetings of committees of the Board when so
requested by the committee chairman, and any other meetings
reasonably requested by the Board of Directors.
E. Reporting to the Board of Directors at regular and
special meetings all significant items of RightCHOICE business
and making recommendations concerning disposition thereof.
3. APPLICABLE STANDARDS
X'XXXXXX shall render the services required hereunder
in accordance with the terms of this Agreement, the Articles of
Incorporation, bylaws, policies and procedures of RightCHOICE,
all applicable federal, state and/or governmental laws and/or
regulations, and directives of the Board of Directors of
RightCHOICE.
4. COMPENSATION
As compensation for the services provided by X'XXXXXX
pursuant to this Agreement, RightCHOICE shall pay X'XXXXXX the
following amounts:
4.1. Base Salary.
RightCHOICE shall pay X'XXXXXX base salary at the
rate of at least Three Hundred Twenty-Five Thousand Dollars
($325,000) per year. Such base salary shall be reviewed annually
by the Compensation Committee of the Board of Directors of
RIGHTCHOICE and shall be paid semi-monthly in equal installments
on the pay dates established by RightCHOICE for its employees.
4.2. Annual Incentive Plan Bonus
X'XXXXXX shall be eligible to participate in the
Alliance Blue Cross Blue Shield Incentive Plan ("AIP") at an
initial target-performance level of Forty-Three Percent (43%) of
his pro-rated annual base salary in accordance with the terms of
such plan as modified by the Compensation Committee of the Board
of Directors of RightCHOICE from time to time.
4.3. Automobile.
While X'XXXXXX utilizes his current company car,
RightCHOICE shall pay the expenses associated with such
automobile including maintenance, repair, gasoline, lease cost,
and other operating expenses. At the end of that period,
RightCHOICE shall provide X'XXXXXX with an automobile allowance
in the same manner and to the same extent as provided to other
RightCHOICE senior executives.
4.4. Welfare Benefit Plans.
RightCHOICE shall provide X'XXXXXX with long-term
total disability income protection, life insurance, accidental
death and dismemberment coverage, comprehensive health insurance,
travel insurance, and vacation days and personal sick pay days to
the same extent and in the same manner as provided for other
senior executives of RightCHOICE.
4.5. Qualified Plan Benefits.
X'XXXXXX shall be entitled to participate in the
RightCHOICE 401(k) plan and defined benefit retirement plan, in
accordance with their terms, as both may be amended from time-to-
time, in the same manner and to the same extent as other senior
executives of RightCHOICE.
4.6. Dues.
RightCHOICE shall pay X'XXXXXX'x dues in such
professional associations, societies, service organizations, and
luncheon clubs and country clubs as are approved by RightCHOICE's
Compensation Committee as being in the best interest of
RightCHOICE.
4.7. Other Employee Benefits.
X'XXXXXX shall be eligible to participate in the
RightCHOICE Equity Incentive Plan at an initial annual target
level of Fifty Percent (50%) of his pro-rated annual base
salary, and shall be eligible to participate in any other
employee benefit plans, including RightCHOICE's supplemental
executive retirement plan and deferred compensation plan, as each
may be amended from time-to-time, as approved by the Compensation
Committee of RightCHOICE's Board of Directors.
4.8. Automatic Vesting.
In the event of Involuntary Termination, or in the
event of termination as a result of X'XXXXXX'x death or
disability, or in the event of termination for Good Reason,
X'XXXXXX'x previously unvested Performance Bonuses and
Profitability Awards (as described and set forth in the previous
Employment Contract by and between HEALTHLINK and X'XXXXXX), if
any, shall vest automatically on the date of such termination.
4.9. Tax Consequences.
Any tax consequences resulting to X'XXXXXX from
the payment of any amounts pursuant to this Agreement shall be
the sole and exclusive responsibility of X'XXXXXX without
contribution or reimbursement from RightCHOICE. The preceding
notwithstanding, HEALTHLINK shall pay all fees and income taxes
on earnings within the trust associated with the Irrevocable
Trust Agreement dated June 7, 1994.
5. TERM AND TERMINATION
5.1 Term.
This Agreement shall become effective as of
February 19, 1997, and shall continue in effect until terminated
in accordance with Section 5.2 hereof.
5.2. Termination of Agreement.
A. Written Agreement.
This Agreement may be terminated by the
mutual written agreement of the parties.
B. Termination of X'XXXXXX by RightCHOICE.
RightCHOICE may terminate X'XXXXXX'x employment, effective
as of any date, by giving X'XXXXXX, in accordance with Section 7
hereof, at least sixty (60) days in advance, a written Notice of
Termination, specifying the effective date of such termination.
C. Termination of Employment by X'XXXXXX.
X'XXXXXX may terminate his employment, effective as of any date,
by giving RightCHOICE, in accordance with Section 7 hereof, at
least sixty (60) days in advance, a written Notice of
Termination, specifying the effective date of such termination.
5.3. Severance.
X. Xxxxxxxxx Benefits.
Subject to Sections 5.3(B), 5.3(C), 5.3(D)
and 5.3(H)(ii) hereof, X'XXXXXX shall become eligible for
Severance Benefits in the event of: (a) X'XXXXXX'x Involuntary
Termination, or (b) X'XXXXXX, after giving Notice of Termination
to RightCHOICE within seventy-five (75) days after first being
notified of or becoming aware of an event constituting Good
Reason which event is cited as Good Reason in such Notice of
Termination, and is not cured or reversed within ten (10) days
after RightCHOICE receives such Notice of Termination, terminates
his employment for Good Reason within the four (4) month period
commencing upon first being notified of or becoming aware of the
occurrence of Good Reason.
In the event that X'XXXXXX becomes entitled
to Severance Benefits, subject to Sections 5.3(B), 5.3(C), 5.3(D)
and 5.3(H)(ii) hereof, RightCHOICE will: (i) pay to X'XXXXXX an
amount equal to three (3) times X'XXXXXX'x annual base salary in
effect immediately prior to such Involuntary Termination or
termination for Good Reason, payable in thirty-six (36)
substantially equal monthly installments commencing as soon as
practicable following the Date of Termination; (ii) pay to
X'XXXXXX for twelve (12) months starting on the Date of
Termination an amount equal to the portion of the monthly
premiums (to the extent such premiums are due) for X'XXXXXX s
health, dental, vision, and life insurance that is equivalent to
the portion of the monthly premium for such coverage that
RightCHOICE pays on behalf of senior executives employed by
RightCHOICE during such twelve month period; and (iii) pay for
outplacement services for X'XXXXXX of the type customarily
provided by RightCHOICE to senior executives at the time of such
Involuntary Termination or termination for Good Reason.
B. Suspension or Termination of Severance
Benefits; Nonentitlement.
(i) Dispute.
If at any time a party to this Agreement
notifies the other party that one party disputes the position of
the other party with respect to any provision of Section 5.3 of
this Agreement, then RightCHOICE may at any time elect to suspend
some or all payments thereunder with respect to X'XXXXXX (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. If pursuant to such resolution of the dispute,
retroactive payments are to be made to X'XXXXXX or payments
representing reimbursements are to be made to RightCHOICE, 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 X'XXXXXX is
entitled to Severance Benefits hereunder, X'XXXXXX is employed
(including employment by RightCHOICE or any Parent or Subsidiary,
or employment by any other employer or any form of self-
employment), then: (a) RightCHOICE may in its discretion at any
time following the date of commencement of such employment, pay
to X'XXXXXX the aggregate remaining amounts to be paid to
X'XXXXXX under Section 5.3(A)(i) hereof, in a lump sum; and/or
(b) payments under Section 5.3(A)(ii) and 5.3(A)(iii) hereof
shall cease as of the date of commencement of such employment,
but if payments thereunder are made by RightCHOICE subsequent to
such date then RightCHOICE may withhold the amount of such
payments from the amount otherwise to be paid pursuant to Section
5.3(A)(i) hereof, and X'XXXXXX shall pay to RightCHOICE 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 X'XXXXXX is disabled during any
period while X'XXXXXX is entitled to Severance Benefits
hereunder, then during any such period that X'XXXXXX is Disabled,
any amounts payable under Section 5.3(A)(i) hereof, during such
period shall be reduced (but not to less than zero) by the
amounts, if any, paid or to be paid with respect to such period
to X'XXXXXX pursuant to any long-term disability plan maintained
by RightCHOICE or an Affiliate.
(iv) Death.
If X'XXXXXX dies during any period while
X'XXXXXX is entitled to Severance Benefits hereunder, then a lump
sum amount equal to the total remaining amounts payable to
X'XXXXXX at the time of X'XXXXXX'x death under Section 5.3(A)(i)
hereof, shall be paid to X'XXXXXX'x Designated Beneficiary;
provided, however, that such lump sum amount shall be reduced,
but not to less than zero, by any amounts, if any, payable on
account of X'XXXXXX'x death to any beneficiary other than
RightCHOICE or an Affiliate under any RightCHOICE or Affiliate
life insurance program.
(v) Criminal Charges.
If at any time after Severance Benefits
become payable hereunder and prior to the completion of the
payment of such benefits, RightCHOICE becomes aware that X'XXXXXX
has been charged with a felony, then RightCHOICE may suspend such
payments until such criminal charge is resolved. RightCHOICE
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 5.3(B)(v) after such criminal charge is resolved;
provided, however, that such payments shall cease and no further
payments shall be made at any time X'XXXXXX is convicted of, or
enters a guilty plea to, such crime by or before a court of
competent jurisdiction.
C. Limitations on Benefits.
In the event that the aggregate of any amounts
payable to or on behalf of X'XXXXXX under this Agreement and
under any other plan, agreement or policy of RightCHOICE 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 RightCHOICE's independent auditors, then the
amounts payable to or on behalf of X'XXXXXX 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
5.3(C): (a) no portion of any benefit the receipt or enjoyment
of which X'XXXXXX'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
RightCHOICE's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. If
RightCHOICE's independent auditors determine that payment that
would be a parachute payment has been made to X'XXXXXX hereunder,
then the excess of (x )over (y); where (x) is equal to the amount
of such payment actually made hereunder, and (y) is equal to the
amount that could be paid hereunder without any amount payable
hereunder being a parachute payment, shall constitute a loan by
RightCHOICE to X'XXXXXX, payable to RightCHOICE 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 RightCHOICE
of such excess amount. The provisions of this Section 5.3(C)
shall not apply to any payments referenced in Section 5.4.
D. General Waiver and Release.
X'XXXXXX acknowledges that in addition to other
conditions set forth in the Agreement, Severance Benefits shall
be conditioned upon the prior execution by X'XXXXXX of a general
waiver and release (hereinafter referred to as "Waiver") as
described in this Section 5.3(D), and X'XXXXXX shall not be
eligible for Severance Benefits unless and until X'XXXXXX has
executed the Waiver within ninety (90) days following X'XXXXXX'x
termination of employment. The Waiver shall be substantially in
the form attached hereto as Exhibit A and shall generally waive
all claims X'XXXXXX has or may have against RightCHOICE or a
Subsidiary or Parent, and any successors or predecessors thereto,
and shall release RightCHOICE and each Subsidiary and Parent, and
any successors and predecessors thereto, from all liability with
respect to any such claims; provided, however, that X'XXXXXX
shall not waive, and there shall be no release with respect to,
any claim (other than a claim disputing the validity of this
Section 5.3(D) or the Waiver) of X'XXXXXX to enforce any one or
more of the provisions of the Agreement.
E. Employee Statement.
X'XXXXXX agrees to abide by the RightCHOICE Code
of Business Conduct.
F. Covenant Not To Disclose.
X'XXXXXX acknowledges that during the course of
X'XXXXXX'x employment with RightCHOICE, X'XXXXXX has or will have
access to and knowledge of certain information and data which
RightCHOICE considers confidential, and that the release of such
information or data to unauthorized persons could be detrimental
to RightCHOICE or a Subsidiary or Parent. As a consequence,
X'XXXXXX hereby agrees and acknowledges that X'XXXXXX owes a duty
to RightCHOICE not to disclose, and agrees that, during and after
the term of X'XXXXXX'x employment, without the prior written
consent of RightCHOICE, X'XXXXXX 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 X'XXXXXX'x duties or as
required by law or legal process. X'XXXXXX will use his 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 X'XXXXXX'x duties or as may
be required by law or legal process. X'XXXXXX will return to
RightCHOICE all Confidential Information in X'XXXXXX'x possession
or under X'XXXXXX'x control when the duties of X'XXXXXX no longer
require X'XXXXXX'x possession thereof, or whenever RightCHOICE
shall so request, and in any event will promptly return all such
Confidential Information if X'XXXXXX'x employment with
RightCHOICE 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 RightCHOICE or a Subsidiary or Parent which if
disclosed could be detrimental to RightCHOICE or a Subsidiary or
Parent, including, but not limited to, any such information
relating to RightCHOICE's or a Subsidiary's or Parent's, members
or insureds, trade secrets, proprietary data and information
relating to RightCHOICE's or a 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 RightCHOICE advises X'XXXXXX is
Confidential Information.
G. Covenant Not to Compete.
(i) X'XXXXXX agrees that during the term of
X'XXXXXX'x employment by RightCHOICE and for a period consisting
of the greater of: (i) the period over which any 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 X'XXXXXX'x employment (such term of
employment and applicable subsequent period are referred to
collectively herein as the "Noncompetition Period"), X'XXXXXX
will not directly or indirectly, without the express written
consent of RightCHOICE:
(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 RightCHOICE's geographic market (as defined
below) which during the Noncompetition Period is engaged in
competition in any substantial manner with RightCHOICE, or a
Parent or Subsidiary of RightCHOICE, provided X'XXXXXX in any
such capacity directly or indirectly performs services in an
aspect of such business which is competitive with RightCHOICE, or
a Parent or Subsidiary of RightCHOICE. Notwithstanding the
foregoing, X'XXXXXX may invest in the stock of any publicly
traded company, but shall not hold more than two percent (2%) of
the issued and outstanding securities of any such company; or
(b) divert or attempt to divert clients,
customers or accounts of RightCHOICE 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 X'XXXXXX, any
current employee of RightCHOICE as of the time of such hire or
attempt to solicit to hire any former employee of RightCHOICE who
has been employed by RightCHOICE within the twelve-month period
immediately preceding the date of such hire or attempt to solicit
to hire.
(ii) With respect to X'XXXXXX'x obligations under
this Section 5.3(G), X'XXXXXX acknowledges that RightCHOICE's
geographic market is the States of Missouri and Kansas and the
portion of the State of Illinois that is south of Interstate 80.
(iii) The restrictions contained in this
Section 5.3(G) are considered by the parties hereto to be fair,
reasonable and necessary for the protection of the legitimate
business interests of RightCHOICE.
(iv) X'XXXXXX acknowledges that X'XXXXXX'x
experience and capabilities are such that, notwithstanding the
restrictions imposed in this Section 5.3(G), he can obtain
employment reasonably equivalent to his position with
RightCHOICE, and that an injunction against any violation of the
provision of this Section 5.3(G) will not prevent X'XXXXXX from
earning a livelihood reasonably equivalent to that provided
through his position with RightCHOICE.
H. Certain Remedies.
(i) Recognizing that irreparable injury will
result to RightCHOICE in the event of the breach or threatened
breach of any of the foregoing covenants and assurances by
X'XXXXXX contained in this Section 5.3, and that RightCHOICE's
remedies at law for any such breach or threatened breach will be
inadequate, if after written notice of breach delivered or mailed
to X'XXXXXX, X'XXXXXX 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 RightCHOICE, in
addition to such other rights or remedies which may be available
to it (including, without limitation, recovery of monetary
damages from X'XXXXXX), 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 X'XXXXXX, and each and every person,
firm or company acting in concert or participation with X'XXXXXX,
from the continuation of such breach and, in addition thereto,
X'XXXXXX shall pay to RightCHOICE all ascertainable damages,
including costs and reasonable attorneys fees, sustained by
RightCHOICE by reason of the breach or threatened breach of said
covenants and assurances. In the event that any suit for
injunctive relief or damage is decided adversely to RightCHOICE,
RightCHOICE shall pay X'XXXXXX'x costs and reasonable attorney's
fees.
(ii) In addition to the remedies described in
Section 5.3(H)(i), in the event of a material breach of this
Agreement by X'XXXXXX, RightCHOICE shall no longer be obligated
to pay any benefits to X'XXXXXX under this Agreement.
(iii) The covenants and obligations of
X'XXXXXX under this Section 5.3 are each independent covenants
and are in addition to and not in lieu of or exclusive of any
other obligations and duties of X'XXXXXX to RightCHOICE, whether
express or implied in fact or in law.
I. Definitions.
The following definitions shall apply for
purposes of this Agreement:
(1) Cause. "Cause" shall mean the
occurrence of any one or more of the following events:
(i) RightCHOICE's becoming aware of, or
being notified of, X'XXXXXX'x conviction of, or X'XXXXXX'x entry
of a guilty plea to, a felony by or before a court of competent
jurisdiction
(ii) gross failure by X'XXXXXX to
perform X'XXXXXX'x expected duties with RightCHOICE (other than
any such failure resulting from X'XXXXXX'x incapacity due to
physical or mental illness or any such actual or anticipated
failure occurring after, and not before, the issuance of a Notice
of Termination by X'XXXXXX for Good Reason which is not
thereafter successfully disputed by RightCHOICE) which gross
failure occurs or continues after: (a) RightCHOICE delivers to
X'XXXXXX a written demand for substantial performance that
specifically identifies the expected duties of X'XXXXXX, the
manner in which RightCHOICE believes that X'XXXXXX has not
substantially performed X'XXXXXX'x duties and the reasonable time
in which X'XXXXXX must demonstrate that he is performing or has
resumed performance of such duties in order to avoid a
determination that a gross failure by X'XXXXXX to perform such
duties has occurred; and (b) X'XXXXXX has failed to demonstrate
that he is performing or has resumed performance of the duties
specified in such by the time specified in such notice;
(iii) RightCHOICE's becoming aware
of, or being notified of, the willful engaging by X'XXXXXX in
conduct which RightCHOICE reasonably determines in good faith is
likely to be materially damaging or detrimental to RightCHOICE or
to a Subsidiary or Parent; or
(iv) RightCHOICE's becoming aware of, or
being notified of, a willful and material violation by X'XXXXXX
of the RightCHOICE Code of Business Conduct
(2) Change in Control. "Change in Control"
shall mean the occurrence, while X'XXXXXX is employed by
RightCHOICE and this Agreement is in effect, of any one or more
of the following events:
(i) the merger, consolidation or other
reorganization of RightCHOICE in which any class of the
outstanding common stock of RightCHOICE is converted into or
exchanged for a different class of securities of RightCHOICE, 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 Class B common stock of RightCHOICE into Class A
common stock of RightCHOICE 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 RightCHOICE 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 RightCHOICE 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 that
fifty percent (50%) (based on total voting power) of any class of
RightCHOICE's or Parent's outstanding stock (or other equity
ownership interests); provided, however, that nothing in this
Section 5.3(H)(2)(iv) shall be construed as deeming a Change in
Control to have occurred if any person or entity that is
considered to own, directly or indirectly, more than fifty
percent (50%) (based on total voting power) of such class of
RightCHOICE'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 interests);
(v) as a result of or in connection
with a contested election of directors of RightCHOICE, the
persons who were directors of RightCHOICE before such election
cease to constitute a majority of the directors of RightCHOICE;
(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 ceasing to have
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 5.3(H)(2)(v) or 5.3(H)(2)(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
X'XXXXXX elects. 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 if such entity did not qualify as
a Parent or an Affiliate.
(3) Code. "Code" shall mean the Internal Revenue
Code of 1986 as from time to time amended.
(4) Date of Termination. "Date of Termination"
shall mean the effective date of X'XXXXXX'x termination of
employment. If X'XXXXXX delivers a Notice of Termination
hereunder to RightCHOICE, then the Date of Termination shall be
specified in the Notice of Termination and shall be no less than
thirty (30) days following the date such Notice of Termination is
delivered or mailed to RightCHOICE in accordance with Section 7
hereof; provided, however, that in such event RightCHOICE shall
have the right to accelerate such Date of Termination by written
notice of such acceleration delivered or mailed to X'XXXXXX in
accordance with Section 7 hereof. If RightCHOICE delivers or
mails a Notice of Termination hereunder to X'XXXXXX, then the
Date of Termination shall be the date specified by RightCHOICE in
such Notice of Termination.
(5) Designated Beneficiary. "Designated
Beneficiary" shall mean one or more individuals or legal entities
designated by X'XXXXXX on Exhibit B of this Agreement, except
that, if there is no such effective beneficiary designation at
the time of X'XXXXXX'x death, then Designated Beneficiary shall
mean the legal representative of X'XXXXXX'x estate. Exhibit B to
this Agreement may be revoked by X'XXXXXX at any time by written
instrument delivered to RightCHOICE, in which event a new
Exhibit B may be completed and executed by X'XXXXXX and shall be
effective upon receipt by RightCHOICE prior to the date of
X'XXXXXX'x death.
(6) Disabled. "Disabled" shall mean X'XXXXXX is
receiving, or is currently entitled to receive pursuant to a
determination made by RightCHOICE, benefits under RightCHOICE's
long-term disability plan, if any.
(7) Good Reason. "Good Reason" shall mean the
occurrence, without the written consent of X'XXXXXX of any one or
more of the following events (provided, however, 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 X'XXXXXX of any duties
or responsibilities inconsistent with X'XXXXXX'x status as
Chairman and Chief Executive Officer of RightCHOICE or a
substantial adverse alteration in the nature or status of
X'XXXXXX'x responsibilities, job title or position from those in
effect immediately prior to such alteration;
(ii) a reduction by RightCHOICE in the annual
base salary payable to X'XXXXXX, or a change to the short-term
bonus formula that was applicable to X'XXXXXX immediately prior
to such change that materially reduces the amount payable at
target-level of performance, or a change to the long-term
incentive formula that was applicable to X'XXXXXX immediately
prior to such change that materially reduces the percentage of
X'XXXXXX'x annual base salary being provided at target-level
performance under the long-term incentive plan;
(iii) the relocation of X'XXXXXX'x
principal place of performing his duties as an executive of
RightCHOICE to a location in excess of seventy-five miles from
the location where X'XXXXXX'x principal place of performing his
duties as an executive of RightCHOICE was located immediately
prior to such relocation;
(iv) a material reduction in the benefits and
perquisites provided X'XXXXXX by RightCHOICE immediately prior to
such reduction;
(v) RightCHOICE's termination of this
Agreement; or
(vi) Blue Cross & Blue Shield of Missouri's
replacement of their President and Chief Executive Officer with
an individual other than X'XXXXXX.
(8) Involuntary Termination. "Involuntary
Termination" shall mean the termination of X'XXXXXX'x employment
by action of RightCHOICE for any reason other than Cause,
disability or death; provided, however, that X'XXXXXX'x
termination of employment by RightCHOICE shall not be an
Involuntary Termination if, immediately following such
termination, X'XXXXXX is employed by another employer that is
obligated, by agreement, operation of law or otherwise, to abide
by and be bound by the provisions of the Agreement, and, in such
event, such employer shall be the successor of and to
RightCHOICE's rights and obligations under this Agreement.
(9) Notice of Termination. "Notice of
Termination" shall mean:
(i) a notice from X'XXXXXX to RightCHOICE
advising RightCHOICE of X'XXXXXX'x decision to terminate
X'XXXXXX'x employment; or
(ii) a notice from RightCHOICE to X'XXXXXX
advising X'XXXXXX of RightCHOICE's decision to terminate
X'XXXXXX'x employment.
A Notice of Termination shall be delivered or mailed in
accordance with Section 7 of this Agreement. If a Notice of
Termination is from X'XXXXXX to RightCHOICE and if X'XXXXXX
believes such termination is for Good Reason, then such Notice of
Termination shall specify that such termination is a termination
for Good Reason, and shall set forth in reasonable detail the
facts and circumstances supporting such belief of X'XXXXXX. If a
Notice of Termination is from RightCHOICE to X'XXXXXX and if
RightCHOICE believes such termination is for Cause, then such
Notice of Termination shall specify that such termination is for
Cause and shall be set forth in reasonable detail in facts and
circumstances supporting such belief of RightCHOICE.
(10) Parent. "Parent" shall mean BCBSMo and any
other corporation or other legal entity (other than RightCHOICE)
owning, directly or indirectly, fifty percent (50%) or more
(based on total voting power) of the outstanding stock (or other
equity ownership interest) of RightCHOICE.
(11) Severance Benefits. "Severance Benefits"
shall mean the benefits described in Section 5.3(A) hereof.
(12) Subsidiary or Affiliate. "Subsidiary" or
"Affiliate" shall mean any corporation or other legal entity
(other than RightCHOICE) that is part of a group of corporations
and/or other legal entities under common control, which group
includes RightCHOICE and in which group each entity is deemed to
be under common control with the others if it is in an unbroken
chain of corporations and/or other legal entities each of which
is connected to a common parent entity by having fifty (50)
percent or more (based on total voting power) of its outstanding
stock (or other equity ownership interest) owned directly or
indirectly by that common parent entity; provided, however, that
no corporation or other entity shall be considered to be a
Subsidiary or Affiliate solely because of its direct or indirect
ownership of an interest in The Epoch Group, LC. For purposes of
clarity only (and without limiting the generality of the
foregoing definition), it is noted that the common parent entity
referred to in the foregoing definition qualifies as a Subsidiary
or Affiliate.
5.4 Sale of HEALTHLINK.
A. Prior to the effective date of this Agreement,
X'XXXXXX was awarded a bonus (the "X'XXXXXX Share") in connection
with the Closing, and one-third of the X'XXXXXX Share was
deposited in escrow, subject to disbursement of one half of the
escrow balance on the first anniversary of Closing and the
remaining balance on the second anniversary of Closing to
X'XXXXXX, if prior to the date of each such disbursement X'XXXXXX
had met certain conditions. The first half of such escrow amount
was distributed to X'XXXXXX prior to the date of this Agreement.
X'XXXXXX will be entitled to the remainder of the escrow amount
if, as of the second anniversary of the Closing, he has not
voluntarily terminated employment with RightCHOICE and his
employment with RightCHOICE has not been involuntarily terminated
for cause as defined in Section 5.4(B)(iii) (in either case, an
"Event of Forfeiture"); provided, however, if (x) X'XXXXXX dies
or becomes permanently and totally disabled (as defined in the
long term disability policy maintained by RightCHOICE for
X'XXXXXX as of January 1, 1997, while employed by RightCHOICE,
(y) if RightCHOICE terminates X'XXXXXX'x employment without cause
as defined in Section 5.4(B), or (z) if the Agreement terminates
other than for an Event of Forfeiture, the entire balance of the
escrow shall be immediately disbursed to X'XXXXXX or his estate,
as the case may be. If an Event of Forfeiture shall occur, the
escrow balance shall be immediately disbursed to RightCHOICE; and
(B) the escrow funds shall be invested in United
States Government obligations and the costs of the escrow shall
be paid from the escrowed funds. For purposes of Section 5.4(A)
only, termination for cause by RightCHOICE shall be limited to
(i) the commission of an act of actual fraud or willful
misconduct by X'XXXXXX in the course of his employment which
materially adversely affects RightCHOICE, (ii) the violation by
X'XXXXXX of the covenant not to compete contained in Section
5.3(G) of the Agreement, which violation shall continue for a
period of thirty (30) days following written notice from
RightCHOICE specifying such failure, or (iii) the commission of a
felony by X'XXXXXX.
6. EFFECTS OF TERMINATION
Upon termination of this Agreement as hereinabove
provided, neither party shall have any further obligations
hereunder except for: (i) obligations accruing prior to the date
of termination of this Agreement, and (ii) obligations, promises
or covenants contained herein which are expressly made to extend
beyond the term of this Agreement.
7. NOTICE
Any notice, demand or communication required, permitted
or desired to be given under this Agreement shall be deemed
effectively given when personally delivered or mailed by first
class mail or certified mail, addressed as follows:
if to X'XXXXXX:
Xxxx X. X'Xxxxxx
000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
if to RightCHOICE:
RightCHOICE, Managed Care, Inc.
c/o Xxxxxx Xxxxxxx
Corporate Counsel
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
If either party changes its address during the term of this
Agreement, written notice of such change shall be mailed first
class to the other party.
8. MISCELLANEOUS
8.1. Successors.
This Agreement is personal and not assignable by
X'XXXXXX, but it may be assigned by RightCHOICE, without notice
to or consent of X'XXXXXX, provided such assignee agrees to abide
by and be bound by the provisions of the Agreement. In the event
of assignment by RightCHOICE, the Agreement shall thereafter be
enforceable by such assignee. During X'XXXXXX'x lifetime the
Agreement and all rights and obligations of X'XXXXXX hereunder
shall be enforceable by and binding upon X'XXXXXX'x guardian or
other representative in the event that X'XXXXXX is unable to act
on his own behalf for any reason whatsoever, and upon X'XXXXXX'x
death while this Agreement is in effect, this Agreement and all
rights and obligations of X'XXXXXX hereunder shall inure to the
benefit of and be enforceable by and binding upon X'XXXXXX'x
Designated Beneficiary.
8.2. Articles and Other Headings.
The articles and other headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of the Agreement.
8.3. Waiver of Breach.
The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate
as, or be construed to be, a waiver of any subsequent breach of
the same or any other provision hereof.
8.4. Governing Law.
This Agreement supersedes all previous contracts
and constitutes the entire Agreement between the parties. No
oral statements or prior written material not specifically
incorporated herein shall be of any force and effect and no
changes or additions hereto shall be recognized unless
incorporated herein by amendment as provided herein, such
amendment(s) to become effective on the date stipulated in such
amendment(s). Both parties specifically acknowledge that in
entering into and executing this Agreement, they rely solely upon
the representation and agreements contained in this Agreement and
no others. This Agreement shall be interpreted, construed and
enforced pursuant to and in accordance with the Laws of the State
of Missouri, without regard to Missouri's choice of law
provisions.
8.5. 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.
8.6. Binding Arbitration.
Except for disputes arising under Section 5.4, 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. Judgment may be entered
on the arbitrator's award in any court having jurisdiction.
8.7. Withholding of Taxes.
Company shall cause taxes to be withheld from
amounts paid pursuant to the Agreement as required by law.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the year and date first above written.
X'XXXXXX RightCHOICE
BY: /s/ Xxxx X. X'Xxxxxx BY: /s/ Xxxxxx X. Xxxx
Xxxx X. X'Xxxxxx Xxxxxx X. Xxxx, Vice Chairman
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.
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. 2000e et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. 621 et
seq., the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et
seq., the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.,
the Americans with Disabilities Act, 42 U.S.C. 2101, the Civil
Rights Act of 1871, 42 U.S.C. 1981, the Family and Medical
Leave Act of 1993, 19 U.S.C. 2601 et seq., the Missouri Human
Rights Act, 213.010 RSMo et seq., the Missouri Workers
Compensation law, 287 RSMo et seq., the Missouri Service Letter
Statute, 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: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice Chairman of the Board
Subscribed and sworn to before me, a Notary Public, this
day of
, .
Notary Public
My Commission Expires:
EXHIBIT B
DESIGNATION OF BENEFICIARY
PURSUANT TO OFFICER SEVERANCE AGREEMENT
Name of Officer Xxxx X. X'Xxxxxx
Original Date of Agreement February 27, 1997
I hereby designate the following as my Designated Beneficiary. I
agree that unless instructed differently by me in writing below,
if I designate multiple beneficiaries they shall receive equal
shares of the total benefits payable upon my death. I
ACKNOWLEDGE THAT THIS BENEFICIARY DESIGNATION WILL APPLY ONLY TO
PAYMENT OF ANY SALARY CONTINUATION AMOUNTS THAT MAY BE PAYABLE
FOLLOWING MY DEATH AND DOES NOT AFFECT ANY BENEFICIARY
DESIGNATION I HAVE OR WILL MAKE WITH RESPECT TO ANY LIFE
INSURANCE OR OTHER BENEFITS I MAY OBTAIN THROUGH THE COMPANY OR
OTHERWISE.
NAME OF BENEFICIARY RELATIONSHIP ADDRESS
Xxxxxx X'Xxxxxx Wife 138 Greenbriar
Date 2/27/97 Officer's Signature /s/ Xxxx X. X'Xxxxxx
Receipt acknowledged on behalf of Company.
Date 5/27/97 RIGHTCHOICE MANAGED CARE, INC.
By /s/ Xxxxx X. Xxxxxx
