Exhibit 10.71
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT (the "Agreement") is entered into as of
the 1st day of January, 1999, by and between RightCHOICE Managed Care, Inc., a
Missouri corporation ("RightCHOICE"), and ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive").
W I T N E S S E T H:
WHEREAS, RightCHOICE has engaged the services of Executive as an "at-will"
employee of RightCHOICE; and
WHEREAS, RightCHOICE and Executive have entered into an Officer Severance
Agreement dated as of Jan. 1, 1999 (the "Officer Agreement") under which, as a
condition of Executive's employment, Executive has agreed to be bound by certain
covenants set forth in the Officer Agreement and RightCHOICE has agreed to
provide Executive certain severance benefits upon the terms and conditions set
forth in the Officer Agreement;
WHEREAS, the Compensation Committee of RightCHOICE's Board of Directors
believes that the concerns applicable to senior executives when certain
corporate events occur are such that, in order to facilitate senior executives'
focusing on management issues in a manner that best serves the interests of all
stakeholders, such executives of RightCHOICE should have the protections set
forth herein in the event that a Change in Control, as defined herein, occurs;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and intending to be legally bound, the parties hereto do hereby agree as
follows:
SECTION 1
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TERM OF AGREEMENT
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The Agreement shall be effective as of the date first written above and
shall continue in effect until terminated in accordance with the provisions of
Section 5 hereof.
SECTION 2
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DEFINITIONS
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The following definitions shall apply for purposes of the Agreement:
A. Affiliate. "Affiliate" shall have the same meaning as it is given in
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the Officer Agreement.
B. Annual Compensation. "Annual Compensation" shall mean the highest
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aggregate amount of the following items of compensation paid in cash (or which
would have been paid in cash if they were not deferred pursuant to any qualified
or nonqualified deferred compensation arrangement or contributed to a welfare
benefit plan pursuant to an election under a cafeteria plan) to Executive by the
Company during a calendar year which is in the most recent five-consecutive-
calendar-year period (or such shorter period of consecutive calendar years
during which Executive has been employed by the Company) ending on or before the
date of a Change in Control:
(i) base salary; and
(ii) payments under any of the following incentive programs:
. Supplemental Income Plan;
. Short Term Public Offering Bonus;
. Management Incentive Plan (MIP);
. ABCBS Incentive Plan (AIP);
. Long Term Incentive Program;
. Sign-On Bonus;
. Equity 2000;
. Cost Reduction Incentive Plan;
. Sales Incentive Plan; and
. payments under any other incentive programs to the
extent that the Compensation Committee of the
RightCHOICE Managed Care, Inc. Board of Directors
specifically approves payments under such
incentive programs for inclusion in Annual
Compensation for purposes of this Agreement.
For purposes of clarity and without limiting the generality of the foregoing
definition, no amounts paid to Executive pursuant to any qualified or
nonqualified deferred compensation arrangement, any cafeteria plan or any other
benefit plan qualify for inclusion in Annual Compensation, regardless of the
source of any such amounts and no award of stock options, restricted stock or
other rights under the Equity Incentive Plan, nor any amounts received or income
recognized in connection with receipt of any such award or exercise of any
rights under any such award, shall be included in Annual Compensation.
C. Base Pay. "Base Pay" shall have the same meaning as that term is given
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under the Officer Agreement.
D. Cause. "Cause" shall have the same meaning as that term is given under
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the Officer Agreement.
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E. Change in Control. "Change in Control" shall mean the occurrence,
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while Executive is employed by Company and this Agreement is in effect, of any
one or more of the following events:
(i) the merger, consolidation or other reorganization of
Company in which any class of the outstanding common stock of Company is
converted into or exchanged for a different class of securities of the
Company, 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 the
outstanding Class B common stock of RightCHOICE Managed Care, Inc. into or
for Class A common stock of RightCHOICE Managed Care, Inc. 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 Company 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 the Company 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 than fifty (50) percent (based on total voting power) of any class
of Company's or Parent's outstanding stock (or other equity ownership
interests); provided, however, that nothing in this Section 2(E)(iv) shall
be construed as deeming a Change in Control to have occurred if any such
person or entity that is considered to own more than fifty (50) percent
(based on total voting power) of such class of Company'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). Where an entity does not have outstanding stock (such as
the Parent), the above will be deemed to have occurred if a transaction
occurs in which the entity becomes subject to the direction or oversight by
a person that is not an Affiliate, and such direction or oversight includes
the ability of the person to set policy for the entity, and/or govern the
operations of the Parent, and/or control the entity's assets or the stock
the entity owns in RightCHOICE Managed Care, Inc.
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(v) as a result of, or in connection with, a contested election
of directors of the Company, the persons who were directors of Company
before such election cease to constitute a majority of the directors of
Company;
(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 Managed Care, Inc. ceasing to have a 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 2(E)(v) or 2(E)(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 Executive elects. Any person or
entity that is regularly in the business of lending money may, under the terms
of an agreement executed in connection with extending financing, be granted the
right to enforce covenants requiring certain financial ratios or business
practices to be maintained, so long as such requirements are typical of the
covenants required by lenders generally in connection with financing similar to
that provided in connection with such agreement, without a Change in Control
being deemed to have occured. 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.
F. Code. "Code" shall have the same meaning as that term is given under
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the Officer Agreement.
G. Company. "Company" shall mean RightCHOICE, except that, if any person
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or entity other than RightCHOICE employs Executive and is obligated by
agreement, operation of law or otherwise to abide by and be bound by the
provisions of this Agreement, then "Company" shall mean that person or entity;
provided, however, that the substitution of another person or entity as
"Company" under this Agreement shall not be construed as removing from, or
eliminating with respect to, RightCHOICE or any other person or entity that
subsequently employs Executive and becomes bound by the provisions of this
Agreement, any of the
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protections, rights and remedies accruing to the "Company" under the provisions
of Section 4 of this Agreement.
H. Date of Termination. "Date of Termination" shall mean the effective
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date of Executive's termination of employment. If Executive delivers a Notice of
Termination hereunder to Company, then the Date of Termination shall be thirty
(30) days following the date such Notice of Termination is delivered or mailed
to Company in accordance with Section 6(B) hereof; provided, however, that in
such event Company shall have the right to accelerate such Date of Termination
by written notice of such acceleration delivered or mailed to Executive in
accordance with Section 6(B) hereof. If Company delivers or mails a Notice of
Termination hereunder to Executive in accordance with Section 6(B) hereof, then
the Date of Termination shall be the date specified by Company in such Notice of
Termination.
I. Designated Beneficiary. "Designated Beneficiary" shall mean the
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beneficiary designated by Executive in accordance with the Officer Agreement.
J. Disabled. "Disabled" shall have the same meaning as that term is given
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under the Officer Agreement.
K. Employee Statement. "Employee Statement" shall have the same meaning
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as that term is given under the Officer Agreement.
L. Executive Severance Benefits. "Executive Severance Benefits" shall
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mean the benefits described in Section 3(B) hereof.
M. Good Reason. "Good Reason" shall mean the occurrence, without the
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written consent of Executive and within twenty-four (24) months following a
Change in Control, of any one or more of the following events (provided,
however, that 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 Executive of any duties or
responsibilities inconsistent with Executive's status as a senior
executive (that is, an executive holding the position of Senior Vice
President or above) of Company or a substantial adverse alteration in
the nature or status of Executive's responsibilities, job title or
position from those in effect immediately prior to the Change in
Control;
(ii) a reduction by Company in the annual base salary that
was applicable to Executive immediately prior to the Change in
Control, a change to the short-term bonus formula that was applicable
to Executive immediately prior
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to the Change in Control that reduces the amount payable at target
level of performance, or a change to the long-term incentive formula
that was applicable to Executive immediately prior to the Change in
Control that reduces the stock options (or other award) at target
level of performance;
(iii) the relocation of Executive's principal place of
performing his duties as an employee of the Company to a location in
excess of seventy-five (75) miles from the location that was,
immediately prior to the Change in Control, Executive's principal
place of performing his duties as an employee of Company;
(iv) a material reduction in the benefits and perquisites
provided to Executive by Company or which Executive was eligible to
receive from Company immediately prior to the Change in Control; or
(v) Company's terminating the Agreement in violation of
Section 5 hereof.
N. Good Reason Termination. "Good Reason Termination" shall mean
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Executive's terminating employment with the Company following the occurrence of
an event constituting Good Reason, but only if:
(i) Executive, within sixty (60) days after being notified of
or becoming aware of such event, objects to such event by delivering Notice
of Termination to Company in accordance with Section 6(B) hereof;
(ii) Company, having received Notice of Termination pursuant to
Section 2(N)(i), does not reverse the action or otherwise remedy the
situation cited in the Notice of Termination as constituting Good Reason
within ten (10) days after receiving such Notice of Termination; and
(iii) Executive terminates employment within three (3) months
after being notified of or becoming aware of the occurrence of the event
cited as constituting Good Reason in the Notice of Termination.
O. Involuntary Termination. "Involuntary Termination" shall mean the
termination of Executive's employment by action of Company within twenty-four
(24) months following a Change in Control for any reason other than Cause;
provided, however, that the termination of Executive's employment by Company
shall not be an Involuntary Termination if, immediately following such
termination of employment, Executive is employed by another employer that is to
abide by the provisions of this Agreement as described in Section 2(G) hereof.
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P. Notice of Termination. "Notice of Termination" shall mean:
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(i) a notice from Executive to Company advising Company of
Executive's decision to terminate Executive's employment; or
(ii) a notice from Company to Executive advising Executive of
Company's decision to terminate Executive's employment.
A Notice of Termination shall be delivered or mailed in accordance with Section
6(B) hereof. If a Notice of Termination is from Executive to Company and if
Executive believes such termination is for Good Reason, then such Notice of
Termination shall specify that such termination is a termination for Good
Reason, the event(s) which Executive believes constitute Good Reason and the
facts and circumstances supporting such belief of Executive. If a Notice of
Termination is from Company to Executive and if Company believes such
termination is for Cause, then such Notice of Termination shall specify that
such termination is for Cause and shall set forth in reasonable detail the facts
and circumstances supporting such belief of Company.
Q. Parent. "Parent" shall mean any entity owning, directly or indirectly,
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fifty percent (50%) or more (based on voting power) of the Company's outstanding
stock or other equity ownership interests.
R. Standard Severance Benefits. "Standard Severance Benefits" shall mean
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the benefits described in Section 3(A) of the Officer Agreement.
SECTION 3
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SEVERANCE BENEFITS
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A. Standard Severance Benefits. No benefits shall be payable to Executive
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under this Agreement unless and until all conditions specified herein are met,
including, without limitation, the occurrence of a Change in Control with the
necessary subsequent effect on Executive's employment. Prior to the occurrence
of a Change in Control, any severance benefits due to Executive upon termination
of employment with Company will be determined solely under the Officer
Agreement. Executive agrees that, if at any time Executive qualifies for
benefits under this Agreement, the Officer Agreement will terminate
automatically and the terms of the Officer Agreement will be given no further
effect whatsoever (except to the extent such terms are incorporated herein or
items in this Agreement are determined with reference to such terms), Executive
will have no rights whatsoever arising under or in connection with the Officer
Agreement, no payment of any benefits provided for in the Officer Agreement will
be made to Executive and this Agreement will constitute the sole and exclusive
authority for payment of severance benefits to Executive. Regardless of anything
to the contrary in the preceding sentence, if at any time Executive begins
receiving Standard Severance Benefits, this Agreement will
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terminate automatically and its terms will be given no further effect
whatsoever, Executive will have no rights whatsoever arising under or in
connection with this Agreement, no payment of any benefits provided for herein
will be made to Executive and the Officer Agreement will constitute the sole and
exclusive authority of payment of severance benefits to Executive.
B. Executive Severance Benefits. Subject to Sections 3(C), 3(D), 3(E) and
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4(D)(ii) hereof, in the event of Executive's Involuntary Termination or Good
Reason Termination, Company shall pay for outplacement services for Executive of
the type customarily provided by Company to senior executives at the time of
Executive's Involuntary Termination or Good Reason Termination and shall pay
Executive an amount equal to the greater of:
(i) two (2) times Executive's Annual Compensation; or
(ii) an amount equal to:
(a) three (3) times Executive's Base Pay plus,
(b) for a period of twelve (12) months starting on the Date
of Termination, an amount equal to the portion of the premiums
(to the extent such premiums are due) for Executive's health,
dental, vision and life insurance that is equivalent to the
portion of the premiums for such coverages that the Company pays
on behalf of similarly situated executives employed by Company
during such twelve (12) month period.
Such Executive Severance Benefits will commence as soon as practicable following
the Date of Termination, and will be paid in twenty-four (24) substantially
equal monthly installments, in the case of Executive Severance Benefits under
Section 3(B)(i) above, or in thirty-six (36) monthly installments, in the case
of Executive Severance Benefits under Section 3(B)(ii) above, with the first 12
such installments equaling 1/36th of the amount determined under Section
3(B)(ii)(a) plus 1/12th of the amount determined under Section 3(B)(ii)(b) above
and the remaining such installments equaling 1/36th of the amount determined
under Section 3(B)(ii)(a). Company's obligation to pay the amounts specified in
Section 3(B)(ii)(b) above shall be reduced by any and all amounts Company pays
toward Executive's health, dental, vision and life insurance with respect to
periods after the Date of Termination.
C. Suspension or Termination of Severance Benefits: Nonentitlement.
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(i) Dispute. If at any time a party to this Agreement notifies
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the other party pursuant to Section 6(B) hereof that one party disputes the
position of the other party with respect to any provision of this
Agreement, then Company may at any time elect to suspend some or all
payments hereunder with respect to Executive (or elect not to
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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 pursuant to Section 6(H) hereof. If
pursuant to such resolution of the dispute, retroactive payments are to be
made to Executive or payments representing reimbursements are to be made to
Company, 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 Executive is
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entitled to Executive Severance Benefits hereunder, Executive is employed
(including employment by the Company or an Affiliate, employment by any
other employer or any form of self-employment) then (a) Company may in its
discretion at any time following the date of commencement of such
employment, pay to Executive the aggregate remaining amounts to be paid to
Executive under Section 3(B)(i) or 3(B)(ii)(a) hereof in a lump sum; and
(b) payments for outplacement services and payments under Section
3(B)(ii)(b) hereof shall cease as of the date of commencement of such
employment, but if payments for outplacement services and/or under Section
3(B)(ii)(b) are made by Company subsequent to such date then Company may
withhold the amount of any such payments from the amount otherwise to be
paid pursuant to Section 3(B)(ii)(a) hereof, and Executive shall pay to
Company 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 Executive is Disabled during any period
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while Executive is entitled to Executive Severance Benefits hereunder,
then, during any such period that Executive is Disabled, any amounts
payable under Section 3(B) hereof during such period shall be reduced (but
not to less than zero) by the amounts paid or to be paid with respect to
such period to Executive pursuant to any long-term disability plan
maintained by Company.
(iv) Death. If Executive dies during any period while Executive
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is entitled to Executive Severance Benefits hereunder, then a lump sum
amount equal to the total remaining amounts payable to Executive at the
time of Executive's death under Section 3(B) hereof shall be paid to
Executive's Designated Beneficiary; provided, however, that such lump sum
amount shall be reduced, but not to less than zero, by any amounts payable
on account of Executive's death to any beneficiary designated by Executive
other than Company under any Company life insurance program.
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(v) Criminal Charges. If at any time after Executive Severance
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Benefits become payable hereunder and prior to the completion of the
payment of such benefits Executive is charged with a felony, or other crime
involving moral turpitude, which crime relates to activities of Executive
occurring during the period Executive was employed by Company or its
predecessor(s) under this Agreement, then Company may suspend such payments
until such criminal charge is resolved. Company 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 3(C)(v) after such criminal charge is resolved; provided, however,
that such payments shall cease and no further payments shall be made at any
time Executive is convicted of, or enters a guilty plea to, such crime by
or before a court of competent jurisdiction.
D. Limitations on Benefits.
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(i) Code Limitations. In the event that the aggregate of any
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amounts payable to or on behalf of Executive under the Agreement and under
any other plan, agreement or policy of Company 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 Company's independent
auditors, then the amounts payable to or on behalf of Executive 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 3(D)(ii): (a) no portion
of any benefit the receipt or enjoyment of which Executive 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 Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. If the Company's
independent auditors determine that payment that would be a parachute
payment has been made to Executive hereunder, then the excess of (a) the
amount of such payment actually made hereunder over (b) the amount that
could be paid hereunder without any amount payable hereunder being a
parachute payment, shall constitute a loan by Company to Executive, payable
to Company 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
Company of such excess amount.
E. General Waiver and Release. Notwithstanding any provision to the
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contrary in the Agreement, Executive acknowledges that in addition to other
conditions set forth in the Agreement, Executive Severance Benefits shall be
conditioned upon the prior execution by Executive of a general waiver and
release (hereinafter referred to as "Waiver") as described in this Section 3(E),
and Executive shall not be eligible for Executive Severance Benefits unless and
until Executive has executed the Waiver within ninety (90) days following the
later of Executive's
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termination of employment. The Waiver shall be substantially in the form
attached hereto as Exhibit A and shall generally waive all claims Executive has
or may have against Company or an Affiliate, and any successors or predecessors
thereto, and shall release Company and all Affiliates, and any successors and
predecessors thereto, from all liability with respect to any such claims;
provided, however, that Executive shall not waive, and there shall be no release
with respect to, any claim (other than a claim disputing the validity of this
Section 3(E) or the Waiver) of Executive to enforce any one or more of the
provisions of the Agreement.
SECTION 4
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EXECUTIVE'S COVENANTS
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A. Employee Statement. Executive agrees to abide by the Employee
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Statement (including, but not limited to, the Company Statement of Corporate
Ethics).
B. Covenant Not To Disclose. Executive acknowledges that during the
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course of Executive's employment with Company, Executive has or will have access
to and knowledge of certain information and data which Company considers
confidential, and that the release of such information or data to unauthorized
persons could be detrimental to Company or an Affiliate. As a consequence,
Executive hereby agrees and acknowledges that Executive owes a duty to Company
not to disclose, and agrees that, during and after the term of Executive's
employment, Executive will not communicate, publish or disclose to any person
anywhere or use any Confidential Information (as defined below) for any purpose
except in accordance with the prior written consent of Company, where necessary
or appropriate to carry out Executive's duties as an employee of Company, or as
required by law or legal process. Executive will use Executive's best efforts at
all times to hold in confidence and to safeguard any Confidential Information
from becoming known by any unauthorized person and, in particular, will not
permit any Confidential Information to be read, duplicated or copied except in
accordance with the prior written consent of the Company, where necessary or
appropriate to carry out Executive's duties as an employee of Company, or as may
be required by law or legal process. Executive will return to Company all
Confidential Information in Executive's possession or under Executive's control
when the duties of Executive as an employee of the Company no longer require
Executive's possession thereof, or whenever Company shall so request, and, in
any event, will promptly return all such Confidential Information if Executive's
employment with Company 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 Company or an Affiliate
which, if disclosed, could be detrimental to Company or an Affiliate, including,
but not limited to, any such information relating to Company's, or an
Affiliate's, members or insureds, trade secrets, proprietary data and
information relating to Company's, or an Affiliate'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
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reduced to writing, or any other information or data which Company advises
Executive is Confidential Information.
C. Covenant Not to Compete.
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(i) Executive agrees that during the term of Executive's
employment by Company and for a period consisting of the greater of: (i)
the period over which any Executive 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 Executive's employment (such
term of employment and applicable subsequent period are referred to
collectively herein as the "Noncompetition Period"), Executive will not
directly or indirectly, without the express prior written consent of
Company:
(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 Company's
geographic market which during the Noncompetition Period is engaged in
competition in any substantial manner with Company or an Affiliate,
provided Executive in any such capacity directly or indirectly
performs services in an aspect of such business which is competitive
with Company or an Affiliate;
(b) divert or attempt to divert clients, customers or
accounts of Company 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 Executive, any current employee of Company as
of the time of such hire or attempt to solicit to hire or former
employee of Company who has been employed by Company within the
twelve-month period immediately preceding the date of such hire or
attempt to solicit to hire.
(ii) With respect to Executive's obligations under this Section
4(C), Executive acknowledges that Company's geographic market is: (a) the
State of Missouri; and (b) a seventy-five (75) mile radius surrounding each
of St. Louis, Missouri and Kansas City, Missouri.
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(iii) The restrictions contained in this Section 4(C) are
considered by the parties hereto to be fair, reasonable and necessary for
the protection of the legitimate business interests of Company.
(iv) Executive acknowledges that Executive's experience and
capabilities are such that, notwithstanding the restrictions imposed in
this Section 4(C), he believes that he can obtain employment reasonably
equivalent to his position with Company, and an injunction against any
violation of the provisions of this Section 4(C) will not prevent Executive
from earning a livelihood reasonably equivalent to that provided through
his position with Company.
D. Certain Remedies.
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(i) Recognizing that irreparable injury will result to Company
in the event of the breach or threatened breach of any of the foregoing
covenants and assurances by Executive contained in this Section 4, and that
Company's remedies at law for any such breach or threatened breach will be
inadequate, if after written notice of breach delivered or mailed to
Executive in accordance with Section 6(B) hereof Executive 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
Company, in addition to such other rights or remedies which may be
available to it (including, without limitation, recovery of monetary
damages from Executive), 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
Executive, and each and every person, firm or company acting in concert or
participation with Executive, from the continuation of such breach and, in
addition thereto, Executive shall pay to Company all ascertainable damages,
including costs and reasonable attorneys' fees, sustained by Company by
reason of the breach or threatened breach of said covenants and assurances.
(ii) In addition to the remedies described in Section 4(D)(i),
in the event of a material breach of this Agreement by Executive Company
shall no longer be obligated to pay any benefits to Executive under this
Agreement.
(iii) The covenants and obligations of Executive under this
Section 4 are each independent covenants and are in addition to and not in
lieu of or exclusive of any other obligations and duties of Executive to
the Company, whether express or implied in fact or in law.
SECTION 5
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AMENDMENT OR TERMINATION OF AGREEMENT
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Company may terminate this Agreement effective as of any date by giving
Executive, in accordance with Section 6(B) hereof, at least one hundred eighty
(180) days' prior written notice of such termination of this Agreement,
specifying the effective date of such termination; provided, however, that
Company may not terminate this Agreement within twenty-four (24) months
following a Change in Control, even if notice of termination of this Agreement
was given prior to such Change in Control. No notice of termination of this
Agreement shall be given any effect whatsoever, and Executive's and Company's
obligations under this Agreement shall continue as if such notice of termination
had not been given, in the event that, while this Agreement remains in effect
during the notice period, a Change in Control occurs and/or Executive incurs
termination for Cause, Involuntary Termination or Proper Reason Termination.
Regardless of anything to the contrary in this Agreement, no termination of this
Agreement shall terminate Executive's obligations under Sections 4(A) and (B) of
this Agreement. Company and Executive may amend this Agreement at any time by
written instrument signed by Company and Executive.
SECTION 6
---------
MISCELLANEOUS
-------------
A. Employment. This Agreement does not, and shall not be construed to,
----------
give Executive any right to be retained in the employ of Company, and no rights
granted under this Agreement shall be construed as creating a contract of
employment. The right and power of Company to dismiss or discharge Executive "at
will" is expressly reserved.
B. Notice. For the purpose of this Agreement, notices and all other
------
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Company:
Human Resources Department
Attention: Vice President of Human Resources
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Executive:
Last known address shown on records of Company
or to such other address as either party may have furnished to the other in
writing, except that notice of change of address shall be effective only upon
receipt.
14
C. Entire Agreement. This Agreement cancels and supersedes all previous
----------------
and contemporaneous agreements (other than the Officer Agreement) relating to
the subject matter of this Agreement, written or oral, between the parties
hereto and contains the entire understanding of the parties hereto and shall not
be amended, modified or supplemented in any manner whatsoever except as
otherwise provided herein.
D. Captions. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall in no way restrict or
otherwise modify any of the terms or provisions hereof.
E. Governing Law. This Agreement and all rights and obligations of the
-------------
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Missouri without regard to that
state's choice of law provisions.
F. Assignment. This Agreement is personal and not assignable by
----------
Executive, but it may be assigned by Company, without notice to or consent of
Executive, to any assignee provided such assignee agrees to abide by and be
bound by the provisions of the Agreement and the Agreement shall thereafter be
enforceable by such assignee. During Executive's lifetime the Agreement and all
rights and obligations of Executive hereunder shall be enforceable by and
binding upon Executive's guardian or other legal representative in the event
Executive is unable to act on his own behalf for any reason whatsoever, and upon
Executive's death the Agreement and all rights and obligations of Executive
hereunder shall inure to the benefit of and be enforceable by and binding upon
Executive's Designated Beneficiary.
G. Counterparts. This Agreement may be executed in several counterparts,
------------
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
H. Binding Arbitration. 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; provided, however, that, regardless of
anything to the contrary in the rules of the American Arbitration Association,
the arbitrator shall have authority to review all findings of fact,
determinations of benefits and interpretations of this Agreement made by the
Company and to overturn same, and substitute a different finding of fact,
determination of benefits or interpretation of this Agreement therefor, if the
arbitrator determines, based on the record in such arbitration and such other
factors as he determines are relevant, that he would have made a different
finding of fact, determination of benefits or interpretation of this Agreement
than the Company made in any particular instance. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
15
I. 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.
J. Waiver of Breach. Failure of Company to demand strict compliance with
----------------
any of the terms, covenants or conditions hereof shall not be deemed a waiver of
that term, covenant or condition, nor shall any waiver or relinquishment by
Company of any right or power hereunder at any one time or more times be deemed
a waiver or relinquishment of that right or power at any other time or times.
K. Pronouns. Pronouns in this Agreement used in the masculine gender
--------
shall also include the feminine gender.
L. Withholding of Taxes. Company shall cause taxes to be withheld from
--------------------
amounts paid pursuant to the Agreement as required by law, and to the extent
deemed necessary by Company may withhold from amounts payable to Executive by
Company outside of the Agreement amounts equal to any taxes required to be
withheld from payments made pursuant to the Agreement, unless Executive has
previously remitted the amount of such taxes to Company.
M. Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of any successors and/or assigns of the Company.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
IN WITNESS WHEREOF, Company has caused this Agreement to be duly executed in
duplicate, and Executive has hereunto set his hand, on the day and year first
above written.
RIGHTCHOICE MANAGED CARE, INC.
By /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
---------------------------
Title President
------------------------
Subscribed and sworn to before me, a Notary Public, this 4/th/ day of
January, 1999.
16
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [Notary Seal]
----------------------------------------
Notary Public
My Commission Expires: 08/06/2002
---------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Executive
Subscribed and sworn to before me, a Notary Public, this 4/th/ day of
January, 1999.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [Notary Seal]
----------------------------------------
Notary Public
My Commission Expires: 08/06/2002
---------------
17
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.
Regardless as to the reason for termination, Officer agrees not to apply for
rehire at the Company, it's subsidaries, affiliates or parent.
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.
2
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. (S) 2000e et seq., the Age
------
Discrimination in Employment Act, 29 U.S.C. (S) 621 et seq., the Fair Labor
------
Standards Act of 1938, 29 U.S.C. (S) 201 et seq., the Rehabilitation Act of
------
1973, 29 U.S.C. (s) 701 et seq., the Americans with Disabilities Act, 42 U.S.C.
------
(s) 2101, the Civil Rights Act of 1871, 42 U.S.C. (S) 1981, the Family and
Medical Leave Act of 1993, 19 U.S.C. (S) 2601 et seq., the Missouri Human Rights
--
Act, (S) 213.010 RSMo et seq., the Missouri Workers Compensation law, (S) 287
------
RSMo et seq., the Missouri Service Letter Statute, (S) 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,
3
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
4
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.
5
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: ____________________________________
Name: ____________________________________
Title: ____________________________________
Subscribed and sworn to before me, a Notary Public, this _____________day
of ___________________, _______________________.
___________________________________________
Notary Public
My Commission Expires:
6