1
Exhibit 10(iv)
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 16th day of
September, 1996, by and between Xxxxx X. Xxxx ("Executive") and Coventry
Corporation ("Employer"), a Delaware corporation with its principal place of
business at 00 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, Executive desires to enter into an employment relationship
with Employer and Employer desires to employ Executive; and
WHEREAS, Executive and Employer desire to set forth in a written
agreement the terms and conditions of such employment.
NOW, THEREFORE, in consideration of the premises hereof and of the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. EMPLOYMENT. On the Date of Employment (as defined in Section 3
below), Executive shall be engaged by Employer as its President and Chief
Executive Officer. Executive hereby agrees to such employment on and after the
Date of Employment under the terms and conditions hereinafter set forth. At
Employer's next scheduled Board of Directors meeting, the Board of Directors
shall increase the size of the Board to six persons and shall elect Executive as
a Class I Director for a term expiring at the 1998 Annual Meeting of
Shareholders.
2. DUTIES. As President and Chief Executive Officer, Executive shall
report to the Board of Directors and shall be responsible for the overall
direction, administration and leadership of Employer, including, but not limited
to, the establishment and implementation of policies and directives, formulation
of long range plans, goals and objectives, effective management of employees,
and such other powers and duties normally associated with such position or as
may be delegated or assigned to Executive by Employer's Board of Directors.
During the term of this Agreement, Executive shall also serve without additional
compensation in such other offices of the Employer or its subsidiaries or
affiliates to which he may be elected or appointed by the Board of Directors of
Employer or its subsidiaries or affiliates, respectively.
3. DATE OF EMPLOYMENT. Executive's employment shall commence on October
7, 1996 (the "Date of Employment").
4. INITIAL TERM. Subject to the terms and conditions set forth herein,
Executive shall be employed hereunder for an initial term of one year beginning
on the Date of Employment. If
1
2
at the end of the initial term a new employment contract is not executed, the
term of this Agreement shall continue on a year-to-year basis in the absence of
notice of either party.
5. BASE COMPENSATION. For all duties rendered by Executive, Employer
shall pay Executive a base salary ("Base Salary") of Four Hundred Fifty Thousand
Dollars ($450,000), annually, to be reviewed on an annual basis based upon the
performance of Executive. The Base Salary shall be paid to Executive in equal
semi-monthly payments in accordance with Employer's normal payroll policies.
6. ADDITIONAL COMPENSATION. During the period of this Agreement and as
a result of employment under this Agreement, Executive shall receive or be
eligible for the following additional compensation:
EMPLOYER STOCK OPTIONS: Executive will be granted a nonqualified stock
option to purchase 400,000 shares of Common Stock of Employer at an exercise
price per share equal to the closing price per share of the Common Stock of
Employer as reported on the Nasdaq National Market on either the date of this
Agreement or the Date of Employment, whichever date has the lower closing price.
The option will vest at a rate of one-third of the shares per year over a
three-year vesting period beginning on the date of grant, or in the event
substantially all of the capital stock or assets of Employer are sold or
transferred or Employer is merged into or consolidated with another unaffiliated
entity, then the option will become fully vested on the date of closing. The
option will expire on the tenth anniversary of the Date of Employment unless
sooner terminated by Executive terminating his employment hereunder. The option
shall be granted under and in accordance with the terms and conditions of
Employer's Second Amended and Restated 1993 Stock Option Plan and a letter
agreement between Executive and Employer dated the Date of Employment.
BONUS COMPENSATION: Executive shall be eligible for an annual bonus
("Bonus") potential of 100% of Base Compensation, which shall be determined as
follows: (i) up to 50% shall be based upon achievement of budget and other
operational performance factors, and (ii) all or any part of the remaining 50%
shall be granted in the sole discretion of the Compensation and Benefits
Committee (the "Committee") of the Board of Directors of Employer. Executive's
bonus and performance factors shall be determined on an annual basis by the
Committee, with Executive's initial Bonus amount and terms to be determined
within the first 60 days of employment based upon mutually agreeable criteria.
DISCRETIONARY EXPENSE ALLOWANCE: Executive shall be entitled to a
discretionary expense allowance of $1,200.00 per month.
OTHER BENEFITS: Executive will be eligible for participation in any
employee benefit programs available to officers of Employer from time to time as
provided in Section 15 below.
2
3
7. EXPENSES AND COSTS OF RELOCATION. Executive shall be reimbursed for
ordinary and necessary business expenses incurred by Executive on behalf of
Employer and its subsidiaries or affiliates upon presentation of vouchers in
accordance with the usual and customary procedure of Employer in relation to
such expense items, except that Employer may elect, at its option, to pay such
expense items directly rather than reimburse Executive therefor.
Executive shall also be reimbursed for expenses associated with the
relocation of Executive to Employer's designated location, including any
difference between a fair market value appraisal of Executive's existing home in
Falls Church, Virginia and a lower price necessitated by Executive's relocation.
The extent and amount of such expense shall be consistent with the Executive
Relocation Policy attached as Exhibit "A".
8. EXTENT OF SERVICE. Executive shall devote substantially all of his
working time, attention and energies to the business of the Employer and shall
not, during the term of this Agreement, take, directly or indirectly, an active
role in any other business activity without the prior written consent of the
Employer; but except as provided in Section 13(b), this Section shall not
prevent Executive from serving as a director of other entities not affiliated
with Employer, from making real estate or other investments of a passive nature
or from participating in the activities of a nonprofit charitable organization
where such participation does not require a substantial amount of time and does
not adversely affect Executive's ability to perform his duties under this
Agreement.
9. TERMINATION OF EMPLOYMENT. Employer may terminate this Agreement
with or without cause at any time during the term of this Agreement. If the
employment of Executive with Employer is terminated (i) by Employer for any
reason other than Good Cause (as defined in Section 24 below) or (ii) by
Executive for Good Reason (as defined in Section 24 below), the following
provisions will apply:
(a) Employer shall during the Severance Period (as defined in
Section 24 below), continue to pay Executive an amount equal
to:
(i) Executive's Base Salary at the time of termination of
employment; and
(ii) That portion of Executive's Bonus based on
achievement of budget and other operational
performance factors, if the criteria is met.
Such amount will be paid during the Severance Period in
monthly or other installments, similar to those being received
by Executive at the date of termination of employment, and
will commence as soon as practicable following the date of
termination of employment.
(b) During the Severance Period Executive and his spouse and
family will continue to be covered by all Welfare Plans (as
defined in Section 24 below), maintained by
3
4
Employer in which he or his spouse or family were
participating immediately prior to the date of his termination
as if he continued to be an employee of Employer; provided
that, if participation in any one or more of such Welfare
Plans is not possible under the terms thereof, Employer will
provide substantially identical benefits to the extent
possible. If, however, Executive obtains employment with
another employer during the Severance Period, such coverage
shall be provided until the earlier of: (i) the end of the
Severance Period or (ii) the date on which the Executive and
his spouse and family can be covered under the plans of a new
employer without being excluded from full coverage because of
any actual pre-existing condition.
(c) Executive shall not be entitled to payments during the
Severance Period attributable to compensation for vacation
periods he would have earned had his employment continued
during the Severance Period or to unused vacation periods
accrued as of the date of termination of employment.
(d) During the Severance Period Executive shall not be entitled to
reimbursement for fringe benefits such as car allowance, dues
and expenses related to club memberships, and expenses for
professional services.
Compensation under Section 9(a), (b), (c) and (d) hereof is contingent
upon Executive's compliance with Section 13 hereof.
10. TERMINATION BY EXECUTIVE. Executive may terminate his employment
hereunder at any time upon sixty (60) days prior written notice. Upon such
termination by Executive for other than Good Reason, the Employer shall pay the
Executive only his Base Salary due through the date on which his employment is
terminated at the rate in effect at the time of notice of termination. The
Employer shall then have no further obligation to Executive under this
Agreement; provided, however, Employer shall have the option of paying Executive
in accordance with the provisions of Section 9, above, if Employer desires to
continue to enforce Executive's continuing obligations under Sections 13(b), (c)
and (d) below.
11. SETOFF.
(a) With respect to Section 9, payments or benefits payable to or
with respect to Executive or his spouse pursuant to this
Agreement shall be reduced by the amount of any claim of
Employer against Executive or his spouse or any debt or
obligation of Executive or his spouse owing to Employer.
(b) With respect to Section 9, payments or benefits payable to or
with respect to Executive pursuant to this Agreement shall be
reduced by any amount Executive or his spouse may earn or
receive from employment with another employer or from any
other source, except as expressly provided in Section 9(d).
4
5
12. DEATH. If Executive dies during the Severance Period:
(a) All amounts payable hereunder to Executive shall, during the
remainder of the Severance Period, be paid to his surviving
spouse. On the death of the survivor of Executive and his
spouse, no further benefits will be paid under the Agreement.
(b) The spouse and family of Executive shall, during the remainder
of the Severance Period, be covered under all Welfare Plans
made available by Employer to Executive or his spouse
immediately prior to the date of his death to the extent
possible.
Any benefits payable under this Section 12 are in addition to any other
benefit due to Executive or his spouse or beneficiaries from Employer,
including, but not limited to, payments under any Incentive Plans.
13. RESTRICTIVE COVENANTS.
(a) Confidential Information. Executive agrees not to disclose,
either during the time he is employed by the Employer or
following termination of his employment hereunder, to any
person (other than a person to whom disclosure is necessary in
connection with the performance of his duties as an employee
of Employer or to any person specifically authorized by the
Board of Directors of Employer) any material confidential
information concerning the Employer or any of its Affiliates,
including, but not limited to, strategic plans, customer
lists, contract terms, financial costs, pricing terms, sales
data or business opportunities whether for existing, new or
developing businesses.
(b) Non-Competition. During the term of employment provided
hereunder and for a period of one year after termination of
employment or during the Severance Period, if longer,
Executive will not directly or indirectly own, manage,
operate, control or participate in the ownership, management,
operation or control of, or be connected as an officer,
employee, partner, director or otherwise with, or any have
financial interest in, or aid or assist anyone else in the
conduct of, any business which is in competition with any
business conducted by the Employer or any Affiliate of
Employer in any state in which the Employer or any Affiliate
of Employer is conducting business on the date of termination
or expiration of this Agreement, provided that ownership of 5%
or less of the voting stock of any public corporation shall
not constitute a violation hereof.
(c) Non-Solicitation. During the term of employment provided for
hereunder and for a period of one year after termination of
employment or during the Severance
5
6
Period, if longer, Executive will not (i) directly or
indirectly solicit business which could reasonably be expected
to conflict with the interest of Employer or any Affiliate of
Employer from any entity, organization or person which has
contracted with the Employer or any Affiliate of Employer,
which has been doing business with the Employer or any
Affiliate of Employer, from which the Employer or any
Affiliate of Employer was soliciting business at the time of
the termination of employment or from which Executive knew or
had reason to know that Employer or any Affiliate of Employer
was going to solicit business at the time of termination of
employment, or (ii) employ, solicit for employment, or advise
or recommend to any other persons that they employ or solicit
for employment, any employee of the Employer or any Affiliate
of Employer.
(d) Consultation. Executive shall, at the Employer's written
request, for a period of one year after termination of
employment or during the Severance Period, if longer,
cooperate with the Employer in concluding any matters in which
Executive was involved during the term of his employment and
will make himself available for consultation with the Employer
on other matters otherwise of interest to the Employer. The
Employer agrees that such requests shall be reasonable in
number and will consider Executive's time required for other
employment and/or employment search.
(e) Enforcement. Executive and the Employer acknowledge and agree
that any of the covenants contained in this Section 13 may be
specifically enforced through injunctive relief but such right
to injunctive relief shall not preclude the Employer from
other remedies which may be available to it.
(f) Continuing Obligation. Notwithstanding any provision to the
contrary or otherwise contained in this Agreement, the
agreement and covenants contained in this Section 13 shall not
terminate upon Executive's termination of his employment with
the Employer or upon the termination of this Agreement under
any other provision of this Agreement; provided, however, in
the event of Executive's voluntary termination for other than
Good Reason, the obligations under Sections 13(b), (c) and (d)
shall terminate upon Executive's termination of employment
unless Employer elects to pay Executive the termination
benefits set forth in Section 9, above.
14. VACATION. During each year of this Agreement, Executive shall be
entitled to four (4) weeks paid vacation.
15. HEALTH AND WELFARE BENEFITS; PROFIT-SHARING PLANS. In addition to
the benefits specifically provided for herein, Executive and his family shall be
entitled to participate in all health and welfare benefit plans maintained by
the Employer for executive or managerial employees generally according to the
terms of such plans, including Executive Long Term
6
7
Disability coverage (which is an individual medically underwritten policy and
subject to a physical examination for eligibility). Executive shall be entitled
to participate in any profit-sharing, retirement or similar plans established by
Employer in which executive or managerial employees of Employer participate,
including any such plan intended to comply with Section 401(k) of the Internal
Revenue Code of 1986, as amended, and any such plan providing supplemental
executive retirement benefits.
16. EXECUTIVE ASSIGNMENT. No interest of Executive or his spouse or any
other beneficiary under this Agreement, or any right to receive any payment or
distribution hereunder, shall be subject in any manner to sale, transfer,
assignment, pledge, attachment, garnishment, or other alienation or encumbrance
of any kind, nor may such interest or right to receive a payment or distribution
be taken, voluntarily or involuntarily, for the satisfaction of the obligations
or debts of, or other claims against, Executive or his spouse or other
beneficiary, including claims for alimony, support, separate maintenance, and
claims in bankruptcy proceedings.
17. BENEFITS UNFUNDED. All rights of Executive and his spouse or other
beneficiary under this Agreement shall at all times be entirely unfunded and no
provision shall at any time be made with respect to segregating any assets of
Employer for payment of any amounts due hereunder. Neither Executive nor his
spouse or other beneficiary shall have any interest in or rights against any
specific assets of Employer, and Executive and his spouse or other beneficiary
shall have only the rights of a general unsecured creditor of Employer.
18. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by registered or certified
mail to his residence in the case of Executive, or to its principal office in
the case of the Employer and the date of receipt shall be deemed the date which
such notice has been provided.
19. WAIVER OF BREACH. The waiver by either party of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by the other party.
20. ASSIGNMENT. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. The Executive acknowledges that the services to be
rendered by him are unique and personal, and Executive may not assign any of his
rights or delegate any of his duties or obligations under this Agreement.
21. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties and supersedes all other prior agreements, employment contracts and
understandings, both written and oral, express or implied with respect to the
subject matter of this Agreement and may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
7
8
22. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Tennessee, without giving effect to the principles of conflicts of law
thereof.
23. HEADINGS. The sections, subjects and headings of this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
24. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" shall have the meaning set forth in Rule 144(a)(1)
promulgated under the Securities Act of 1933, as amended.
(b) "Good Cause" shall be deemed to exist if, and only if:
(i) Executive engages in material acts or omissions
constituting dishonesty, breach of fiduciary
obligation or intentional wrongdoing, malfeasance or
non-compliance with written directives approved by
the Board of Directors which are demonstrably
injurious to Employer;
(ii) Executive is convicted of a violation involving fraud
or dishonesty; or
(iii) Executive materially breaches this Agreement (other
than by engaging in acts or omissions enumerated in
paragraphs (i) and (ii) above), or materially fails
to satisfy the conditions and requirements of his
employment with Employer, and such breach or failure
by its nature is incapable of being cured, or such
breach or failure remains uncured for more than 30
days following receipt by Executive of written notice
from Employer specifying the nature of the breach or
failure and demanding the cure thereof. For purposes
of this paragraph (iii), inattention by Executive to
his duties shall be deemed a breach or failure of
cure.
Without limiting the generality of the foregoing, if Executive
acted in good faith and in a manner he reasonably believed to
be in, and not opposed to, the best interest of Employer and
had no reasonable cause to believe his conduct was unlawful in
connection with any action taken by Executive in connection
with his duties, it shall not constitute Good Cause.
Notwithstanding anything herein to the contrary, in the event
Employer shall terminate the employment of Executive for Good
Cause hereunder, Employer shall give at least 30 days prior
written notice to Executive specifying in detail the reason or
reasons for Executive's termination.
8
9
(c) "Good Reason" shall exist if there is a significant change in
the nature or the scope of Executive's position and authority
as a result of a change in control of Employer, which shall
include the following occurrences:
(i) the acquisition of at least a majority of the
outstanding shares of Common Stock (or securities
convertible into Common Stock) of Employer by any
person, entity or group (as used in Section 13(d)(3)
and Rule 13d-5(b)(1) under the Exchange Act);
(ii) the merger or consolidation of Employer with or into
another corporation or other entity, or any share
exchange or similar transaction involving Employer
and another corporation or other entity, if as a
result of such merger, consolidation, share exchange
or other transaction, the persons who owned at least
a majority of the Common Stock of Employer prior to
the consummation of such transaction do not own at
least a majority of the Common Stock of the surviving
entity after the consummation of such transaction;
(iii) the sale of all, or substantially all, of the assets
of Employer; or
(iv) any change in the composition of the Board of
Directors of Employer, such that persons who at the
beginning of any period of up to two years
constituted at least a majority of the Board of
Directors of Employer, or persons whose nomination
was approved by such majority, cease to constitute at
least a majority of the Board of Directors of
Employer at the end of such period.
(d) "Severance Period" shall mean the period beginning on the date
the Executive's employment with Employer terminates without
Good Cause under circumstances described in Section 9 and
ending on the date that follows the number of months remaining
in the initial term of this Agreement, if any, plus 12 months
thereafter.
(e) "Welfare Plans" shall mean any health and dental plan,
disability plan, survivor income plan and life insurance plan
or arrangement currently or hereafter made available by
Employer in which Executive is eligible to participate.
25. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original.
26. SEVERABILITY. In the event any provision of this Agreement is held
illegal or invalid, the remaining provisions of this Agreement shall not be
affected thereby. In the event that Section 13(b) is determined by a court of
competent jurisdiction to be invalid due to overbreadth, such Section 13(b)
shall be constructed as narrowly as necessary to be enforceable.
9
10
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
----------------------------------
Xxxxx X. Xxxx
COVENTRY CORPORATION
By:
----------------------------------
Xxxx X. Xxxxxx, M.D.
Chairman of the Board of Directors
10
11
EXHIBIT "A"
COVENTRY CORPORATION EXECUTIVE RELOCATION POLICY
PURPOSE:
This policy outlines the nature of financial assistance provided to executive
executives who are relocating at the request and for the benefit of the Company.
ADMINISTRATION:
Relocation under this policy will be coordinated through Human Resources. Any
exceptions to this policy must receive prior approval by the Chairman of the
Board of Directors.
GENERAL PROVISIONS:
1) Eligibility - Subject to the limitations and exclusions set out herein, all
executives who relocate their residence at the request of the Company are
eligible for the benefits described in this policy. The new assignment must
result in at least a fifty (50) mile increase in the distance from the
executive's former residence to his/her business location for moving
expenses to be paid.
2) Benefit Period - Eligible executives will be allowed six (6) months from
the effective date of their transfer to complete and apply for relocation
reimbursement.
3) Eligible Expenses - Only the necessary and reasonable expenses incurred as
a direct result of the move which are covered by this policy are eligible
for payment or reimbursement. These expenses typically relate to:
- House Hunting
- Temporary Living
- Travel to New Location
- Movement of Household Goods
- Miscellaneous Moving Allowance
- Sale of Former Residence
- Purchase of a New Residence
- Equity Advance
- Mortgage Supplement
- Taxes
HOUSE HUNTING TRIP:
One house hunting trip of two to three days for executive and spouse is
provided. A second and third trip may be allowed with the approval of the
Chairman of the Board of Directors. Covered expenses include:
- Transportation (by air, coach rate & car rental; by car, prevailing
mileage reimbursement rate)
- Meals
- Lodging
- Reasonable incidental expenses, such as child care
11
12
TEMPORARY LIVING FOR EXECUTIVE PRIOR TO MOVE:
If temporary living expenses are needed by the executive prior to the move of
family and/or household goods to the new work location, Coventry will provide
the following for a period not to exceed sixty (60) days:
- Temporary living accommodations
- Transportation home every other weekend
- $50 per week for incidental expenses
TRAVEL TO NEW WORK LOCATION:
Coventry will reimburse the cost of transportation by automobile (at the
prevailing mileage reimbursement rate) or air (at coach rates) for the executive
and family, including lodging, meals, and tolls while in transit between old and
new locations via the most direct route with no extra stop oversee.
TEMPORARY LIVING FOR FAMILY AT TIME OF MOVE:
If it is necessary for the family to set up temporary living quarters in the new
work location until the household goods arrive, the policy provides for the
reimbursement of meals and lodging for up to 30 days. This allowance is intended
to cover situations resulting from a delay in delivery of the moving company or
from a delay in the completion or availability of quarters at the new location.
MOVEMENT OF HOUSEHOLD GOODS:
The following items/services will be directly paid by Coventry for the movement
of household goods:
- Packing, crating, shipping, unpacking, insurance, storage and removal of
household goods and belongings.
- Cost of disconnecting and reconnecting washer, dryer, refrigerator,
freezer and stove.
- Transportation of two (2) automobiles:
- If distance from former location to new location is less than 500
miles, reimbursement will be made for the driving of one vehicle at
current prevailing reimbursement rate, and the shipping of the other
vehicle on a common carrier.
- If distance is greater than 500 miles, both vehicles may be
transported via common carrier.
- Expenses associated with the rental of a trailer hitch and any extra tolls
associated with towing a boat, camper or trailer.
- Storage of household goods at the carrier's warehouse for a period of 30
days in those cases where occupancy of the new residence has been delayed.
NOTE: Recreational vehicles such as snowmobiles, motorcycles and trail bikes,
and motorized equipment such as lawn mowers, snowblowers or lawn equipment are
authorized for transport in the van as long as the fuel and oil have been
drained.
The following items/services are not covered:
- Household cleaning services.
- Removal or installation of drapes, wall-to-wall carpeting, or related
items.
- Pick-up and delivery charges at locations other than the primary
residence.
- The disassembly and assembly of fixtures and utilities such as wood
stoves, water softeners, swing sets, utility sheds, above ground pool,
spas, etc.
12
13
- Transporting high weight low value items such as firewood, coal, building
material, etc.
- Transporting perishable foods liquor or plants.
- Boarding or transporting household pets.
- Transporting combustible items such as ammunition, oil-based paints,
kerosene and other flammable liquids and fuel.
- Transporting boats, farm animals, spas and other unusual items.
- Transporting non-operable automobiles.
- Transporting articles of great monetary or sentimental value such as
jewelry, furs, stamp and coin collections, stocks/bonds, wills, photos or
other important documents.
MISCELLANEOUS MOVING ALLOWANCE:
Coventry will provide an additional one month's salary to executives who are
homeowners to assist with incidental expenses associated with moving. Such
expenses might include:
- Increased homeowner's insurance premiums (when house is vacated and
unsold)
- On-going utility bills
- Lawn maintenance
- Transporting and/or kenneling of household pets
- New driver's license
- Automobile registration
- Telephone installation charges
- Special home wiring and utility hook-ups
- Installation of drapes
- Carpet clearing
- Cable and antennae hook-ups
- Any other relocation expenses not cover under Coventry's Relocation
Policy
Executives who are renting and do not own homes, the payment shall be $500.
Any unused portion of this benefit is yours to keep, it does not need to be
repaid to Coventry.
SALE OF FORMER RESIDENCE:
In order to assist an executive in the sale of his/her home when transferring at
the company's request, Coventry has retained a relocation management company to
provide the relocating executive an opportunity to dispose of their primary
residence at a realistic and competitive price. The executive may elect to enter
a home marketing assistance program or may, through his own efforts, put his
current home on the market for 60 days. At the end of the 60-day period or at
any time during the 60-day period, Coventry may take over all responsibility for
the costs, marketing and sale of the home (at the appraised fair market value)
through a relocation management company.
Self-Sale Program
Under this program, for 60 days, the executive will be selling his/her
home independently or through his/her selected real estate agent and closing the
home on his/her own. The executive will still be eligible for the 2% incentive
sales bonus and reimbursement of normal and customary home selling and closing
costs. Closing costs will be entirely non-deductible for federal tax purposes
and are considered taxable income to the executive; however, tax gross-ups will
not be provided by Coventry.
13
14
Home Marketing Assistance Program
This program has been designed to maximize the possibility of finding a
buyer for the executive's home and offers the executive incentives to find a
buyer. All reimbursable expenses associated with the sale of the executive's
home are directly billed to Coventry by the third party homesale company.
The executive should not list their home for sale on their own or with
a real estate agent. To assist the executive in getting the maximum sales price
for their home, a home marketing assistance firm, paid for by Coventry, will
provide the executive marketing advice and assistance. The executive must accept
this assistance in order to be eligible for the third party buy-out option. The
marketing assistance firm will provide the executive the choice of two local,
reputable real estate companies. An agent from each of these companies will
contact the executive and create a specific marketing strategy. In order to be
eligible for the third party buy-out option, the executive must select one of
the two designated real estate agents to list his/her property. The selected
agent will assist the executive in setting a competitive price based on their
market analysis.
The executive should list their home within approximately five to seven
days after having been initiated into the home marketing process after
establishing the list price, the executive is to sign a listing agreement with a
real estate agency to place their home an the market. It is recommended that the
initial listing agreement be in effect for 90 days with a 30-day extension
option. The listing agreement must include an exclusion clause as follows:
This listing Agreement is subject to the following provisions:
It is understood and agreed that regardless of whether or not an offer is
presented by a ready, willing and able buyer;
1. No commission or compensation shall be earned by, or be due
and payable to, broker until sale of the property has been
consummated between seller and buyer, and deed delivered to
the buyer and the purchase price delivered to the seller;
2. The sellers reserve the right to sell the property at any time
to Coventry or its agent. Upon the execution by Coventry or
its agent and me (us) of an agreement of sale with respect to
the property, this Listing Agreement shall immediately
terminate without obligation on my (our) part or on the part
of any named prospective purchaser to either pay the
commission or to continue this listing."
This clause simply protects Coventry from paying a double commission on the same
property.
Fifteen days after the executive lists his/her home for sale in the home
marketing assistance program, the third party buy-out offer program is
initiated. The third party buy-out offer is based on the average of two
appraisals, if the difference between the two is five percent or less. If the
difference is more than five percent, a third appraisal will be ordered and the
average of the three appraisals will determine the third party offer price. The
executive will have sixty (60) days from the date the third party company makes
an offer to accept the third party buy-out offer.
During the sixty-day offer period, the executive may:
- Accept the third party buy-out offer any time after the thirtieth day of
the sixty-day offer period.
- Find a potential buyer who submits an acceptable offer resulting in an
amended value transaction and
14
15
turn it over to the third part company for closing. The executive is to
contact his/her home marketing and third party coordinators immediately
and is not to accept the offer, a deposit or down payment or sign any
agreement. If the offer proves to be a bona fide offer, only contingent
upon financing, the executive's contract will be amended to the buyer's
sales price by the third party company. If this offer is ratified by the
third party-company, Coventry will pay the executive a 2% sales
incentive bonus based on the net sales price of the executive's home. As
an added incentive, Coventry will honor the executive's third party
offer if the executive finds a buyer willing to pay 97% of the appraised
value (based on the net sales price). The incentive bonuses are paid
through payroll and is taxable income to the executive with appropriate
taxes being withheld.
- Reject the third party buy-out offer at the end of the sixty-day offer
period and continue to market on his/her own. Coventry will reimburse
direct home selling costs, provided the closing occurs within 12 months
of the executive's transfer date. If the executive's home is not sold
within the 12 month period, no closing costs will be paid by Coventry on
behalf of the executive. All expenses through the final close date,
including carrying costs, upkeep and marketing costs are the executive's
responsibility. Closing cost reimbursements are considered as income and
will not be tax deductible on the executive's federal return or
GROSSED-UP BY COVENTRY FOR TAX PURPOSES. By rejecting the third party
buy-out offer, the executive waives all rights to a guaranteed selling
price from Coventry or its agent and is not eligible for reinstatement
in the program.
Covered/Reimbursable Homesale Expenses
The following expenses will be billed directly to Coventry for executives in the
Home Marketing Assistance Program and reimbursed to executives who choose the
Self-Sale Program:
- real estate brokerage commission not to exceed 6%, without prior
Coventry approval
- attorney's fees and title fees
- transfer and/or documentary taxes the seller is required to pay
- homeowner's warranty paid for by seller, up to $350
- inspection and recording fees normally charged to the seller
- other customary fees directly related to the sale but which have not
been incurred by choice by the seller, such as escrow fees and tax
service fees.
Non-Covered/Non-Reimbursable Expenses
The following expenses are not covered for executives in either program:
- discount points paid by the seller to assist the buyer in getting a
mortgage
- real estate and personal property taxes prepaid items such as interest,
insurance and annual assessment
- incentives such as points and selling agent bonuses
- all other expenses which are normally paid by the buyer in that area
- any and all expenses related to post-closing obligations, problems or
disputes raised by a subsequent purchaser or representative of a
purchaser including, but not limited to, matters relating to fraud,
liens, disclosure or title
15
16
PURCHASE OF A NEW RESIDENCE:
Coventry will reimburse the executive for closing costs involved with the
purchase of a new residence if they own a home which is used as their primary
residence. The following are typical closing expenses:
- Attorney fees
- Title search/insurance
- Appraisal (if required)
- Survey (if required)
- Document preparation fees
- Recording fees - Credit report
- Loan origination and/or mortgage discount fees up to four (4) total
points
- Cost of other required services
EQUITY ADVANCE:
If the executive cannot sell his/her former residence before buying a new home,
the executive may receive an equity advance of up to 95% of the equity in their
home. This advance may only be initiated after the third party company receives
and ratifies the executive's executed Contract of Sale; documented proof of
need, a purchase contract and approval by Coventry are also required. If the
executive is not in need of an equity advance, the equity will be paid when the
executive vacates his/her home or signs the third party Contract of Sale,
whichever is later.
MORTGAGE SUPPLEMENTS:
After the executive purchases his/her new home, and if the executive's old home
has not been sold, Coventry will reimburse utilities, mortgage interest (not
principal), real estate taxes, dwelling insurance, Homeowner Association Fees
and condominium fees on a prorated basis for up to 30 days. Up to an additional
three (3) months of duplicate house payments may be allowed with the approval of
the Chairman of the Board. Appropriate documentation is required.
COST OF LEASE TERMINATION FOR RENTERS:
Renters who are unsuccessful in severing a lease without penalty will be
reimbursed up to four (4) months' rent for which the executive may be held
liable, including any prepayment penalty or deposit.
TAXES:
Most of the payments or reimbursements made to or on behalf of the executive
under this policy are considered "income" for federal and state income tax
purposes, and will be reported on the executive's W-2. Some of the payments may
be deducted by the executive and some may not. Coventry will provide detailed
information as to which items are deductible at the time that it provides the
W-2 form. For those items which are non-deductible, Coventry will provide
additional compensation in the executive's tax withholding account to cover any
added taxes incurred; except for the closing costs incurred as a result of the
executive electing the Self-Sale Program. This is called "grossing up" the
benefit, and means that the executive will be compensated for the additional
income taxes caused by the relocation benefits provided by Coventry.
16
17
Moving expenses reimbursed by Coventry which would have been deductible had the
executive directly paid for them, will be excluded from federal taxation and
will not be reported as taxable federal wages on the executive's W-2. Coventry
will prepare an executive moving expense form, IRS Form 47827 at the end of each
year in which an executive receives taxable reimbursements related to
relocation. This form provides a detailed breakdown of reimbursements or payment
for moving expenses to assist the executive in completing their tax returns.
VOLUNTARY TERMINATION BY EXECUTIVE:
In the event an executive receiving benefits under this policy voluntarily
terminates his/her employment within one year of the report date at his/her new
assignment, those fees, expenses and other monetary benefits the executive has
received under the policy must be reimbursed to Coventry in accordance with the
schedule provided below. The executive will be required to sign a reimbursement
agreement, evidencing such obligation.
Length of Service from Report Amount
----------------------------- ------
Date
----
1st month 100%
2nd month 95%
3rd month 90%
4th month 85%
5th month 80%
6th month 75%
7th month 65%
8th month 55%
9th month 45%
10th month 35%
11th month 25%
12th month 0%
17
18
EXECUTIVE REIMBURSEMENT AGREEMENT
In order to receive relocation benefits, the Executive Reimbursement Agreement
must be signed and returned to Human Resources prior to commencement of benefits
application.
Executive Name: Xxxxx X. Xxxx
Social Security Number:
------------------------------------
Effective Date of Job Assignment: October 7, 1996
Department: President's Department
This Agreement is effective as of date signed. It is between the Company
("Employer") and you,
Xxxxx X. Xxxx. ("EXECUTIVE")
1. As of the effective date of this Agreement, Employer has or will spend a
sum of money for the purpose of reassigning Executive and Executive's
eligible household members to Employer's new work location.
2. Prior to the effective date of this Agreement, Executive was given a
Relocation Guide, which is incorporated herein by reference. This Guide
sets forth those items which Employer will either pay on behalf of
Executive or reimbursement to Executive, including, but not limited to,
those expenses associated with the sale and purchase of primary residence,
househunting trips, mortgage subsidy assistance, renter's expenses, final
move travel expenses, movement of household goods, temporary living
expenses, automobile expenses, miscellaneous moving allowance and tax
treatment.
3. In consideration of employer spending this money on the above items,
Executive agrees to remain employed with Employer for at least one (1) year
from the date the Executive is assigned to commence working in the new work
location.
4. Since both parties agree that Executive's employment with Employer is one
of at will and is not bound by any written or formal agreement, it is
agreed that should the Executive voluntarily terminate employment with
Employer after receiving relocation benefits, as outlined in this
relocation guide, the executive agrees to repay reimbursements in
accordance with the schedule as indicated in this Agreement.
Should the executive voluntarily resign (or involuntarily be terminated due to
gross misconduct) prior to twelve (12) months form the date executive is
assigned to commence working in the new location, Executive will reimburse
Employer for those expenses incurred by Employer as set forth in the Company
Relocation Guide according to the following schedule:
18
19
Length of Service from Report Amount
----------------------------- ------
Date
----
1st month 100%
2nd month 95%
3rd month 90%
4th month 85%
5th month 80%
6th month 75%
7th month 65%
8th month 55%
9th month 45%
10th month 35%
11th month 25%
12th month 0%
Further, I confirm that neither I nor any other household member is receiving
relocation benefits benefits any other company or source. I acknowledge that
relocation benefits paid by the Company would be subject to reduction, if
benefits were also paid by another source.
/s/ Xxxxx X. Xxxx September 18, 1996
---------------------------------------------- ------------------
/s/ Xxxx X. Xxxxxx, M.D. September 23, 1996
---------------------------------------------- ------------------
19
