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Exhibit 10(a)
EMPLOYMENT AGREEMENT
AGREEMENT dated as of March 13, 2001 (the "Effective Date"), by and
between OXFORD HEALTH PLANS, INC. (the "Corporation"), having a principal office
in Trumbull, Connecticut, and Xxxxxxx X. Xxxx (the "Employee").
WHEREAS, the Board of Directors of the Corporation (the "Board") first
authorized the Corporation's entry into an Employment Agreement with the
Employee dated April 15, 1998; and
WHEREAS, such Employment Agreement was amended as of December 17, 1998,
(as amended, the "Original Employment Agreement");
WHEREAS, the Corporation and the Employee now wish to terminate the
Original Employment Agreement, and to enter into this new Employment Agreement
to reflect changes in the Employee's duties;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Corporation and the Employee agree as follows:
1. Employment. The Employee is employed as President and Chief Operating
Officer. As President and Chief Operating Officer of the Corporation the
Employee shall render executive, policy and other management services to the
Corporation of the type customarily performed by persons serving in a similar
executive officer capacity, subject to the powers by law vested in the Board and
in the Corporation's stockholders. The Employee shall report to the Chief
Executive Officer of the Corporation, and shall perform such other related
duties as the Chief Executive Officer of the Corporation may from time to time
reasonably direct or request. The Employee shall be a full time employee of the
Corporation, and shall devote substantially all his working time to the
performance of his duties hereunder.
The Employee shall perform his duties and responsibilities under this
Agreement faithfully, diligently and to the best of the Employee's ability, and
in compliance with all
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applicable laws and the Corporation's Certificate of Incorporation and Bylaws,
as they may be amended from time to time.
2. Term. The initial term of employment under this Agreement shall be for
a period of two (2) years commencing on the Effective Date (the "Term"). This
Agreement shall be extended automatically for two (2) additional years on the
second anniversary date of the Effective Date and on each second anniversary of
the Effective Date thereafter, unless either the Corporation or the Employee
gives contrary written notice to the other not less than three (3) months in
advance of such anniversary of the Effective Date. References herein to the Term
shall refer both to such initial term and such successive terms. Upon a "Change
in Control" (as defined in Section 7(a)) of the Corporation, the Term shall be
extended to two (2) years from the date of such Change in Control, unless notice
to terminate the Term has been properly provided prior to the date of such
Change in Control, and such Change in Control date shall be treated as the
Effective Date for purposes of renewals of this Agreement. The Term shall end
upon the termination of the Employee's employment under this Agreement.
3. Compensation. (a) Base Salary. The Corporation agrees to pay the
Employee during the Term an annual base salary ("Base Salary") of $600,000. The
Base Salary shall be reviewed at least annually during the Term by the Board,
and the Employee shall receive such increases in Base Salary, if any, as the
Compensation Committee of the Board (the "Committee") in its absolute discretion
may determine, together with such performance or merit increases, if any, as the
Committee in its absolute discretion may determine. Base Salary shall refer to
Base Salary as increased from time to time pursuant to the previous sentence.
Base Salary shall not be decreased. Participation with respect to discretionary
bonuses, retirement and other employee benefit plans and fringe benefits shall
not reduce the Base Salary payable to the Employee under this Section 3. The
Base Salary shall be payable to the Employee in equal installments in conformity
with the Corporation's normal payroll periods.
(b) Bonus. During the Term, the Employee shall be eligible to
receive an annual performance bonus up to $600,000 based on annual performance
targets to be
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determined by the Chief Executive Officer of the Corporation as approved by the
Committee of the Corporation.
(c) Options. Subject to the approval of the Committee, upon the
execution and delivery of this Agreement, the Corporation shall grant the
Employee an option to acquire 300,000 shares of the Corporation's common stock
pursuant to the terms and conditions of the Corporation's 1991 Stock Option Plan
(the "Plan").
4. Withholding Obligation. The Corporation shall have the ability to
withhold from the compensation otherwise due to the Employee under this
Agreement any federal income tax, Federal Insurance Contribution Act tax,
Federal Unemployment Act tax, or other amounts required to be withheld from
compensation from time to time under the Internal Revenue Code of 1986, as
amended (the "Code"), or under any state or municipal laws or regulations.
5. Fringe Benefits.
(a) Time Off and Leave. During the Term, the Employee shall be
entitled to twenty-three (23) select days per year or up to the maximum allowed
under the Corporation's select time program. Select days are used for vacation,
personal time and sick time. In addition, the Employee will receive paid company
holidays each year (seven holidays as of the date of this Agreement). The
employee shall also be eligible for such other leave, with or without
compensation, as shall be mutually agreed upon by the Employee and the Chief
Executive Officer.
(b) Participation in Retirement and Employee Benefit Plans. During
the Term, the Employee shall be eligible to participate in the Corporation's
1991 Stock Option Plan, annual incentive compensation plan, and any other plan
of the Corporation or its subsidiaries relating to stock options, stock
appreciation, stock purchases, pension, thrift, profit sharing, group life
insurance, medical coverage, education or other retirement or employee benefits
that the Corporation may adopt for the benefit of its executive employees.
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(c) Disability. If the Employee shall become disabled or
incapacitated during the Term to the extent that he is unable to perform his
duties and responsibilities hereunder, he shall be eligible to receive
disability benefits of the type currently provided to him, or, if more favorable
to the Employee, benefits of the type provided for other executive employees in
similar positions with the Corporation.
(d) Death. If the Employee shall die during the Term,the Corporation
shall pay to such person as the Employee has designated in a notice filed with
the Corporation, or, if no such notice is filed, to his estate, Employee's Base
Salary at the date of his death plus an amount equal to the Bonus as defined in
Section 3(b) which shall not be less than $600,000, amortized in 26 equal
bi-weekly payments.
(e) Other Benefits. During the Term, the Employee shall be entitled
to participate in any other fringe benefits which are or may become applicable
to the Corporation's executive employees, including a reasonable expense account
and any other benefits which are commensurate with the duties and
responsibilities to be performed by the Employee under this Agreement. In
addition, the Corporation agrees, during the Term, to reimburse the Employee for
the cost of the Employees personal disability and life insurance policies as in
effect on April 15, 1998.
6. Termination of Employment. The Employee's employment hereunder
may be terminated under the circumstances set forth in paragraphs (a)
through (e) below:
(a) Death. The Employee's employment hereunder shall
terminate upon his death.
(b) Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
hereunder on a full-time basis for the entire period of six (6) consecutive
months, and within thirty (30) days after written Notice of Termination is given
(which may occur before or after the end of such six (6) month period) shall not
have returned to the performance of his duties hereunder on a full-time basis,
the Corporation may terminate the Employee's employment hereunder for
"Disability."
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(c) Cause. The Corporation may terminate the Employee's employment
hereunder for Cause or without Cause. Except as provided in Section 7(b) hereof
following a Change in Control, termination for Cause shall mean termination
because the Employee (i) engages in the following conduct in connection with his
employment with the Corporation: personal dishonesty, willful misconduct, breach
of fiduciary duty involving personal profit, breach of a restrictive covenant
against competition, disclosure of confidential information of the Corporation,
consistent intentional failure to perform stated duties after notice, or (ii)
willfully violates any law, rule, or regulation (other than traffic violations
or similar offenses), which willful violation materially impacts the Employee's
performance of his duties to the Corporation.
(d) Good Reason. The Employee may terminate his employment hereunder
with or without Good Reason; provided, however, that the Employee agrees not to
terminate his employment hereunder (other than for Good Reason or for
Retirement) during the ninety-day period following a Change in Control. Except
as provided in Section 7(c) hereof during the two-year period following a Change
in Control, for purposes of this Agreement "Good Reason" shall mean any (i)
removal of the Employee from, or failure to re-appoint the Employee to, his
position as President and Chief Operating Officer, except in connection with
termination of the Employee for Cause, (ii) failure by the Corporation to comply
with Section 3 or Section 5 hereof in any material respect, (iii) material
diminution in Employee's duties and responsibilities or (iv) requirement of the
Corporation that the Employee be based in an office that increases the
Employee's commute thirty (30) or more miles from the Employee's commute at the
time of this Agreement (Westport, CT home to Trumbull, CT office), except that
relocation to the Corporation's New York City, NY office shall not give rise to
Good Reason under this clause. This paragraph is applicable only to a
termination which occurs prior to a Change in Control or following the two-year
period immediately subsequent to a Change in Control as provided in Section 6(h)
hereof. For purposes of this Agreement, "Good Reason" shall not exist until
after Employee has given the Company notice of the applicable event within 90
days of such event and which is not remedied within 30 days after receipt of
written notice from Employee specifically delineating such claimed event and
setting forth Employee's intention to terminate
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employment if not remedied; provided, that if the specified event cannot
reasonably be remedied within such 30-day period and the Company commences
reasonable steps within such 30-day period to remedy such event and diligently
continues such steps thereafter until a remedy is effected, such event shall not
constitute "Good Reason" provided that such event is remedied within 60 days
after receipt of such written notice.
(e) Retirement. For purposes of this Agreement, "Retirement" shall
mean termination of the Employee's employment by either the Employee (other than
for Good Reason) or the Corporation (other than for Cause) on or after the
Employee's normal retirement age under the terms of the Corporation's pension
plan (or, any other tax-qualified plan, if no pension plan exists); provided,
that, following a Change in Control such normal retirement age may not be
reduced for purposes of this Agreement without the consent of the Employee.
(f) Date of Termination. For purposes of this Agreement, "Date of
Termination" means (1) the effective date on which the Employee's employment by
the Corporation terminates as specified in a Notice of Termination by the
Corporation or the Employee, as the case may be, or (2) if the Employee's
employment terminates by reason of death, the date of death of the Employee.
Notwithstanding the previous sentence, (i) if the Employee's employment is
terminated for Disability (as defined in Section 6(b)), then such Date of
Termination shall be no earlier than thirty (30) days following the date on
which a Notice of Termination is received.
(g) Payment Upon Termination. Upon any termination of employment
hereunder, the Corporation shall pay the Employee, within ten (10) days
following his Date of Termination, a lump sum cash amount equal to the sum of
(i) the Employee's unpaid Base Salary through the Date of Termination, (ii) any
bonus payments which have become payable (other than deferred amounts), to the
extent not theretofore paid, and (iii) any accrued, unused select time up to
eighty (80) hours.
(h) Termination Without Cause, For Good Reason or Upon Failure to
Renew. In addition to the payments set forth in Section 6(g) hereof, in the
event that the Employee's employment with the Corporation terminates either
prior to a Change in
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Control or following the two-year period immediately subsequent to a Change in
Control (including as a result of a notice of non-renewal of the Term by the
Corporation provided during such two-year period), in each case as a result of
(i) a termination by the Employee for Good Reason (as defined in Section 6(d)
hereof), (ii) a termination by the Corporation without Cause (other than for
Retirement or Disability) or (iii) notice by the Corporation of non-renewal of
the Term (other than for Retirement), then the Corporation shall pay to the
Employee, in twenty-four (24) equal monthly installments in conformity with the
Corporation's normal payroll periods, an amount equal to the sum of (i) two (2)
times the sum of the Employee's annual Base Salary at the Employee's Date of
termination, and (ii) two (2) times the annual performance bonus earned by the
Employee from the Corporation and its subsidiaries in respect of the fiscal year
immediately preceding the Employee's Date of Termination which shall not be less
than $600,000 ("Bonus Amount"). The Employee will also be eligible for the same
level of medical and dental benefits (as well as reimbursement for the personal
life and disability insurance policies referred to in Section 5(e) hereunder)
for twelve months following the Date of Termination.
7. Termination of Employment Following a Change in Control.
(a) Change in Control Defined. For purposes of this
Agreement, a "Change in Control" shall be deemed to have taken place if:
(i) any "person" (as defined below) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934 (the "Exchange Act")), directly or indirectly, of securities
of the Corporation representing 30% or more of the total voting power
represented by the Corporation's then outstanding voting securities;
(ii) a change in the composition of the Board of
Directors of the Corporation occurs, as a result of which fewer than
two-thirds (2/3) of the incumbent directors are directors who either (A)
had been directors of the Corporation on the "look-back date" (as defined
below) or (B) were elected, or nominated for election, to the Board of
Directors of the Corporation with the
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affirmative votes of at least a majority of the directors who had been
directors of the Corporation on the "look-back date" and who were still in
office at the time of the election or nomination;
(iii) the stockholders of the Corporation approve a
merger or consolidation of the Corporation with any other corporation,
other than a merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 80% of
the total voting power represented by the voting securities of the
Corporation or such surviving entity outstanding immediately after such
merger or consolidation; or
(iv) the stockholders of the Corporation approve (A) a
plan of complete liquidation of the Corporation or (B) an agreement for
the sale or disposition by the Corporation of all or substantially all of
the Corporation's assets.
For purposes of paragraph (a)(i), the term "person" shall have the same
meaning as when used in sections 13(d) and 14(d) of the Exchange Act, but
shall exclude (1) a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or of a parent or subsidiary of
the Corporation or (2) a corporation owned directly or indirectly by the
stockholders of the Corporation in substantially the same proportions as
their ownership of the common stock of the Corporation. For purposes of
paragraph (a)(ii), the term "look-back date" shall mean the later of (A)
the date twenty-four (24) months prior to the change in the composition of
the Board and (B) the Effective Date. Any other provision of this Section
7(a) notwithstanding, the term "Change in Control" shall not include
either of the following events, if undertaken at the election of the
Corporation:
(x) a transaction, the sole purpose of which is
to change the state of the Corporation's
incorporation; or
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(y) a transaction, the result of which is to
sell all or substantially all of the assets
of the Corporation to another corporation or
entity (the "surviving entity"); provided
that the voting power represented by the
surviving entity's securities (or other
equity interests) is owned directly or
indirectly by the stockholders of the
Corporation immediately following such
transaction in substantially the same
proportions as their ownership of the voting
power represented by the Corporation's
common stock immediately preceding such
transaction; and provided, further, that the
surviving entity expressly assumes this
Agreement.
Notwithstanding anything in this Agreement to the contrary, if the
Employee's employment terminates prior to a Change in Control, and the Employee
reasonably demonstrates that such termination was at the request or suggestion
of a third party who has indicated an intention or taken steps reasonably
calculated to effect a Change in Control (a "Third Party"), then for all
purposes of this Agreement, the date of a Change in Control shall mean the date
immediately prior to the date of such termination of employment.
(b) Cause. During the two-year period following a Change in Control,
"Cause" shall mean (i) the willful and continued failure of the Employee to
substantially perform his duties with the Corporation (other than any such
failure resulting from the Employee's incapacity due to physical or mental
illness or any such failure subsequent to the Employee being delivered a notice
of termination without Cause by the Corporation or delivering a notice of
termination for Good Reason to the Corporation) after a written demand for
substantial performance is delivered to the Employee by the Board which
specifically identifies the manner in which the Board believes that the Employee
has not substantially performed the Employee's duties, or (ii) the willful
engaging by the Employee in illegal conduct or gross misconduct which is
demonstrably and materially
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injurious to the Corporation or its subsidiaries. For purpose of this paragraph
(b), no act or failure to act by the Employee shall be considered "willful"
unless done or omitted to be done by the Employee in bad faith and without
reasonable belief that the Employee's action or omission was in the best
interests of the Corporation or its affiliates. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board,
based upon the advice of counsel for the Corporation, shall be conclusively
presumed to be done, or omitted to be done, by the Employee in good faith and in
the best interests of the Corporation. Cause shall not exist unless and until
the Corporation has delivered to the Employee a copy of a resolution duly
adopted by two-thirds (2/3) of the entire Board at a meeting of the Board called
and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board an event set forth
in clause (i) or (ii) has occurred and specifying the particulars thereof in
detail. For purposes of Board approval with respect hereto, if the Employee is
also a director of the Corporation, he shall abstain from acting on matters
pertaining to this Section 7(b) and shall not be counted as a Board member for
purposes of the two-thirds (2/3) requirement. Following a Change in Control, the
Corporation must notify the Employee of any event constituting Cause within
ninety (90) days following the Corporation's knowledge of its existence or such
event shall not constitute Cause under this Agreement.
(c) Good Reason. During the two-year period following a
Change in Control, "Good Reason" shall mean, without the Employee's
express written consent, the occurrence of any of the following events:
(1) a change in the Employee's duties or responsibilities such that
he (i) no longer has chief operating responsibility (subject to reporting
to the Chief Executive Officer, Chief Operating Officer or President of
the ultimate parent entity or successor of the Corporation) for regional
operations in the region in which the Corporation operated immediately
prior to such Change in Control (including primary responsibility for the
financial results of the region), or (ii) is required to report to any
person other than the Chief Executive Officer, Chief
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Operating Officer or President of the ultimate parent entity or successor
of the Corporation;
(2) a reduction by the Corporation in the Employee's rate of annual
Base Salary or annual target bonus opportunity (including any adverse
change in the formula for such annual bonus target) as in effect
immediately prior to such Change in Control or as the same may be
increased from time to time thereafter;
(3) any requirement of the Corporation that the Employee be based in
an office that increases the Employee's commute thirty (30) or more miles
from the Employee's commute at the time of this Agreement (Westport, CT
home to Trumbull, CT office) or (ii) travel on the Corporation's business
to an extent substantially greater than the travel obligations of the
Employee immediately prior to such Change in Control;
(4) the failure of the Corporation to (i) continue in effect any
employee benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which the Employee is participating immediately
prior to such Change in Control, or the taking of any action by the
Corporation which would adversely affect the Employee's participation in
or reduce the Employee's benefits under any such plan, unless the Employee
is permitted to participate in other plans providing the Employee with
substantially equivalent aggregate benefits (at substantially comparable
cost with respect to welfare benefit plans), or (ii) provide the Employee
with paid vacation in accordance with the most favorable plans, policies,
programs and practices of the Corporation and its affiliated companies as
in effect for the Employee immediately prior to such Change in Control; or
(5) the failure of the Corporation to obtain the assumption
agreement from any successor as contemplated in Section 11(a) hereof.
Any event or condition described in Section 7(c)(1) through (4)
which occurs prior to a Change in Control, but with respect to which the
Employee is able to
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reasonably demonstrate was at the request or suggestion of a Third Party, shall
constitute Good Reason following a Change in Control for purposes of this
Agreement (as if a Change in Control had occurred immediately prior to the
occurrence of such event or condition) notwithstanding that it occurred prior to
the Change in Control. An isolated, insubstantial and inadvertent action taken
in good faith and which is remedied by the Corporation promptly after receipt of
notice thereof given by the Employee shall not constitute Good Reason. The
Employee's right to terminate employment for Good Reason shall not be affected
by the Employee's incapacity due to mental or physical illness and the
Employee's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any event or condition constituting Good Reason.
Following a Change in Control, the Employee must provide notice of termination
of employment within ninety (90) days of the Employee's knowledge of an event
constituting Good Reason or such event shall not constitute Good Reason under
this Agreement, and the provisions of the last sentence of Section 6(d) will
apply.
(d) In addition to the payments set forth in Section 6(g) above, in
the event the Employee's employment with the Corporation terminates within two
(2) years following a Change in Control either (i) by the Corporation without
Cause (other than for Retirement or Disability) or (ii) by the Employee for Good
Reason, then the Corporation shall (1) pay to the Employee, within ten (10) days
following the Employee's Date of Termination, a lump sum cash amount equal to
two (2) times the sum of (i) the highest annual rate of Base Salary of the
Employee during the 3-year period immediately preceding the Employee's Date of
Termination and (ii) the highest annual performance bonus (which for the
purposes of this provision shall be deemed to be no less than $600,000) earned
by Employee during the three (3) year period immediately preceding the
Employee's Date of Termination, and (2) cause the options granted under Section
3(c) of this Agreement and any other options granted to Employee during the Term
to become fully vested and immediately exercisable, and (3)continue to provide
for a period of two (2) years following the Date of Termination, the Employee
(and the Employee's dependents if applicable) with the same level of medical and
dental benefits (as well as reimbursement for personal life and disability
insurance policies referred to in Section 5(e) hereunder) upon the substantially
same terms and conditions (including cost of
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coverage to the Employee) as existed immediately prior to the Employee's Date of
Termination (or, if more favorable to the Employee, as such benefits and terms
and conditions existed immediately prior to the Change in Control); provided,
that if the Employee cannot continue to participate in the Corporation's plans
providing such benefits; the Corporation shall otherwise provide such benefits
on the same after-tax basis as if continued participation had been permitted.
Notwithstanding the foregoing, in the event the Employee becomes reemployed with
another employer and becomes eligible to receive medical and dental benefits
from such employer, the benefits described herein shall be secondary to such
benefits during the period of the Employee's eligibility, but only to the extent
that the Corporation reimburses the Employee for any increased cost and provides
any additional benefits necessary to give the Employee the benefit hereunder.
(e) (i) Anything in this Agreement to the contrary notwithstanding,
in the event it shall be determined that any payment or distribution, or any
acceleration of vesting of any benefit or award, by the Corporation or its
affiliated companies to or for the benefit of the Employee (whether paid or
payable, distributed or distributable or accelerated or subject to acceleration
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 7(e)) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Code, or any interest or penalties are incurred by the Employee with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes imposed upon the
Gross-Up Payment and any interest or penalties imposed with respect to such
taxes, the Employee retains an amount of the Gross-Up Payment equal to the sum
of (x) the Excise Tax imposed upon the Payments and (y) the product of any
deductions disallowed because of the inclusion of the Gross-Up Payment in the
Employee's adjusted gross income and the highest applicable marginal rate of
federal income taxation for the calendar year in which the Gross-Up Payment is
to be made. For purposes of determining the amount of the Gross-Up Payment, the
Employee shall be deemed to (A) pay federal income taxes at the
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highest marginal rates of federal income taxation for the calendar year in which
the Gross-Up Payment is to be made, (B) pay applicable state and local income
taxes at the highest marginal rate of taxation for the calendar year in which
the Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes and (C) have otherwise allowable deductions for federal income tax
purposes at least equal to those which could be disallowed because of the
inclusion of the Gross-Up Payment in the Employee's adjusted gross income. The
payment of a Gross-Up Payment under this Section 7(e) shall in no event be
conditioned upon the Employee's termination of employment or the receipt of
severance benefits under this Agreement.
(ii) Subject to the provisions of Section 7(e)(i), all
determinations required to be made under this Section 7(e), including
whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the public accounting firm that is
retained by the Corporation as of the date immediately prior to the Change
in Control (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Corporation and the Employee within fifteen (15)
business days of the receipt of notice from the Corporation or the
Employee that there has been a Payment, or such earlier time as is
requested by the Corporation (collectively, the "Determination"). In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the Employee
may appoint another nationally recognized public accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne solely by the Corporation and the
Corporation shall enter into any agreement requested by the Accounting
Firm in connection with the performance of its services hereunder. The
Gross-Up Payment under this Section 7(e) with respect to any Payment shall
be made no later than thirty (30) days following such Payment. If the
Accounting Firm determines that no Excise Tax is payable by the Employee,
it shall furnish the Employee with a written opinion to
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such effect, and to the effect that failure to report the Excise Tax, if
any, on the Employee's applicable federal income tax return will not
result in the imposition of a negligence or similar penalty. The
Determination by the Accounting Firm shall be binding upon the Corporation
and the Employee. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the Determination, it is possible
that Gross-Up Payments which will not have been made by the Corporation
should have been made ("Underpayment") or Gross-Up Payments are made by
the Corporation which should not have been made ("Overpayment"),
consistent with the calculations required to be made hereunder. In the
event that the Employee thereafter is required to make payment of any
additional Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code)
shall be promptly paid by the Corporation to or for the benefit of the
Employee. In the event the amount of the Gross-Up Payment exceeds the
amount necessary to reimburse the Employee for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has
been made and any such Overpayment (together with interest at the rate
provided in Section 1274(b)(2) of the Code) shall be promptly paid by the
Employee to or for the benefit of the Corporation. The Employee shall
cooperate, to the extent his expenses are reimbursed by the Corporation,
with any reasonable requests by the Corporation in connection with any
contests or disputes with the Internal Revenue Service in connection with
the Excise Tax.
8. Covenants Not to Compete; Confidentiality.
(a) The Employee covenants that following his Date of Termination,
unless such termination is within the two-year period following a Change in
Control, he shall not, for a period of one (1) year following such Date of
Termination:
(1) engage or be interested, whether alone or together with or on
behalf or through any other person, firm, association, trust, venture, or
corporation, whether
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as sole proprietor, partner, shareholder, agent, officer, director,
employee, adviser, consultant, trustee, beneficiary or otherwise, in any
business principally and directly engaged in the operation of health
maintenance organizations or the health insurance business or in the
management of specialty medical care through case rate contracting; which
business operates in a geographic area in which, at the time of such
termination of employment, the Corporation is conducting business or plans
to conduct business (a "competing business");
(2) assist others in conducting any competing business;
(3) directly or indirectly recruit or induce or hire any person who
is an employee of the Corporation or any of its subsidiaries, or solicit
any of the Corporation's customers, clients or providers; or
(4) own any capital stock or any other securities of, or have any
other direct or indirect interest in, any entity which owns or operates a
competing business, other than the ownership of (i) less than five percent
(5%) of any such entity whose stock is listed on a national securities
exchange or traded in the over-the-counter market and which is not
controlled by the Employee or any affiliate of the Employee or (ii) any
limited partnership interest in such an entity.
(b) The Employee hereby agrees and covenants, as a condition of the
Corporation's performance of its obligations arising from this Agreement, that,
both during and after the Term, except as may be necessary to perform the
Employee's duties for the benefit of the Corporation, he will not, directly or
indirectly, use or disclose any material proprietary or confidential
information, whether written or oral, received or gained by him in the course of
his employment by the Corporation or of his duties with the Corporation
("Confidential Information"). Confidential Information does not include
information that is or becomes widely known outside the Corporation through no
act or failure to act by the Employee. The rights set forth in this Agreement
are in addition to
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any rights the Corporation may have under the common law or applicable statutes
relating to the protection of trade secrets and confidential information.
(c) In the event that the Employee breaches or threatens to breach
any of the terms of this Section 8, the Employee acknowledges that the
Corporation's remedy at law would be inadequate and that the Corporation shall
be entitled to an injunction restraining the Employee from committing or
continuing such breach. The Employee therefore consents to the entry of a
restraining order, preliminary injunction or other court order to enforce those
paragraphs and expressly waives any security that might otherwise be required in
connection with such relief. The Employee also agrees that any request for such
relief by the Corporation shall be in addition and without prejudice to any
claim for monetary damages which the Corporation might seek.
9. Payment Obligation Absolute; No Mitigation. Except with respect to
continued welfare benefits under Section 7(d), the Corporation's obligation to
pay the Employee the compensation and other benefits provided herein shall be
absolute and unconditional and shall not be affected by an circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Corporation may have against the Employee. All amounts
payable by the Corporation hereunder shall be paid without notice or demand. The
Employee shall not be required to mitigate amounts payable pursuant to this
Agreement hereof by seeking other employment or otherwise, (other than as
provided in Section 7(d)) with respect to certain welfare benefits.
10. Notice.
(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five (5) days after deposit in
the United States mail, certified and return receipt requested, postage prepaid,
addressed as follows:
If to the Employee:
Xxxxxxx X. Xxxx
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10 Blind Xxxxx Xxxx
Xxxxxxxx, XX 00000
If to the Corporation:
Oxford Health Plans, Inc.
00 Xxxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice (a "Notice of Termination") of the Employee's
Date of Termination by the Corporation or the Employee, as the case may be, to
the other, shall (i) indicate the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) specify the
Date of Termination. The failure by the Employee or the Corporation to set forth
in such notice any particular fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Employee or the
Corporation hereunder or preclude the Employee or the Corporation from asserting
such fact or circumstance in enforcing the Employee's or the Corporation's
rights hereunder.
11. General Provisions.
(a) No Assignments. This Agreement is personal to each of the
parties hereto. Neither party may assign or delegate any of his or its rights or
obligations hereunder without first obtaining the written consent of the other
party; provided, however, that the Corporation agrees that concurrently with any
merger or sale of assets which would constitute a Change in Control hereunder,
it will cause any successor or transferee unconditionally to assume, by written
instrument delivered to the Employee (or his beneficiary or estate), all of the
obligations of the Corporation hereunder. Failure of the Corporation to obtain
such assumption prior to the effectiveness of any such merger
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or sale of assets, shall be a breach of this Agreement and shall constitute Good
Reason hereunder and shall entitle the Employee to compensation and other
benefits from the Corporation in the same amount and on the same terms as the
Employee would be entitled hereunder if the Employee's employment were
terminated following a Change in Control under Section 7(d) hereof. For purposes
of implementing the foregoing, the date on which any such merger or sale of
assets becomes effective shall be deemed the date Good Reason occurs, and shall
be the Date of Termination if requested by the Employee. Notwithstanding the
foregoing, this Agreement shall inure to the benefit of and be enforceable by
the Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Employee shall
die while any amounts would be payable to the Employee hereunder had the
Employee continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to such person or
persons appointed in writing by the Employee to receive such amounts or, if no
person is so appointed, to the Employee's estate.
(b) Indemnification of Employee. The By-Laws of the Corporation
provide for indemnification of its officers and directors under the
circumstances and conditions specified therein. The Corporation currently
carries a policy of Directors and Officers Insurance, under which the Employee
is a covered person. Moreover, in the event the employment of the Employee is
terminated by the Corporation without Cause or by the Employee for Good Reason
hereof and the Corporation fails to make timely payment of the amounts then owed
to the Employee under this Agreement, the Employee shall be entitled to
indemnification for all reasonable costs (as such costs are incurred), including
attorneys' fees and disbursements, incurred by the Employee in taking action to
collect such amounts or otherwise to enforce this Agreement, plus interest on
all such amounts at the annual rate of one percent above the prime rate (defined
as the base rate on corporate loans at large U.S. money center commercial banks
as published by the Wall Street Journal), compounded monthly, for the period
from the time payment is due until payment is made to the Employee. The Employee
shall also be entitled to interest (at the rate described in the immediately
preceding sentence) on such reasonable costs incurred from the date the Employee
delivers a receipt to the Corporation for such costs until the
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date they are reimbursed to the Employee. Such indemnification and interest
shall be in addition to all rights to which the Employee is otherwise entitled
under this Agreement.
(c) Entire Agreement; Amendments or Additions; Action by Board. This
Agreement contains the entire agreement between the parties hereto with respect
to the transactions contemplated hereby and supersedes all prior oral and
written agreements, memoranda, understandings and undertakings between the
parties hereto relating to the subject matter hereof. No amendments or additions
to this Agreement shall be binding unless in writing and signed by both parties.
(d) Governing Law. This Agreement shall be governed by the
laws of the State of Connecticut as to all matters, including, but not
limited to, matters of validity, construction, effect and practice.
(e) Arbitration. Except with respect to injunctive relief under
Section 8(b) hereof, any dispute or controversy under this Agreement shall be
settled exclusively by arbitration in Norwalk, Connecticut by three (3)
arbitrators in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitration award in any court
having jurisdiction. The Corporation shall bear all costs and expenses arising
in connection with any arbitration proceeding pursuant to this Section 11(e).
(f) Employment with Subsidiaries. Employment with the Corporation
for purposes of this Agreement shall include employment with any subsidiary of
the Corporation.
(g) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
(h) Section Headings. The section headings used in this
Agreement are included solely for convenience and shall not affect, or be
used in connection with, the interpretation of this Agreement.
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(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
12. Consultant. In the event that the Employee is terminated without
Cause, or Employee terminates his employment hereunder following the
Corporation's requiring him to report to a Chief Executive Officer other than
the Corporation's current Chief Executive Officer, Xxxxxx Xxxxxx, the Employee
shall be employed as a consultant of the Corporation until September 1, 2002
(the "Consulting Period"). During the Consulting Period, the following terms
shall apply.
(a) During the Consulting Period, the Employee agrees to be
reasonably available to the Corporation, primarily by telephone, or occasionally
in person at the Company's principal executive offices in Connecticut. The
performance of services hereunder shall be scheduled on reasonable notice and in
such a manner so as not to interfere significantly with the Employee's other
activities. During the Consulting Period, the Corporation shall pay Employee at
a rate of $1,000 per day for each full day of work performed by Employee. In
addition, the Corporation shall reimburse the Employee for expenses reasonably
incurred in the performance of services hereunder promptly following his
submission of appropriate expense documentation and shall provided
transportation to the Connecticut office when required;
(b) The Employee's outstanding options to acquire Corporation common
stock that are not otherwise vested shall continue to vest and become
exercisable in accordance with the terms of such options during the Consulting
Period. Notwithstanding anything to the contrary in this paragraph 13(b), (i) no
option which vested prior to the Employee's Date of Termination may be exercised
after, or extended beyond, the earlier of the expiration of the term of the
option or ninety days following the Employee's Date of Termination; and (ii) all
options which vest following the Employee's Date of Termination will be
exercisable for 90 days following the date upon which the option vested, and
will then immediately terminate.
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13. Termination of Original Employment Agreement. The parties to this
Agreement hereby acknowledge and agree that, as of the date hereof, the Original
Employment Agreement is null and void, and that all liabilities of either party
thereunder are deemed to have been fully satisfied.
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14. IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
OXFORD HEALTH PLANS, INC.
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Dated: March 13, 2001 /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
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