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EXHIBIT 10.31.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the
4th day of April, 2001, between RIGHTCHOICE MANAGED CARE, INC. and XXXX X.
X'XXXXXX.
DEFINITIONS
Unless otherwise defined in the text of this Agreement, capitalized
names and terms herein shall have the meaning ascribed to them in the attached
Exhibit A.
RECITALS
X. X'Xxxxxx is and has been an employee of RightCHOICE.
B. RightCHOICE desires to retain X'Xxxxxx as Chairman and CEO on the
terms set forth herein.
X. X'Xxxxxx desires to accept and continue in such employment on the
terms set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals and mutual
promises contained herein, the Parties agree as follows:
1. EMPLOYMENT. RightCHOICE shall employ X'Xxxxxx as Chairman and CEO
during the Term in accordance with the terms of this Agreement.
2. SERVICES PROVIDED BY X'XXXXXX. X'Xxxxxx shall render full-time
professional services to RightCHOICE and his duties shall include the following:
2.1. Scope. Duties consistent with those being performed by
X'Xxxxxx as Chairman and CEO on April 4, 2001.
2.2. Board Request. Duties reasonably requested by the Board
consistent with those being performed by X'Xxxxxx on April 4, 2001.
2.3. Employees. Implementation of a methodology for the
selection, supervision and termination of all RightCHOICE employees; provided,
however, such selection, supervision and termination shall be implemented in
accordance with RightCHOICE authorized budgets and policies and applicable laws.
2.4. Meetings. Attending all meetings of the Board, all
meetings of committees of the Board when so requested by the committee chairman,
and any other meetings reasonably requested by the Board.
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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2.5. Reports. Reporting to the Board all significant items of
RightCHOICE business known to X'Xxxxxx, and making recommendations concerning
disposition thereof.
3. APPLICABLE STANDARDS. X'Xxxxxx shall perform the duties required
hereunder in accordance with the terms of this Agreement, the Articles of
Incorporation, Bylaws, policies and procedures of RightCHOICE, and all
applicable Federal, state and local laws and regulations.
4. COMPENSATION. As compensation for the duties performed by X'Xxxxxx
pursuant to this Agreement, X'Xxxxxx shall receive the following entitlements
from RightCHOICE during the Term:
4.1. Base Salary. An annual base salary of no less than
$615,000 (a) subject to annual review (but not decrease) by the Compensation
Committee, and (b) paid semi-monthly in equal installments on the pay dates
established by RightCHOICE for its senior executives.
4.2. Annual Incentive Plan Bonus. Participation in the AIP at
an initial target-performance level of at least 43% of X'Xxxxxx'x annual base
salary.
4.3. Welfare Benefit Plans. Long-term total disability income
protection, life insurance, accidental death and dismemberment coverage,
comprehensive health insurance, travel insurance, and vacation days and personal
sick pay days to the same extent and in the same manner as provided for other
senior executives of RightCHOICE.
4.4. Qualified Plan Benefits. Participation in the 401(k) Plan
and Defined Benefit Retirement Plan.
4.5. Dues. Dues in professional associations, societies,
service organizations and luncheon clubs if membership therein is approved by
the Compensation Committee, and dues at Greenbriar Country Club; in connection
therewith, the capital account related to X'Xxxxxx'x membership at Greenbriar
Country Club shall be transferred to X'Xxxxxx upon the termination of this
Agreement.
4.6. Equity Incentive Plan. Participation in the EIP with an
annual target value of 50% of annual base salary.
4.7. Other Employee Benefits. Participation in grants of
options, other awards, and any other employee benefit plans, including the SERP
and the Deferred Compensation Plan offered to other senior executives of
RightCHOICE.
4.8. Automatic Vesting. Automatic vesting of all unvested
stock options and other benefits or awards including under AIP, EIP and other
performance, bonus and profitability awards in the event of termination of
X'Xxxxxx'x employment under this Agreement on account
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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of (a) Involuntary Termination, (b) X'Xxxxxx'x death, (c) X'Xxxxxx becoming
Disabled, or (d) Good Reason.
4.9. Business Expenses. X'Xxxxxx shall be reimbursed for all
ordinary and necessary business expenses incurred in the performance of his
duties under this Agreement, including travel expenses, subject to X'Xxxxxx'x
compliance with the business expense policies of RightCHOICE.
5. TERMINATION.
5.1. Termination of Agreement.
A. Termination by RightCHOICE. Subject to any
applicable cure provisions, RightCHOICE may terminate X'Xxxxxx'x employment
hereunder by giving X'Xxxxxx, at least 60 days in advance, a written Notice of
Termination specifying the effective date of such termination. A termination of
X'Xxxxxx'x employment by RightCHOICE may be either an Involuntary Termination or
for Cause. A Notice of Termination from RightCHOICE based upon Cause shall
specify in reasonable detail the facts and circumstances constituting Cause.
B. Termination by X'Xxxxxx. Subject to any applicable
cure provisions, X'Xxxxxx may terminate his employment hereunder by giving
RightCHOICE, at least 60 days in advance, a written Notice of Termination
specifying the effective date of such termination. A termination of X'Xxxxxx'x
employment by X'Xxxxxx may be either a voluntary termination (including
following a Change in Control) or for Good Reason. A Notice of Termination from
X'Xxxxxx based upon Good Reason shall specify in reasonable detail the facts and
circumstances constituting Good Reason.
5.2. Severance.
X. X'Xxxxxx (or, where appropriate, X'Xxxxxx'x
surviving spouse, Designated Beneficiary or Personal Representative) shall
receive Severance Benefits in the event of:
(i) Involuntary Termination;
(ii) X'Xxxxxx'x termination of his
employment hereunder for Good Reason which is curable but not cured within 60
days after RightCHOICE receives Notice of Termination from X'Xxxxxx based on
Good Reason; or
(iii) X'Xxxxxx'x termination of his
employment for any reason during the one-year period beginning on the first
anniversary of a Change in Control and ending on the second anniversary of a
Change in Control.
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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B. In the event X'Xxxxxx, his surviving spouse,
Designated Beneficiary or Personal Representative becomes entitled to receive
Severance Benefits under Section 5.2(A) above, RightCHOICE shall pay or provide
to X'Xxxxxx (or, where appropriate, X'Xxxxxx'x surviving spouse, Designated
Beneficiary or Personal Representative) the following Severance Benefits:
(i) an amount equal to three times
X'Xxxxxx'x annual salary in effect immediately prior to such termination of
employment, payable in 36 substantially equal monthly installments commencing as
soon as practicable following the Date of Termination.
(ii) participation in RightCHOICE's retiree
medical plan in the same manner and to the same extent as other retired senior
executives of RightCHOICE; provided, however, (a) during any period RightCHOICE
maintains a medical plan for any of its active employees, X'Xxxxxx and his
spouse shall be entitled to retiree medical benefits (after taking into account
any benefits provided by Medicare or its successor) no less than those provided
to actively-employed senior executives of RightCHOICE and their spouses, (b)
X'Xxxxxx'x share of the premium, if any, for participation in such plan shall
never exceed the portion of the cost of the plan charged to actively-employed
senior executives of RightCHOICE, (c) if X'Xxxxxx is participating or entitled
to participate in RightCHOICE's retiree medical plan upon his death, X'Xxxxxx'x
surviving spouse, if any, shall be entitled to coverage under RightCHOICE's
retiree medical plan following X'Xxxxxx'x death until she attains 65 years of
age in the same manner and to the same extent as retired senior executives of
RightCHOICE are then entitled, and (d) at the option of RightCHOICE, RightCHOICE
may provide X'Xxxxxx (or his spouse) that portion of the coverage cost for which
RightCHOICE has assumed responsibility pursuant to Section 5.2(B)(ii)(b) or
Section 5.2(B)(ii)(c) hereof by requiring X'Xxxxxx (or his spouse) first to pay
the full cost of such coverage and RightCHOICE shall thereafter be obligated to
reimburse X'Xxxxxx (or his spouse) for such costs and to pay an additional tax
gross-up amount, so that X'Xxxxxx (or his spouse) will not incur any net cost
for RightCHOICE's portion, and;
(iii) for 36 months starting on the Date of
Termination, an amount equal to the portion of the monthly premiums for
X'Xxxxxx'x dental and vision coverage equivalent to the portion of the monthly
premium for such coverage that RightCHOICE pays on behalf of senior executives
employed by RightCHOICE during such period;
(iv) participation in RightCHOICE's life
insurance plan in the same manner and to the same extent as other senior
executives of RightCHOICE (with benefits no less than the declining schedule in
effect on the date of execution of this Agreement); provided that in the event
RightCHOICE is unable to fund such coverage for X'Xxxxxx in the same manner as
it does for such other senior executives (for example, because of underwriting
restrictions imposed by an insurance company), RightCHOICE shall pay to X'Xxxxxx
an amount equal to the portion of the monthly premiums for life insurance
coverage for X'Xxxxxx
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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equivalent to the portion of the monthly premium for such coverage that
RightCHOICE pays on behalf of senior executives employed by RightCHOICE during
such period (and with benefits no less than the declining schedule in effect on
the date of execution of this Agreement);
(v) any Gross-Up Payment;
(vi) on the date incentive bonuses are
payable to senior executives for the year in which X'Xxxxxx'x employment is
terminated, an amount equal to the product of the current target bonus
multiplied by a fraction, the numerator of which is the number of days during
the fiscal year for which the incentive bonus is paid prior to the Date of
Termination and the denominator of which is 365. For purposes of this Agreement,
the term "current target bonus" means the incentive bonus that would have been
paid to X'Xxxxxx for the fiscal year in which X'Xxxxxx'x employment is
terminated if (a) X'Xxxxxx'x employment had not been so terminated, and (b)
X'Xxxxxx had earned 100% of the incentive bonus that he could have earned for
such year; and
(vii) outplacement services of the type
customarily provided by RightCHOICE to senior officers at the time X'Xxxxxx'x
employment is terminated.
C. If X'Xxxxxx dies during any period he is receiving
or entitled to receive Severance Benefits hereunder, RightCHOICE shall pay to
the Designated Beneficiary, within 30 days of X'Xxxxxx'x death, a lump sum cash
payment equal to the total amounts which are, or remain, payable to X'Xxxxxx
under Section 5.2(B) above. In the event the Designated Beneficiary predeceases
X'Xxxxxx and X'Xxxxxx has not designated a new Designated Beneficiary who
survives X'Xxxxxx, RightCHOICE shall pay the Personal Representative all
Severance Benefits due at the time of X'Xxxxxx'x death.
D. Change in Control Benefits.
(i) Anything in this Agreement to the
contrary notwithstanding, in the event it is determined that any Payment would
be subject to Excise Tax, X'Xxxxxx shall receive a Gross-Up Payment from
RightCHOICE;
(ii) All determinations required to be made
under this Section 5.2(D), including (a) whether and when a Gross-Up Payment is
required, (b) the amount of such Gross-Up Payment, and (c) the assumptions to be
utilized in arriving at such determination, shall be made by the Accounting Firm
within 15 business days of the receipt of notice from X'Xxxxxx that there has
been a Payment, or such earlier time directed by RightCHOICE. The determination
made by the Accounting Firm shall include detailed supporting calculations and
shall be delivered both to RightCHOICE and X'Xxxxxx. In the event the Accounting
Firm is serving as an accountant, auditor or consultant to the entity effecting
the Change in Control, or if X'Xxxxxx'x employment was terminated as the result
of an Involuntary Termination or Good Reason, X'Xxxxxx may, at his election,
appoint a national or regional accounting firm to make
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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the determinations required hereunder (which accounting firm shall then have the
responsibilities of the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by RightCHOICE. Any Gross-Up Payment due
to X'Xxxxxx shall be paid by RightCHOICE within five business days of the
receipt by RightCHOICE of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by X'Xxxxxx, but for any reason
fails to furnish X'Xxxxxx with a written opinion that failure to report the
Excise Tax on X'Xxxxxx'x income tax returns will not result in the imposition of
any penalty, RightCHOICE shall be obligated to pay X'Xxxxxx the amount of any
Gross-Up Payment X'Xxxxxx deems payable as a result of any Excise Tax paid by
X'Xxxxxx.
(iii) The Parties acknowledge the
possibility, as a result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the Accounting Firm
hereunder, that a Gross-Up Payment which should have been made by RightCHOICE
may not have been made (an "Underpayment") in accordance with the calculations
ultimately required to be made hereunder. In the event RightCHOICE exhausts its
remedies pursuant to Section 5.2(D)(iv) below and X'Xxxxxx thereafter is
required to make a payment of any Excise Tax, RightCHOICE shall cause the
Accounting Firm to determine the amount of the Underpayment and such amount
shall be paid promptly by RightCHOICE to X'Xxxxxx.
(iv) X'Xxxxxx shall notify RightCHOICE in
writing of any claim by the Internal Revenue Service which, if successful, would
require the payment by RightCHOICE of the Gross-Up Payment. Such notification
shall be given as soon as practicable after X'Xxxxxx is informed in writing of
such claim, and shall apprise RightCHOICE of the nature of such claim and the
date on which such claim is requested to be paid. X'Xxxxxx shall not pay such
claim prior to the expiration of the 30 day period following the date on which
X'Xxxxxx gives such notice to RightCHOICE (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If
RightCHOICE notifies X'Xxxxxx in writing prior to the expiration of such period
that it desires to contest such claim, X'Xxxxxx shall:
(a) provide RightCHOICE with any
information in X'Xxxxxx'x possession reasonably requested by RightCHOICE
relating to such claim;
(b) take such action in connection
with contesting such claim as RightCHOICE shall reasonably request in writing
from time to time, including accepting legal representation with respect to such
claim by an attorney prudently selected by RightCHOICE;
(c) cooperate in good faith with
RightCHOICE in contesting such claim; and
(d) permit RightCHOICE to participate
in any proceedings relating to such claim;
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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provided, however, RightCHOICE shall (1) bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, (2) indemnify and hold X'Xxxxxx harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such contest including payment of costs
and expenses, and (3) control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct X'Xxxxxx to pay
the tax claimed and xxx for a refund or contest the claim in any permissible
manner. X'Xxxxxx agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as RightCHOICE shall determine. If RightCHOICE directs
X'Xxxxxx to pay such claim and xxx for a refund, RightCHOICE shall advance the
amount of such payment to X'Xxxxxx, on an interest-free basis, and shall
indemnify and hold X'Xxxxxx harmless, on an after-tax basis, from any Excise Tax
or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance. Any extension of the statute of limitations relating to payment
of taxes for the taxable year of X'Xxxxxx with respect to which such contested
amount is claimed to be due shall be limited solely to such contested amount.
RightCHOICE's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder, and X'Xxxxxx shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(v) If, after the receipt by X'Xxxxxx of an
amount advanced by RightCHOICE pursuant to Section 5.2(D)(iv) above, (a)
X'Xxxxxx receives a refund with respect to such claim, X'Xxxxxx shall promptly
pay to RightCHOICE the amount of such refund together with any interest paid or
credited thereon after deducting X'Xxxxxx'x taxes applicable thereto, or (b) a
determination is made that X'Xxxxxx shall not be entitled to any refund with
respect to such claim and RightCHOICE does not notify X'Xxxxxx in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of the Gross-Up Payment.
E. Release. X'Xxxxxx'x entitlement to Severance
Benefits shall be conditioned upon X'Xxxxxx delivering the Release to
RightCHOICE within 90 days of his receipt from RightCHOICE of a communication
(conforming to Section 12 below) notifying X'Xxxxxx that his receipt of
Severance Benefits requires delivery of an executed Release; provided, however,
X'Xxxxxx shall become automatically entitled to Severance Benefits hereunder by
delivering the Release to RightCHOICE prior to his receipt of such communication
from RightCHOICE.
F. Termination/Suspension of Benefits.
Notwithstanding the foregoing provisions of this Section 5, (i) X'Xxxxxx'x
entitlement to Severance Benefits shall
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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terminate if (a) RightCHOICE, during the period X'Xxxxxx is receiving or
entitled to receive Severance Benefits, rehires X'Xxxxxx (following the
termination of his employment under this Agreement) on terms and conditions
acceptable to X'Xxxxxx, or (b) X'Xxxxxx is convicted of, or enters a guilty plea
to, a felony which is based upon or arises from the unlawful performance of his
duties during the course of his employment by RightCHOICE, and (ii) RightCHOICE
may temporarily delay or discontinue the payment of Severance Benefits to
X'Xxxxxx during the period a bona fide dispute remains unresolved between
X'Xxxxxx and RightCHOICE; provided, however, (1) in no event shall RightCHOICE
withhold the payment of any amount of Severance Benefits which is itself not
subject to legitimate dispute, and (2) during the period such Severance Benefits
are delayed or discontinued, X'Xxxxxx shall receive interest at the Bank of
America prime rate on all Severance Benefits ultimately determined to be
payable.
6. CODE OF BUSINESS CONDUCT. X'Xxxxxx shall abide by the RightCHOICE
Code of Business Conduct.
7. COVENANT NOT TO DISCLOSE. X'Xxxxxx acknowledges that during the
course of X'Xxxxxx'x employment, X'Xxxxxx has or will have access to and
knowledge of Confidential Information and that the release of such information
to unauthorized persons could be detrimental to RightCHOICE or an Affiliate. As
a consequence, X'Xxxxxx shall (a) not disclose, communicate, publish or use
during and after the Term, without the prior written consent of RightCHOICE, to
any person any Confidential Information for any purpose except where necessary
or appropriate to carry out X'Xxxxxx'x duties or as required by law or legal
process, and (b) use his best efforts at all times to hold in confidence and to
safeguard any Confidential Information from becoming known by any unauthorized
person and, in particular, shall not permit any Confidential Information to be
copied except where necessary or appropriate to carry out X'Xxxxxx'x duties or
as may be required by law or legal process.
8. NON-DISPARAGEMENT. X'Xxxxxx shall not (a) disparage the Company or
its Affiliates, or their respective current or former officers, directors and/or
employees, or (b) make any comments or statements to the media or to others
intended to be derogatory or detrimental to the good name or business reputation
of any of the aforementioned entities.
9. RETURN OF DOCUMENTS. X'Xxxxxx shall return to RightCHOICE all
Confidential Information in X'Xxxxxx'x possession or under X'Xxxxxx'x control
when the duties of X'Xxxxxx no longer require X'Xxxxxx'x possession thereof, or
whenever RightCHOICE shall so request, and in any event X'Xxxxxx shall promptly
return all such Confidential Information if X'Xxxxxx'x employment with
RightCHOICE terminates, without retaining any copies thereof.
10. COVENANT NOT TO COMPETE.
10.1. Covenant. X'Xxxxxx covenants that he will not, during
the Non-Competition Period, directly or indirectly, without the written consent
of RightCHOICE:
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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A. Own, have any interest in or act as an officer,
director, partner, principal, employee, agent, representative, consultant to or
independent contractor of, any person, firm, corporation, partnership, limited
liability company or any other entity doing business in the Geographic Market
which during the Noncompetition Period is engaged in competition in a
substantial manner with RightCHOICE or an Affiliate (herein a "Competitor") if
X'Xxxxxx in any such capacity performs services in an aspect of Competitor's
business which is competitive with RightCHOICE or an Affiliate; provided,
however, X'Xxxxxx may invest in no more than 2% of the stock of any publicly
traded company without violating this covenant;
B. Divert or attempt to divert to a Competitor any
client, customer or account of RightCHOICE (which is a client, customer or
account during the Noncompetition Period); or
C. Hire, or solicit to hire, for or on behalf of a
Competitor, any employee of RightCHOICE (who is an employee of RightCHOICE as of
the time of such hire or solicitation to hire) or any former employee of
RightCHOICE (who was employed by RightCHOICE within the 12-month period
immediately preceding the date of such hire or solicitation to hire).
10.2. Reasonable Restrictions. With respect to X'Xxxxxx'x
obligations under Section 10.1 above, X'Xxxxxx acknowledges that (a) the
restrictions contained in Section 10.1 above are fair, reasonable and necessary
for the protection of the legitimate business interests of RightCHOICE, (b) his
experience and capabilities will allow him to obtain employment reasonably
equivalent to his position with RightCHOICE following his termination of
employment, and (c) an injunction against any violation of the provisions of
Section 10.1 above will not prevent X'Xxxxxx from earning a livelihood
reasonably equivalent to that provided through his employment with RightCHOICE.
10.3. Irreparable Injury. Recognizing that irreparable injury
will result to RightCHOICE in the event of the breach of X'Xxxxxx'x covenants in
Section 10.1 above and that RightCHOICE's remedies at law for any such breach
will be inadequate, RightCHOICE shall be entitled to an injunction (including a
mandatory injunction), from any court of competent jurisdiction ordering
compliance with this Agreement or restraining X'Xxxxxx, and each and every
person, firm or company acting in concert or participation with X'Xxxxxx, from
the continuation of such breach if prior written notice of such breach has been
given by RightCHOICE to X'Xxxxxx and X'Xxxxxx has failed to cure such breach. In
addition thereto, (a) X'Xxxxxx shall pay to RightCHOICE all ascertainable
damages, including costs and reasonable attorneys fees, sustained by RightCHOICE
by reason of such breach, and (b) RightCHOICE shall be entitled to any other
rights or remedies which may be available to it (including recovery of monetary
damages from X'Xxxxxx). In the event any suit for injunctive relief or damages
is decided adversely to RightCHOICE, RightCHOICE shall pay X'Xxxxxx'x costs and
reasonable attorney's fees.
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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10.4. Suspension of Benefits. In addition to the remedies
described above in this Section and in Section 5.2(F) above, RightCHOICE shall
not be obligated to pay any Severance Benefits to X'Xxxxxx during any period
X'Xxxxxx continues in material breach of Section 10.1 above hereof following (a)
exhaustion of the cure provisions set forth in Section 10.3 above, and (b) the
filing by RightCHOICE of an action seeking injunctive relief or damages as a
result of X'Xxxxxx'x alleged breach of the covenants of Section 10.1 above.
10.5 Non-Exclusive Remedies. The covenants and obligations of
X'Xxxxxx under this Section 10 are each independent covenants and are in
addition to, and not in lieu or exclusive of, any other obligations and duties
of X'Xxxxxx to RightCHOICE under this Agreement.
11. EFFECTS OF TERMINATION. Upon termination of this Agreement, neither
Party shall have any further obligations hereunder except for: (a) obligations
accruing prior to the Date of Termination, and (b) obligations, promises or
covenants contained herein which are expressly made to extend beyond the Term.
12. NOTICE. Any notice, demand or communication required, permitted or
desired to be given under this Agreement shall be deemed effectively given when
personally delivered or mailed by first class mail or certified mail, addressed
as follows:
If to X'Xxxxxx:
Xxxx X. X'Xxxxxx
000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
If to RightCHOICE:
RightCHOICE, Managed Care, Inc.
c/o General Counsel
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Any mailed notice shall be deemed received upon the earlier of the date of
actual receipt or three days following deposit in the United States mail. Either
Party may change its address during the term of this Agreement by providing
written notice of such change to the other Party.
13. MISCELLANEOUS.
13.1. Effect on Prior Agreements. This Agreement supersedes
the terms of (a) the Employment Contract between RightCHOICE and X'Xxxxxx dated
February 27, 1997, and (b) all other employment agreements between RightCHOICE
and X'Xxxxxx.
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
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13.2. Articles and Other Headings. The articles and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of the Agreement.
13.3. Waiver. The waiver by either Party of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same or any other
provision hereof.
13.4. Use of the Word "Including". Use of the word "including"
in this Agreement, Exhibit A and Exhibit B hereto shall be illustrative rather
than exclusive and shall be interpreted in all instances to mean "including,
without limitation."
13.5. Governing Law. This Agreement constitutes the entire
Agreement between the Parties. No oral statements or prior written material not
specifically incorporated herein shall be of any force and effect and no changes
or additions hereto shall be recognized unless incorporated herein by amendment
as provided herein, such amendment(s) to become effective on the date stipulated
in such amendment(s). Both Parties specifically acknowledge that in entering
into and executing this Agreement, they rely solely upon the acknowledgments and
agreements contained in this Agreement and no others. This Agreement shall be
interpreted, construed and enforced pursuant to and in accordance with the laws
of the State of Missouri.
13.6. Invalidity of Provisions. In the event that any
provision of the Agreement is adjudicated to be invalid or unenforceable under
applicable law, the validity or enforceability of the remaining provisions shall
be unaffected. To the extent that any provision of the Agreement is adjudicated
to be invalid or unenforceable because it is overbroad, that provision shall not
be void but rather shall be limited only to the extent required by applicable
law and shall be enforced as so limited.
13.7. Assignment. The Parties acknowledge that this Agreement
constitutes a contract for personal services and may not be assigned by either
Party without the prior written consent of the other Party.
13.8. Legal Expenses. RightCHOICE shall reimburse X'Xxxxxx for
all reasonable legal and other fees and expenses incurred to secure, preserve or
establish entitlement to benefits under this Employment Agreement. RightCHOICE
shall reimburse X'Xxxxxx for such fees and expenses within ten days after
X'Xxxxxx'x request for reimbursement accompanied by evidence that the fees and
expenses were incurred. RightCHOICE's reimbursement shall include a tax gross-up
payment in respect of the Federal, state and local taxes incurred by X'Xxxxxx
with respect to the reimbursement of fees and expenses received under this
Section.
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EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
13.9. Counterpart Execution. This Agreement may be executed in
multiple counterparts, each of which shall, for all purposes, be deemed an
original, and all of which shall, for all purposes, constitute one and the same
instrument.
13.10. Binding Arbitration. Any controversy or claim arising
out of or relating to this Agreement, or any material breach thereof, shall be
resolved by arbitration in accordance with the applicable Arbitration Rules of
the American Arbitration Association, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The cost of
arbitration (excluding the cost of counsel and other costs associated with
representation at the arbitration proceedings) shall be shared equally by
RightCHOICE and X'Xxxxxx.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
4th day of April, 2001.
RIGHTCHOICE MANAGED CARE, INC.
By: /s/ Xxxxxx Xxx Xxxxxx
--------------------------------------
Xxxxxx Xxx Xxxxxx
President and Chief Operating Officer
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Xxxxx Xxxxxxxx
Chairman, Compensation Committee
/s/ Xxxx X. X'Xxxxxx
--------------------------------------
XXXX X. X'XXXXXX
-12-
13
EXHIBIT A
DEFINITIONS
"Accounting Firm" means the accounting firm then serving as the auditor
for RightCHOICE.
"Affiliate" means any corporation or other legal entity (other than
RightCHOICE) that is part of a group of corporations and/or other legal entities
under common control, which group includes RightCHOICE and in which group each
entity is deemed to be under common control with the others if it is in an
unbroken chain of corporations and/or other legal entities each of which is
connected to a common parent entity by having 50% or more (based on total voting
power) of its outstanding stock (or other equity ownership interest) owned
directly or indirectly by that common parent entity; provided, however, no
corporation or other entity shall be considered to be an Affiliate solely
because of its direct or indirect ownership of an interest in The Epoch Group,
LC. Without limiting the generality of the foregoing definition, a common parent
entity qualifies as an Affiliate.
"Agreement" means the Employment Agreement entered into between
RightCHOICE and X'Xxxxxx dated as of the 4th day of April, 2001, and to which
this Exhibit A is attached.
"AIP" means the RightCHOICE Annual Incentive Plan as modified by the
Compensation Committee from time to time to the extent such modifications apply
to all actively-employed senior executives of RightCHOICE.
"Board" means the Board of Directors of RightCHOICE as duly elected or
appointed from time to time.
"Cause" means the occurrence of any one or more of the following events
while X'Xxxxxx is an employee of RightCHOICE:
(i) RightCHOICE becoming aware or being notified of X'Xxxxxx'x
conviction of, or entry of a guilty plea to, a felony in a court of
competent jurisdiction;
(ii) gross failure by X'Xxxxxx to perform X'Xxxxxx'x expected
duties with RightCHOICE (other than any such failure resulting from
X'Xxxxxx'x incapacity due to physical or mental illness or any such
actual or anticipated failure occurring after the issuance of a Notice
of Termination by X'Xxxxxx for Good Reason) which gross failure occurs
and continues after (a) RightCHOICE delivers to X'Xxxxxx a written
demand for substantial performance that specifically identifies the
expected duties of X'Xxxxxx, the manner in which RightCHOICE believes
that X'Xxxxxx has not substantially performed X'Xxxxxx'x duties and the
reasonable time within which X'Xxxxxx must demonstrate that he is
performing or has resumed performance of such duties in order to avoid
a determination that a gross failure by X'Xxxxxx to perform such duties
has occurred, and (b) X'Xxxxxx has failed to demonstrate that he is
performing or has resumed performance of the duties specified in such
demand by the time specified therein;
14
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
(iii) the willful engagement by X'Xxxxxx in conduct (a) that
intentionally violates reasonable standards of acceptable business
conduct (including a willful violation of a material provision in the
RightCHOICE Code of Business Conduct) and (b) that the Board identifies
in a written notice to X'Xxxxxx specifying in detail the alleged
violations; and/or
(iv) the willful engagement by X'Xxxxxx in conduct that is
materially damaging or materially detrimental to RightCHOICE and that
the Board identifies in a written notice to X'Xxxxxx specifying in
detail the alleged conduct and damages.
"CEO" means the Chief Executive Officer of RightCHOICE.
"Chairman" means the Chairman of the Board of RightCHOICE.
"Change in Control" means the happening of any one or more of the
following events:
(i) The acquisition, other than from RightCHOICE, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either the then outstanding shares of common stock of
RightCHOICE or the combined voting power of the then outstanding voting
securities of RightCHOICE entitled to vote generally in the election of
directors, but excluding, for this purpose, any such acquisition by (a)
RightCHOICE or any of its subsidiaries, or (b) any employee benefit
plan (or related trust) of RightCHOICE or its subsidiaries, or (c) any
corporation with respect to which, following such acquisition, more
than 60% of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
common stock and voting securities of RightCHOICE immediately prior to
such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the then
outstanding shares of common stock of RightCHOICE or the combined
voting power of the then outstanding voting securities of RightCHOICE
entitled to vote generally in the election of directors, as the case
may be;
(ii) Individuals who, as of the date hereof, constitute the
Board (as of the date hereof the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by RightCHOICE's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent
- 2 -
15
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of the
directors of RightCHOICE (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act); or
(iii) Consummation of (a) a reorganization, merger or
consolidation of RightCHOICE, in each case, with respect to which all
or substantially all of the individuals and entities who were the
respective beneficial owners of the common stock and voting securities
of RightCHOICE immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 60%
of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such reorganization, merger
or consolidation, or (b) the sale, lease, exchange or other disposition
of all or substantially all of the assets of RightCHOICE to any other
corporation or entity (except a subsidiary or parent corporation as
defined in Section 424 of the Internal Revenue Code of 1986);
(iv) Approval by the stockholders of RightCHOICE of a complete
liquidation or dissolution of RightCHOICE;
(v) RightCHOICE ceases to have its common stock listed on a
nationally recognized stock exchange or quoted on the NASDAQ National
Market (or any successor quotation system) for any reason other than
the price of RightCHOICE's common stock or RightCHOICE's market
capitalization.
"Code" means the Internal Revenue Code of 1986 as from time to time
amended.
"Compensation Committee" means the Compensation Committee of the Board
of RightCHOICE.
"Confidential Information" means any information or data belonging or
relating to RightCHOICE or an Affiliate which if disclosed could be detrimental
to RightCHOICE or an Affiliate, including any such information relating to a
member or insured of RightCHOICE or an Affiliate, trade secrets, proprietary
data and information relating to RightCHOICE's or an Affiliate's past, present
or future business, price lists, client lists, processes, procedures or
standards, know-how, manuals, business strategies, records, drawings,
specifications, designs, financial information, whether or not reduced to
writing, or any other information or data which RightCHOICE advises X'Xxxxxx
constitutes Confidential Information; provided, however, matters in the public
domain other than as a result of X'Xxxxxx'x act of omission shall not be
Confidential Information.
- 3 -
16
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
"Date of Termination" means the effective date of X'Xxxxxx'x
termination of employment.
"Deferred Compensation Plan" means the RightCHOICE Deferred
Compensation Plan as modified by the Compensation Committee from time to time to
the extent such modifications apply to all actively-employed senior executives
of RightCHOICE.
"Defined Benefit Retirement Plan" means the RightCHOICE Defined Benefit
Retirement Plan as modified by the Compensation Committee from time to time to
the extent such modifications apply to all actively-employed senior executives
of RightCHOICE.
"Designated Beneficiary" means one or more individuals or legal
entities designated by X'Xxxxxx on Exhibit C of this Agreement, except that, if
there is no such effective beneficiary designation at the time of X'Xxxxxx'x
death, then Designated Beneficiary shall mean the Personal Representative.
"Disabled" means X'Xxxxxx is receiving, or is entitled to receive,
pursuant to a determination made by RightCHOICE, benefits under RightCHOICE's
long-term disability plan.
"EIP" means the RightCHOICE Equity Incentive Plan as modified by the
Compensation Committee from time to time to the extent such modifications apply
to all actively-employed senior executives of RightCHOICE.
"Excise Tax" means the excise tax imposed by Section 4999 of the Code
and any interest or penalties which accrue in connection therewith.
"401(k) Plan" means the RightCHOICE 401(k) Plan as modified by the
Compensation Committee from time to time to the extent such modifications apply
to all actively-employed senior executives of RightCHOICE.
"Geographic Market" means the States of Missouri and Kansas and that
portion of the State of Illinois south of Interstate 80.
"Good Reason" means the occurrence, without the written consent of
X'Xxxxxx of any one or more of the following events (provided, however, none of
the following events constitutes Good Reason if at the time of the occurrence of
such event, or during the three-month period prior to such occurrence, there is
Cause):
(i) the assignment to X'Xxxxxx of any duties or
responsibilities inconsistent with X'Xxxxxx'x duties as Chairman and
CEO on April 4, 2001 or a substantial alteration
- 4 -
17
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
in the nature or status of X'Xxxxxx'x duties, responsibilities or
position from those in effect immediately prior to such alteration;
(ii) a reduction or attempted reduction in the annual base
salary payable to X'Xxxxxx, or a change to a bonus formula that was
applicable to X'Xxxxxx immediately prior to such change that reduces
the amount payable at target-level of performance, or a change to an
incentive formula that was applicable to X'Xxxxxx immediately prior to
such change that reduces the amount payable at target-level of
performance;
(iii) the relocation of X'Xxxxxx'x principal place of
performing his duties to a location more than 75 miles from the
location of RightCHOICE's corporate offices on April 4, 2001; or
(iv) a material reduction in the benefits and/or perquisites
provided X'Xxxxxx by RightCHOICE immediately prior to such reduction.
"Gross-Up Payment" means an amount which, after payment by X'Xxxxxx of
all taxes (including any interest or penalties imposed with respect to such
taxes) including any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon such Gross-Up Payment, permits
X'Xxxxxx to retain net of all such taxes an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
"Involuntary Termination" means the termination of X'Xxxxxx'x
employment by action of RightCHOICE for any reason other than Cause, provided,
however, that X'Xxxxxx'x termination of employment by RightCHOICE shall not be
an Involuntary Termination if, immediately following such termination, X'Xxxxxx
is employed by another employer obligated by agreement, operation or law or
otherwise, to abide by and be bound by the provisions of the Agreement, and, in
such event, such employer shall be the successor of and to RightCHOICE's rights
and obligations under this Agreement.
"Noncompetition Period" means the period of the Term and an additional
period consisting of the greater of (a) the period during which Severance
Benefits are being paid, and (b) one year from and after the Date of Termination
of X'Xxxxxx'x employment.
"Notice of Termination" means a notice delivered or mailed by
RightCHOICE or X'Xxxxxx and specifying the effective date of termination of
X'Xxxxxx'x employment.
"X'Xxxxxx" means Xxxx X. X'Xxxxxx, an individual residing in St. Louis
County, Missouri and the Chairman and CEO of RightCHOICE on the 4th day of
April, 2001.
"Parties" mean RightCHOICE and X'Xxxxxx; each is a "Party."
- 5 -
18
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
"Payment" means any payment or distribution by RightCHOICE to or for
the benefit of X'Xxxxxx pursuant to the terms of the Agreement or otherwise,
whether paid or payable, distributed or distributable, but determined without
regard to any Gross-Up Payment.
"Personal Representative" means (a) if X'Xxxxxx is alive, the guardian
(of X'Xxxxxx'x person and/or estate) appointed for X'Xxxxxx by a court of
competent jurisdiction, or (b) if X'Xxxxxx is deceased, the personal
representative of X'Xxxxxx'x estate appointed by the probate court in which
X'Xxxxxx'x Last Will and Testament is admitted for probate.
"Release" means the document in the form set forth as Exhibit B to the
Agreement fully completed and executed.
"RightCHOICE" means RightCHOICE Managed Care, Inc., a Missouri
corporation listed on the New York Stock Exchange and trading under the symbol
"RIT" as of the 4th day of April, 2001.
"SERP" means the RightCHOICE Supplemental Executive Retirement Plan as
modified by the Compensation Committee from time to time to the extent such
modifications apply to all actively-employed senior executives of RightCHOICE.
"Severance Benefits" means the entitlements described in Section 5.2(B)
of the Agreement.
"Term" means the period commencing April 4, 2001 and continuing until
the Agreement terminates in accordance with Section 5.1 of the Agreement.
- 6 -
19
EXHIBIT B
RELEASE
This Release ("Release") is entered into between XXXX X. X'XXXXXX
("X'Xxxxxx") and RIGHTCHOICE MANAGED CARE, INC. (the "Company").
WHEREAS, X'Xxxxxx'x active employment terminated on ,
20 and X'Xxxxxx is entitled to receive Severance Benefits under the
Employment Agreement ("Agreement") entered into between X'Xxxxxx and Company
dated as of April 4, 2001, and
WHEREAS, among other conditions, the Agreement specifically requires
X'Xxxxxx to execute this Release in order to receive such Severance Benefits.
NOW THEREFORE, in consideration of the foregoing recitals and mutual
promises contained herein, the Parties agree as follows:
1. Lack of Cause. X'Xxxxxx represents and warrants that as of the date
of this Release, to his actual knowledge, no circumstances exist or have existed
during the Term of the Agreement which could result in X'Xxxxxx'x termination
for Cause under the Agreement.
2. Release. Subject to the exceptions set forth in Section 3 below,
X'Xxxxxx hereby remises, releases and forever discharges Company, and each and
every one of its parent, subsidiary and other affiliated entities, and their
respective agents, officers, executives, employees, successors, predecessors,
attorneys, trustees, directors, and assigns (hereafter in this Section 2, all of
the foregoing shall be included in the term "Company"), from and with respect to
all matters, claims, charges, demands, damages, causes of action, debts,
liabilities, controversies, judgments, and suits of every kind and nature
whatsoever, foreseen or unforeseen, known or unknown, which have arisen or may
arise between X'Xxxxxx and Company directly or indirectly related to X'Xxxxxx'x
employment by Company and/or termination of employment with Company including
(a) alleged violations of an actual or implied contract of employment between
X'Xxxxxx and Company, (b) any covenant of good faith and fair dealing, express
or implied, (c) any claim based on alleged unjust or tortious discharge
including any claim of fraud, negligence or intentional infliction of emotional
distress, (d) any claim of discrimination and/or harassment based on race, age
or disability, (e) any claim of retaliation, (f) any allegation of mental pain
and suffering, loss of reputation, humiliation or deprivation of X'Xxxxxx'x
legal rights, (g) any claim for lost salary, damages of any type or description
(including, punitive, compensatory or statutory) and expenses of any type or
description (including attorney's fees), (h) violation of any Federal, State or
other governmental statute, regulation or ordinance including: (i) the Family
and Medical Leave Act of 1993, 29 U.S.C.ss.2601 et seq., (ii) Title VII of the
Civil Rights Act of 1964, 42 X.X.X.xx. 2000e et seq., (iii) the Age
Discrimination in Employment Act, 29 X.X.X.xx. 621 et seq., (iv) the
Rehabilitation Act of 1973, 29 X.X.X.xx. 701 et seq., (v) the Americans with
Disabilities Act, 42 X.X.X.xx. 2101, (vi) the Civil Rights Act of 1871, 42
X.X.X.xx. 1981, (vii) the Federal Equal Pay Act, 29 U.S.C.ss.206(d)(1) and
(viii) the Missouri Human Rights Act,ss. 213.010 RSMo et seq.
20
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
3. Exceptions/Reservations. Notwithstanding the provisions of Section 2
above, X'Xxxxxx does not release or otherwise alter or diminish any rights
relating to (a) Severance Benefits, (b) amounts which have accrued under the
Agreement which have not been paid as of the execution of the Release, and/or
(c) payments under any pension, stock option, bonus, incentive compensation or
other employee benefit plan in which X'Xxxxxx was or is a participant which have
not been paid as of the execution of the Release.
4. Consideration/Revocation Period. X'Xxxxxx acknowledges that he has
been advised that (a) he has at least 21 days within which to consider this
Release prior to his execution thereof and he has undertaken such consideration
to the extent desired, and (b) he may revoke this Release within seven days
following its execution and that this Release shall not become effective or
enforceable until such revocation period has expired.
5. Pending Lawsuits. X'Xxxxxx agrees to make himself available upon at
least five business days' prior written notice from Company, or its attorneys,
to be deposed, to testify at a hearing or trial or to accede to any other
reasonable request by Company in connection with any lawsuit either currently
pending against Company or any lawsuit filed after X'Xxxxxx'x termination of
employment which involves issues relating to X'Xxxxxx'x job responsibilities or
to decisions made by him during his employment with Company.
6. Injunctive Relief. In the event of a breach of any of X'Xxxxxx'x
duties and obligations under this Release, Company shall be entitled, in
addition to any other legal or equitable remedies Company may have in connection
therewith (including any right to damages that Company may suffer), to a
temporary, preliminary and/or permanent injunction restraining such breach or
threatened breach.
7. Invalidity of Provisions. In the event that any provision of this
Release is adjudicated to be invalid or unenforceable under applicable law, the
validity or enforceability of the remaining provisions shall be unaffected. To
the extent that any provision of this Release is adjudicated to be invalid or
unenforceable because it is overbroad, that provision shall not be void but
rather shall be limited only to the extent required by applicable law and
enforced as so limited.
8. Knowing and Voluntary Waiver. X'Xxxxxx hereby acknowledges that he
is entering into this Release knowingly and voluntarily and that he was entitled
to consult counsel of his choice before its execution.
9. Governing Law. This Release shall be construed and governed by the
laws of the State of Missouri excluding its choice of law provisions.
10. Successors and Assigns. This Release shall be binding upon and
inure to the benefit of any successors or assigns of X'Xxxxxx and Company.
- 2 -
21
EMPLOYMENT AGREEMENT
RIGHTCHOICE MANAGED CARE, INC. AND
XXXX X. X'XXXXXX
================================================================================
11. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings assigned to them in the Agreement.
IN WITNESS THEREOF, the undersigned has executed this Release.
I HAVE READ THIS RELEASE,
UNDERSTAND ALL ITS TERMS, AND SIGN IT AS MY FREE ACT AND DEED.
--------------------------------------
XXXX X. X'XXXXXX
Date:
---------------------------------
Subscribed and sworn to before me., a Notary Public, this day
of , 20 .
--------------------------------------
Notary Public
My commission expires:
- 3 -
22
EXHIBIT C
DESIGNATION OF BENEFICIARY
PURSUANT TO EMPLOYMENT AGREEMENT
Name of Officer: Xxxx X. X'Xxxxxx
Original Date of Agreement: April 4, 2001
I hereby designate the following as my Designated Beneficiary. I agree that
unless instructed differently by me in writing below, if I designate multiple
beneficiaries they shall receive equal shares of the total benefits payable upon
my death. I ACKNOWLEDGE THAT THIS BENEFICIARY DESIGNATION WILL APPLY ONLY TO
PAYMENT OF ANY SALARY CONTINUATION AMOUNTS THAT MAY BE PAYABLE FOLLOWING MY
DEATH AND DOES NOT AFFECT ANY BENEFICIARY DESIGNATION I HAVE OR WILL MAKE WITH
RESPECT TO ANY LIFE INSURANCE OR OTHER BENEFITS I MAY OBTAIN THROUGH THE COMPANY
OR OTHERWISE.
---------------------------------------- -------------------------------------- --------------------------------------
NAME OF BENEFICIARY RELATIONSHIP ADDRESS
---------------------------------------- -------------------------------------- --------------------------------------
Xxxxxx X'Xxxxxx Spouse 000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
---------------------------------------- -------------------------------------- --------------------------------------
/s/ Xxxx X. X'Xxxxxx
--------------------------------------
XXXX X. X'XXXXXX
Date: 4/4/01
---------------------------------
Receipt acknowledged on behalf of Company.
RIGHTCHOICE MANAGED CARE, INC.
By: /s/ Xxxxxx Xxx Xxxxxx
------------------------------------------
Date: 4/4/01
--------------------------