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EXHIBIT 6
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
(As amended and restated effective January 1, 1997)
CHOICECARE CORPORATION (the "ChoiceCare Parent") and CHOICECARE HEALTH
PLANS, INC. (the "ChoiceCare Operating Company," and with the ChoiceCare Parent
and the ChoiceCare Operating Company being collectively referred to as the
"Employer"), and DANIEL A. GREGORIE, M.D. (the "Employee") hereby agree as
follows, effective as of the 1st day of January, 1997
SECTION 1
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PURPOSE OF AGREEMENT
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1.1 The Midwest Foundation Independent Physicians Association and
Daniel A. Gregorie, M.D. entered into a Supplemental Executive Retirement
Agreement, the original form of which was adopted on December 23, 1994, and the
form of which was amended and/or restated certain times since then. This
Agreement amends and restates any such prior Supplemental Executive Retirement
Agreement between the Employer and the Employee in its entirety, and supersedes
any such prior Supplemental Executive Retirement Agreement between the Employer
and the Employee, effective as of January 1, 1997.
1.2 The purpose of this Agreement is to provide deferred compensation
for Daniel A. Gregorie, M.D., the President and Chief Executive Officer of the
ChoiceCare Parent and the ChoiceCare Operating Company. The Agreement is
intended to be an unfunded deferred compensation plan within the meaning of
sections 201, 301, and 401 of the Employee Retirement Income Security Act of
1974, as amended, and shall be construed as such. This Agreement is also
intended to constitute the Supplemental Executive Retirement Plan described in
the Employment Agreement between Daniel A. Gregorie, M.D. and the ChoiceCare
Parent and the ChoiceCare Operating Company
SECTION 2
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GENERAL DEFINITIONS
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GENERAL DEFINITIONS. For purposes of the Agreement, the following terms
shall have the meanings hereinafter set forth unless the context otherwise
requires. Terms not defined herein but defined in the Employment Agreement shall
have the meanings given such terms in the Employment Agreement.
2.1 "Base Salary" means the Employee's base salary payable to him by
the Employer pursuant to subsection 5.1 of the Employment Agreement, prior to
any reduction of such base
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salary pursuant to Sections 125, 402(a)(8), or 403(b) of the Code, and excluding
any additional amounts computed with reference to such base salary and payable
under Sections 7 or 8 of the Employment Agreement following a change in control
or a strategic investor purchase (as those terms are defined in the Employment
Agreement).
2.2 "Beneficiary" means the person or entity last designated by the
Employee, on forms furnished and in the manner prescribed by the Committee and
delivered to the Committee before the Employee's death, to receive any benefit
payable under the Agreement after the Employee's death. If the Employee fails to
designate a beneficiary or if, for any reason, such designation is not
effective, his "Beneficiary" shall be his surviving spouse or, if none, his
estate.
2.3 "Code" means the Internal Revenue Code of 1986 as such Code now
exists or is hereafter amended.
2.4 "Committee" means the Human Resources and Compensation Committee of
the Board of Directors of the ChoiceCare Parent.
2.5 "Employee" means Daniel A. Gregorie, M.D.
2.6 "Employer" means, collectively, ChoiceCare Corporation (the
"ChoiceCare Parent") and ChoiceCare Health Plans, Inc. (the "ChoiceCare
Operating Company").
2.7 "Employment Agreement" means the employment agreement between
Daniel A. Gregorie, M.D. and the Employer, as amended and restated effective
January 1, 1997 and as subsequently amended from time to time.
2.8 "Qualified Plans" means all defined contribution retirement plans
maintained by the Employer that are intended to be qualified under Section
401(a) of the Code.
2.9 "Year" or "year" means the calendar year.
SECTION 3
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CREDITS
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3.1 CREDITS DURING EMPLOYMENT. For the year 1994, and for each
subsequent year through and including the year 1999 in which the Employee
remains an employee of the Employer, the Employer shall credit to the book
Account established under Section , as of the last day of such year, an amount
equal to 19% of the total of: (i) the Employee's actual Base Salary paid to him
by the Employer for such year, and (ii) the Employee's actual award for such
year under the Employer's Executive Annual Incentive Plan (as defined in the
Employment Agreement and excluding any additional amounts computed with
reference to such
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Executive Annual Incentive Plan and payable under Sections 7 or 8 of the
Employment Agreement following a change in control or a strategic investor
purchase as those terms are defined in the Employment Agreement). For each year
subsequent to the year 1999 in which the Employee remains an employee of the
Employer, the Employer shall credit to the book Account established under
Section 4.1, as of the last day of such year, an amount equal to 16% of the
total of: (i) the Employee's actual Base Salary paid to him by the Employer for
such year, and (ii) the Employee's actual award for such year under the
Employer's Executive Annual Incentive Plan (excluding any additional amounts
payable under Sections 7 or 8 of the Employment Agreement following a change in
control or a strategic investor purchase as those terms are defined in the
Employment Agreement).
3.2 ADDITIONAL CREDIT. In addition to the amount determined under
Section 3.1, a credit shall be made to the Account established under Section
4.1, as of December 31, 1994, equal to $296,000. The Employee and the Employer
agree that such amount represents the additional balance in the Account that
would have resulted as of December 31, 1994 if this Agreement had been in effect
during the years 1989 through 1993.
3.3 CREDIT FOR YEAR OF TERMINATION. If the Employee's employment with
the Employer terminates for any reason except Cause, the credit for the year of
termination shall be made pursuant to Section 3.1, based solely upon the
Employee's actual Base Salary paid to him by the Employer for such year and the
Employee's actual award for such year under the Employer's Executive Annual
Incentive Plan (as defined in the Employment Agreement), but excluding any lump
sum severance payment which is required under subsections 6.5(b), 6.8, or 6.9 of
the Employment Agreement, any payment following a change in control under
Section 7 of the Employment Agreement, and any retention incentive payment under
Section 8 of the Employment Agreement (regardless of whether based in whole or
in part on Base Salary or an award under the Executive Annual Incentive Plan).
Notwithstanding Section 3.1, if the Employee's employment with the Employer is
terminated for Cause, no credit shall be made to the Employee's Account for the
year in which his employment ends.
3.4 MINIMUM CREDIT. If the total of all credits to be made pursuant to
Sections 3.1, 3.2, and 3.3 to the Account established under Section 4.1,
determined as of the date of the Employee's termination of employment with the
Employer for any reason other than Cause (the "Total Credits"), is less than the
Minimum Amount, an additional credit shall be made to such Account pursuant to
this Section 3.4. Such additional credit shall equal the Minimum Amount, less
the Total Credits, and shall be made as of the date of the termination of the
Employee's employment with the Employer.
(a) For purposes of this Agreement, the "Minimum Amount" shall
equal the total of: (i) the Cumulative Amount, determined from the following
schedule for the year immediately prior to the year in which the termination
occurs, plus (ii) the Annual Increment, determined from the following schedule
for the year in which the termination occurs, multiplied by a fraction, the
numerator of which is the number of months during such year in which the
Employee was actively employed by the Employer, and the denominator of which is
twelve.
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===============================================================================
Year of Termination Annual Increment Cumulative Amount
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1994 not applicable 390,353
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1995 87,780 478,133
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1996 92,169 570,302
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1997 96,777 667,079
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1998 101,616 768,695
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1999 or later 106,697 875,392
===============================================================================
(b) Solely as an example to illustrate the intent of this
Section 3.4, if the date of the Employee's termination of employment with the
Employer is July 15, 1996, the Minimum Amount is $531,898, which is the total of
the Cumulative Amount for 1995 ($478,133) plus 7/12 of the Annual Increment for
1996 ($53,765). If the Total Credits as of July 15, 1996 are $500,000, the
additional credit made pursuant to this Section 3.4 is $31,898.
(c) Notwithstanding any other provision of this Agreement, if
his employment with the Employer terminates for Cause, no credit shall be made
to the Employee's Account under this Section 3.4 for the year in which his
employment ends.
3.5 NO CONTRIBUTIONS BY EMPLOYEE. The Employee shall not be required or
permitted to make contributions to his Account under this Agreement.
SECTION 4
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MAINTENANCE AND VALUATION OF ACCOUNT
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4.1 ESTABLISHMENT OF ACCOUNT. There shall be established for the
Employee a separate book account (the "Account"), which shall reflect the
amounts credited pursuant to Section 3 and the assumed investment thereof.
Subject to such rules as the Committee may prescribe, any amount credited under
Sections 3.1, 3.2, or 3.3 shall be credited to the Employee's Account as of the
last day of the year for which such credit is made, and shall be assumed to have
been invested as of that date pursuant to Section 4.2 of this Agreement.
4.2 ASSUMED INVESTMENTS. With respect to any period of time, the
credits to the Employee's Account made in accordance with Sections 3.1, 3.2, or
3.3 shall be assumed to have been invested in two or more investment funds
designated by the Committee among which the Employee may designate as the
assumed investment of his Account. Such investment funds may, but need not, be
the same investment funds that are available under the Employer's Qualified
Plans. The assumed investment return or loss for each year shall be credited to
the Employee's Account as of the last day of such year, provided, however, that
the assumed
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investment return or loss for the year in which the Account is distributed to
the Employee or his Beneficiary shall be deemed to be credited to the Account as
of the date the distribution from the Account is made.
4.3 VALUATION. As soon as practical following the end of each year, the
Employee, or, in the event of his death, his Beneficiary, shall be furnished a
statement as of December 31 showing the then balance of the Employee's Account,
the total credits to such Account during the preceding calendar year pursuant to
Sections 3.1, 3.2, or 3.3, and the investment return or loss credited to such
Account pursuant to Section 4.2.
4.4 LIMITATION. Notwithstanding any other provision of this Agreement,
all credits to the Employee's Account under any provision of this Agreement
shall be made on the express condition that such credits do not adversely affect
the tax-exempt status of Midwest Foundation Independent Physicians Association
dba ChoiceCare under section 501(c)(4) of the Code. If the Internal Revenue
Service determines that any credit to the Employee's Account made under this
Agreement (by itself or in combination with other compensation paid to the
Employee by the Employer) adversely affects such tax-exempt status, the Employer
may, after providing at least 20 days' written notice of the proposed action to
the Employee, reduce or cancel such credit to the extent necessary to preserve
or restore such tax-exempt status, and in the event of such a cancellation, the
Employee shall have no right or claim to the amount so cancelled or to any other
benefit or compensation in consequence of such cancellation.
SECTION 5
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VESTING
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5.1 VESTING. The vested percentage of the Employee's Account shall be
100% as of December 31, 1999. At any relevant time prior to December 31, 1999,
the vested percentage of the Employee's Account shall be 0%, except as otherwise
provided in Section 5.2.
5.2 EARLY VESTING. Notwithstanding Section 5.1, the vested percentage
of the Employee's Account shall be 100% as of the earliest of the following:
(a) Termination or nonrenewal of the Employment Agreement
prior to December 31, 1999 by the Employer without Cause, provided, however,
that termination of the Employment Agreement prior to such date by the Employee
shall not affect the vesting of the Employee's Account;
(b) The Employee's death or permanent disability (as defined
in the Employment Agreement) while he remains employed by the Employer;
(c) The occurrence of a change in control (as defined in the
Employment Agreement); or
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(d) The election by the Employee of a lump sum severance
payment under subsection 6.5(b) of the Employment Agreement.
5.3 TERMINATION FOR CAUSE. Notwithstanding any other provision of this
Agreement, if the Employee is terminated for Cause (as defined in the Employment
Agreement), the vested percentage of his Account shall be 0% and he shall
forfeit all amounts in his Account.
SECTION 6
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DISTRIBUTIONS AND FORFEITURES
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6.1 GENERAL. Except as otherwise provided in this Section 6, no amount
shall be paid with respect to the Employee's Account while he remains employed
by the Employer.
6.2 TERMINATION OF EMPLOYMENT. The Employer will pay or begin to pay to
the Employee the vested percentage of the balance in his Account, determined as
of the date he terminates all employment with the Employer for any reason other
than his death, as soon as administratively practical after the first business
day of the first calendar quarter which begins after the date on which he ceases
to be an employee of the Employer, in the latest form of payment elected by the
Employee under this Agreement. The Employee may elect either a lump sum payment
or any number of annual installment payments, up to ten annual installment
payments.
(a) The Employee is deemed to have elected to receive a lump
sum payment unless he changes this election pursuant to Section 6.2(b).
(b) The Employee may change the election he is deemed to make
under Section 6.2(a) by completing an appropriate form and filing it with the
Committee; except that any change of the form of payment will not be given any
effect under this Agreement unless the date on which the Employee ceases to be
an employee of the Employer occurs one year or more after the date on which the
form changing the election is filed with the Committee.
(c) The amount of each annual installment payable under this
Section 6.2 (if the Employee elects to receive his Account in annual installment
payments) will be a fraction of the amount credited to the Employee's Account as
of the installment payment date, the numerator of which is one and the
denominator of which is equal to the total number of installments remaining to
be paid (including the installment to be paid on that installment payment date).
The first installment payment will be made at the time indicated in the first
sentence of this Section 6.2, and all remaining installment payments will be
made as soon as administratively practical after each annual anniversary of the
initial installment payment until all required installment payments have been
made.
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(d) If the Employee receives all amounts credited to his
Account because he has ceased to be an employee of the Employer, and an
additional amount is subsequently credited to his Account under the terms of the
Agreement, that additional amount will be paid to the Employee as soon as
administratively practical after it is credited to his Account.
(e) For purposes of this Section 6.2, if the Employee incurs a
"permanent disability" (as defined in the Employee's Employment Agreement)
before ceasing his employment with the Employer, he will be deemed to cease
employment with the Employer on the date that the Committee determines that he
has incurred such permanent disability.
6.3 FORFEITURES. Any nonvested percentage of the balance in the
Employee's Account, determined as of the date on which he terminates employment
with the Employer for any reason other than his death or total disability (as
defined in the Employment Agreement), shall be forfeited as of such date.
6.4 DEATH. If the Employee ceases to be employed by the Employer by
reason of his death, or if he dies after ceasing to be an employee but before
the vested percentage of the amount credited to his Account has been paid or has
begun to be paid to him, the Employer shall pay to the Employee's Beneficiary
the vested percentage of the amounts credited to the Employee's Account in the
method elected by the Beneficiary under Section 6.2, applying such Section as if
the Beneficiary were the Employee and disregarding the requirement that the
election must be made at least one year before the Employee terminates
employment with the Employer. If the Employee dies after beginning to receive
the payment of the vested percentage of the amount credited to his Account in
installments under Section 6.2(c), the remaining installments shall be paid to
his Beneficiary under the payment schedule in effect before the Employee's
death.
6.5 DISTRIBUTIONS FOR PAYMENT OF TAXES. Notwithstanding Section 6.1, if
the Internal Revenue Service determines that the Employee is currently subject
to income or other tax on the balance in his Account, the Employer shall pay to
the Employee in one lump sum as of the date determined by the Employer that
portion of the balance then in his Account that is necessary for the payment of
federal, state, and local taxes, and interest and penalties thereon, that
results from such determination, and the balance in the Employee's Account shall
immediately be reduced by the amount of such distribution.
6.6 FORM OF PAYMENT. Payments with respect to the Account shall be made
in cash. As provided in Sections 6.2, 6.3, and 6.4, payments shall be made "as
of" a certain date, which means that payments will be made on or as soon as
practicable after such date, and will be equal to the balance in the Employee's
Account as of that certain date. All payments made to the Employee or his
Beneficiary shall be subject to applicable withholding and to such other
deductions as shall at the time of such payment be required under any income tax
or other law, whether of the United States or any other applicable jurisdiction.
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SECTION 7
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ADMINISTRATION OF THE AGREEMENT
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7.1 GENERAL. The general administration of the Agreement and the
responsibility for carrying out its provisions shall be placed in the Committee.
7.2 EXPENSES. Expenses of administering the Agreement shall be borne by
the Employer.
7.3 COMPENSATION OF COMMITTEE. The members of the Committee shall not
receive compensation for their services as such, and, except as required by law,
no bond or other security need be required of them in such capacity in any
jurisdiction.
7.4 RULES. Subject to the limitations of the Agreement, the Committee
may, from time to time, establish rules for the administration of the Agreement
and the transaction of its business. The Committee may correct errors, however
arising, and, as far as possible, adjust any benefit payments accordingly. The
Committee shall interpret the Agreement. The Committee's interpretation of the
Agreement shall be subject to de novo review in arbitration that occurs pursuant
to Section 11.2 hereof.
7.5 AGENTS AND EMPLOYEES. The Committee may authorize one or more
agents to execute or deliver any instrument. The Committee may appoint or employ
such agents, counsel, auditors, physicians, clerical help, and actuaries as in
the Committee's judgment may seem reasonable or necessary for the proper
administration of the Agreement.
7.6 INDEMNIFICATION. The Employer shall indemnify each member of the
Committee for all expenses and liabilities (including reasonable attorney's
fees) arising out of the administration of the Agreement, other than any
expenses or liabilities resulting from the Committee's own gross negligence or
willful misconduct. The foregoing right of indemnification shall be in addition
to any other rights to which the members of the Committee may be entitled as a
matter of law.
SECTION 8
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FUNDING OBLIGATION
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The Employer shall have no obligation to fund, either by the investment
in any account or by any other means, its obligation to the Employee hereunder.
The Employer shall establish a rabbi trust, to which the Employer shall
contribute assets to provide for its obligations under this Agreement. All
assets allocated for such purpose shall be assets of the Employer subject to
claims against the Employer, including claims of the Employer's creditors, to
the same extent
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as are other corporate assets, and the Employee shall have no right or claim
against the assets so allocated, other than as a general creditor of the
Employer.
SECTION 9
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AMENDMENT AND TERMINATION
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The Committee or the Employer may, without the consent of the Employee
or his Beneficiary, amend or terminate the Agreement at any time; provided that,
except as provided in Section 4.4 hereof, no amendment shall be made or act of
termination taken which: (i) divests the Employee or his Beneficiary of the
right to receive payments under the Agreement with respect to amounts
theretofore credited to the Employee's Account, (ii) directly or indirectly
reduces the credits to be made under Section 3 with respect to periods ending on
and before December 31, 1999, or (iii) subsequent to the occurrence of a change
in control (as defined in the Employment Agreement), directly or indirectly
reduces the percentage credited under Section 3 of this Plan with respect to the
Employee's Base Salary and award under the Employer's Executive Annual Incentive
Plan for any year which ends after the change in control occurs below the
percentage allocated under Section 3 for the immediately preceding year, unless,
in each such case, the Employee, or, in the event of his death, his Beneficiary,
consents to such amendment in writing. Subject to the foregoing, the Employer
and the Employee may agree to amend this Agreement to adjust the future credits
provided for hereunder in the event that the Employee becomes eligible to
participate in another deferred compensation arrangement maintained by the
Employer or an affiliate of the Employer.
SECTION 10
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NON-ALIENATION OF BENEFITS
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Neither the Employee nor his Beneficiary shall alienate, commute,
anticipate, assign, pledge, encumber, or dispose of the right to receive the
payments required to be made by the Employer hereunder, which payments and the
right to receive them are expressly declared to be nonassignable and
nontransferable. In the event of any attempt to assign or transfer any such
payments or the right to receive them, the Employer shall have no further
obligation to make any payments otherwise required of it hereunder.
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SECTION 11
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MISCELLANEOUS
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11.1 DELEGATION. Any matter or thing to be done by the Employer shall
be done by its Board of Directors, except that, from time to time, the Board by
resolution may delegate to any person or committee certain of its rights and
duties hereunder. Any such delegation shall be valid and binding on all persons
and the person or committee to whom or which authority is delegated shall have
full power to act in all matters so delegated until the authority expires by its
terms or is revoked by the Board, as the case may be.
11.2 ARBITRATION. Any dispute or disagreement between the parties
hereto, including but not limited to a dispute concerning the necessity of a
reduction or cancellation under Section 4.4 hereof, shall be submitted to
mandatory and binding arbitration at the election of either party. The
arbitration shall be pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. The arbitration shall be held in Cincinnati,
Ohio. Each party shall select an arbitrator and the two selected arbitrators
shall select a third arbitrator. The decision of the arbitrators, and any award
rendered therein, shall be final, conclusive, and binding upon the parties and
any judgment thereon may be entered and enforced in any court of competent
jurisdiction. Each party will bear 50% of all fees, costs, and expenses of the
arbitration, and each party will bear all the fees, costs, and expenses of his
or its own attorneys, experts, and witnesses.
11.3 BINDING AGREEMENT. This Agreement may not be assigned by one party
hereto without the consent of the other, except that this Agreement may be
assigned by Employer to any affiliated company. Notwithstanding the foregoing
general restriction on voluntary assignments, the rights and obligations of the
parties under this Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs,
personal representatives and estates, which successors and assigns in the case
of Employer shall include: (i) any affiliated company to which this Agreement is
assigned by Employer, (ii) any successor of the ChoiceCare Parent or the
ChoiceCare Operating Company by merger, combination or reorganization in any
manner, whether such successor is a corporation, limited liability company,
partnership (either general or limited), business trust, or other organization
or person, and whether or not such successor is a successor by operation of law,
(iii) any recipient of materially all the assets and/or business of Employer in
liquidation or distribution or by way of contribution of capital, (iv) any
successor to materially all the assets and/or business of Employer by purchase
or exchange, either singly or in combination, or (v) any combination of the
foregoing. Employer covenants that it will make no distribution or contribution
of assets and/or business as described in clause (iii) of the immediately
preceding sentence nor enter into any agreement of sale or exchange of assets
and/or business as described in clause (iv) of the immediately preceding
sentence without requiring the recipient(s) of such assets or business to assume
the obligations of Employer in this Agreement as a co-obligor.
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11.4 WAIVER. The failure of either party to enforce any provision or
provisions of the Agreement shall not in any way be construed as a waiver of
such provision or provisions as to any future violations thereof, nor prevent
that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy shall not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
11.5 NO RIGHTS TO CONTINUED EMPLOYMENT. Nothing contained herein shall
be construed as conferring upon the Employee the right to continue in the
employment of the Employer in any capacity.
11.6 RELATION TO OTHER PLANS. No amounts credited or payable under this
Agreement shall be deemed salary or other compensation to the Employee for the
purpose of computing benefits to which he may be entitled under any retirement
plan or other arrangement of the Employer for the benefit of its employees.
11.7 APPLICABLE LAW. The Agreement shall be governed by applicable
federal law and, to the extent not preempted by applicable federal law, the laws
of the State of Ohio.
11.8 SEPARABILITY OF PROVISIONS. If any provision of the Agreement is
held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision hereof, and the Agreement shall be construed and
enforced as if such provision had not been included.
11.9 HEADINGS. Headings used throughout the Agreement are for
convenience only and shall not be given legal significance.
11.10 COUNTERPARTS. The Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. All counterparts shall
constitute one and the same instrument, which shall be sufficiently evidenced by
any one thereof.
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Signed at Cincinnati, Ohio on the 4 day of June, 1997.
CHOICECARE CORPORATION:
By: /s/ Donald E. Hoffman
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Title: Chair, H R Committee
----------------------------
CHOICECARE HEALTH PLANS, INC.:
By: /s/ Thomas D. Anthony
-------------------------------
Title: Secretary
----------------------------
EMPLOYEE:
/s/ Daniel A. Gregorie
-------------------------------------
Daniel A. Gregorie, M.D.
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