Exhibit 10.10
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made
and entered into this 30th day of November, 2000, by and between
RightCHOICE Managed Care, Inc., a Delaware corporation and the
successor by merger to Blue Cross and Blue Shield of Missouri
(the "Company"), and The Missouri Foundation For Health, a
Missouri non-profit corporation (the "Foundation").
RECITALS
A. In 1994, Blue Cross and Blue Shield of Missouri, a
Missouri non-profit health services corporation ("BCBSMo")
consummated a series of transactions (the "1994 Reorganization")
pursuant to which certain assets and liabilities of BCBSMo were
transferred to a newly formed for-profit subsidiary, RightCHOICE
Managed Care, Inc., a Missouri corporation ("Old RIT"), and a
minority interest in Old RIT was sold to the public.
B. Pursuant to the terms of a certain Agreement and Plan
of Reorganization (the "Reorganization Agreement"), dated as of
March 14, 2000, by and among BCBSMo, Old RIT, the Foundation and
the Company, the Foundation has acquired, contemporaneous with
the execution of this Agreement, 14,962,500 shares of common
stock, par value $.01 per share, of the Company, representing
approximately 80.1% of the issued and outstanding shares of
common stock of the Company.
C. In contemplation of the transactions provided for under
the Reorganization Agreement, BCBSMo (or the appropriate party)
has received a tax opinion letter from PricewaterhouseCoopers LLP
dated June 14, 2000 and reaffirmed November 30, 2000, that, among
other things, (i) gain or loss will not be recognized by BCBSMo,
Old RIT, HALIC (as defined in the Reorganization Agreement), the
Company, the Foundation or the public shareholders of both Old
RIT and the Company for federal income tax purposes pursuant to
the Transfer and Assumption Transaction, except that BCBSMo could
recognize gain to the extent its basis in any assets transferred
differs from the fair market value, (ii) the Charter Conversion
Transaction should be treated as a recapitalization under
Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended (the "Code"), should not result in the recognition of
gain or loss by the Foundation, and will not result in the
recognition of gain or loss by BCBSMo or New BCBSMo (as defined
in the Reorganization Agreement) for federal income tax purposes,
(iii) the Reincorporation Merger Transaction will qualify as a
reorganization under Section 368(a) of the Code and no gain or
loss will be recognized by New BCBSMo, the Company or the
Foundation for federal income tax purposes, (iv) the RIT/New RIT
Merger Transaction will be both a liquidation under Sections 332
and 337 of the Code and a reorganization under Section 368(a) of
the Code and no gain or loss will be recognized by Old RIT, the
Company, the shareholders of both Old RIT and the Company or the
Foundation for federal income tax purposes, and (v) no gain will
be recognized by BCBSMo, New BCBSMo, Old RIT, the Company, the
shareholders of any of the foregoing entities, or the Foundation
under Section 337(b)(2) or (d) of the Code. The various
transactions contemplated by the Reorganization Agreement are
hereinafter referred to collectively as the "Current
Reorganization."
D. In contemplation of the transactions provided for under
the Reorganization Agreement, BCBSMo (or the appropriate party)
has requested a private letter ruling (the "IRS Ruling") from the
Internal Revenue Service (the "IRS"), that, among other things,
(i) for federal income tax purposes, the Current Reorganization
will be characterized as if it occurred as follows: (a) Charter
Conversion Transaction, (b) Reincorporation Merger Transaction,
(c) RIT/New RIT Merger Transaction, and (d) Transfer and
Assumption Transaction as if directly between Company and HALIC;
(ii) the Charter Conversion Transaction will constitute a
reorganization under Section 368(a)(1)(E) of the Code and no gain
or loss will be recognized by BCBSMo, New BCBSMo or the
Foundation for federal income tax purposes, (iii) the Transfer
and Assumption Transaction will qualify as an exchange under
Section 351 of the Code and gain or loss will not be recognized
by the Company or HALIC for federal income tax purposes, and
(iv) no gain or loss will be recognized by BCBSMo pursuant to
Section 337(b)(2) or (d) of the Code.
E. In order to induce Old RIT and the Company to enter
into the Reorganization Agreement and agree to succeed to certain
liabilities of BCBSMo as a result of the Current Reorganization,
the Foundation has agreed to enter into this Agreement to provide
indemnification to certain entities and individuals against
liabilities that the parties have determined should be assumed by
the Foundation as the successor to and beneficiary of the
principal assets of BCBSMo, including certain tax liabilities
that may arise as a result of the consummation of the Current
Reorganization.
AGREEMENT
In consideration of the foregoing and the covenants and
agreements set forth herein and in the Reorganization Agreement,
and intending to be legally bound, the parties hereto agree as
follows:
Section 1. Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "1994 Reorganization" has the meaning specified in Recital A
hereof.
(b) "BCBSMo" has the meaning set forth in the Preamble hereof.
(c) "Charter Conversion Transaction" has the meaning provided
therefor in the Reorganization Agreement.
(d) "Company" has the meaning set forth in the Preamble hereof.
(e) "Conversion Claims" means all claims, demands, rights,
liabilities, damages, losses, and causes of action, direct or
indirect, or derivative, individual or representative, of every
nature and description whatsoever, that have been asserted or may
in the future be asserted (i) in the Sarkis Litigation, or
(ii) both arising out of or relating to either the 1994
Reorganization or the Current Reorganization, and arising out of
or relating to either the status of BCBSMo as a mutual benefit or
public benefit corporation under Missouri law or the ownership,
beneficial ownership, or rights to the assets, surplus or equity
of BCBSMo or any subsidiary or affiliate of BCBSMo.
(f) "Current Reorganization" has the meaning specified in
Recital C hereof.
(g) "Current Reorganization Claims" means any and all claims,
demands, rights, liabilities, damages, losses, and causes of
action, direct or indirect, or derivative, individual or
representative, of every nature and description whatsoever,
arising out of or relating to the Current Reorganization.
(h) "Foundation" has the meaning set forth in the Preamble
hereof.
(i) "Income Tax Indemnified Parties" means the Company, all of
its subsidiaries and affiliates, and all of the directors,
officers, agents and employees of the Company, or any of its
subsidiaries or affiliates.
(j) "Indemnified Parties" means each and every Income Tax
Indemnified Party, Section 3(a) Indemnified Party and
Section 3(c) Indemnified Party.
(k) "IRS Ruling" has the meaning set forth in Recital C hereof.
(l) "Old RIT" has the meaning set forth in Recital A hereof.
(m) "Reincorporation Merger Transaction" as the meaning provided
therefor in the Reorganization Agreement.
(n) "Reorganization Agreement" has the meaning set forth in
Recital B hereof.
(o) "RIT/New RIT Merger Transaction" has the meaning provided
therefor in the Reorganization Agreement.
(p) "Sarkis Litigation" means, collectively, the private
putative class action pending in the Circuit Court for the City
of St. Louis styled Anthony J. Sarkis, Sr., and James Hacking v.
Roy R. Heimberger, et al., No. 962-00938, and the action pending
in the Circuit Court of Cole County styled Blue Cross and Blue
Shield of Missouri v. Jeremiah W. "Jay" Nixon, Cause No. CV197-
1558CC.
(q) "Section 3 Indemnified Parties" means, collectively, the
Section 3(a) Indemnified Parties and the Section 3(c) Indemnified
Parties.
(r) "Section 3(a) Indemnified Parties" means each and every past
and present director, officer, agent, employee and independent
contractor of BCBSMo or of any subsidiary of BCBSMo. For
purposes of this definition, Old RIT and its subsidiaries shall
not be deemed subsidiaries of BCBSMo.
(s) "Section 3(c) Indemnified Parties" means the Company, all of
its subsidiaries and affiliates, and each and every past and
present director, officer, agent, employee and independent
contractor of the Company or of any of its subsidiaries or
affiliates.
(t) "Transfer and Assumption Transaction" has the meaning
provided therefor in the Reorganization Agreement.
Section 2. Income Tax Indemnity.
(a) The Foundation shall unconditionally, irrevocably and
absolutely indemnify, defend and hold harmless the Income Tax
Indemnified Parties from and against the net amount of Federal,
state and local income tax liabilities (together with any
penalties, interest, fines, additions to tax, costs and expenses,
including attorneys' and other professional fees incurred in
connection with the defense, settlement or compromise thereof),
including those tax liabilities, if any, resulting from the
receipt of indemnity payments by the Company pursuant to this
Agreement (the "Tax Indemnification Amount"), incurred by any of
the Income Tax Indemnified Parties, as a result of a
determination by the IRS or other appropriate state or local
authority that the Transfer and Assumption Transaction, the
Charter Conversion Transaction, the Reincorporation Merger
Transaction, or the RIT/New RIT Merger Transaction constitutes a
taxable transaction and/or result in the recognition of gain for
Federal income tax purposes under any section of the Code,
including under section 337(d) of the Code (each of such
transactions is referred to herein as a "Tax Indemnification
Transaction"), or for state or local income tax purposes under
any comparable provisions of state or local income tax laws. The
Tax Indemnification Amount shall be calculated as if the Tax
Indemnification Transaction(s) which cause(s) a Tax
Indemnification Amount to be incurred by an Income Tax
Indemnified Party creates the only item of taxable income
(determined without deduction for expenses incurred in the year
in issue) of the Income Tax Indemnified Party for the year in
issue and is taxable at the highest maximum applicable rate. The
Tax Indemnification Amount shall not be reduced by carryovers
from prior years of credits, net operating losses or similar tax
benefits. Notwithstanding the foregoing, the Foundation shall
have no obligation to indemnify any of the Income Tax Indemnified
Parties as set forth in this Section 2(a) if in connection with
the imposition of tax liability under any section of the Code,
including under section 337(d) of the Code, or under state or
local tax laws, it is determined that such imposition is a result
of the Reorganization not being consummated in accordance with
the terms of the Reorganization Agreement.
(b) An Income Tax Indemnified Party shall promptly notify the
Foundation in writing of any assertion by the IRS or any
appropriate state or local authority of a tax liability for which
such Income Tax Indemnified Party may be indemnified under this
Agreement (provided that failure to give such notification shall
not affect the obligations of the Foundation pursuant to this
Section 2 except to the extent the Foundation shall have been
actually prejudiced as a result of such failure), and the
Foundation shall have the opportunity, at the Foundation's sole
expense, to participate jointly with the Income Tax Indemnified
Party in contesting or settling any such asserted tax liability.
The Foundation shall have thirty days following the receipt of
such notice from an Income Tax Indemnified Party to notify the
Income Tax Indemnified Party of its election to participate in
contesting or settling the tax liability. If the Foundation
shall elect to participate as provided in the preceding sentence,
no decision (procedural or substantive) shall be made unless and
until discussions have been held between the Income Tax
Indemnified Party and the Foundation regarding same; provided,
however, the Income Tax Indemnified Party shall have the primary
responsibility for determining the manner in which the tax
liability shall be contested or settled. Each proposed
settlement that the Income Tax Indemnified Party desires to
accept and that could result in a payment by the Foundation under
this Section 2 shall be submitted to the Foundation by the Income
Tax Indemnified Party for the Foundation's prior approval. The
Foundation shall have ten days following the date of submission
of a proposed settlement to approve or disapprove of such
settlement. If no approval or disapproval shall have been
received by the Income Tax Indemnified Party within such ten day
period, then the Foundation shall be deemed to have approved the
proposed settlement. The settlement or payment of any claim which
would result in a payment by the Foundation under this Section 2
without the Foundation's prior approval as set forth in this
Section 2(b) shall constitute a waiver of the right to indemnity.
The Foundation shall not unreasonably withhold its approval of
any settlement proposal.
(c) If the Foundation does not approve a proposed settlement
submitted to it by an Income Tax Indemnified Party, the
representatives of the Income Tax Indemnified Party and the
Foundation having first-hand knowledge of the dispute(s) shall
endeavor to resolve the dispute through good faith discussions,
such discussions to take place in a timely fashion so as not to
permit the proposed settlement to expire. If the good faith
discussions to take place pursuant to the preceding sentence of
this Section 2(c) do not produce an agreement within fifteen (15)
days of the date the proposed settlement is disapproved or deemed
disapproved, the matter may be submitted to binding arbitration
by written request of either the Income Tax Indemnified Party or
the Foundation, as provided herein. All arbitrations will be
conducted in St. Louis, Missouri, or at another location mutually
approved by the parties, pursuant to the Commercial Arbitration
Rules of the American Arbitration Association, except as
otherwise provided herein. The arbitrator will be the then
current president of the St. Louis Chapter of the American
Institute of Certified Public Accountants or his/her designee and
the decision of the arbitrator shall be final and binding on all
parties thereto. All arbitrations will be undertaken pursuant to
the Federal Arbitration Act, where applicable, and the decision
of the arbitrator is enforceable in any court of competent
jurisdiction. The arbitrator is directed by this Agreement to
conduct the hearing and render a decision within a time period so
as not to permit the proposed settlement under dispute to expire.
Each party will pay its own fees and expenses in connection with
the arbitration and the nonprevailing party shall pay the fees
and expenses of the arbitrator.
Section 3. Nontax Indemnity.
(a) Subject to the limitations in Section 3(b) below, the
Foundation shall unconditionally, irrevocably and absolutely
indemnify, defend and hold harmless the Section 3(a) Indemnified
Parties from and against (i) Current Reorganization Claims
whenever they accrue to the same extent that BCBSMo was required
to provide indemnity against such Claims to the Section 3(a)
Indemnified Parties under its Articles of Incorporation and
Bylaws as in effect on April 20, 1998, and (ii) Conversion
Claims. The foregoing indemnity shall include all attorneys'
fees and costs incurred in defending or responding to any claim
covered by the indemnity.
(b) The obligations of the Foundation to provide indemnity to
the Section 3(a) Indemnified Parties under Section 3(a) above
shall be limited as follows:
(i) The Foundation shall have no obligation to indemnify any of
the Section 3(a) Indemnified Parties under this Agreement from or
on account of any conduct that shall be finally adjudged by a
court of competent jurisdiction to have been knowingly fraudulent
or deliberately dishonest or willful misconduct;
(ii) The Foundation shall have no obligation under this Agreement
to indemnify Section 3(a) Indemnified Parties against claims
asserted against them by the Company; and
(iii) The Foundation shall have no obligation under this
Agreement to indemnify lawyers, accountants, or other
professionals engaged as independent contractors against claims
arising out of opinions rendered or advice given by them in
connection with the Current Reorganization.
(c) The Foundation shall unconditionally, irrevocably and
absolutely indemnify, defend and hold harmless the Section 3(c)
Indemnified Parties from and against (i) Conversion Claims, and
(ii) any claim or demand asserted by any of the Section 3(a)
Indemnified Parties seeking indemnity from any Section 3(c)
Indemnified Party for any of the matters for which the Foundation
is obligated to provide such indemnity under Section 3(a) above.
(d) The obligations of the Foundation to provide indemnity to
the Section 3(c) Indemnified Parties under Section 3(c) above
shall be limited as follows:
(i) the Foundation shall have no obligation to indemnify any of
the Section 3(c) Indemnified Parties under this Agreement from or
on account of any conduct that shall be finally adjudged by a
court of competent jurisdiction to have been knowingly fraudulent
or deliberately dishonest or willful misconduct; and
(ii) the Foundation shall have no obligation under this Agreement
to indemnify lawyers, accountants, or other professionals engaged
as independent contractors against Conversion Claims.
(e) Any Section 3 Indemnified Party entitled to indemnification
under this Section 3 agrees to give prompt written notice to the
Foundation after the receipt by such Section 3 Indemnified Party
of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for
which such Section 3 Indemnified Party may claim indemnification
or contribution pursuant to this Section 3 (provided that failure
to give such notification shall not affect the obligations of the
Foundation pursuant to this Section 3 except to the extent the
Foundation shall have been actually prejudiced as a result of
such failure). In case any such action shall be brought against
any Section 3 Indemnified Party and it shall notify the
Foundation of the commencement thereof, the Foundation shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such Section 3 Indemnified Party (who shall not,
except with the consent of the Section 3 Indemnified Party be
counsel to the Foundation), and after notice from the Foundation
to such Section 3 Indemnified Party of its election so to assume
the defense thereof, the Foundation shall not be liable to such
Section 3 Indemnified Party under this Section 3 for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such Section 3 Indemnified Party, in
connection with the defense thereof other than reasonable costs
of investigation. Notwithstanding the foregoing, if (i) the
Foundation shall not have employed counsel reasonably
satisfactory to such Section 3 Indemnified Party to take charge
of the defense of such action within a reasonable time after
notice of commencement of such action (so long as such failure to
employ counsel is not the result of an unreasonable determination
by such Section 3 Indemnified Party that counsel selected
pursuant to the immediately preceding sentence is
unsatisfactory), (ii) the actual or potential defendants in, or
targets of, any such action include both the Foundation and such
Section 3 Indemnified Party and such Section 3 Indemnified Party
shall have reasonably concluded that there may be legal defenses
available to it which are different from or additional to those
available to the Foundation which, if the Foundation and such
Section 3 Indemnified Party were to be represented by the same
counsel, could result in a conflict of interest for such counsel
or materially prejudice the prosecution of the defenses available
to such Section 3 Indemnified Party, or (iii) the Foundation is
unable to demonstrate to the reasonable satisfaction of the
Section 3(a) Indemnified Party that it has sufficient financial
resources to fund the defense, then such Section 3 Indemnified
Party shall have the right to employ separate counsel reasonably
satisfactory to the Foundation, in which case the fees and
expenses of one counsel or firm of counsel (plus one local or
regulatory counsel or firm of counsel) selected by a majority in
interest of the Section 3 Indemnified Parties shall be borne by
the Foundation and the fees and expenses of all other counsel
retained by the Section 3 Indemnified Party shall be paid by the
Section 3 Indemnified Party. No Section 3 Indemnified Party
shall consent to entry of any judgment or enter into any
settlement without the consent (which consent, in the case of an
action, suit, claim or proceeding exclusively seeking monetary
relief, shall not be unreasonably withheld) of the Foundation.
(f) In determining the amount of the obligations of the
Foundation to a Section 3 Indemnified Party under this Section 3,
net amounts paid to or recovered by a Section 3 Indemnified Party
under third party insurance policies (excluding self-insurance),
shall reduce the amount payable by the Foundation to such
Section 3 Indemnified Party under this Section 3 (and the
Section 3 Indemnified Parties shall use reasonable efforts to
file and support claims therefor short of litigation), as shall
the actual net tax effect of damages and other amounts paid by a
Section 3 Indemnified Party seeking indemnity therefor on the tax
liability of the Section 3 Indemnified Party. Notwithstanding
anything to the contrary contained in the charter documents of
the Company, the Reorganization Agreement, or any other agreement
to which the Company is a party, the Foundation acknowledges and
agrees that, as between the Company and the Foundation, the
Company shall have no obligation, directly or indirectly, to
indemnify any of the Section 3 Indemnified Parties against any of
the matters for which Section 3 Indemnified Parties shall be
entitled to seek indemnity from the Foundation hereunder, and any
amounts which the Company shall be obligated to pay in such
regard (either directly or indirectly through its subsidiaries)
shall be reimbursed to the Company by the Foundation pursuant to
the indemnification obligations of the Foundation hereunder. The
Foundation further agrees that it shall not have any right to
recover from the Company or any other Section 3 Indemnified Party
for any amounts paid under this Section 3, and shall not file any
claim against the Company or any other Section 3 Indemnified
Party seeking to recover any amounts properly paid under this
Section 3.
Section 4. D&O Liability Insurance. Under the Reorganization
Agreement, the Company is required, for a period of six years
following the closing of the Reorganization, to cause to be
maintained in effect the current policies of directors' and
officers' liability insurance maintained by BCBSMo (provided that
the Company may substitute therefor comparable coverage from
companies reasonably acceptable to the Foundation) as in effect
on April 20, 1998 covering the persons who are at that time
covered by such insurance policies with respect to acts and
omissions occurring prior to and including the closing of the
Current Reorganization. The Foundation shall reimburse the
Company promptly upon request for the premiums paid by the
Company to maintain such policies during such six year period.
Such policies shall require the insurer to notify the Foundation
at least thirty (30) days prior to cancellation. The Foundation
shall have the right, but not the obligation, to pay the premiums
necessary to maintain such policies in force and effect if the
Company fails to do so, in which event the Company shall
reimburse the Foundation promptly upon request for any penalties
or interest attributable to the late premium payment. In the
event the Company fails to maintain policies of directors' and
officers' liability insurance as required under this Section 4,
the Foundation shall have no obligation to provide indemnity
against damages or losses that would have been covered by such
insurance policies if they were maintained in force and effect.
Section 5. Net Worth. The Foundation shall maintain a net
worth (computed in accordance with generally accepted accounting
practices, applied on a consistent basis, except that the
Company's common stock shares shall be valued at the end of each
calendar quarter on the basis of the average closing price on the
New York Stock Exchange for the last ten trading days of the
calendar quarter) of not less than $85,136,625 for the six years
following the filing of the BCBSMo Federal Income Tax Return for
the year in which the Current Reorganization shall have been
consummated. With the prior written consent of the Company, the
Foundation may secure its obligations hereunder through one or
more alternative means that may be proposed by the Foundation
from time to time. The Company shall not unreasonably withhold
its consent to any proposed alternative that leaves the Company
in no worse position to enforce the obligations of the Foundation
hereunder than a minimum net worth covenant.
Section 6. Further Agreements. Until this Agreement
terminates as provided in Section 7 hereof, the Foundation shall
(i) maintain its status as a tax-exempt organization under
section 501(c)(4) of the Code, and (ii) not take any action or
refrain from taking any action that would cause it to qualify as
a "private foundation" as defined under section 509(a) of the
Code. No party to this Agreement shall take any position
inconsistent with the IRS Ruling.
Section 7. Termination. This Agreement shall automatically
terminate on the date on which the last to expire of the
applicable statutes of limitations relating to the matters for
which the Foundation has agreed to indemnify any Indemnified
Party under Sections 2 and 3 of this Agreement (including the
period during which any applicable statute of limitations may
toll or be extended in the event a controversy arises to which an
indemnity relates) shall have expired.
Section 8. No Setoff. No payment required to be made
pursuant to this Agreement shall be subject to any right of
setoff, counterclaim, defense, abatement, suspension, deferment
or reduction on an unrelated claim, provided that the Foundation
may setoff against amounts due hereunder the amount of any
undisputed claim against the payee and the amount of any claim
against the payee that has been reduced to a final judgment.
Section 9. Amendments. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally or
in writing, except that any term of this Agreement may be amended
by a writing signed by each of the parties hereto, and the
observance of any such term may be waived (either generally or in
a particular instance and either retroactively or prospectively)
by a writing signed by the party against whom such waiver is to
be asserted.
Section 10. Notices. All notices and other communications
provided for or permitted hereunder shall be made in accordance
with the notice provisions of the Reorganization Agreement.
Section 11. Successors and Assigns. This Agreement (or any
right or obligation hereunder) may not be assigned by any party
without the prior written consent of the other party, except that
the Company may assign its rights and obligations under this
Agreement, whether by a writing or operation of law, to a
successor to all or substantially all of its business without
such consent, in which event this Agreement shall inure to the
benefit of, and be binding upon, the successor.
Section 12. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Missouri applicable to agreements made and to be performed wholly
within such state.
Section 13. Waiver, Remedies. No delay on the part of any
party hereto or any Indemnified Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof,
nor shall any waiver on the part of any party hereto or any
Indemnified Party of any right, power or privilege hereunder
operate as a waiver of any other right, power, or privilege
hereunder, nor shall any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege hereunder. The waiver or consent (whether express or
implied) by any party or any Indemnified Party of the breach of
any term or condition of this Agreement shall not prejudice any
remedy of any other party or any Indemnified Party in respect of
any continuing or other breach of the terms and conditions
hereof, and shall not be construed as a bar to any right or
remedy which any party would otherwise have on any future
occasion under this Agreement.
Section 14. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any
provision hereof shall have been validly asserted as a defense,
the successful party shall be entitled to recover reasonable
attorneys' fees and costs in addition to any other available
remedy.
Section 15. Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstances, shall be held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in
any way impaired or affected, it being intended that all other
rights and privileges shall be enforceable to the fullest extent
permitted by law.
Section 16. Third Party Beneficiary. The Indemnified Parties
other than the Company are third party beneficiaries of this
Agreement, and have the right to enforce the provisions of this
Agreement directly against the Foundation.
[signatures appear on next page]
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
RIGHTCHOICE MANAGED CARE, INC.
By: /s/ John A. O'Rourke
Name: John A. O'Rourke
Title: President
THE MISSOURI FOUNDATION FOR HEALTH
By: /s/ Paul C. Wilson
Name: Paul C. Wilson
Title: Chairman
