EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of the 1st day of December, 1994, by and between PACIFICARE HEALTH SYSTEMS,
INC., a Delaware corporation (the "Company"), with its principal place of
business located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇
▇▇▇▇▇▇▇ ("Executive"), residing at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, the Company desires to employ Executive in the capacity of
Regional Vice President of the West and President and Chief Executive Officer
of PacifiCare of California.
WHEREAS, the Company and Executive are entering into this Agreement to
establish the terms and conditions of the desired employment relationship.
NOW, THEREFORE, in consideration of the following covenants, conditions
and promises contained herein, and other good and valuable consideration, the
Company and Executive hereby agree as follows:
1. EMPLOYMENT
1.1 EXECUTIVES' GENERAL DUTIES. The Company hereby employees Executive
and Executive hereby agrees to serve the company in the capacity of Regional
Vice President of the West and President and Chief Executive Officer of
PacifiCare of California having such usual and customary duties and authority
as an officer of similar capacity in a corporation of comparable size,
holdings, and business as that of the Company.
Executive shall do and perform all services, acts, or things necessary
or advisable to manage and conduct the business of the Company and shall
preside over such other areas of corporate activity as specified from time to
time by the Board of Directors of the Company. During the term of this
Agreement, Executive shall perform such additional or different duties, and
accept the election or appointment to such other offices or positions, as are
mutually agreed upon by Executive and the Company.
1.2 DEVOTION OF EXECUTIVE. During the term of this Agreement,
Executive shall devote his entire productive time, ability, and attention to
the business of the Company. Executive shall use his best efforts, skills,
and abilities to promote the general welfare and interests of the Company and
to preserve, maintain, and ▇▇▇▇▇▇ the Company's business and business
relationships with all persons and entities associated therewith, including,
without limitation, employer groups, medical service providers, shareholders,
affiliates, officers, employees, and banks and other financial institutions.
The Company shall give Executive a reasonable opportunity to perform his
duties and shall neither expect Executive to devote more
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time, nor assign more duties or functions to Executive, than are customary
and reasonable for an executive in Executive's position.
2. TERM AND TERMINATION
2.1 TERM. The term of Executive's employment under this Agreement
shall commence on December 1, 1994, and shall continue unless terminated as
provided Section 2.2.
2.2 TERMINATION. This Agreement shall be terminated upon the
occurrence of any one of the following events:
a. The death of the Executive.
b. Executive becomes incapacitated or disabled, which incapacity or
disability prevents Executive from fully performing his duties to the
Company for a period in excess of 90 days and, after such 90-day period,
the Company and a physician, duly licensed and qualified in the specialty
of Executive's incapacity, decide in their reasonable judgments, that such
incapacity will be permanent or of such continued duration as to prevent
Executive from resuming the rendition of services to the Company for at
least an additional six-month period. For purposes of this Agreement,
Executive shall be deemed permanently disabled, and this Agreement
terminated upon the date Executive receives written notice from the
Company that such determination has been made.
c. Executive habitually neglects his duties to the Company or
engages in gross misconduct during the term of this Agreement. For the
purposes of this Agreement, "gross misconduct" shall mean Executive's
conviction of any criminal offense, misappropriation of funds, securities
fraud, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unauthorized possession of corporate property or
the sale, distribution, possession or use of a controlled substance
(whether or not such felony or criminal offense is committed in connection
with Executive's duties hereunder or in the course of his employment with
the Company). In such event, Executive's termination shall be effective
immediately upon receipt of written notice from the Company.
d. Either party hereto may terminate this Agreement, with or
without cause, upon 30 days prior written notice to the other party.
Executive's termination shall be effective 90 days after receipt of such
notice.
2.3 EFFECT OF TERMINATION. No termination of this Agreement shall
affect or impair any rights or obligations of the parties respecting certain
compensation accruing prior thereto or continuing thereafter in accordance
with the terms set forth in Section 3.2 and Section 4.
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3. COMPENSATION
3.1 Compensation During the Term of this Agreement
a. As long as Executive satisfactorily performs all of his
obligations hereunder, the Company shall pay Executive an annual base
salary, as determined by the compensation committee of the board of
directors, payable in equal installments on the Company's regular payroll
dates, which as of the date hereof is $275,000. On an annual basis, the
Company's compensation committee shall review Executive's salary, but
shall be under no obligation to increase Executive's salary.
Executive authorizes the Company to take such deductions and withholdings
from his salary as are required by law, directed by Executive, or as
reasonably directed by the Company for its employees, which deductions
shall include, without limitation, withholding for federal and state
income taxes and social security.
b. Executive shall be entitled to fully participate in all of the
employee benefit plans and programs available to other high-level
executives of the Company, including, without limitation, health, dental,
and life insurance benefits for Executive and Executive's dependents,
pension and profit sharing programs, and vacation and sick leave benefits.
However, the terms of this Agreement shall not restrict the Company's
right to change, amend, modify, or terminate any existing benefit plan or
program, or to change any insurance company or modify any insurance policy
adopted incident to such existing benefit plan and program.
c. The Company shall provide Executive with a $400 per month
automobile allowance. The Company shall furnish Executive's automobile
with a cellular car telephone. Executive shall provide and maintain
automobile insurance for Executive's car including collision,
comprehensive liability, personal and property damage, and uninsured and
underinsured motorist coverage in amounts customarily obtained to cover
such contingencies in California. Executive shall provide proof of such
coverage to the Company upon the Company's request.
d. The Company shall pay for or reimburse Executive for all other
reasonable travel, entertainment, and other business expenses incurred or
paid for by Executive in connection with the performance of his services
under this Agreement. The Company shall not be obligated to make any such
reimbursement unless Executive presents corresponding expense statements
or vouchers and such other supporting information as the Company may from
time to time reasonably request. The Company reserves the right to place
subsequent limitations or restrictions on business expenses to be incurred
or reimbursed.
e. Executive shall be entitled to participate fully in the
Company's Long-Term Performance Incentive Plan, as amended (the "LTPIP"),
as from time to time
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may be amended, modified or replaced, in accordance with the terms
and conditions set forth herein and therein.
f. Executive shall be entitled to participate fully in the
Company's Annual Incentive Plan, as amended (the "AIP"), as may be
amended, modified, or replaced, in accordance with the terms and
conditions set forth herein and therein.
g. Executive shall be entitled to participate in the Amended and
Restated 1989 Stock Option Plan for Officers and Key Employees of
PacifiCare Health Systems, Inc., as amended (the "1989 Stock Option
Plan"), as such plan from time to time may be amended, modified or
replaced, in accordance with the terms and conditions set forth herein and
therein.
h. During the term of this Agreement, the Company shall insure
Executive under its general liability insurance for all conduct committed
in good faith while acting in the capacity as Regional Vice President of
the West and President and Chief Executive Officer of PacifiCare of
California or in any other capacity to which Executive may be appointed or
elected.
i. In the event Executive is involuntarily terminated, without
cause, except in the case of death or incapacity or disability, the
Company shall provide outplacement services to Executive to assist
Executive in securing a position comparable to the one from which he was
terminated. The Company shall be obligated to provide those outplacement
services as customarily provided by companies of similar size and holdings
as those of the Company to executives with comparable responsibility and
longevity as Executive and for reasonable cost as approved by the Company.
The Company's provision of such outplacement services shall not limit,
restrict, or reduce, in any manner, any and all other compensation to
which Executive is entitled hereunder.
j. As part of the compensation for services rendered under this
Agreement, Executive shall be entitled to participate in the PacifiCare
Health Systems, Inc. Savings and Profit-Sharing Plan, and the trust
agreement implemented pursuant thereto, adopted as of June 1, 1985, as
from time to time may be amended modified, or replaced, in accordance with
the terms and conditions set forth therein.
k. Executive shall be entitled to the benefits provided under the
Company's Statutory Restoration Plan, as such plan from time to time may
be amended, modified or replaced, in accordance with the terms set forth
herein and therein. A copy of a summary of the current plan is attached
hereto as Exhibit E and incorporated herein by this reference.
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3.2 Compensation Following Termination
a. In the event that this Agreement is terminated by reason of
Executive's death, Executive's estate or legal representative shall be
entitled to receive the following:
1. Payment of benefits under the life insurance policy
purchased by the Company on Executive's behalf, if any;
2. Payments of benefits under the LTPIP and the AIP set forth
in Sections 3.1(e) and 3.1(f), respectively, which will be deemed to
have accrued as of the date of Executive's death; and
3. Executive's legal representative shall be permitted to
exercise any vested and unexercised options under the 1989 Stock
Option Plan set forth in Section 3.1(g) and shall be permitted to
exercise any other vested and unexercised options granted under any
other stock option plans of the Company ("Prior Stock Option Plans")
in accordance with their terms for a period of one year following
Executive's death. The 1989 Stock Option Plan and the Prior Stock
Option Plans shall together be referred to herein as the "Stock
Option Plans."
b. In the event that Executive is terminated because of an
incapacity or disability, the Company shall provide Executive with the
following:
1. Payment of benefits under the disability insurance policy
maintained by the Company on Executive's behalf, if any;
2. Payment of benefits under the LTPIP and the AIP set forth
in Sections 3.1(e) and 3.1(f), respectively, which will be deemed to
have accrued as of the effective date of such termination;
3. The right to exercise any vested and unexercised options
under the Stock Option Plans in accordance with the terms stated
therein; and
4. Payment of the automobile allowance as provided under
Section 3.1(c) for a period of 24 months following the effective date
of such termination.
c. In the event this Agreement is terminated because of Executive's
habitual neglect or gross misconduct pursuant to Section 2.2(c) or because
of Executive's voluntary termination, the Company shall be relieved from
any and all further or future obligations to compensate Executive;
provided, however, that Executive shall be able to exercise any vested and
unexercised awards under the Stock Option Plans in accordance with the
terms set forth therein.
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d. In the event that the Company terminates Executive, for any
reason other than Executive's incapacity or disability or misconduct as
described in Sections 2.2(b) and 2.2(c), respectively, Executive shall be
entitled to the following severance compensation:
1. Executive's then current annual salary under Section 3.1(a)
for a period of 24 months following the effective date of such
termination;
2. Payment of benefits under the LTPIP and the AIP set forth
in Sections 3.1(e) and 3.1.(f), respectively, which will be deemed to
have accrued as of the effective date of such termination;
3. The right to exercise any vested and unexercised options
under the Stock Option Plans in accordance with their terms within
one year of the effective date of such termination;
4. Notwithstanding the foregoing, in the event Executive
engages in employment with a competitor of the Company during the
24 month benefit period, the severance compensation available to
Executive under this Section 3.2(d) shall be reduced by the amount of
any and all gross earnings Executive earns while engaged in
employment with any such competitor or competitors. For the purposes
of this Section 3.2(d)(5), a "competitor of the Company" shall
include, without limitation, an health maintenance organization,
competitive medical plan, or preferred provider organization, or
health or life insurance company which owns a managed care plan or
program. Executive agrees to provide immediate notice to Company
upon receipt of any gross earnings received by Executive from a
competitor of Company;
5. Payment of the automobile allowance as provided in Section
3.1-C- for a period of 24 months following the effective date of such
termination; and
6. The Company shall provide to Executive the outplacement
services described in Section 3.1(i).
e. Notwithstanding anything which may be expressed in, or inferred
from the provisions expressed in, or inferred from the provisions of this
Section 3.2 or Section 4.1, this Agreement should not be construed to
limit, restrict, or deny Executive any benefits to which he otherwise may
be entitled to under the LTPIP, the AIP, the Stock Option Plans, the
Company's pension plan or otherwise which arise from circumstances not
addressed in this Agreement.
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4. TERMINATION AS A RESULT OF A CHANGE OF CONTRO OR FOR GOOD CAUSE
4.1 EXECUTIVE'S RIGHTS. In the event that, during the term of this
Agreement, the Company undergoes a "change of ownership or control," as that
term is defined in Section 4.3, Executive shall be entitled to the following
compensation if within 24 months after the consummation of such change
Executive is involuntarily terminated, except as provided in Section 4.2, or
Executive voluntarily terminates his employment for "good cause" as defined in
Section 4.4:
a. Executive's then current annual salary under Section 3.1(a) for
a period of 24 months following the effective date of such termination;
b. Payment of health insurance premiums under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, for Executive and
Executive's dependents for a period of 18 months following the effective
date of such termination;
c. Annual payment of benefits under the LTPIP set forth in Section
3.1(e) for each performance period of the LTPIP for a period of 24 months
following the effective date of such termination;
d. Annual payment of benefits under the AIP set forth in Section
3.1(f), for a period of 24 months following the effective date of such
termination;
e. The right to exercise any and all granted and unexercised stock
options, under the Stock Option Plans in accordance with their terms
(whether or not such options are actually vested), as if all such
unexercised stock options are fully vested within one year of the
effective date of such termination;
f. Payment of the automobile allowance as provided under Section
3.1(c) for a period of 24 months following the effective date of such
termination; and
g. The Company shall provide to Executive the outplacement services
described in Section 3.1(i).
4.2 LIMITATION OF BENEFITS. In the event that Executive is terminated
within 12 months after a change of ownership or control of the Company, and
such termination results from either Executive's incapacity or disability or
habitual neglect or gross misconduct, then, notwithstanding anything in this
Section 4 to the contrary, Executive shall receive only that compensation, if
any, to which he is entitled to under Sections 3.2(b) and 3.2(c), respectively.
In no event shall the aggregate amount of all compensation which Executive may
receive pursuant to the provisions of this Section 4, including without
limitation, any salary, bonuses, stock options, employee benefits and all other
cash and in-kind compensation exceed an amount (the "Maximum Compensation
Amount") which would give rise to an "excess
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parachute payment" as determined by Section 280G of the Internal Revenue Code
of 1986, as amended, and any regulations promulgated thereunder. In the
event that this Section 4 would entitle Executive to sums in excess of the
Maximum Compensation Amount, the Company shall use its sound discretion, in
good faith, to furnish Executive with a post-termination compensation package
which is substantially equal to the Maximum Compensation Amount.
4.3 CHANGE OF CONTROL. As used in this Section 4, the term "change of
ownership or control" means and refers to:
a. any merger, consolidation, or sale of the Company such that any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) acquires beneficial ownership, within the meaning of Rule 13d-3 of
the Exchange Act, of 20 percent or more of the voting common stock of the
Company and the ownership interest of the voting common stock owned by
UniHealth America is less than or equal to the ownership interest of the
voting common stock of such individual, entity or group;
b. any transaction in which the Company sells substantially all of
its material assets;
c. a dissolution or liquidation of the Company; or
d. the Company becomes a non-publicly held company.
4.4 GOOD CAUSE. As used in this Section 4, "good cause" for Executive to
terminate his employment shall be deemed to exist if Executive voluntarily
terminates his employment for any of the following reasons:
a. Without Executive's express prior written consent, Executive:
(i) is assigned duties materially inconsistent with Executive's
position, duties, responsibilities, or status with the Company which
substantially varies from that which existed immediately prior to
such change of ownership or control;
(ii) experiences a change in his reporting level, titles, or
business location (to a point more than 50 miles outside of Orange
County, California) which substantially varies from that which
existed immediately prior to the change of ownership or control; or
(iii) with respect to any position held immediately prior to
the change of ownership or control, is removed or fails to obtain
reelection, which removal or failure to reelect is not directly
related to Executive's incapacity or disability, habitual neglect,
gross misconduct or death;
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b. Without Executive's express prior written consent, Executive's
salary is reduced below that which existed immediately prior to the change
of ownership or control and such change is not otherwise applied to others
in the Company with at least Executive's position or title;
c. Without Executive's express prior written consent, any employee
benefit, business expense reimbursement or allotment, incentive bonus
program, or any other manner or form of compensation available to
Executive immediately prior to the change of ownership or control is
reduced or eliminated and such change is not otherwise applied to others
in the Company with at least Executive's position or title;
d. The Company fails to obtain from any successor, before the
succession takes place, a written commitment obligating the successor, to
perform this Agreement in accordance with all of its terms and conditions;
or
e. The Company or any successor thereto, purports to terminate
Executive without first giving Executive prior written notice thereof, in
accordance with the provisions of Section 2.2(d), that specifies: (i) the
exact provision of Section 2.2 relied upon; and (ii) the facts and
circumstances, in reasonable detail, serving as the basis for Executive's
termination.
6. NOTICES
All notices shall be given in writing and sent by either personal
delivery, overnight delivery, or United States registered or certified mail,
return receipt requested, all of which shall be properly addressed with
postal or delivery charges prepaid, to the parties at their respective
addresses set forth below, or to such other addresses as either party may
designate to the other in accordance with this Section 5:
If to the Company: PacifiCare Health Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President and
Chief Executive Officer
If to Executive: ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
All notices sent by personal delivery shall be deemed given when actually
received. All notices sent by overnight delivery shall be deemed given on the
next business day. All other notices sent via United States mail shall be
deemed given no later than two business days after mailing.
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GENERAL PROVISIONS
6.1 ASSIGNABILITY. This Agreement shall inure to the benefit of, and
shall be binding upon the heirs, executors, administrators, successors, and
legal representatives of Executive and shall inure to the benefit of, and be
binding upon the Company and its successors and assigns. Executive shall not
assign, delegate, subdelegate, transfer, pledge, encumber, hypothecate, or
otherwise dispose of this Agreement, or any rights, obligations, or duties
hereunder, and any such attempted delegation or disposition shall be null and
void and without any force or effect; provided however, that nothing
contained herein shall prevent Executive from designating beneficiaries for
insurance, death, or retirement benefits.
6.2 ENTIRE AGREEMENT. This Agreement is a fully integrated document
and contains any and all promises, covenants, and agreements between the
parties hereto with respect to Executive's employment. This Agreement
supersedes any and all other, prior or contemporaneous, discussions,
negotiations, representations, warranties, covenants, conditions, and
agreements, whether written or oral, between the parties hereto. Except as
expressed herein, the parties have not exchanged any other representations,
warranties, inducements, promises, or agreements respecting Executive's
employment with the Company.
6.3 SEVERABILITY. In the event any one or more of the provisions of
this Agreement shall be rendered by a court of competent jurisdiction to be
invalid, illegal, or unenforceable, in any respect, such invalidity,
illegality, or unenforceability shall not affect or impair the remainder of
this Agreement which shall remain in full force and effect and enforced
accordingly.
6.4 AMENDMENT. This Agreement shall not be changed, amended, or
modified, nor shall any performance or condition hereunder be waived, in
whole or in part, except by written instrument signed by the party against
whom enforcement or waiver is sought. The waiver of any breach of any term
or condition of this Agreement shall not be deemed to constitute the waiver
of any other or subsequent breach of the same or any other term or condition
of this Agreement.
6.5 GOVERNING LAW. This Agreement shall be governed by, enforced
under, and construed in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
The Company: PACIFICARE HEALTH SYSTEMS, INC.,
a Delaware corporation
________________________________
By: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and
Chief Executive Officer
Executive: ________________________________
▇▇▇ ▇▇▇▇▇▇▇
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FIRST AMENDMENT
EXECUTIVE EMPLOYMENT AGREEMENT
This First Amendment, dated as of March 1, 1996 (the "Amendment"), to
the Executive Employment Agreement, dated as of December 1, 1994 (the
"Agreement"), between PacifiCare Health Systems, Inc., a Delaware
corporation, and ▇▇▇ ▇▇▇▇▇▇▇, an individual ("Executive"), hereby amends the
Agreement as follows:
1. AMENDMENT TO SECTION 3.1 (a). Section 3.1(a) shall hereby be
amended by adding the following sentence to the end of the first paragraph of
Section 3.1(a):
In addition, Executive shall receive an advance to his annual base salary
in the amount of $120,000 (the "Advance"). If Executive does not continue
his employment with the Company for a sufficient period of time in order
to earn the Advance, Executive shall be required to repay the Advance as
follows:
(i) if Executive leaves the Company prior to January 3, 1997,
Executive shall be required to repay $80,000 of the Advance;
(ii) if Executive leaves the Company prior to January 3, 1998,
Executive shall be required to repay $40,000 of the Advance; and
(iii) if Executive leaves the Company subsequent to January 3, 1998,
Executive shall be deemed to have earned the Advance in full and shall not
be required to repay the Advance.
2. AMENDMENT TO SECTION 3.1(e). Section 3.1(e) is hereby amended by
adding the following sentence to the end of Section 3.1(e):
Beginning with the 1995 through 1997 performance cycle and for each
successive performance cycle, the target bonus award which Executive may
be eligible to receive under the LTPIP, if the performance objectives for
the performance cycle are achieved, shall be 35 percent of the average of
Executive's annual base salary for the three years of the performance
cycle up to a maximum bonus award of 70 percent of the average of
Executive's annual base salary for the three years of the performance
cycle. If the percentage of salary for the target and maximum award
under the LTPIP is changed, such change shall be reflected on SCHEDULE I
attached hereto.
3. AMENDMENT TO SECTION 3.1(f). Section 3.1(f) is hereby amended by
adding the following sentence to the end of Section 3.1(f):
During the term of this Agreement, the target bonus award which Executive
may be eligible to receive under the MICP, if the performance objectives
for the fiscal year are achieved, shall be 35 percent of Executive's
annual base salary applicable at the end of the fiscal year preceding the
payment of the award up to a maximum bonus award of 70 percent of
Executive's annual base salary applicable at the end of the fiscal year
preceding the payment of the award. If the percentage of salary for the
target and maximum award under the MICP is changed, such change shall be
reflected on SCHEDULE I attached hereto.
4. AMENDMENT TO SECTION 3.2 (a). Section 3.2(a) is hereby amended by
adding the following subparagraph to Section 3.2(a):
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4. If Executive's death occurs prior to January 3, 1998,
Executive's estate or legal representative will not be required to repay
any amount of the Advance, which but for this subparagraph, Executive's
estate or legal representative would be required to be repay pursuant to
the provisions of Section 3.1(a).
5. AMENDMENT TO SECTION 3.2 (b). Section 3.2(b) is hereby amended by
adding the following subparagraph to Section 3.2(b):
5. If Executive is disabled or incapacitated prior to January 3,
1998, Executive will not be required to repay any amount of the Advance,
which but for this subparagraph, Executive would be required to repay
pursuant to the provisions of Section 3.1(a).
6. AMENDMENT TO SECTION 3.2 (c). Section 3.2(c) shall hereby be amended
by adding the following sentence to the end of Section 3.3(c):
In addition, if this Agreement is terminated pursuant to the provisions
contained in this Section 3.2(c) prior to January 3, 1998, Executive will
be required to repay any amount of the Advance, which continues to be
subject to reimbursement pursuant to the provisions of Section 3.1(a).
7. AMENDMENT TO SECTION 3.2 (d). Section 3.2(d) is hereby amended by
adding the following subparagraph to Section 3.2(d):
7. If Executive's termination occurs prior to January 3, 1998,
Executive will not be required to repay any amount of the Advance, which
but for this subparagraph, Executive would be required to repay pursuant
to the provisions of Section 3.1(a).
8. AMENDMENT TO SECTION 4.1. Section 4.1 is hereby amended by adding
the following subparagraph to Section 4.1:
h. If Executive's termination is a result of a Change of Control or
Executive voluntarily terminates for "good cause" and such termination
occurs prior to January 3, 1998, Executive will not be required to repay
any amount of the Advance, which but for this subparagraph, Executive
would be required to repay pursuant to the provisions of Section 3.1(a).
9. ADDITION OF SCHEDULE I. By this Amendment, Schedule I attached
hereto shall hereby be deemed to be attached to the Agreement.
10. LIMITATION OF AMENDMENTS. Except as expressly provided herein, no
terms or provision of any agreement or instrument are modified or changed by
this Amendment and the terms and provisions of the Agreement, as amended by
this Amendment, shall continue in full force and effect.
11. GOVERNING LAW. This Amendment shall be construed, interpreted and
enforced in accordance with, and governed by California law.
12. CAPITALIZED TERMS. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Agreement.
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13. DUPLICATE ORIGINALS; EXECUTION IN COUNTERPART. Two or more duplicate
originals of this Amendment may be signed by the parties, each of which shall
be an original but all of which together shall constitute one and the same
instrument.
14. WAIVERS AND AMENDMENTS. Neither this Amendment nor any term hereof
may be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
15. SECTION HEADINGS. The titles of the sections hereof appear as a
matter of convenience only, do not constitute a part of this Amendment and
shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
PACIFICARE HEALTH SYSTEMS, INC.,
a Delaware corporation
________________________________
By: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and
Chief Executive Officer
________________________________
▇▇▇ ▇▇▇▇▇▇▇
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SCHEDULE I
LTPIP TARGET AND MAXIMUM BONUS AWARD CHANGES
Target Maximum
------ -------
MICP TARGET and MAXIMUM BONUS AWARD CHANGES
Target Maximum
------ -------
(i)
SECOND AMENDMENT
EXECUTIVE EMPLOYMENT AGREEMENT
This Second Amendment, dated as of October 9, 1997 (the "Amendment"), to
the Executive Employment Agreement, dated as of December 1, 1994 (the
"Agreement"), between PacifiCare Health Systems, Inc., a Delaware corporation,
and ▇▇▇ ▇▇▇▇▇▇▇, an individual ("Executive"), hereby amends the Agreement as
follows:
1. AMENDMENT TO SECTION 1.1. Section 1.1 is hereby amended as follows:
a. Executive agrees to serve the Company in the capacity of Regional Vice
President of the West through December 31, 1997;
b. Effective October 9, 1997, Executive resigns as President and Chief
Executive Officer of PacifiCare of California; and
c. Effective October 9, 1997, Executive shall assume new duties as
Executive Consultant, reporting to the Senior Vice President of Public Affairs,
PacifiCare Health Systems, Inc.
d. In addition to those duties specified in the Agreement, Executive may
become responsible for special projects involving Public Affairs Department
activities in Sacramento and Washington D.C. Executive may also be required to
assist the Department in its efforts to build strong partnerships with key
targeted audiences who potentially could impact the Public Affairs objectives
and goals of the Company and the managed care industry as a whole.
2. AMENDMENT TO SECTION 2.1. Section 1.1 is hereby amended to read as
follows:
2.1. The term of Executive's employment under this Agreement
shall commence on December 1, 1994, and shall terminate without
cause, pursuant to Section 2.2.d of the Agreement on October 9, 1998,
unless extended by a new Amendment to this Agreement or Executive and
Company enter into a new employment arrangement. If Executive is
terminated without cause pursuant to Section 2.2.d of the Agreement
on October 9, 1998, in addition to the severance benefits to which
Executive will be entitled under Section 3.2.d of the Agreement,
arrangements will be made so that, for a period of two years
commencing October 9, 1998, Executive may continue to make
contributions to PacifiCare's Profit Sharing Plan and Executive's
stock options will continue to vest and remain exercisable.
3. AMENDMENT TO SECTION 3.1. Section 3.1, subsection d, is amended by the
addition of the following:
d. [....] The Company will continue to pay Executive's dues and
related fees that support Executive's current memberships at both the
Santa ▇▇▇
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Country Club and the Pacific Club during calendar year 1998 in
an amount not to exceed $8,500.00. Additional expenses shall be
reimbursed in accordance with this subsection d, if properly
documented as business expenses that support Executive's new duties.
Section 3.1, subsections e, f, and g are amended to read as follows:
e. Executive shall be entitled to receive payments, if any,
under the Company's Long Term Performance Incentive Plan, (the
"LTPIP"), as from time to time may be amended, modified or replaced,
in accordance with the terms and conditions set forth herein and
therein, for the 1995-1997, 1996-1998 and 1997-1999 cycles of the
LTPIP. Commencing January 1, 1998, Executive shall no longer be
eligible to participate in new cycles of the LTPIP.
f. Executive shall be entitled to receive payment, if any, by
PacifiCare of California, under the Company's Management Incentive
Compensation Plan (the "MICP"), as may be amended, modified, or
replaced, in accordance with the terms and conditions set forth
herein and therein, through December 31, 1997. Commencing January 1,
1998, Executive shall no longer be eligible to participate in the
MICP.
g. Executive current options shall be continue to vest and
shall remain exercisable under in accordance with the terms and
conditions of such options, except that commencing with the date of
this Amendment, Executive shall no longer be eligible to receive
additional stock options.
4. AMENDMENT TO SECTION 3.2.d Section 3.2.d, is amended as follows:
Section 3.2.d.2 is deleted, and replaced with the following:
3.2.d.2. Executive shall not have any right to participate in
the LTPIP or the MICP.
Section 3.2.d.3 is deleted, and replaced with the following:
3.2.d.3. The right to vest options and to exercise any vested
and unexercised options in accordance with their terms within two
years of the effective date of such termination.
5. LIMITATION OF AMENDMENTS. Except as expressly provided herein, no terms or
provision of any agreement or instrument are modified or changed by this
Amendment and the terms and provisions of the Agreement, as amended by this
Amendment, shall continue in full force and effect.
6. GOVERNING LAW. This Amendment shall be construed, interpreted and enforced
in accordance with, and governed by California law.
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7. CAPITALIZED TERMS. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Agreement.
8. DUPLICATE ORIGINALS; EXECUTION IN COUNTERPART. Two or more duplicate
originals of this Amendment may be signed by the parties, each of which shall
be an original but all of which together shall constitute one and the same
instrument.
9. WAIVERS AND AMENDMENTS. Neither this Amendment nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought.
10. SECTION HEADINGS. The titles of the sections hereof appear as a matter of
convenience only, do not constitute a part of this Amendment and shall not
affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
PACIFICARE HEALTH SYSTEMS, INC.,
a Delaware corporation
____________________________________
By: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and
Chief Executive Officer
____________________________________
▇▇▇ ▇▇▇▇▇▇▇
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