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EXHIBIT 10.24
AMENDED SERVICES AGREEMENT
This Amended Services Agreement (this "Agreement") is made and entered
into as of this 1st day of June 1999, by and between PACIFICARE HEALTH SYSTEMS,
INC., a Delaware corporation (the "Company"), with its principal place of
business located at 0000 Xxxx Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 and
XXXXXX X. XXXXXXXXXX, a professional corporation ("Contractor"), with its
principal place of business located at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, the Company desires to retain Contractor as an independent
contractor in the capacity of General Counsel and Contractor desires to serve in
such capacity for the Company; and
WHEREAS, the Company desires to obtain a qualified individual furnished
by Contractor to serve the Company in the office of Secretary of the Company and
Contractor desires to furnish and provide such individual to serve in such
capacity for the Company;
NOW, THEREFORE, in consideration of the following covenants, conditions,
and promises, Contractor and the Company hereby agree as follows:
1. SERVICES
1.1 Contractor's General Duties. The Company hereby retains Contractor
and Contractor hereby agrees to serve in the capacity of General Counsel and
Secretary, having such usual and customary duties and authority as a general
counsel and secretary of similar capacity in a corporation of comparable size,
holdings, and business as that of the Company. Contractor 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 Chief Executive Officer or Chief
Operating Officer of the Company. During the term of this Agreement, Contractor
shall perform such additional or different duties, and accept such other duties,
as are mutually agreed upon by the Company and Contractor.
1.2 Commitment of Contractor. During the term of this Agreement,
Contractor shall devote substantially all of its productive time, ability, and
attention to the business of the Company as is necessary to accomplish the
general duties as described in Section 1.1 hereof. Contractor shall use its best
efforts, skills, and abilities to promote the general welfare and interests of
the Company and to preserve, maintain, and xxxxxx 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,
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employees and banks and other financial institutions. The Company shall give
Contractor a reasonable opportunity to perform its duties and shall neither
expect Contractor to devote more time, nor assign more duties or functions to
Contractor, than are customary and reasonable for a general counsel and
secretary in Contractor's position. The Company and Contractor agree that
Contractor and its President, Xxxxxx X. Xxxxxxxxxx (the "Designee") are required
to substantially devote all of their working time to the Company, either
directly or through Konowiecki & Rank LLP, a law partnership, and shall be free
to engage in any other activity, including, without limitation, the private
practice of law with Konowiecki & Rank LLP, a law partnership.
1.3 Provision of General Counsel and Secretary. Contractor shall furnish
and provide at its sole cost and expense Designee to serve the Company in the
office of Secretary and General Counsel of the Company, unless and until the
parties mutually agree otherwise.
2. TERM AND TERMINATION
2.1 Term. The term of this Agreement, as amended, has commenced on
January 1, 1989, and shall continue unless terminated as provided in 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 Designee.
b. The Designee becomes incapacitated or disabled, which
incapacity or disability prevents Contractor from fully performing its
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 Designee's incapacity, decide in their reasonable
judgments, that such incapacity will be permanent or of such continued
duration as to prevent Designee from resuming the rendition of services
to the Company for at least an additional six-month period. For purposes
of this Agreement, Designee shall be deemed permanently disabled, and
this Agreement terminated upon the date Designee receives written notice
from the Company that such determination has been made.
c. Contractor or Designee habitually neglects their 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 Contractor or Designee's conviction of any criminal offense,
misappropriation of funds, securities fraud, xxxxxxx xxxxxxx,
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 Contractor's or
Designee's duties hereunder or in the
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course of their services with the Company). In such event, Contractor'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.
Contractor'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, Section 4 or Section 5.
3. COMPENSATION
3.1 Compensation of Contractor During the Term of this Agreement.
a. As long as Contractor satisfactorily performs all of his
obligations hereunder, the Company shall pay Contractor an annual fee,
as determined by the compensation committee of the board of directors
(the "Compensation Committee"), payable in equal installments on the
Company's regular payroll dates, which as of the date hereof is
$132,000. On an annual basis, the Company's Compensation Committee shall
review Contractor's fee, but shall be under no obligation to increase
Contractor's fee.
b. An automobile allowance is included in the annual fee
described in Section 3.1(a). The Company shall also furnish Contractor's
automobile utilized by Designee with a cellular car telephone.
Contractor shall provide and maintain automobile insurance for
Designee'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.
Contractor shall provide proof of such coverage to the Company upon the
Company's request.
c. The Company shall pay for or reimburse Contractor for all
other reasonable travel, entertainment, and other business expenses
incurred or paid for by Contractor in connection with the performance of
its services under this Agreement. The Company shall not be obligated to
make any such reimbursement unless Contractor 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.
d. Designee shall be entitled to participate as agreed to by
Contractor and the
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Compensation Committee 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.
e. During the term of this Agreement, the Company shall insure
Contractor and Designee under general and professional liability
insurance for all conduct committed in good faith while Contractor is
acting in the capacity of General Counsel of the Company or Designee is
acting in the capacity of Secretary of the Company, or in any other
capacity to which Contractor may be appointed or elected.
3.2 Compensation Following Termination
a. In the event that this Agreement is terminated by reason of
Designee's death, Designee's estate or legal representative shall be
entitled to receive the following:
1. Payment of benefits under the life insurance policy to
be purchased by the Company on Designee's behalf; and
2. Designee'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(f) 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 Designee'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 Contractor is terminated because of an
incapacity or disability of Designee, the Company shall provide Designee
with the following:
1. Payment of benefits under the disability insurance
policy to be maintained by the Company on Designee's behalf; and
2. The right to exercise any vested and unexercised
options under the Stock Option Plans in accordance with the terms
stated therein.
c. In the event this Agreement is terminated because of
Contractor's habitual neglect or gross misconduct pursuant to Section
2.2(c) or because of Contractor's voluntary termination, the Company
shall be relieved from any and all further or future obligations to
compensate Contractor; provided, however, that
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Designee shall be able to exercise any vested and unexercised awards
under the Stock Option Plans in accordance with the terms set forth
therein.
d. In the event that the Company terminates Contractor, for any
reason other than Contractor's incapacity or disability or misconduct as
described in Sections 2.2(b) and 2.2(c), respectively, Contractor or
Designee shall be entitled to the following severance compensation:
1. Contractor's then current annual fee under Section
3.1(a) for a period of 24 months following the effective date of
such termination;
2. 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;
3. Notwithstanding the foregoing, in the event Contractor
is retained on a similar basis by a competitor of the Company
during the 24 month benefit period, the severance compensation
available to Contractor under this Section 3.2(d) shall be
reduced by the amount of any and all gross earnings Contractor
earns while engaged by any such competitor or competitors. For
the purposes of this Section 3.2(d)(3), 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. Contractor agrees to provide
immediate notice to Company upon receipt of any gross earnings
received by Contractor from a competitor of Company; and
4. Payment of the automobile allowance as provided in
Section 3.1(b) for a period of 24 months following the effective
date of such termination.
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 Contractor or Designee any
benefits to which they otherwise may be entitled to under the Stock
Option Plans or otherwise which arise from circumstances not addressed
in this Agreement.
4. TERMINATION AS A RESULT OF A CHANGE OF CONTROL OR FOR GOOD CAUSE
4.1 Contractor's Rights. In the event that, during the term of this
Agreement, the
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Company undergoes a "change of ownership or control," as that term is defined in
Section 4.3, Contractor shall be entitled to the following compensation if
within 24 months after the consummation of such change Contractor is
involuntarily terminated, except as provided in Section 4.2:
a. Contractor's then current annual fee under Section 3.1(a) for
a period of 24 months following the effective date of such termination;
and
b. 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.
4.2 Limitation of Benefits. In the event that Contractor is terminated
within 12 months after a change of ownership or control of the Company, and such
termination results from either Contractor's or Designee's incapacity or
disability or habitual neglect or gross misconduct, then, notwithstanding
anything in this Section 4 to the contrary, Contractor 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
Contractor 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 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 Contractor to sums in excess of the Maximum Compensation Amount, the
Company shall use its sound discretion, in good faith, to furnish Contractor
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 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;
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c. a dissolution or liquidation of the Company; or
d. the Company becomes a non-publicly held company.
5 MINIMUM COMPENSATION UNDER 1997 PREMIUM PRICED STOCK OPTION PLAN AS A
RESULT OF A CHANGE OF CONTROL
5.1 Executive's Rights. In the event that, during the term of this
Agreement, the Company undergoes a "change of ownership or control," as defined
in Section 4.3, then Executive shall be entitled to the following cash
compensation for each affected unexercised stock option ("Premium Priced
Option") granted to Executive under the Company's Amended 1997 Premium Priced
Stock Option Plan (the "Premium Priced Plan"):
a. The right to exercise any and all granted and unexercised
Premium Priced Options in accordance with their terms (whether or not
such Premium Priced Options are actually vested), as if all such
unexercised stock options were fully vested, within one year of the
effective date of such "change of ownership or control;
b. If the "Adjusted Change of Control Consideration" (as defined
in Section 5.1(c)) is equal to, or in excess of the exercise price of
any of the Premium Priced Options, an amount in cash equal to the excess
of the Adjusted Change of Control Consideration, over the exercise price
of each Premium Priced Option, adjusted to reflect any excise taxation
incurred by Executive resulting from such payment. No additional
compensation will be paid to Executive if the per share consideration
for a Change of Control transaction is equal to or greater than $115.00.
c. As used in this Section 5.1, the term "Adjusted Change of
Control Consideration" means and refers to the per share consideration
to be received by each holder of the Company's Class B Common Stock upon
consummation of a transaction effecting a "change of ownership or
control" times one hundred and ten percent (110%).
6. NOTICES
All notices or other communications required or permitted to be given
hereunder 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 6:
If to the Company: PacifiCare Health Systems, Inc.
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0000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
If to Contractor: Xxxxxx X. Xxxxxxxxxx, a Professional
Corporation
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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.
7. DEFAULT
In the event that the Company is materially or adversely affected by any
failure of Contractor to comply with a material term or provision of this
Agreement, the Company shall have the right to terminate this Agreement and to
take such other action against Contractor, at law or in equity, as the Company
may deem necessary or proper.
8. GENERAL PROVISIONS
8.01. Assignability. This Agreement shall inure to the benefit of and
shall be binding upon the heirs, executors, administrators, successors, and
legal representatives of Contractor or Designee and shall inure to the benefit
of and be binding upon the Company and its successors and assigns. Contractor
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 Contractor or Designee from designating
beneficiaries for insurance, death, or retirement benefits.
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8.02. 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 Contractor's services. 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 Contractor's services with the Company.
8.03. 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.
8.04. 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.
8.05. Independent Contractor. It is the mutual intention of the parties
hereto that Contractor is an independent contractor for all purposes and is not
an employee of the Company for any purpose and reserves full control of its
activities with the right to exercise independent judgment as to time, place and
manner of carrying out the provisions of this Agreement.
8.06. Waiver of Conflict of Interest. The Company acknowledges that
Contractor is a general partner in Konowiecki & Rank LLP, a law partnership,
which has acted as legal counsel for the Company for the past approximately
twenty years and continues to act as legal counsel for the Company. The Company
acknowledges and agrees that Contractor may remain a general partner of
Konowiecki & Rank LLP throughout the term of this Agreement and that
Contractor's provision of services to the Company hereunder shall not prohibit
Konowiecki & Rank LLP from continuing to render legal services to the Company.
The Company acknowledges that an actual or potential conflict of interest exists
respecting Contractor's capacity hereunder and Contractor's capacity as a
general partner of Konowiecki & Rank LLP and by the execution of this Agreement
hereby waives any such actual or potential conflict of interest.
8.07. 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.
Company: PACIFICARE HEALTH SYSTEMS, INC.,
a Delaware corporation
/s/ Xxxx X. Xxxxx
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By: Xxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
Contractor: XXXXXX X. XXXXXXXXXX,
a professional corporation
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
By: Xxxxxx X. Xxxxxxxxxx
Title: President
Designee: By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
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