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EXHIBIT 99.1
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement (this
"Agreement") is made and entered into as of the 31st day of December 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 Xxxx X. Xxxxx ("Executive"), residing at
0 Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, the Company desires to employ Executive in the capacity of
President and Chief Executive Officer.
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 Executive's General Duties. The Company hereby employs Executive
and Executive hereby agrees to serve the Company in the capacity of President
and Chief Executive Officer of the Company 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 with the
establishment of an Executive Committee and a separate active chairman.
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, Executive Committee or Chairman of the Board 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 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,
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 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
continue unless terminated as provided Section 2.2.
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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 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, 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 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 90 days prior written notice to the other party.
Except for the circumstances described in Section 2.2(c) above,
Executive's termination shall be effective 90 days after receipt of
such written notice. Notwithstanding anything to the contrary in this
Agreement, receipt of the written notice provided in this Section
2.2(d) shall deemed to have occurred two days from the date of the
notice.
e. Upon the earlier of (i) a Change of Control (as defined
herein) or (ii) March 31, 2001, Executive shall retire from his duties
as President and CEO. If a Change of Control has not occurred, or until
a Change of Control does occur, if at all, Executive shall assume a
consulting role with the Company. As a consultant, Executive will
perform reasonable consulting and, if appropriate, successor training
services to a successor President and CEO to the extent of, and in no
event for more than, a three-year period. These services will be
provided at mutually agreeable times, places and frequency, but in no
event more than 75 hours per fiscal quarter.
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 Sections 4 and 5.
3. COMPENSATION DURING THE TERM OF THIS AGREEMENT
3.1 Base Salary. 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 $920,000. 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
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reasonably directed by the Company for its employees, which deductions shall
include, without limitation, withholding for federal and state income taxes and
social security.
3.2 Benefits. 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.
3.3 Automobile Allowance. The Company shall provide Executive with a
$850.00 per month automobile allowance. The Company shall furnish Executive 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.
3.4 Reimbursement of Expenses. 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.
3.5 Annual Incentive Plan. Executive shall be entitled to participate
fully in the Company's 1996 Management Incentive Compensation Plan (the "MICP"),
as amended, and as may be further amended, modified, or replaced, from time to
time, in accordance with the terms and conditions set forth herein and therein.
3.6. Stock Option Plans. Executive shall be entitled to participate in
the 1996 Stock Option Plan for Officers and Key Employees of PacifiCare Health
Systems, Inc. (the "1996 Stock Option Plan"), as amended, and as may be further
amended modified or replaced, from time to time, in accordance with the terms
and conditions set forth herein and therein.
3.7 Insurance. 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 President and Chief Executive
Officer of the Company or in any other capacity to which Executive may be
appointed or elected.
3.8 Savings and Profit-Sharing Plan. 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, 1999, as amended and as may be further amended modified, or replaced, from
time to time in accordance with the terms and conditions set forth therein.
3.9 Statutory Restoration Plan. Executive shall be entitled to the
benefits provided under the Company's Statutory Restoration Plan, as amended,
and as may be further amended, modified or replaced, from time to time, in
accordance with the terms set forth herein and therein.
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4. COMPENSATION FOLLOWING TERMINATION
4.1 Death. 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:
a. Payment of benefits under the life insurance policy
purchased by the Company on Executive's behalf, if any;
b. Payments of benefits under the MICP set forth in Section
3.5 which will deemed to have accrued as of the date of Executive's
death; and
c. Executive's legal representative shall be permitted to
exercise any vested and unexercised options under the 1996 Stock Option
Plan and any other existing stock option plans of the Company
(collectively, the "Stock Option Plans") in accordance with their terms
for a period of one year following Executive's death.
4.2 Disability. In the event that Executive is terminated because of
incapacity or disability, the Company shall provide Executive with the
following:
a. Payment of benefits under the disability insurance policy
maintained by the Company on Executive's behalf, if any;
b. Payment of benefits under the MICP set forth in Section 3.5
which will be deemed to have accrued as of the effective date of such
termination;
c. The right to exercise any vested and unexercised options
under the Stock Option Plans in accordance with the terms stated
therein; and
d. Payment of the automobile allowance as provided under
Section 3.1(c) for a period of 36 months following the effective date
of such termination.
4.3 Neglect, Misconduct or Voluntary Termination. 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.
4.4 Involuntary Termination. In the event that the Company terminates
Executive, for any reason other than Executive's incapacity or disability or
misconduct as described in Sections 4.2 and 4.3, respectively, Executive shall
be entitled to the following severance compensation:
a. An amount equal to 36 months of Executive's then current
annual salary under Section 3.1;
b. An amount equal to three times Executive's average MICP
bonus;
c. 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;
d. Continuation of Executive's medical, dental and vision
benefits for a period of 36 months;
e. An amount equal to 36 months of Executive' s automobile
allowance; and
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f. 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 which are 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.
g. Executive shall receive, or have paid, the amounts of
severance compensation provided in clauses (a), (b), (d) and (e) above
in equal installments over a period of 36 months. Payments will be made
in biweekly installments on the Company's regular paydays.
h. Notwithstanding the foregoing, in the event Executive
engages in employment, whether as an employee, consultant or contractor
with a competitor of the Company, the severance compensation available
to Executive under this Section 4.4 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 4.4, a "competitor of the Company" shall include, without
limitation, managed care organizations, including a health maintenance
organization, competitive medical plan, preferred provider
organization, provider sponsored organization ("PSO"), or health or
life insurance company which owns a managed care organization, 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.
i. If Executive is rehired by Company, payments of severance
compensation provided for in this Section 4.4 shall cease.
j. If Executive dies while receiving the salary continuation
benefit as provided in this Section 4.4, Executive's estate will
receive a lump sum payment of the remaining salary continuation
benefit.
k. If Executive becomes a consultant under the terms of
Section 2.2(e), Executive shall be entitled to the severance
compensation provided in this Section 4.4.
4.5 No Limitation of Benefits. Notwithstanding anything which may be
expressed in, or inferred from the provisions expressed in, or inferred from the
provisions of this Section 4, this Agreement should not be construed to limit,
restrict, or deny Executive any benefits to which he otherwise may be entitled
to under the MICP, the Stock Option Plans, the Company's pension plan or
otherwise which arise from circumstances not addressed in this Agreement.
5. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT AS A RESULT OF A
CHANGE OF CONTROL
5.1 Termination of Employment
a. Executive's Rights. In the event that, during the term of
this Agreement, the Company undergoes a Change of Control, (as that
term is defined below), Executive shall retire and be entitled to the
following compensation:
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1. A lump sum payment consisting of: (i) an amount
equal to three times Executive's then annual salary; (ii) an
amount equal to three times Executive's average MICP bonus
award for the last two years; (iii) a prorated target bonus
based on target for the year in which the Change-of-Control
occurs; (iv) an amount equal to 36 months of COBRA benefits;
and (v) an amount equal to 36 months of Executive's automobile
allowance.
2. The right to exercise any and all unexercised
stock options granted under the Stock Option Plans in
accordance with their terms, as if all such unexercised stock
options were fully vested, within one year of the effective
date of such termination;
3. A payment to executive to compensate for any
excise penalty or other associated taxes resulting from
severance payments exceeding the cap imposed by Internal
Revenue Code Section 280(G).
4. The Company shall provide to Executive the
outplacement services described in Section 4.4(f).
b. Premium Priced Options Cash Consideration. Upon a Change of
Control, for the options (the "Premium Priced Options") granted under
the Amended 1997 Premium Priced Stock Option Plan, Executive will
receive if the "Adjusted Change of Control Consideration" (as defined
below) 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. As used in this Section 5.1(b), 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 Common Stock upon
consummation of a transaction effecting a Change of Control times one
hundred and ten percent (110%)."
c. Change of Control. As used in this Section 5, the term
"Change of Control" means and refers to:
1. 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;
2. any transaction in which the Company sells
substantially all of its material assets;
3. a dissolution or liquidation of the Company;
4. the Company becomes a non-publicly held company;
or
5. any change in the composition of the Company's
Board of Directors during an 18-month period such that the
individuals who at the beginning of such 18-month period were
directors of the Company shall cease for any reason (other
than death, disability or retirement) to constitute a majority
of the Board of Directors of the Company.
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6. RELEASE OF CLAIMS
On the date hereof, Executive hereby releases and discharges the
Company and the Company's parents, shareholders, directors, officers, agents,
employees and representatives and subsidiaries (collectively, the "Company
Group") from any and all claims, that Executive may now have against the Company
or any other member of the Company which have arisen from or are related to
Executive's employment with the Company.
7. NOTICES
All notices or other communications required or permitted to be made
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 7:
If to the Company: PacifiCare Health Systems, Inc.
Attn: Chairman
0000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
If to Executive: Xxxx X. Xxxxx
0 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000.
All notices sent by personal delivery shall be deemed given when actually
received. All notices sent by overnight delivery shall be deemed received on the
next business day. All other notices sent via United States mail shall be deemed
received no later than two business days after mailing. Any notice given by any
method not expressly authorized herein, shall nevertheless be effective if
actually received, and shall be deemed given upon actual receipt.
8. GENERAL PROVISIONS
8.1 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.
8.2 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,
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the parties have not exchanged any other representations, warranties,
inducements, promises, or agreements respecting Executive's employment with the
Company.
8.3 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, unless a
party demonstrates by a preponderance of the evidence that the invalidated
provision was an essential economic term of this Agreement.
8.4 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.
8.5 Governing Law. This Agreement shall be governed by, enforced under,
and construed in accordance with the laws of the State of California.
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
/s/ XXXXX X. XXXX
--------------------------------
By: Xxxxx X. Xxxx
Title: Chairman of the Board
/s/ XXXX X. XXXXX
Executive: --------------------------------
NAME Xxxx X. Xxxxx
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