Exhibit 10.3n
AMENDMENT NO. 4 TO THE AMENDED AND RESTATED
EMPLOYMENT AND INDEMNIFICATION AGREEMENT
This Amendment No. 4 to the Amended and Restated
Employment and Indemnification Agreement dated as of April 1, 1996, as
amended by Amendment No. 1 thereto dated as of February 11, 1997,
Amendment No. 2 thereto dated March 28, 1998 and Amendment No. 3
thereto dated May 8, 1998 (collectively the "Agreement"), is made by
and between MAXICARE HEALTH PLANS, INC., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx, an individual (the "Executive") and
is dated as of April 16, 1999 (the "Execution Date").
R E C I T A L S
WHEREAS, the Executive presently serves as Chairman of
the Board, Chief Executive Officer and President of the Company
pursuant to the Agreement;
WHEREAS, the Company has entered into a Settlement and
Release Agreement of even date herewith (the "Settlement Agreement")
with the Executive whereunder the terms of the Agreement will
terminate on June 30, 1999, (the "Termination Date");
WHEREAS, in connection with the Settlement Agreement and this
Amendment No. 4, the Company and Executive have entered into Related
Agreements as defined in the Settlement Agreement;
WHEREAS, the Company and the Executive wish to amend the
Agreement to clarify Executive's duties and rights of the Company and
the Executive under the Agreement through the Termination Date; and
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, the Company and the Executive agree as follows:
1. This Amendment No. 4 to the Agreement shall become
effective upon the occurrence of all of the following conditions: (i)
the occurrence of the "Effective Date" as such term is defined in the
Settlement Agreement; (ii) delivery of the fully executed Settlement
Agreement and Related Agreements; (iii) the Effective Date of the
Consulting Agreement between the Company and Xxxxxx X. Xxxxxxx, Xx.
("Xxxxxxx") pursuant to which Xxxxxxx agrees to function as the
Company's Chief Operating Officer ("COO"); and (iv) unanimous approval
of this Amendment No. 4 by the Board provided, however, that if such
approval is not unanimous, Executive may elect to declare the
Settlement Agreement and the Related Agreements null and void.
2. The following definition shall be added to Section
1:
"Executive Committee of the Board" means the group
comprised of Xxxxxx X. Xxxxxxxx, Xxxxxx X. Field, Jr.,
Xxxxxx X. Xxxxxxx, Xx. and Xxxx X. Xxxxx, Xx. and/or any
other individual(s) named by the Board of Directors."
3. Section 2 shall be changed to add at the end of the
last sentence thereof the following:
"As of the Effective Date (as such term is defined
in the Settlement and Release Agreement between
Executive and the Company), Executive will serve as
Chairman of the Board, Chief Executive Officer and
President of the Company, but may only have such duties
as may be assigned to him by the Executive Committee of
the Board or the Board of Directors."
4. Section 4(b) shall be deleted in its entirety and
any references to Section 4(b) and any provisions addressing only
Section 4(b) are hereby deleted.
5. Section 7 shall be deleted in its entirety and
replaced with the following:
"7. Term of Employment. The term of employment
hereunder shall commence as of April 1, 1996, and shall
continue until June 30, 1999, unless earlier terminated
as herein provided (the "Termination Date"). This
Agreement shall terminate upon the occurrence of any of
the following events:
(a) The death of Executive; or
(b) Executive voluntarily leaves the employ of the
Company, with or without the consent of the Company, and
with or without Good Reason;
or
(c) The Incapacity of Executive; or
(d) The Company terminates this Agreement for
Cause; or
(e) [deleted]; or
(f) Executive elects to terminate pursuant to
Section 9(a) prior to June 30, 1999, below.
6. Any references to Section 7(e) and any provisions
addressing only Section 7(e) are hereby deleted.
7. Section 8(a)(iv) is hereby amended by deleting the
reference to "March 31, 2001" and replacing it with "June 30, 1999".
8. Section 8(c) is hereby deleted in its entirety and
any references to Section 8(c) and any provisions addressing only
Section 8(c) are hereby deleted.
9. Section 10 is hereby deleted in its entirety and any
references to Section 10 and any provisions addressing only Section 10
are hereby deleted.
10. A new Section 19 shall be added to the end of the
Agreement to read as follows:
"19. Surviving Provisions upon the Termination Date.
The rights and/or obligations of the Company and
Executive under Sections 11, 12, 13, 14, 18(d) and 18(g)
of this Agreement shall not be affected by the
termination of this Agreement upon the Termination Date.
The rights and/or obligations under such Sections shall
survive in accordance with the terms of this Agreement.
As of the Termination Date, all other terms and
provisions of this Agreement shall be terminated and no
longer of any force or effect."
11. Except as expressly set forth herein, all of the
terms and conditions contained in the Agreement shall remain in full
force and effect and shall not be modified by the terms hereof.
12. Executive agrees that he shall resign as a member of
the Executive Committee of the Board as of the effectiveness of this
Amendment No. 4 and said resignation shall not constitute a breach of
the Agreement by Executive or the Company.
13. Executive acknowledges that he has received all
compensation and benefits due and payable to him through the
"Effective Date" as such term is defined in the Settlement Agreement.
14. If this Amendment No. 4 does not become effective,
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment No. 4 to the
Agreement has been executed as of this 16th day of April, 1999.
MAXICARE HEALTH PLANS, INC.
/s/ Xxxxxxx X. Link
By: Xxxxxxx X. Link
Its:Executive Vice President and
Chief Financial Officer
/s/ Xxxx Xxxxx
By: Xxxx Xxxxx
Its: Secretary
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
