exv10w8






Exhibit 10.8



[***] = Certain confidential information contained in this document, marked by brackets, has been
omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities Exchange Act of 1934, as amended.




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of September 8, 2009
(the “Effective Date”), by and between HealthMarkets, Inc., a Delaware corporation (“HealthMarkets”
or the “Company”) and Anurag Chandra (the “Executive”). Certain capitalized terms used herein are
defined in Section 24.



     WHEREAS, the Company and the Executive are party to an Employment Agreement dated as of
October 7, 2008 (the “Prior Agreement”);



     WHEREAS, the Company and the Executive wish to modify the terms of the Executive’s employment;
and



     WHEREAS, the Company desires to memorialize the terms of the Executive’s employment effective
as of the Effective Date under this Agreement;



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
it is agreed as follows:



     1. Employment. Effective as of the Effective Date, the Company hereby agrees to
continue to employ the Executive, and the Executive hereby agrees to continue to be employed by the
Company, upon the terms and conditions set forth herein. The employment relationship between the
Company and the Executive shall be governed by the general employment policies and practices of the
Company, including, without limitation, those relating to the Company’s Code of Professional
Conduct, the treatment of confidential information and avoidance of conflicts; provided,
however, that when the terms of this Agreement differ from or are in conflict with the
Company’s general employment policies or practices, the terms of this Agreement shall control. The
Executive shall serve as an officer and/or an employee of any Subsidiary, as may be requested from
time to time by the Reporting Person (as such term is defined in Section 3(a) below), and without
any additional compensation, unless otherwise determined by the Reporting Person. In addition, the
Executive’s service as an officer and/or an employee of any Subsidiary will be encompassed within
any reference made in this Agreement to employment by the Company. If the Executive serves as an
officer and/or an employee of any Subsidiary, any payment or provision of benefits to the Executive
by such Subsidiary shall fulfill the Company’s obligation to make such payment or provide such
benefits pursuant to the terms of this Agreement.



     2. Term. Subject to earlier termination of the Executive’s employment as provided
under Section 9, the Executive’s employment shall be for an initial term commencing on the
Effective Date and ending on October 13, 2011 (the “Initial Employment Term”); provided,
however, that at the end of the Initial Employment Term and on each succeeding anniversary



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thereof, the employment of the Executive will be automatically continued upon the terms and
conditions set forth herein for one additional year (each, a “Renewal Term”), unless either party
to this Agreement gives the other party written notice (in accordance with Section 18) of such
party’s intention to terminate this Agreement and the employment of the Executive at least ninety
(90) days prior to the end of such initial or extended term. For purposes of this Agreement, the
Initial Employment Term and any Renewal Term shall collectively be referred to as the “Employment
Term.”



     3. Position and Duties of the Executive.



          (a) During the Employment Term, the Executive shall serve in the position set forth on Exhibit
A and shall report directly to the position set forth on Exhibit A attached hereto (the “Reporting
Person”). The Executive shall have such duties, responsibilities and authority commensurate with
the Executive’s position and such related duties and responsibilities, as from time to time may be
assigned to the Executive by the Reporting Person. In addition, the Executive will be subject to,
and will act in substantial accordance with, all reasonable lawful instructions and directions of
the Board and all applicable reasonable policies and rules thereof as are consistent with the above
position, duties, responsibilities and authority. During the Employment Term, the Executive shall
perform his duties in the Dallas/Ft. Worth area, Texas.



          (b) During the Employment Term, the Executive shall, except as may from time to time be
otherwise agreed in writing by the Company and during vacations (as set forth in Section 7 hereof)
and authorized leave, devote substantially all of his normal business working time and his best
efforts, full attention and energies to the business of the Company, the performance of the
Executive’s duties hereunder and such other related duties and responsibilities as may from time to
time be reasonably prescribed by the Board or any committee thereof, the Reporting Person or any
committee or person delegated by the Reporting Person, in each case, within the framework of the
Company’s policies and objectives.



          (c) During the Employment Term and provided that such activities do not either (i) contravene
the provisions of Section 3(a), 3(b), 12 or 13 hereof or (ii) materially interfere with the
performance of the Executive’s duties hereunder, the Executive may continue to serve as a member of
the governing board of the governmental, educational, charitable or other community affairs
organizations set forth on Exhibit A attached hereto. The Executive may retain all fees and other
compensation from any such service, and the Company shall not reduce his compensation by the amount
of such fees.



     4. Compensation.



          (a) Base Salary. During the Employment Term, the Company shall pay to the Executive a
base salary of not less than the amount set forth on Exhibit A attached hereto per annum (the “Base
Salary”). The Executive’s Base Salary may be increased (but not decreased) from time to time by
the Committee in its sole discretion, payable at the times and in the manner consistent with the
Company’s general policies regarding compensation of executive employees. Such Base Salary shall
be reviewed by the Board or an authorized committee of the Board at least annually beginning in
January, 2010 for purposes of evaluating an increase in the Executive’s Base Salary.



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          (b) Cash Incentive Compensation.




     (i) With respect to the Company’s 2009 fiscal year and each fiscal year of the
Company thereafter, all or part of which occurs during the Employment Term, the
Executive will be eligible to participate in the Company’s annual management
incentive program or arrangement approved by the Board (or any authorized committee
thereof) or any successor program or plan thereto or thereunder on terms and
conditions no less favorable to the Executive than those available to similarly
situated executives of the Company, with a target bonus opportunity of the percentage
of the Base Salary set forth on Exhibit A attached hereto (the “Target Bonus
Percentage”) and a maximum bonus opportunity of not less than the percentage of the
Base Salary set forth on Exhibit A attached hereto (the “Maximum Bonus Percentage”);
provided, however, that with respect to the Company’s 2009 fiscal
year, the Executive’s actual annual bonus earned for such fiscal year shall in no
event be less than $750,000. The Board (or any authorized committee thereof) shall
have the authority to establish performance metrics and such other terms and
conditions of the annual management incentive program pursuant to which such bonuses
may be earned which, in the case of the performance metrics for fiscal year 2009,
shall be the metrics attached hereto as Schedule 1. Such annual bonuses shall be
paid to the Executive in cash no later than the date such bonuses are generally paid
to other senior executives of the Company, but in all events by March 15 of the year
following the fiscal year for which such annual bonus was earned (unless the
Executive has elected to defer receipt of any such bonuses).




     (ii) Transaction Bonus. In addition to the amounts described in
Section 4(b)(i) and 4(b)(iii), the Executive shall be paid a cash transaction bonus
of $1,000,000 as follows (the “Transaction Bonus”): (i) 50 percent of the
Transaction Bonus shall be paid to the Executive within five days following the date
on which an [***] occurs and the Company or one of its Affiliates executes a
National Carrier Marketing Distribution Agreement, (ii) 25 percent of the
Transaction Bonus shall be paid to the Executive within five days following the date
on which the [***] is achieved and (iii) 25 percent of the Transaction Bonus shall
be paid to the Executive within five days following the date on which the National
Carrier MDA Goal is achieved, subject, in each case, except as otherwise provided in
Section 10 hereof, to the Executive’s continued employment through the applicable
payment date. The Company acknowledges that the objectives to be accomplished by an
[***] and National Carrier Marketing Distribution Agreement might be accomplished
through a variety of transaction structures based on tax, accounting or other
considerations (an “Alternate Structure”). To the extent a Board-approved
transaction accomplishes such objectives pursuant to an Alternate Structure then the
Board may determine that the full amount of the Transaction Bonus or any portion
thereof shall be payable, with such payment to be made within five days following
the date of such Board determination. Notwithstanding any of the foregoing, in the
event that the applicable goal relating to the payment of the applicable portion of
the


[***] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




3









 






Transaction Bonus set forth above is not achieved, the Board of Directors shall
have the authority to award all, none, or a portion of the portion of the
Transaction Bonus tied to achievement of such goal at its sole discretion.




     (iii) Retention Payment. In addition to the amounts described in
Sections 4(b)(i) and 4(b)(ii), the Executive shall be granted the right to receive a
retention bonus of $1,000,000 in cash (the “Retention Payment”) which bonus shall
vest on the earlier of (a) a Change of Control or (b) December 31, 2010, subject,
except as otherwise provided in Section 10 hereof, to the Executive’s continued
employment through such vesting date which Retention Payment shall be paid to the
Executive on the earlier of (a) a Change of Control which constitutes a “change in
control event” within the meaning of Section 409A of the Code or (b) December 31,
2010.



          (c) Equity Compensation.





     (i) General. During the Employment Term, the Executive will be eligible
to participate in the Company’s MOP and any other incentive, equity-based and
deferred compensation plans and programs or arrangements as may be determined by the
Board or any successor programs or plans thereto or thereunder, in each case, as may
be in effect from time to time and as may be determined by the Board.




     (ii) Initial Grants. As soon as practicable (but in no event later than
five business days) after the Effective Date, the Committee will award 303,990 Option
Rights and 303,990 Restricted Shares (together, the “Initial Grant”), which Initial
Grant will be subject to the provisions set forth in the Executive’s Non-Qualified
Stock Option Agreement and Restricted Share Agreement to be entered into in the form
of Exhibit B and Exhibit C, respectively; provided, that, in
the event that the Company’s stockholders shall fail to approve the amendment to the
MOP as set forth in Exhibit B (“Amendment”) or fail to adopt a plan
authorizing the issuance of restricted shares as set forth in Exhibit C (“Restricted
Share Plan”) prior to the earlier of a Change of Control or the Amendment Approval
Date, which the Blackstone Investor Group (as defined in the Stockholders Agreement)
(“Blackstone”) represents it has sufficient votes to approve as of the Effective Date
and which Blackstone shall vote for, the Initial Grant relating to the amendment or
plan which was not approved or adopted shall be void ab initio and of no further
force and effect. Failure to obtain such stockholder approval for either the
Amendment or adoption the Restricted Share Plan by the earlier of a Change of Control
or the Amendment Approval Date shall be a breach of this Section 4(c) and
Exhibits B and C, entitling the Executive to terminate his employment for
Good Reason.




     (iii) Terms of Equity Awards. In all events, any equity award (or
portion thereof) granted to the Executive that vests solely upon the Executive’s
fulfillment of time and/or service requirements shall vest in full upon a “Change of
Control” (as such term is defined in the MOP in effect as of October 13, 2008, plus



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any amendments to such definition after October 13, 2008 which would result in a
transaction not covered by the Change of Control definition in effect as of
October 13, 2008 constituting a “Change of Control”); provided, however, that in no
event shall consummation of the transactions contemplated by an [***] or a National
Carrier Marketing Distribution Agreement constitute a Change of Control for any
purpose of this Agreement so long as the Permitted Holders (as defined in the MOP)
beneficially own, directly or indirectly, 50% or more of the then-outstanding
combined voting power of the then-outstanding securities entitled to vote generally
in the election of directors of the Company and/or its successor)). Shares acquired
on exercise of any stock option will be subject to the terms and conditions of the
Stockholders’ Agreement. The Company and the Executive acknowledge that they will
agree to provide the Company with the right to require the Executive and other
executives of the Company to waive any registration rights with regard to such shares
upon an IPO, in which case the Company will implement an IPO bonus plan in cash,
stock or additional options to compensate for the Executive’s and the other
executives’ loss of liquidity; provided that if the Executive’s employment is
terminated without Cause or for Good Reason, then the Executive shall fully vest upon
the date of termination in any grant made under such IPO bonus plan.



          (d) LTIP Awards.





     (i) Initial LTIP Award. The Company has granted the Executive an LTIP
award in the form of a restricted stock grant consisting of 6,418 shares of A-1
common stock (together with any other equity received as proceeds thereon, “Shares”)
of the Company (the “Initial LTIP Award”). Except as may otherwise be provided in
Section 10 of this Agreement, the Initial LTIP Award shall vest at the earlier of (x)
a Change of Control or (y) in three equal annual installments, on each of the first
three anniversaries of October 13, 2008, in both cases subject to the Executive’s
continued employment with the Company through the applicable vesting date. It is the
intent of the parties that the vesting of the Shares described in this paragraph
shall constitute a transfer of property within the meaning of Section 83 of the Code.




     (ii) Cash LTIP Award. In addition to any other compensation granted or
paid hereunder, with respect to the Company’s 2009 fiscal year, the Executive shall
be entitled to receive a long-term incentive award, with a target value of no less
than $100,000 (the “2009 LTIP Award”) (and which shall be granted at no less than
target if the applicable performance targets have been met). Subject to the
Executive’s achievement of certain performance goals already established by the Board
(or any authorized committee thereof), the 2009 LTIP Award shall be granted to the
Executive within the first 75 days of the year immediately following the end of the
applicable fiscal year to which such performance goals relate (the “Performance
Year”). Except as may otherwise be provided in Section 10 of this Agreement, (i) any
such granted 2009 LTIP Award shall vest in three equal


[***] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




5









 






installments, on each of
October 13, 2010, October 13, 2011 and October 13, 2012, subject to the Executive’s
continued employment with the Company through each applicable vesting date and (ii)
any vested portion of such 2009 LTIP Award shall
be delivered to the Executive, 100% in cash, on October 13, 2012. It is intent
of the parties that there shall be no transfer of property (within the meaning of
Section 83 of the Code) with respect to the 2009 LTIP Award prior to the payment date
as described in this Section 4.




     (iii) Change of Control. In all events, the 2009 LTIP Award shall vest
in full upon a Change of Control and if such Change of Control constitutes a “change
in control event” within the meaning of Section 409A of the Code, shall be paid to
the Executive upon such Change of Control.




     (iv) Termination of Employment. Except as may otherwise be provided in
Section 10 of this Agreement, any unvested LTIP award shall be forfeited upon
termination of the Executive’s employment. Any portion of the Initial LTIP Award or
the 2009 LTIP Award that has become vested shall be non-forfeitable.



          (e) Sign-On Bonus. The Company has paid the Executive a sign-on bonus in the amount
of $350,000 in January, 2009 (the “Sign-On Bonus”). In the event that the Executive’s employment
with the Company is terminated by the Company for Cause or by the Executive without “Good Reason”
prior to April 13, 2010, in each case prior to a Change of Control, the Executive will be required
to repay to the Company, within 15 days of such termination, an amount equal to the product of (i)
the excess of (A) the Sign-On Bonus, over (B) the applicable taxes withheld on such Sign-On Bonus
and (ii) a fraction, the numerator of which is the number of months from the date of termination
through the April 13, 2010 and the denominator of which is 18. Notwithstanding the foregoing, the
Executive will not be required to repay any portion of the Sign-On Bonus upon a No-Fault
Resignation (as defined in Section 9(a) hereof).




     5. Employee Benefits. In addition to the compensation described in Section 4, during
the Employment Term, the Executive shall be eligible to participate in the employee benefit plans
and programs, and to receive perquisites, provided from time to time to similarly situated
executives of the Company and its Subsidiaries generally.



     6. Expenses. During the Employment Term, the Company shall pay or reimburse the
Executive for reasonable and necessary expenses incurred by the Executive in connection with the
Executive’s performance of the Executive’s duties on behalf of the Company and its Subsidiaries in
accordance with the expense policy of the Company applicable to similarly situated executives of
the Company and its Subsidiaries generally. The Company shall pay the Executive’s legal counsel
directly for the reasonable fees and expenses incurred by the Executive in connection with the
review and negotiation of this Agreement and any other related documentation, subject to a cap of
$6,000.



     7. Vacation. The Executive shall be entitled to four (4) weeks of vacation per year
in accordance with the Company’s policies, whether written or unwritten, regarding vacation for
similarly situated executives of the Company and its Subsidiaries generally. Subject to the



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Company’s policies, the duration of such vacations and the time or times when they shall be taken
will be determined by the Executive in consultation with the Company.



     8. Investment; Stockholders Agreement. In connection with the Executive’s
commencement of employment under the Prior Agreement, the Executive invested cash in the amount of
$100,000 in Shares, at a purchase price of $19.00 per Share (such investment, the “Investment”),
pursuant to the terms of a Subscription Agreement between the Company and the Executive, and the
Executive acknowledges that such Shares are subject to the terms and conditions of the Stockholders
Agreement.



     9. Termination.



          (a) Termination of Employment by the Company. The Executive’s employment hereunder
may be terminated by the Company or any of its Subsidiaries that employ the Executive for any
reason or no reason (including with or without Cause or notification by the Company at any time
during the Employment Term pursuant to Section 2 that the Company intends to terminate the
Agreement and the Executive’s employment, rather than allow the Agreement to renew automatically)
by written notice as provided in Section 18. If the Company terminates the Executive’s employment
with Cause, all of the Executive’s Option Rights, whether or not vested, will be immediately
forfeited and any unvested Restricted Shares shall be immediately forfeited as of the date of
termination. For all terminations (other than for Cause as set forth in the preceding sentence
with respect to certain equity awards), the Executive shall be entitled to any amounts or benefits
which are vested or have been earned or are due and remain unpaid, including, without limitation,
base salary through the date of termination, any unreimbursed business expense, any bonus payment
for any performance period which has ended prior to the date of termination for which the Executive
has not been paid and the vested portion of the Initial LTIP Award, any vested portion of the 2009
LTIP Award (payable on the date set forth in Section 4(d)(ii)), any vested portion of the Initial
Grants and any vested portion of the Retention Payment. In addition, upon any termination, the
Executive shall remain entitled to the payments and benefits under Sections 11, 16 and 20 of this
Agreement. In addition, in the event that the Executive leaves the United States for personal or
business reasons with the good-faith intention to return, but due to no fault of his own, he is
prohibited from returning to the employ of the Company in the United States (a “No-Fault
Resignation”), the Executive shall without regard to whether such No-Fault Resignation occurs after
the last day of the first quarter of an applicable Company fiscal year, be entitled to a Pro-Rata
Bonus (as defined in Section 10(b) below). In addition, upon any No-Fault Resignation, the Board
of Directors shall have the authority to, in consultation with the Chief Executive Officer of the
Company, award the Executive all, none, or a portion of the portion of the Transaction Bonus and/or
the Retention Payment at its sole discretion.




          (b) Voluntary Termination by the Executive. The Executive may voluntarily terminate
the Executive’s employment with or without Good Reason at any time by notice to the Company as
provided in Section 18. Upon the Executive’s termination without Good Reason, (i) any unvested
portions of the Initial Grant will be immediately forfeited, and (ii) all of the Executive’s vested
awards, if any, shall be delivered, paid or remain exercisable in accordance with their terms.



7









 







          (c) Benefits Period. Subject to Section 10 and any benefit continuation requirements
of applicable laws, in the event the Executive’s employment hereunder is terminated for any reason
whatsoever, the compensation and benefits obligations of the
Company under Sections 4 and 5 shall cease as of the effective date of such termination,
except for any compensation and benefits earned but unpaid through such date.




          (d) Call Right. Upon termination of the Executive’s employment with the Company or
any of its Subsidiaries for any reason prior to an IPO, the Company will have the right to purchase
(the “Call Right”) any of the Executive’s Shares in accordance with the terms and conditions of the
Stockholders Agreement.




          (e) Resignation from All Positions. Notwithstanding any other provision of this
Agreement to the contrary, upon the termination of the Executive’s employment for any reason,
unless otherwise requested by the Board, the Executive shall immediately resign from all positions
that he holds with the Company, its Subsidiaries and any of their affiliates (and with any other
entities with respect to which the Company has requested the Executive to perform services), as
applicable, including, without limitation, the Board and all boards of directors of any affiliates.
The Executive hereby agrees to execute any and all documentation to effectuate such resignations
upon request by the Company, but he shall be treated for all purposes as having so resigned upon
termination of his employment, regardless of when or whether he executes any such documentation.




     10. Termination Payments and Benefits. If, during the Employment Term, the
Executive’s employment hereunder is terminated by the Company without Cause (which shall, for all
purposes of this Agreement, including Exhibits B and C, and any other related definitive document,
include a termination of the Executive’s employment upon conclusion of the Employment Term after
the Company’s giving the Executive a notice of non-renewal of the Employment Term), by reason of
the Executive’s death or Disability, the Executive terminates his employment for Good Reason,
subject to (i) the Executive’s execution and non-revocation of a release of claims against the
Company within 60 days following the date of the Executive’s termination of employment,
substantially in the form attached hereto as Exhibit D, (ii) the terms of Section 14 and (iii) the
Executive’s continued compliance with the covenants of Sections 12 and 13 (collectively, the
“Restrictive Covenants”) as set forth in Section 10(i), during the Payment Period, then in such
case the Company shall be obligated to pay to the Executive such payments and make available to the
Executive such benefits as are set forth in this Section 10 during the Payment Period.



          (a) Salary Continuation. The Executive will be entitled to receive an amount equal to
the sum of: (i) one (1) times the Executive’s Base Salary and (ii) one (1) times an amount equal to
the product of (A) the Executive’s Base Salary and (B) the Executive’s Target Bonus Percentage for
the year of the Executive’s termination of employment, or if the Target Bonus Percentage has not
been set for such year as of the date of termination of employment, the Target Bonus Percentage for
the immediately preceding year (the sum of (i) and (ii), the “Termination Payments”), such amount
to be payable in equal installments payable over the Payment Period. Termination Payments shall be
paid to the Executive in accordance with the Company’s payroll schedule as in effect on the
Effective Date for the duration of the Payment Period. In the event that the Executive dies while
any Termination Payments are still payable to



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the Executive hereunder, unless otherwise provided
herein, all such unpaid amounts shall be paid, not later than the tenth (10th) business
day following the Executive’s death, to the Executive’s beneficiary as named on the Executive’s
401(k) Plan beneficiary forms, or, if no
such beneficiary is so named, then to the Executive’s estate, in the form of a lump sum cash
payment equal to the remaining Termination Payments. Notwithstanding the foregoing, if such
termination occurs upon or within the two-year period after a Change of Control (provided
that such Change of Control constitutes a “change in control event” within the meaning of Section
409A of the Code), subject to clauses (i), (ii) and (iii) of the lead-in paragraph of this Section
10, the Termination Payments will be paid to the Executive in a lump-sum within 30 days following
the date of termination.




          (b) Bonus Entitlement. Solely if the Executive’s termination of employment occurs
after the last day of the first quarter of an applicable Company fiscal year, the Executive will be
entitled to receive an amount equal to the product of (i) the bonus that would have been paid to
the Executive had the Executive remained employed through the date on which bonuses are paid to
senior executives of the Company generally based upon the achievement of the applicable performance
goals (and determined based on the exercise of negative discretion no less favorable to the
Executive than that exercised with respect to active senior executives of the Company generally
and, if the payment is not subject to Section 162(m) as of the date of termination, as if the
Executive had achieved any subjective performance targets at 100%) and (ii) a fraction, the
numerator of which is the number of days which have elapsed from the first day of the fiscal year
in which the date of termination occurs through the date of termination and the denominator of
which is 365 (such amount, if any, the “Pro-Rata Bonus”), which Pro-Rata Bonus shall be paid within
the first 75 days of the year immediately following the end of the year to which such Pro-Rata
Bonus relates (unless the Executive has deferred receipt of the applicable bonus).



          (c) Initial LTIP Award, Transaction Bonus and Retention Payment. To the extent then
unvested and unpaid, the Executive’s Initial LTIP Award shall vest on the date of termination but
shall be paid at such time as such Initial LTIP Award would otherwise have been paid had the
Executive remained employed with the Company. In addition, to the extent then unpaid, the
Executive shall remain entitled to the Transaction Bonus as if he had remained employed with the
Company indefinitely, with such Transaction Bonus payable at such time(s) as set forth in Section
4(b)(ii) hereof and the Retention Payment shall vest on the date of termination and be paid within
30 days following the date of termination.



          (d) Equity Compensation. To the extent not previously vested, cancelled or expired,
the Executive will vest in the Executive’s Initial Grant and any other grants of equity awards in
accordance with their terms, which, as applicable, will remain exercisable in accordance with their
terms.



          (e) Welfare Benefits. During the Payment Period, the Company shall maintain in full
force and effect for the continued benefit of the Executive all health care benefit plans, except
disability coverage, in which the Executive was entitled to participate immediately prior to the
Executive’s termination or shall arrange to make available to the Executive health care benefits
(except disability coverage) substantially similar to those which the Executive would otherwise
have been entitled to receive if his employment had not been terminated (the



9









 







“Welfare Benefits”).
The Welfare Benefits shall be provided to the Executive on the same terms and conditions under
which the Executive was entitled to participate immediately prior to his termination of employment,
including any applicable employee contributions.



          (f) Any payments under this Section 10 to the Executive shall not be taken into account for
purposes of any retirement plan (including any supplemental retirement plan or arrangement) or
other benefit plan sponsored by the Company, except as otherwise expressly required by such plans
or applicable law.



          (g) Section 409A of the Code; Specified Employee. Notwithstanding the preceding
provisions of this Section 10, in the event that the Executive is a “specified employee” (within
the meaning of Section 409A of the Code) on the date of termination of Executive’s employment with
the Company and the Termination Payments or any other payment which constitutes a “deferral of
compensation” within the meaning of Section 409A of the Code to be paid within the first six months
following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs.
Section 1.409A-1(b)(9)(iii)(A) (the “Limit”) and do not otherwise qualify under the short-term
deferral exemption, then (i) any portion of the Termination Payments or such other payment that is
payable during the Initial Payment Period that does not exceed the Limit or can be paid within the
short-term deferral exemption shall be paid at the times set forth in Section 10(a), (ii) any
portion of the Termination Payments or such other payment that exceeds the Limit and cannot be paid
within the short-term deferral exemption (and would have been payable during the Initial Payment
Period but for the Limit) shall be paid, with Interest, on the first business day of the first
calendar month that begins after the six-month anniversary of Executive’s “separation from service”
(within the meaning of Section 409A of the Code) and (iii) any portion of the Termination Payments
or such other payment that is payable after the Initial Payment Period shall be paid at the times
set forth in Section 10(a), respectively. For purposes of this paragraph, “Interest” shall mean
interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code, from the
date on which payment would otherwise have been made but for any required delay through the date of
payment. Notwithstanding the foregoing, in the event that the Executive dies while any Termination
Payments are still payable to the Executive hereunder, unless otherwise provided herein, all such
unpaid amounts shall be paid, not later than the tenth (10th) business day following the
Executive’s death, to the Executive’s beneficiary as named on the Executive’s 401(k) Plan
beneficiary forms, or, if no such beneficiary is so named, then to the Executive’s estate, in the
form of a lump sum cash payment equal to the remaining Termination Payments.



          (h) No Obligation to Mitigate. The Executive is under no obligation to mitigate
damages or the amount of any payment provided for hereunder by seeking other employment or
otherwise and, except with respect to the Welfare Benefits or as provided for in Section 10(i) of
this Agreement, no such amounts shall be reduced whether or not the Executive obtains other
employment.



          (i) Return of Payments/Clawback. Not in any way in limitation of any right or remedy
otherwise available to the Company, if the Executive does not comply with any of the Restrictive
Covenants (subject to the Company providing the Executive with written notice of any such
non-compliance), (i) the Termination Payments, the Pro-Rata Bonus and the Welfare Benefits (but for
the avoidance of doubt excluding any LTIP Award or equity awards) then or



10









 







thereafter due from the
Company to the Executive shall be terminated immediately, (ii) the Company’s obligation to pay or
provide and the Executive’s right to receive such payments or benefits shall terminate and be of no
further force or effect and (iii) the Executive shall be required to pay back to the Company an
amount equal to any Termination Payments or amounts
in respect of the Pro-Rata Bonus previously paid to him, in each case, without limiting or
affecting the Executive’s obligations under the Restrictive Covenants or the Company’s other rights
and remedies available at law or equity. Except as otherwise provided herein, there shall be no
offset or clawback with respect to the Initial LTIP Award, the 2009 LTIP Award, the Initial Grant
or any other equity awards for breach of any restrictive covenants.



     11. Certain Additional Payments by the Company.



          (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any Payment would be subject to the Excise Tax, then the
Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount
such that, after payment by the Executive of all taxes (and any interest or penalties imposed with
respect to such taxes), including, without limitation, any income and employment taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing provisions of this Section 11(a), if it shall be
determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value of
all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made
to the Executive and the amounts payable under this Agreement shall be reduced so that the
Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of
the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits
under the following sections in the following order: (i) Section 10(a), (ii) Section 10(b), (iii)
Section 10(c), (iv) any cash payments under Section 10(i), (v) any non-cash amounts under Section
10(i) and (vi) Section 10(d). For purposes of reducing the Payments to the Safe Harbor Amount,
only amounts payable under this Agreement (and no other Payments) shall be reduced. If the
reduction of the amount payable under this Agreement would not result in a reduction of the
Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement
shall be reduced pursuant to this Section 11(a). The Company’s obligation to make Gross-Up
Payments under this Section 11 shall not be conditioned upon the Executive’s termination of
employment.



          (b) Subject to the provisions of Section 11(c), all determinations required to be made under
this Section 11, including whether and when a Gross-Up Payment is required, the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by a nationally recognized certified public accounting firm as may be designated by the
Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any
determination by the Accounting Firm shall be binding upon the Company and the Executive (absent
manifest error). As a result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting



11









 







Firm hereunder, it is possible that
Gross-Up Payments that will not have been made by the Company should have been made (the
“Underpayment”), consistent with the calculations required to be made hereunder. In the event the
Company exhausts its remedies pursuant to Section 11(c) (or decides not to contest a claim) and the
Executive thereafter is required to make
a payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to
or for the benefit of the Executive.



          (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable, but no later than 10 business days after
the Executive is informed in writing of such claim. The Executive shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the 30-day period following the date on which the
Executive gives such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that the Company desires to contest such claim, the
Executive shall:




     (i) give the Company any information reasonably requested by the Company
relating to such claim,




     (ii) take such action in connection with contesting such claim as the Company
shall reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,




     (iii) cooperate with the Company in good faith in order effectively to contest
such claim, and




     (iv) permit the Company to participate in any proceedings relating to such
claim;


provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection with such contest,
and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of this Section
11(c), the Company shall control all proceedings taken in connection with such contest, and, at its
sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the applicable taxing authority in respect of such claim and may, at its sole
discretion, either pay the tax claimed to the appropriate taxing authority on behalf of the
Executive and direct the Executive to sue for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that, if the Company pays such
claim and directs the Executive to sue for a refund, the Company shall indemnify and hold the
Executive harmless,


12









 






on an after-tax basis, from any Excise Tax or income tax (including interest or
penalties) imposed with respect to such payment or with respect to any imputed income in connection
with such payment; and provided, further, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive with respect to
which such contested
amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s
control of the contest shall be limited to issues with respect to which the Gross-Up Payment would
be payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing authority.




          (d) If, after the receipt by the Executive of a Gross-Up Payment or payment by the Company of
an amount on the Executive’s behalf pursuant to Section 11(c), the Executive becomes entitled to
receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with
respect to such claim, the Executive shall (subject to the Company’s complying with the
requirements of Section 11(c), if applicable) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable thereto). If, after
payment by the Company of an amount on the Executive’s behalf pursuant to Section 11(c), a
determination is made that the Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive in writing of its intent to contest such denial
of refund prior to the expiration of 30 days after such determination, then the amount of such
payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.



          (e) Any Gross-Up Payment, as determined pursuant to this Section 11, shall be paid by the
Company to the Executive within five (5) days of the receipt of the Accounting Firm’s
determination; provided, however, that the Gross-Up Payment shall in all events be
paid no later than the end of the Executive’s taxable year next following the Executive’s taxable
year in which the Excise Tax (and any income or other related taxes or interest or penalties
thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing
authority; or, in the case of amounts relating to a claim described in Section 11(c) that does not
result in the remittance of any federal, state, local and foreign income, excise, social security
and other taxes, the calendar year in which the claim is finally settled or otherwise resolved.
Notwithstanding any other provision of this Section 11, the Company may, in its sole discretion,
withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for
the benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive hereby
consents to such withholding.



          (f) Definitions. The following terms shall have the following meanings for purposes
of this Section 11.



          “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code or other similar
tax (other than Section 409A of the Code) which may hereafter be imposed, together with any
interest or penalties imposed with respect to such excise tax.



          “Parachute Value” of a Payment shall mean the present value as of the date of the change of
control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a
“parachute payment” under Section 280G(b)(2), as determined by the Accounting



13









 







Firm for purposes of
determining whether and to what extent the Excise Tax will apply to such Payment.



          A “Payment” shall mean any payment, benefit, entitlement or distribution in the nature of
compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the
Executive, whether paid or payable pursuant to this Agreement or otherwise (including, without
limitation, any payment, benefit, entitlement or distribution paid or provided by the person or
entity effecting the change in control).



          The “Safe Harbor Amount” means 2.99 times the Executive’s “base amount,” within the meaning of
Section 280G(b)(3) of the Code.



     12. Confidentiality.



          (a) The Executive acknowledges that in the course of his employment by the Company, he will or
may have access to and become informed of confidential or proprietary information of the Company
and its Subsidiaries (“Confidential Information”), which is a competitive asset, including, without
limitation, (i) the terms of any agreement between the Company and any employee, customer or
supplier, (ii) pricing strategy, (iii) merchandising and marketing methods, (iv) product
development ideas and strategies, (v) personnel training and development programs, (vi) financial
results, (vii) strategic plans and demographic analyses, (viii) proprietary computer and systems
software, and (ix) any non-public information concerning the Company, its employees, suppliers or
customers. The Executive agrees that he will keep all Confidential Information in strict
confidence during the term of his employment by the Company and thereafter, and will never directly
or indirectly make known, divulge, reveal, furnish, make available, or use any Confidential
Information (except in the course of his regular authorized duties on behalf of the Company). The
Executive agrees that the obligations of confidentiality under this Section 12 shall survive
termination of the Executive’s employment with the Company regardless of any actual or alleged
breach by the Company of this Agreement, until and unless any such Confidential Information shall
have become, through no fault of the Executive, generally known to the public or the Executive is
required by lawful service of process, subpoena, court order, law or the rules or regulations of
any regulatory body to which he is subject to make disclosure (after providing to the Company a
copy of the documents seeking disclosure of such information and giving the Company prompt notice
upon receipt of such documents and prior to their disclosure). All records, files, memoranda,
reports, customer lists, drawings, plans, documents and the like relating to the Company’s business
that the Executive uses, prepares or comes into contact with during the course of the Executive’s
employment shall remain the sole property of the Company and/or its affiliates, as applicable, and
shall be turned over to the Company upon termination of the Executive’s employment. The
Executive’s obligations under this Section 12 are in addition to, and not in limitation of or
preemption of, all other obligations of confidentiality which the Executive may have to the Company
under general legal or equitable principles.



          (b) Except in the ordinary course of the Company’s business, the Executive has not made, nor
shall at any time following the date of this Agreement, make or cause to be made, any copies,
pictures, duplicates, facsimiles or other reproductions or recordings or any abstracts or summaries
including or reflecting Confidential Information. All such documents



14









 







and other property furnished
to the Executive by the Company or any of its Subsidiaries or affiliates or otherwise acquired or
developed by the Company or any of its Subsidiaries or affiliates shall at all times be the
property of the Company. Upon termination of the Executive’s
employment with the Company, the Executive will return to the Company any such documents or
other property of the Company or any of its Subsidiaries or affiliates which are in the possession,
custody or control of the Executive.



          (c) Without the prior written consent of the Company (which may be withheld for any reason or
no reason), except in the ordinary course of the Company’s business, the Executive shall not at any
time following the date of this Agreement use for the benefit or purposes of the Executive or for
the benefit or purposes of any other person, firm, partnership, association, trust, venture,
corporation or business organization, entity or enterprise or disclose in any manner to any person,
firm, partnership, association, trust, venture, corporation or business organization, entity or
enterprise any Confidential Information.



          13. Covenant Not to Compete; Covenant Not to Solicit. For a period commencing on the
Effective Date and for a period ending one (1) year after the termination of the Executive’s
employment with the Company for any reason or no reason, including termination for Cause or the
Executive’s voluntary resignation without Good Reason, the Executive acknowledges and agrees that
he will not, directly or indirectly, individually or on behalf of any other person or entity:



          (a) engage in any business that directly competes with the business in which the Company or
any of the Company’s Subsidiaries or affiliates (collectively, the “Company Group”) is engaged (or
had taken substantial steps to engage in), whichever is earlier (provided that the
Executive shall be permitted to provide services to a private equity firm that holds investments in
entities engaged in such competitive activities if the Executive is not involved, directly or
indirectly, in (1) the management, operations or supervision of such investments or (2) advising
any such firm with respect to such investments; provided, further that, to the extent that
Blackstone, Goldman Sachs & Co. (“Goldman”) and DLJ Merchant Banking Partners (“DLJ” and together
with Blackstone and Goldman, the “Sponsors”) collectively own equity securities of the Company
representing more than 50% of the voting power of the “Outstanding Company Voting Securities” (as
defined in the MOP), the Executive shall, upon the approval by such Sponsors who, individually or
with any other Sponsor who so approves, collectively, own equity securities of the Company
representing more than 50% of the voting power of the Outstanding Company Voting Securities, be
permitted to provide services to a Blackstone, Goldman or DLJ portfolio company that is engaged in
such competitive activities); or



          (b) solicit for hire, hire or employ (whether as an officer, director or insurance agent) any
person who is an employee or independent contractor of any member of the Company Group or has been
an employee or independent contractor of any member of the Company Group at any time during the
six-month period prior to the Executive’s termination of employment or solicit, aid or induce any
such person to leave his or her employment with any member of the Company Group to accept
employment with any other person or entity.



          (c) Executive’s ownership of less than one percent (1%) of any class of stock in a
publicly-traded corporation shall not be deemed a breach of this Section 13.



15









 





          (d) The Executive acknowledges and agrees that a violation of the foregoing provisions of
Section 12 or Section 13 would result in material detriment to the Company, would
cause irreparable harm to the Company, and that the Company’s remedy at law for any such
violation would be inadequate. In recognition of the foregoing, the Executive agrees that, in
addition to any other relief afforded by law or this Agreement, including damages sustained by a
breach of this Agreement and without the necessity or proof of actual damages, the Company shall
have the right to enforce this Agreement by specific remedies, which shall include, among other
things, temporary and permanent injunctions, it being the understanding of the undersigned parties
hereto that damages and injunctions all shall be proper modes of relief and are not to be
considered as alternative remedies.



     14. Compliance with Section 409A of the Code.



     (a) The Agreement is intended to comply with the requirements of Section 409A of the Code or
an exemption. Notwithstanding anything in the Agreement to the contrary, distributions upon
termination of employment may only be made upon a “separation from service” as determined under
Section 409A. Each payment under this Agreement, including each installment of the Termination
Payment, shall be treated as a separate payment for purposes of Section 409A. In no event may the
Executive, directly or indirectly, designate the calendar year of any payment to be made under this
Agreement. In the event the parties determine that the terms of this Agreement do not comply with
Section 409A, they will negotiate reasonably and in good faith to amend the terms of this Agreement
such that it complies (in a manner that attempts to minimize the economic impact of such amendment
on the Executive and the Company) within the time period permitted by the applicable Department of
Treasury Regulations.



     (b) All reimbursements and in-kind benefits provided under this Agreement shall be made or
provided in accordance with the requirements of Section 409A of the Code. In order to comply with
Section 409A of the Code, in no event shall the payments by the Company under Sections 5(b) or 6 be
made later than the end of the calendar year next following the calendar year in which such fees
and expenses were incurred, provided, that the Executive shall have submitted an invoice
for such fees and expenses at least 10 days before the end of the calendar year next following the
calendar year in which such fees and expenses were incurred. The amount of any such fees and
expenses that the Company is obligated to pay in any given calendar year shall not affect the fees
and expenses that the Company is obligated to pay in any other calendar year, and the Executive’s
right to have the Company pay such fees and expenses may not be liquidated or exchanged for any
other benefit.



     (c) The Company and the Executive shall take all steps necessary (including with regard to any
post-termination services the Executive provides) to ensure that any termination of employment
described in this Agreement constitutes a “separation from service” within the meaning of Section
409A of the Code, and notwithstanding anything contained in this Agreement to the contrary, the
date on which such “separation from service” takes place shall be the date of the termination of
the Executive’s employment.



     15. Prior Agreement; Effectiveness. As of the Effective Date, this Agreement
supersedes any and all prior and/or contemporaneous agreements, either oral or in writing,



16









 







between
the parties hereto with respect to the subject matter hereof including, without limitation, the
Prior Agreement. Each party to this Agreement acknowledges that no representations,
inducements, promises, or other agreements, orally or otherwise, have been made by any party,
or anyone acting on behalf of any party, pertaining to the subject matter hereof, which are not
embodied herein, and that no prior and/or contemporaneous agreement, statement or promise
pertaining to the subject matter hereof that is not contained in this Agreement shall be valid or
binding on either party.



     16. Withholding of Taxes. The Company may withhold from any amounts payable or
transfer made under any compensation or other amount owing to the Executive under this Agreement
all applicable federal, state, city or other withholding taxes as the Company is required to
withhold pursuant to any law or government regulation or ruling. In addition, in the event that
the Shares are not listed for trading on an established securities exchange on the date that an
applicable portion of the Initial LTIP Award or any restricted share grant vests, then (i) the
Company shall, at the request of the Executive, deduct or withhold Shares having a Fair Market
Value equal to the minimum amount required to be withheld to satisfy any federal, state, local and
foreign taxes of any kind (including, but not limited to, the Executive’s FICA and SDI obligations)
which the Company, in its sole discretion, deems necessary to comply with the Code and/or any other
applicable law, rule or regulation with respect to such portion of the Initial LTIP Award or
restricted share grant and remit the cash value of such Shares to the appropriate tax authorities
and (ii) notwithstanding anything to the contrary in the Stockholders Agreement, the Executive
shall be permitted to sell such number of Shares to the Company having a fair market value
(determined at the time of sale) equal to the additional taxes due from the Executive on the
vesting or delivery, as applicable, of such Shares (after taking into account the withholding in
clause (i)).



     17. Successors and Binding Agreement.



          (a) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of the Company by agreement in form and substance satisfactory to the Executive (and any such
successor, the “Successor”), expressly to assume and agree to perform this Agreement in the same
manner and to the same extent the Company would be required to perform if no such succession had
taken place. This Agreement will be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation any persons acquiring directly or indirectly
all or substantially all of the business or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor shall thereafter be deemed the
“Company” for the purposes of this Agreement), but will not otherwise be assignable, transferable
or delegable by the Company.



          (b) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal
or legal representatives, executors, administrators, successors, heirs, distributees and legatees.



          (c) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign, transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 17(a) and 17(b). Without



17









 







limiting the
generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not
be assignable, transferable or delegable, whether by pledge, creation of a
security interest, or otherwise, other than by a transfer by the Executive’s will or by the
laws of descent and distribution and, in the event of any attempted assignment or transfer contrary
to this Section 17(c), the Company shall have no liability to pay any amount so attempted to be
assigned, transferred or delegated. In the event of the Executive’s death while any payment,
benefit or entitlement is due to the Executive under this Agreement, such payment, benefit or
entitlement shall be paid or provided to the Executive’s designated beneficiary (or if the
Executive has not designated a beneficiary, to his estate).



     18. Notices. For all purposes of this Agreement, all communications, including
without limitation notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof confirmed), or five (5)
business days after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three (3) business days after having been sent by a
nationally recognized overnight courier service such as Federal Express, UPS, or Purolator,
addressed to the Company (to the attention of the Secretary of the Company) at its principal
executive offices and to the Executive at his principal residence, or to such other address as any
party may have furnished to the other in writing and in accordance herewith, except that notices of
changes of address shall be effective only upon receipt.



     19. Governing Law. The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive laws of the State of
Delaware, without giving effect to the principles of conflict of laws of such State.



     20. Indemnification. The Company will indemnify the Executive (and his legal
representative or other successors) to the fullest extent permitted (including a payment of
expenses in advance of final disposition of a proceeding) by applicable law, and the Executive
shall be entitled to the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers, against all costs, charges and expenses
whatsoever incurred or sustained by him or his legal representatives (including but not limited to
any judgment entered by a court of law) at the time such costs, charges and expenses are incurred
or sustained, in connection with any action, suit or proceeding to which the Executive (or his
legal representatives or other successors) may be made a party by reason of his having accepted
employment with the Company or by reason of his being or having been a director, officer or
employee of the Company, or any Subsidiary of the Company, or his serving or having served any
other enterprise as a director, officer or employee at the request of the Company, and to the
extent the Company maintains such an insurance policy or policies, the Executive shall be covered
by such policy or policies, in accordance with its or their terms to the maximum extent of the
coverage available for any Company officer or director. The Executive’s rights under this Section
20 shall continue without time limit for so long as he may be subject to any such liability,
whether or not the Employment Term may have ended.



     21. Validity. If any provision of this Agreement or the application of any provision
hereof to any person or circumstances is held invalid or unenforceable, the remainder of this
Agreement and the application of such provision to any other person or circumstances will not be



18









 







affected, and the provision so held to be invalid or unenforceable will be reformed to the extent
(and only to the extent) necessary to make it enforceable or valid.



     22. Survival of Provisions. Notwithstanding any other provision of this Agreement,
the parties’ respective rights and obligations under Sections 10, 11, 12, 13, 14, 15, 16, 20 and 22
will survive any termination or expiration of this Agreement or the termination of the Executive’s
employment for any reason whatsoever.



     23. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company. No waiver by either party hereto at any time of any breach by the other
party hereto or compliance with any condition or provision of this Agreement to be performed by
such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. Unless otherwise noted, references to “Sections” are to
sections of this Agreement. The captions used in this Agreement are designed for convenient
reference only and are not to be used for the purpose of interpreting any provision of this
Agreement.



     24. Defined Terms.



          (a) “2009 LTIP Award” has the meaning specified in Section 4(d)(ii).



          (b) “401(k) Plan” means the HealthMarkets 401(k) and Savings Plan.



          (c) “Accounting Firm” has the meaning specified in Section 11(b).



          (d) “Agreement” has the meaning specified in the introductory paragraph herein.



          (e) “Amendment Approval Date” means December 31, 2009; provided, however, if
the Company’s provision of documentation that is required to be provided to the Company’s
stockholders in connection with the approval of the Amendment or the Restricted Share Plan is
delayed beyond the time-frame previously communicated to the Company as a result of management’s
inability to finalize such documentation due to time constraints, the “Amendment Approval Date”
shall be the later of (i) December 31, 2009 and (ii) 60 days following the date on which such
documentation is provided to the Company’s stockholders.



          (f) “Base Salary” has the meaning specified in Section 4(a).



          (g) “Board” means the Board of Directors of the Company.



          (h) “Call Right” has the meaning specified in Section 9(d).



          (i) “Cause” means the occurrence of any of the following:




     (i) the Executive engages in fraudulent activity, embezzlement or
misappropriation relating to the business of the Company or any of its affiliates or
Subsidiaries;



19









 






     (ii) the Executive is convicted by a court of competent jurisdiction of, or
pleads guilty or nolo contendere to, any felony (other than a traffic violation) or
any crime involving moral turpitude;




     (iii) the Executive commits a breach of the Restrictive Covenants, which breach
has not been remedied within 30 days of the delivery to Executive by the Board of
written notice of the facts constituting the breach, and which breach if not cured
would have a material adverse effect on the Company;




     (iv) the Executive’s willful and continued failure after written notice from
the Board to perform his material duties for the Company or its Subsidiaries (other
than on account of approved leave of absence and/or Disability);




     (v) the Executive engages in (x) gross neglect or (y) willful misconduct, in
both cases relating to the Executive’s performance of his duties for the Company; or




     (vi) the Executive’s breach of Section 26 of this Agreement.



          (j) “Code” means the Internal Revenue Code of 1986, as amended.



          (k) “Committee” means the Executive Compensation Committee of the Board.



          (l) “Company” has the meaning specified in the introductory paragraph of this Agreement.



          (m) “Company Group” has the meaning specified in Section 13(a).



          (n) “Confidential Information” has the meaning specified in Section 12(a).



          (o) “Disability” shall mean the Executive’s incapacity due to physical or mental illness to
substantially perform his duties on a full-time basis for at least 26 consecutive weeks or an
aggregate period in excess of 26 weeks in any one fiscal year, and within 30 days after a notice of
termination is thereafter given by the Company, the Executive shall not have returned to the
full-time performance of the Executive’s duties; provided, however, if the
Executive shall not agree with a determination to terminate his employment because of Disability,
the question of the Executive’s Disability shall be subject to the certification of a qualified
medical doctor selected by the Company or its insurers and acceptable to the Executive or, in the
event of the Executive’s incapacity to accept a doctor, the Executive’s legal representative.



          (p) “Effective Date” has the meaning specified in the introductory
paragraph of this Agreement.



          (q) “Employment Term” has the meaning specified in Section 2.



20









 





          (r) “Executive” has the meaning specified in the introductory
paragraph of this Agreement.



          (s) “Good Reason” means the occurrence, without the Executive’s consent, of any the following
events:




     (i) a material diminution in the Executive’s authorities, titles, reporting
responsibilities or offices (excluding for this purpose (x) an isolated,
insubstantial and inadvertent action not taken in bad faith which is promptly
remedied after notice by the Executive to the Company or (y) any diminution in the
Executive’s authorities, titles, reporting responsibilities or offices resulting from
consummation of a transaction or transactions contemplated by an [***] or National
Carrier Marketing Distribution Agreement; provided that in all events the Executive
shall retain the right to resign for Good Reason in connection with such transactions
as provided in clause (iv) of this Good Reason definition);




     (ii) a material decrease in the Executive’s Base Salary or Target Bonus
Percentage, other than in the case of a decrease for a majority of similarly situated
executives of the Company;




     (iii) a reduction in the Executive’s participation in the Company’s benefit
plans and policies to a level materially less favorable to the Executive unless such
reduction applies to a majority of the senior level executives of the Company;




     (iv) the relocation of the Executive’s primary place of employment to a location
50 or more miles from the Company’s then-current headquarters; or




     (v) failure to obtain stockholder approval for the Amendment or the Restricted
Share Plan by the Amendment Approval Date.




Notwithstanding the foregoing, the Executive shall only be entitled to resign for
Good Reason if (1) the Executive first provides a notice of his intent to resign
within 90 days following the date he first learns of the event(s) or circumstances
giving rise to Good Reason (2) the Company fails to cure such events or circumstances
within 30 days following the Company’s receipt of such notice and (3) the Executive
terminates his employment within one year following the occurrence of the event or
circumstance on which the Good Reason termination is based.



          (t) “Gross-Up Payment” has the meaning specified in Section 11(a).



          (u) “HealthMarkets” has the meaning specified in the introductory paragraph of this Agreement.



          (v) “HealthMarkets Affiliates” has the meaning specified in paragraph 1 of Exhibit D attached
hereto.


[***] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




21









 





          (w) [***]



          (x) [***]



          (y) [***]



          (z) “Initial Employment Term” has the meaning specified in Section 2.



          (aa) “Initial Grant” has the meaning specified in Section 4(c).



          (bb) “Initial LTIP Award” has the meaning specified in Section 4(d)(i).



          (cc) “Initial Payment Period” has the meaning specified in Section 10(g).



          (dd) “Investment” has the meaning set forth in Section 8.



          (ee) “IPO” has the meaning specified in the Stockholders Agreement.



          (ff) “Limit” has the meaning specified in Section 10(g).



          (gg) “Maximum Bonus Percentage” has the meaning specified in Section 4(b)(ii).



          (hh) “MOP” means the Company’s 2006 Management Option Plan, as may be amended from time to
time.



          (ii) “National Carrier Marketing Distribution Agreement” means a Board-approved agreement
entered into by August 1, 2010 between the Company Group (or a member thereof) and a National Payor
pursuant to which insurance sales agents contracted with the Company Group are authorized by a
National Payor to sell individual health insurance products issued by the National Payor.



          (jj) “National Carrier MDA Goal” means commencement of sales through the Company Group’s
contracted sales agent force of a National Payor’s health insurance products pursuant to a National
Carrier Marketing Distribution Agreement



          (kk) “National Payor” means Aetna, Inc., Assurant, CIGNA Corporation, Coventry Healthcare
Inc., Humana Inc. or UnitedHealth Group, Inc. (and their affiliates or subsidiaries and their
respective successors and assigns).



          (ll) “Option Rights” has the meaning specified in the MOP.



          (mm) “Payment Period” means the one-year period commencing on the later of (A) the Executive’s
date of termination of employment with the Company or (B) the first business day after the date
that is six (6) months following the date of the Executive’s separation from service with the
Company to the extent required in order to avoid the imposition of taxes or penalties under Code
Section 409A.


[***] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




22









 








          (nn) “Performance Year” has the meaning specified in Section 4(d)(ii).



          (oo) “Pro-Rata Bonus” has the meaning specified in Section 10(b).



          (pp) “Regional Payor” means an organization that underwrites and issues health insurance on a
regional basis.



          (qq) “Release” has the meaning specified in the introductory paragraph of Exhibit D attached
hereto.



          (rr) “Renewal Term” has the meaning specified in Section 2.



          (ss) “Reporting Person” has the meaning specified in Section 3(a).



          (tt) “Restrictive Covenants” has the meaning specified in Section 10.



          (uu) “Restricted Shares” shall mean a grant of restricted stock consisting of shares of A-1
common stock of the Company.



          (vv) “Revocation Date” has the meaning specified in paragraph 3 of Exhibit D attached hereto.



          (ww) “Shares” has the meaning specified in Section 4(d)(i).



          (xx) “Sign-On Bonus” has the meaning specified in Section 4(e).



          (yy) “Stockholders Agreement” means the Stockholders Agreement by and among investment funds
affiliated with The Blackstone Group, L.P., Goldman Sachs & Co. and DLJ Merchant Banking Partners
IV, L.P., the Company, the Executive, and other signatories thereto, dated April 5, 2006, as may be
amended from time to time.



          (zz) “Subsidiary” shall mean any entity, corporation, partnership (general or limited),
limited liability company, firm, business organization, enterprise, association or joint venture in
which the Company directly or indirectly controls ten percent (10%) or more of the voting interest.



          (aaa) “Successor” has the meaning specified in Section 17(a).



          (bbb) “Target Bonus Percentage” has the meaning specified in Section 4(b)(ii).



          (ccc) “Termination Payments” has the meaning specified in Section 10(a).



          (ddd) “Underpayment” has the meaning specified in Section 11(a) .



          (eee) “Welfare Benefits” has the meaning specified in Section 10(c).



     25. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
agreement.



23









 





     26. Executive’s Representation. The Executive hereby represents and warrants that, as
of the date hereof, he has obtained U.S. immigration approval of his I-797 petition that permits
his employment in the United States through October 1, 2012.



     IN WITNESS WHEREOF, with the Company signatory listed below having been duly authorized by the
Company to enter into this Agreement by the Company, the parties hereto have executed this
Agreement as of the day and year first written.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Anurag Chandra	 	 
	 
	 	 	 	 	 	 
	 	 	HealthMarkets, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	
 

Phillip J. Hildebrand
	 	 
	 

	 	 	 	Chief Executive Officer	 	 






Solely with respect to Sections 4(c) and 16 of this Agreement

Accepted and Agreed to as of the day and

year first written above on behalf of the Blackstone

by Blackstone Management Associates IV L.L.C.




	 	 	 
	
 

Name: Chinh E. Chu

	 	 
	Title: Senior Managing Director
	 	 






24









 






Schedule 1




Performance Metrics for 2009 Bonus




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Senior Executive - Metrics	 
	($ in thousands)	 	Target (1)	 	 	Stretch	 	 	Weight	 
	Adjusted EBITDA
	 	$	122,789	 	 	$	130,073	 	 	 	40%      	(3)
	Health and Ancillary AV Submitted
	 	$	465,280	 	 	$	511,807	 	 	 	20%      	(2)
	MSE Deliverables
	 	 	14	 	 	 	14	 	 	 	20%      	(4)
	Form Insphere
	 	 	(5	)	 	 	(5	)	 	 	20	%








 




			
	Notes:
	 
	(1)	 	Minimum established at 150%; scalable to stretch targets.
	 
	(2)	 	Includes third party A/V (e.g., life, health, associations, etc.), and to be adjusted to
reflect exit from Massachusetts and other affected states.
	 
	(3)	 	Adjusted EBITDA to be determined consistent with past practices and to be based on being fully
accrued for Senior Executive amounts. Adjusted EBITDA excludes all transaction amounts and
awards, special Board directed programs and actions, Insphere formation and transformation expenses
and related balance sheet adjustments. To be adjusted to reflect exit from Massachusetts and other
affected states. Board has discretion over quality of earnings (e.g., Board may not give full
credit to the DAC benefit).
	 
	(4)	 	Attainment of audit reports from Schact Group and Internal Audit that conclude the Company is
in substantial compliance with all MSE on or before 12/31/09.
	 
	(5)	 	Formation of Insphere Insurance Solutions, Inc. and completion of the following implementation
activities:






- Identification of organizational structure and key continuing executives;




- Substantial completion of agency licensing requirements;




- Substantial completion of agency force contracting with Insphere;




- Substantial development of technology platform; and




- Execution and initial implementation of a marketing agreement with one major life insurer.



 









 





Exhibit A



Position: Executive Vice President, Chief Administrative Officer



Reporting Person: HealthMarkets Chief Executive Officer



Outside Activities:





			
	Base Salary:	 	$500,000, or such higher amount resulting from one or more subsequent increases in
Base Salary by the Committee pursuant to Section 4(a).




Target Bonus Percentage: 150% for the Company’s 2009 fiscal year and 100% thereafter



Maximum Bonus Percentage: 250% for the Company’s 2009 fiscal year and 200% thereafter




26









 





Exhibit B




Form of Option Agreement




 









 





Exhibit C




Form of Restricted Share Agreement




 









 





Exhibit D




Form of Release




          In consideration of the payments and promises contained in your Employment Agreement with
HealthMarkets, Inc. (the “Company”) dated as of September 8, 2009, and in full compromise and
settlement of any of your potential claims and causes of action relating to or arising out of your
employment relationship with the Company or the termination of that relationship, and any and all
other claims or causes of action that you have or may have against the HealthMarkets Affiliates (as
defined below) up to the date of execution of this release (the “Release”), you hereby:




          1. knowingly and voluntarily agree to irrevocably and unconditionally waive and release the
Company and any other entity controlled by, controlling or under common control with the Company,
and their respective predecessors and successors and their respective directors, officers,
employees, representatives, attorneys, including all persons acting by, through, under or in
concert with any of them (collectively, the “HealthMarkets Affiliates”), from any and all charges,
complaints, claims, liabilities, obligations, promises, sums of money, agreements, controversies,
damages, actions, lawsuits, rights, demands, sanctions, costs (including attorneys’ fees), losses,
debts and expenses of any nature whatsoever, existing on, or at any time prior to, the date hereof
in law, in equity or otherwise, which you, your successors, heirs or assigns had or have upon or by
reason of any fact, matter, cause, or thing whatsoever, and specifically including any matter that
may be based on the sole or contributory negligence (whether active, passive or gross) of any
HealthMarkets Affiliate. This release includes, but is not limited to, a release of all claims or
causes of action arising out of or relating to your employer-employee relationship with the Company
or the termination of that relationship, and any other claim, including, without limitation,
alleged breach of express or implied written or oral contract, alleged breach of employee handbook,
alleged wrongful discharge, and tort claims, or claims or causes of action arising under any
federal, state, or local law, including, but not limited to, the Age Discrimination in Employment
Act, 29 U.S.C. § 621, et seq., the Reconstruction Era Civil Rights Act of 1866 and 1871, 42 U.S.C.
§§ 1981 and 1983, the Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000(e) et seq., The Civil
Rights Act of 1991, 42 U.S.C. § 1981(a) et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d) et
seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. the Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq., the Worker Adjustment and Retraining Notification Act, 29
U.S.C. §§ 2101-2109, the Sarbanes-Oxley Act of 2002, as amended, and any claim under any other
statutes of the State of Texas, or other jurisdictions, and the facts, circumstances, allegations,
and controversies relating or giving rise thereto that have accrued to the date of execution of
this Release;




     2. agree that you will not commence, maintain, initiate, or prosecute, or cause, encourage,
assist, volunteer, advise or cooperate with any other person to commence, maintain, initiate or
prosecute, any action, lawsuit, proceeding, investigation, or claim before any court,



 









 







legislative
body or committee, or administrative agency (whether state, federal or otherwise) against the
HealthMarkets Affiliates relating to any claims, liabilities, obligations, promises, sums of money,
agreements, controversies, damages, actions, lawsuits, rights, demands, sanctions, costs (including
attorneys’ fees), losses, debts and expenses described in the foregoing
Paragraph 1; provided, however, that, notwithstanding anything to the contrary
in the foregoing, nothing hereunder shall be deemed to affect, impair or diminish in any respect
(i) any vested rights as of the date of termination or entitlement you may have under the 401(k)
Plan; (ii) any other vested rights as of the date of termination you may have under any employee
plan or program in which you have participated in your capacity as an employee of the Company or
any other HealthMarkets Affiliate; (iii) your right to seek to collect unemployment benefits that
you may be entitled to as a result of your employment with the Company or your right to seek
benefits under workers’ compensation insurance, if applicable; (iv) your rights under this Release;
including but not limited to your right to bring a claim for breach of this Release; (v) any
rights you may have under Section 9 (Termination), Section 10 (Termination Payments and Benefits),
Section 11 (Certain Additional Payments by the Company), Section 16 (Withholding of Taxes), Section
(20 (Indemnification) of the Employment Agreement; (vi) any rights to indemnification that you have
or may have under the terms of the HealthMarkets Amended and Restated Bylaws or coverage under any
applicable directors’ and officers’ liability insurance policies; or (vii) your right to bring a
claim under the Age Discrimination in Employment Act to challenge the validity of this Release, to
file a charge under the civil rights statutes, or to otherwise participate in an investigation or
proceeding conducted by the Equal Employment Opportunity Commission or other investigative agency;



     3. acknowledge that: (i) this entire Release is written in a manner calculated to be
understood by you; (ii) you have been advised to consult with an attorney before executing this
Release; (iii) you were given a period of at least twenty-one days within which to consider this
Release; and (iv) to the extent you execute this Release before the expiration of the
twenty-one-day period, you do so knowingly and voluntarily and only after consulting your attorney.
You shall have the right to cancel and revoke this Release during a period of seven days following
the date on which you execute it, and this Release shall not become effective, and no money will be
paid to you in respect of severance, until the day after the expiration of such seven-day period
(the “Revocation Date”). In order to revoke this Release, you shall deliver to the Company, prior
to the Revocation Date, a written notice of revocation. Upon such revocation, this Release shall
be null and void and of no further force or effect;



     4. agree to make yourself reasonably available to the Company following the date of your
termination to assist the HealthMarkets Affiliates, as may be requested by the Company at mutually
convenient times and places, with respect to the business of the Company and pending and future
litigations, arbitrations, governmental investigations or other dispute resolutions relating to or
in connection with the Company; and



     5. agree not to, either in writing or by any other medium, make any disparaging or derogatory
statement about the HealthMarkets Affiliates or any of their respective officers, directors,
employees, affiliates, Subsidiaries, successors, assigns or businesses, as the case may be;
provided, however, that you may make such statements as are necessary to comply
with law.




D-3