exv10w5






Exhibit 10.5




EXECUTION VERSION




FORM OF




RESTRICTED SHARE AGREEMENT




     This AGREEMENT, is made as of September 8, 2009 (the “Effective Date”), by and between
HealthMarkets, Inc., a Delaware corporation (together with its successors and assigns, the
“Company”), and Phillip Hildebrand (the “Executive”);



     WHEREAS, on the Effective Date the Company and the Executive entered into an employment
agreement with respect to the Executive’s employment as an executive of the Company and certain
related terms (the “Employment Agreement”);



     WHEREAS, the Company, acting through the Compensation Committee with the consent of the Board
has agreed to grant to the Executive, effective on the Effective Time, restricted shares of the
Company’s Class A-1 Common Stock (the “Restricted Shares”) on the terms and subject to the
conditions set forth in this Agreement;



     WHEREAS, the Restricted Shares shall be subject to the terms of the Stockholders Agreement (as
amended with respect to the Executive pursuant to the Employment Agreement).



     NOW, THEREFORE, in consideration of the promises and of the mutual agreements contained in
this Agreement, the parties hereto hereby agree as follows:



     1. Capitalized Terms. Capitalized terms not defined herein shall have the definitions
ascribed to such terms in the Employment Agreement.



     2. Grant. Subject to and upon the terms, conditions, and restrictions set forth in
this Agreement, including, without limitation, Section 9, the Company hereby grants to the
Executive 506,650 Restricted Shares as of the date hereof pursuant to Section 4(c)(ii) of the
Employment Agreement.



     3. Issuance of Stock. The Restricted Shares shall be subject to the restrictions
described herein. The Restricted Shares shall bear appropriate legends with respect to the
restrictions described herein.



     4. Vesting. Subject to the Executive’s remaining in the continuous employ of the
Company or any Subsidiary through the applicable vesting date, except as otherwise provided in
Section 6 hereof, and the Company’s achievement of an “Adjusted EBITDA” (as determined in
accordance with Schedule 1 to the Employment Agreement) of at least $10 million for at least one
fiscal quarter occurring during the time period from the date of this Agreement through the first
anniversary of the date hereof, the Restricted Shares shall vest in quarterly installments
determined based on 30% of the Restricted Shares vesting by the first anniversary of June 4, 2009
(such that 7.5% of the Restricted Shares shall vest quarterly up through such first anniversary),
an additional 20% vesting by each of the second, third and fourth anniversaries of June 4, 2009
(such that 5% of the Restricted Shares shall vest quarterly after such first anniversary) and the
remaining 10% vesting by the fifth anniversary of June 4, 2009 (such that 2.5% of the Restricted
Shares shall vest quarterly after such fourth anniversary); provided, that to the extent the
Effective Time occurs or the performance hurdle is satisfied after any such Restricted Shares would
have otherwise vested (if the passage of time was the only vesting requirement), the portion of the
Restricted Shares that would have vested on such date shall not vest on such date, but shall
instead vest on the Effective Time or the date of satisfaction of the performance hurdle, as
applicable (including, in the case of achievement of the performance hurdle, if the Executive’s
employment is terminated under the



 









 




circumstances set forth in Sections 6(b) and 6(c) below prior to the satisfaction of the
performance hurdle); provided further, that the Restricted Shares shall immediately vest in full
upon a Change of Control (whether or not the performance hurdle is satisfied as of the time of the
Change of Control).




     5. Restrictions. No portion of the Restricted Shares or rights granted hereunder may
be sold, transferred, assigned, pledged or otherwise encumbered or disposed of by the Executive
until such portion of the Restricted Shares becomes vested, and any purported sale, transfer,
assignment, pledge, encumbrance or disposition shall be void and unenforceable against the Company.
The period of time between the Effective Date and the date all Restricted Shares become vested is
referred to herein as the “Restriction Period.”



     6. Termination of Employment.



     (a) General. Except as provided immediately below, if the Executive’s employment
terminates for any reason, the Restricted Shares, to the extent not then vested will be immediately
forfeited; provided that if the Effective Time or the performance hurdle is satisfied after the
date the Executive’s employment terminates, the Executive shall be deemed to have vested in the
number of Restricted Shares that would have vested if he remained employed through such date.



     (b) Without Cause; for Good Reason. If the Executive’s employment is terminated by
the Company without Cause (which shall for purposes of this Agreement include a termination of the
Executive’s employment upon conclusion of the Employment Term (as defined in the Employment
Agreement) after the Company’s giving the Executive a notice of non-renewal of the Employment Term)
or by the Executive for Good Reason, as of the date of termination, the Restricted Shares that
would have vested if the Executive had remained employed through the first anniversary of the date
of termination will vest. Notwithstanding the foregoing, if the Executive’s employment is
terminated without Cause or for Good Reason (i) after a definitive agreement is entered into which
will result in a Change of Control (provided such agreement results in a Change of Control) or (ii)
within six months prior to a Change of Control, the Restricted Shares shall be treated as if they
had fully vested as of the date of the Change of Control (whether or not the performance hurdle is
satisfied as of the date of the Change of Control).



     (c) Death; Disability. If the Executive’s employment is terminated by reason of the
Executive’s death or Disability, as of the date of termination, the Restricted Shares that would
have vested if the Executive had remained employed through the first anniversary of the date of
termination will vest; provided, however, that it shall be a condition to the vesting of the
Restricted Shares in the event of the Executive’s death that the Person receiving the Shares shall
(i) have agreed in a form satisfactory to the Company to be bound by the provisions of this
Agreement and, if there has been no Change of Control or an IPO, the Stockholders Agreement (as
modified by Section 8 of the Employment Agreement) and (ii) comply with all regulations and the
requirements of any regulatory authority having control of, or supervision over, the issuance of
the Shares and in connection therewith shall execute any documents which the Board shall in its
sole discretion deem necessary or advisable.



     (d) Cause. Notwithstanding the foregoing or any provision of this Agreement or the
Employment Agreement to the contrary, if the Executive’s employment is terminated by the Company
for Cause, all unvested Restricted Shares will be immediately forfeited as of the date of
termination; provided that if the Effective Time or the performance hurdle is satisfied after the
date the Executive’s employment terminates, the Executive shall be deemed to have vested in the
number of Restricted Shares that would have vested if he remained employed through such date.



     7. Call Right. Upon termination of the Executive’s employment for any reason prior to
an IPO or a Change of Control, the Company will have the right to purchase (the “Call Right”)



 









 




any Shares that the Executive received pursuant to the terms and conditions set forth in
Section 8(c) of the Employment Agreement.




     8. Initial Public Offering. The Restricted Shares shall be subject to the terms and
conditions of the Stockholders’ Agreement, as amended by Section 8 of the Employment 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 or any Subsidiary 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.



     9. Effective Time. The Restricted Shares granted hereby shall be and become effective
upon the later of (i) the delivery of an executed counterpart of this Agreement to the Company by
the Executive and (ii) the approval of the stockholders of the Company of a plan permitting the
issuance of Restricted Shares (the “Plan”) (such later date, the “Effective Time”). For the
avoidance of doubt, in the event that such stockholder approval is not obtained by the earlier of
(x) the Amendment Approval Date or (y) a Change of Control, this Agreement and the grant of
Restricted Shares hereunder shall be null and void ab initio and be of no further force or effect.
The Company also represents to the Executive that no provision of the Plan that is inconsistent
with this Agreement or the Employment Agreement will adversely affect the Restricted Shares.



     10. Executive Shareholder Rights. Prior to the date on which the Restricted Shares
vest, except as otherwise set forth herein, the Executive shall have all rights of a shareholder
with respect to the Restricted Shares. Notwithstanding the foregoing, cash dividends, if any, paid
with respect to any Restricted Shares which have not vested at the time of the dividend payment
shall be paid to and held in the custody of the Company, and shall be subject to the same
restrictions that apply to the corresponding Restricted Shares, and shall be released from the
custody of the Company at such time as the restrictions on the underlying Shares to which the
dividends relate have lapsed. At such time as any Restricted Share vests, any such custodial
dividends held by the Company (including any interest thereon payable in accordance with this
Section 10) with respect to such vested share shall be paid to the Executive.



     11. No Employment Contract. Nothing contained in this Agreement shall (a) confer upon
the Executive any right to be employed by or remain employed by the Company or any Subsidiary, or
(b) limit or affect in any manner the right of the Company or any Subsidiary to terminate the
employment or adjust the compensation of the Executive.



     12. Taxes and Withholding. The Company or any Subsidiary may withhold, or require the
Executive to remit to the Company or any Subsidiary, an amount sufficient to satisfy federal,
state, local or foreign taxes (including the Executive’s FICA obligation) in connection with any
payment made or benefit realized by the Executive or other person under this Agreement or
otherwise, and the amounts available to the Company or any Subsidiary for such withholding are
insufficient, it shall be a condition to the receipt of such payment or the realization of such
benefit that the Executive or such other person make arrangements satisfactory to the Company or
any Subsidiary for payment of the balance of such taxes required to be withheld. The Executive may
elect to have such withholding obligation satisfied by surrendering to the Company a portion of the
Shares that is issued or transferred to the Executive upon the vesting of the Restricted Shares
(but only to the extent of the minimum withholding required by law), and the Shares so surrendered
by the Executive shall be credited against any such withholding obligation at the Fair Market Value
of such Shares on the date of such surrender (and the amount equal to the Fair Market Value of such
shares shall be remitted to the appropriate tax authorities).



 









 




The Executive shall also have the put right set forth in subclause (ii) of the last sentence
of Section 16 of the Employment Agreement.




     13. Compliance with Law. The Company shall make reasonable efforts to comply with all
applicable federal and state securities laws; provided, however, that notwithstanding any other
provision of this Agreement, the Restricted Shares shall not vest if the vesting thereof would
result in a violation of any such law.



     14. Adjustments. In the event of any stock split, reverse stock split, share
dividend, merger, consolidation or other event after the Effective Date that makes an equitable
adjustment appropriate, the Board shall make such substitution or adjustment (including cash
payments) in the number and kind of Restricted Shares covered thereby and/or such other equitable
substitution or adjustments as it determines in good faith to be equitable. In connection with a
Change of Control, such substitutions and adjustments may include, without limitation, canceling
any and all Restricted Shares in exchange for cash payments equal to the Fair Market Value of the
Restricted Shares in connection with such an adjustment event.



     15. Relation to Other Benefits. Any economic or other benefit to the Executive under
this Agreement shall not be taken into account in determining any benefits to which the Executive
may be entitled under any profit-sharing, retirement or other benefit or compensation plan
maintained by the Company or any Subsidiary and shall not affect the amount of any life insurance
coverage available to any beneficiary under any life insurance plan covering employees of the
Company or any Subsidiary.



     16. Amendments. Any amendment to the Plan shall be deemed to be an amendment to this
Agreement to the extent that the amendment is applicable hereto; provided, however,
that no amendment shall adversely affect the rights of the Executive under this Agreement or the
Employment Agreement without the Executive’s written consent.



     17. Severability. If one or more of the provisions of this Agreement is invalidated
for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed
to be separable from the other provisions hereof, and the remaining provisions hereof shall
continue to be valid and fully enforceable.



     18. Relation to Plan. This Agreement is subject to the terms and conditions of the
Plan; provided, however, that in the event of any inconsistent provisions between this Agreement
and the Plan, this Agreement shall govern. In addition, in the event of any inconsistent
provisions between the Plan and the Employment Agreement, the Employment Agreement shall govern.
The Board acting pursuant to the Plan, as constituted from time to time, shall, except as expressly
provided otherwise herein, have the right to determine (in good faith) any questions which arise in
connection with the Restricted Shares.



     19. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and
assigns of the Executive, and the successors and assigns of the Company.



     20. Governing Law. The interpretation, performance, and enforcement of this Agreement
shall be governed by the laws of the State of Delaware, without giving effect to the principles of
conflict of laws thereof and all parties, including their successors and assigns, consent to the
jurisdiction of the state and federal courts of Delaware.



 









 





     21. Prior Agreement; Employment Agreement. As of the date that the Executive
countersigns this Agreement, this Agreement will supersede any and all prior and/or contemporaneous
agreements, either oral or in writing, between the parties hereto, or between either or both of the
parties hereto and the Company, with respect to the subject matter hereof (other than the
Employment Agreement and its Exhibits). 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 or in Sections 4(c) and 10(j) of the Employment Agreement, and that no
prior and/or contemporaneous agreement, statement or promise pertaining to the subject matter
hereof that is not contained in this Agreement (or Sections 4(c) and 10(j) of the Employment
Agreement) shall be valid or binding on either party. Sections 23 and 24 of the Employment
Agreement shall be incorporated in full herein, provided that any reference to “this Agreement”
shall be a reference to this Agreement.



     22. 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 business
days after having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three 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.



     23. 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.



     24. Offset. Notwithstanding anything in this Agreement or the Stockholders Agreement
to the contrary, if the Executive (or his estate) has received a Transaction Bonus or a Retention
Payment (as each is defined in the Employment Agreement) then the Executive agrees that Section
8(e) of the Employment Agreement shall apply to this Agreement.



 









 





     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by its
duly authorized officer and the Executive has executed this Agreement, as of the day and year first
above written.



	 	 	 	 	 
	 	HealthMarkets, Inc.

 	 
	 	By:  	 	 
	 	Name:	  	 	 
	 	Title: 	  	 	 
	 	 	 	 
	 	EXECUTIVE

Name: Phillip Hildebrand