exv10w11






Exhibit 10.11



[***] = 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 (together with
its successors and assigns, “HealthMarkets” or the “Company”) and Steven P. Erwin (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
September 30, 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.



     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 December 31, 2010 (the “Initial Employment Term”); provided,
however, that at the end of the Initial Employment Term and on each succeeding anniversary
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



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to this Agreement gives the other party written notice (in accordance with Section 18) of such
party’s intention to terminate this Agreement, subject to Section 22 hereof, and the employment of
the Executive at least ninety (90) days prior to the end of such initial or extended term (in which
event the Executive’s employment shall be deemed to have terminated at the end of the Employment
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, consistent with the Executive’s position in the
Company. 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
reasonable best efforts and energies to the business of the Company and the performance of the
Executive’s duties hereunder.




          (c) During the Employment Term and provided that such activities do not either (i) contravene
this Agreement (including, without limitation, the provisions of Section 3(a), 3(b), 12 or 13 of
this Agreement) or (ii) materially interfere with the performance of the Executive’s duties
hereunder, the Executive may (a) engage in charitable activities and community affairs, (b) serve
on the boards of, or advisory committees to, trade associations or charitable organizations, (c)
manage his personal and family investments and affairs, and (d) serve on boards or advisory
committees of (1) public or private companies set forth on Exhibit A attached hereto, (2)
professional associations approved by the Board or (3) as otherwise may be approved by the Board.
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, and shall be payable in cash 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 for purposes of evaluating an increase in the Executive’s Base Salary. For purposes of
this Agreement, after any such increase, “Base Salary” shall refer to such increased amount.




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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 “Annual Bonus
Percentage”); provided, that in no event shall the Executive’s annual bonus
for 2009 be less than $787,500; provided further, that the Executive
shall remain entitled to the $333,333.33 that constitutes the Second Installment,
which shall now be payable in cash to the Executive on September 18, 2009, and this
Second Installment, to the extent paid to the Executive (but not the First
Installment (as defined in the Prior Agreement)) shall be deducted from the 2009
annual bonus to be paid to the Executive. 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, provided that any such performance targets for a fiscal
year shall be no less favorable to the Executive than the annual performance targets
established for such fiscal year for other senior executives of the Company (other
than (i) annual performance targets established for the Chief Executive Officer of
the Company and (ii) any performance targets established in connection with an
executive’s commencement of employment with, or promotion within, the Company)
generally and, 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 100% 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




	 
	[***] = 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.





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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 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) No Equity Compensation; Forfeiture of Initial Grant. During the
Employment Term, the Executive will be eligible to participate in the Company’s incentive and
deferred compensation plans and programs or arrangements as may be determined by the Board or any
successor programs or plans thereto or thereunder (collectively, the “Incentive Programs”), in each
case, as may be in effect from time to time and as may be determined by the Board, on a basis no
less favorable to the Executive than to other senior executives who participate in such Incentive
Programs (other than with respect to (i) the Chief Executive Officer of the Company, (ii) an
executive’s commencement of employment with, or promotion within, the Company or (iii) with respect
to any equity compensation awards) generally. The Executive acknowledges and agrees that, during
the Employment Term, (i) he shall not be considered for the grant of any equity compensation awards
or equity awards, (ii) the grant of such awards to other senior executives of the Company will not
be taken into account for purposes of the Company’s commitment to the Executive in the preceding
sentence in this Section 4(c) and (iii) neither the Company’s failure to grant any such awards to
the Executive or grant of such awards to other senior executives of the Company shall be considered
an event constituting “Good Reason.” In connection with the Executive’s entry into the Prior
Agreement, the Executive and the Company entered into that certain Stock Option Agreement, dated as
of September 30, 2008 (the “Prior Stock Option Agreement”), pursuant to which the Company granted
the Executive 175,000 Option Rights (the “Initial Grant”). By execution of this Agreement, the
Executive hereby acknowledges and agrees that effective as of the Effective Date, the Prior Stock
Option






	 
	[***] = 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.




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Agreement and the Option Rights granted to the Executive pursuant to the Initial Grant
thereunder, whether vested or unvested, shall be cancelled and void and the Prior Stock Option
Agreement shall be of no further force or effect.




          (d) LTIP Awards.





     (i) Initial LTIP Award. The Company has granted the Executive a cash-based
LTIP award with a target value of $133,000 (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 September 30, 2008, in both cases subject to the
Executive’s continued employment with the Company through the applicable vesting date and,
with respect to (y), subject to the Executive’s achievement of certain performance goals
already established by the Board (or an authorized committee thereof). Any vested portion
of such Initial LTIP Award shall be delivered to the Executive, 100% in cash, on the earlier
of immediately prior to a Change of Control or upon September 30, 2011.




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



     5. Employee Benefits.



          (a) General. 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,
programs and arrangements (including any equity plans and programs), and to receive perquisites,
provided from time to time to similarly situated executives of the Company and its Subsidiaries
generally on a basis no less favorable to the Executive than to other senior executives of the
Company or its Subsidiaries (other than the Chief Executive Officer of the Company) who participate
in such plans, programs, arrangements or benefits (not taking into account, for purposes of the
foregoing, any sign on or initial awards made to other executives or any benefits or perquisites
provided to executives in connection with commencement of their employment with, or promotion
within, the Company) generally.




          (c) Automobile Allowance. During the Employment Term, the Executive will be entitled
to an automobile allowance of $600.00 per month.




     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, negotiation and drafting of the Agreement and any other related documentation, subject to a
cap of $6,000.



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     7. Vacation. The Executive shall be entitled to a number of days 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; provided that in all
events he shall be entitled to no less than 4 weeks of vacation per calendar year, pro-rated for
any partial year. Subject to the 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.



          (a) In connection with the Executive’s commencement of employment under the Prior Agreement,
the Executive invested cash in the amount of $250,000 in Shares, at a purchase price of $24.00 per
Share (such investment, the “Investment”) and purchased Shares as part of the First Year Guaranteed
Annual Bonus (collectively equal to 13,981 Shares), 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.




          (b) Call Rights. Notwithstanding anything to the contrary in the Stockholders
Agreement or any other agreement, upon a termination of the Executive’s employment with the Company
or any of its Subsidiaries for any reason prior to an IPO or a Change of Control, the Company will
have the right to purchase (a “Call Right”) any Shares held by the Executive (whether pursuant to
the Investment, the First Year Guaranteed Annual Bonus or otherwise) at Fair Market Value as of the
date the Company exercises its Call Right (except in the event of a termination by the Company for
Cause, in which case the Call Right will be at the lower of the original cost of such Shares or
Fair Market Value as of the date the Company exercises such Call Right). The Call Right may be
exercised at any time following the later of six months following (1) the Executive’s receipt of
any Shares, and (2) the termination of the Executive’s employment. “Fair Market Value” shall be
determined from time to time (but no less frequently than quarterly) by the Board in good faith and
shall in any event be determined consistently with how “fair market value” is determined with
respect to shares of Company stock held by existing shareholders, including members of the Board,
and how the exercise price for the Initial Grant was determined (it being understood that no
discount shall be taken due to lack of marketability). In determining Fair Market Value, the Board
will consider (among other factors it deems appropriate) the valuation prepared by Blackstone in
the ordinary course of business for reporting to its advisory board and investors, which Blackstone
will provide to the Board. Notwithstanding the foregoing, in the event that either (i) within six
months following a termination of the Executive’s employment by the Company without Cause or by the
Executive for Good Reason or upon his death or Disability an IPO or Change of Control occurs or
(ii) the Executive’s employment is terminated by the Company without Cause or by the Executive for
Good Reason or upon his death or Disability after a definitive agreement is entered into which will
result in a Change of Control (provided that such agreement actually results in a Change of
Control), for purposes of the Call Right, Fair Market Value shall equal the consideration paid per
Share pursuant to such transaction.




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          (c) Tag-Along and Drag-Along Rights. Shares owned by the Executive shall be subject
to the applicable tag-along and drag-along provisions of the Stockholders Agreement, provided that
the applicable thresholds shall be reduced from 50% to 25%.




          (d) Put Right. Notwithstanding anything to the contrary in the Stockholders
Agreement, if, prior to an IPO or a Change of Control, the Executive’s employment with the Company
or any of its Subsidiaries terminates (other than a termination by the Company for Cause or a
resignation by the Executive without Good Reason), the Executive shall have the right, exercisable
at any time during the six-month period following the six-month anniversary of his termination of
employment, to sell to the Company Shares acquired by the Executive pursuant to the Investment and
any Shares delivered as part of the First Year Guaranteed Annual Bonus at the Fair Market Value of
such Shares at the time of such sale.




          (e) Effect on Stockholders Agreement. This Section 8 shall be deemed an amendment to
the Stockholders Agreement for all purposes under the Stockholders Agreement. By executing this
Agreement, the Executive agrees to be bound by the terms of the Stockholders Agreement and the
accepts the rights and obligations set forth therein, and each of Blackstone and the Company agree
that this Section 8 is effective as a joinder to the Stockholders Agreement for all purposes
thereunder (including with respect to Section 2.03 therein). In addition, if the Executive is
forced to withdraw from the Stockholders Agreement on or following a Change of Control, the
provisions of this Section 8 shall remain in effect with respect to the Executive’s equity
interests in the Company.




     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.




          (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.




          (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) 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




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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, by reason of the
Executive’s death or Disability, or 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, in the form
attached hereto as Exhibit B, (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(f), the Company shall pay to the Executive such payments and make available
to the Executive such benefits as are set forth in this Section 10. In addition, upon any
termination of employment, the Executive shall be entitled to the payments and benefits and
entitlements as are described in Section 10(e).



          (a) 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); provided that in
the case of a Pro-Rata Bonus for fiscal year 2009, the Executive shall be paid the Second
Installment in all events in cash on September 18, 2009, to the extent unpaid as of the Executive’s
termination date, with any additional payment due hereunder being made within the first 75 days of
fiscal year 2010.




          (b) Transaction Bonus and Retention Payment. 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.




          (c) 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.




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          (d) 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 any 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”) exceeds the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the
“Limit”) and does not otherwise qualify under the short-term deferral exemption, then (i) any
portion of such 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 such 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 such 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.




          (e) Other/Vested Benefits. In the case of any termination, the Executive (or his
estate) shall be entitled to (i) any additional payments, benefits or entitlements to which he is
entitled in accordance with the applicable terms of any applicable plan, policy, program,
arrangement or other agreement of the Company or any Subsidiary or affiliate or, if applicable,
pursuant to Section 8, Section 11 and Section 20 hereof, (ii) payment of any amounts 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 expenses, the vested portion of the
First Year Guaranteed Annual Bonus, 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 any vested portion
of the Initial LTIP Award (payable at such times as such Initial LTIP Award would otherwise have
been paid had he remained employed by the Company) and any vested Retention Payment, and (iii) any
rights the Executive has a shareholder in the Company or pursuant to this Agreement with respect to
the Investment, the shares payable in connection with the First Year Guaranteed Annual Bonus and
any other equity held by the Executive. In addition, for any termination of the Executive’s
employment on or after the date the Retention Bonus has vested (other than in the event of a
termination of the Executive’s employment by the Company for Cause), the Executive shall be
entitled to (x) a Pro-Rata Bonus for the fiscal year in which his termination date occurs and (y)
to the extent unpaid as of his termination date, a bonus for the fiscal year immediately preceding
the fiscal year in which the termination date occurs determined based on the bonus that would have
been paid to the Executive had he remained employed through the date on which such bonuses are paid
to senior executives of the Company generally. Finally, for the avoidance of doubt, this Section
10(e) shall survive any expiration of the Employment Term and shall apply with respect to any
termination of the Executive’s employment after the expiration of the Employment Term.




          (f) 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




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such non-compliance), (i) the Pro-Rata Bonus and any payments in respect of any LTIP Award
then or 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 any amounts in respect of any Pro-Rata Bonus or Initial LTIP
Award 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.




          (g) 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 as provided for in Section 10(f) above, such amounts shall not be reduced
whether or not the Executive obtains other employment.




     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




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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 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


 - 11 - 









 






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, 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.



 - 12 - 









 





          “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 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; Return of Property.



          (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 (x) 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 or, (y) the Executive
brings a claim or action to enforce any of his rights with respect to any compensation, including,
without limitation, any annual bonus or the Initial LTIP Award (provided such disclosure is only to
the extent reasonably necessary with respect to enforcement of such right and the Executive takes
appropriate steps to have such Confidential Information entered into any proceeding under seal),
provided that in the case of clause (y), the Executive has provided to the Company, unless
prohibited by law or regulation, 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, except to the extent the




 - 13 - 









 




Executive is permitted to retain such information or property as set forth in Section 12(b).
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 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.
Notwithstanding the foregoing, the Executive shall be permitted to retain his personal papers
(provided that such papers do not contain any Confidential Information related to the Company), any
information relating to his compensation, other entitlements or obligations, any information he
reasonably believes is necessary for tax purposes and his personal rolodex.




          (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 (except as permitted in Section 12).




     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 which directly competes with the business in which the Company or
any of the Company’s Subsidiaries or affiliates (collectively, the “Company Group”) were engaged
(or had taken substantial steps to engage in); 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 and




 - 14 - 









 




notwithstanding the foregoing, it shall not be a violation of this Section 13 for the
Executive (i) to join a division, business line, subsidiary or affiliate of a commercial enterprise
with multiple divisions or business lines if such division, business line, subsidiary or affiliate
is not competitive with the businesses of the Company Group, provided that the Executive performs
services solely for such non-competitive division, business line, subsidiary or affiliate, and
performs no functions on behalf of (and has no involvement with or direct or indirect
responsibilities with respect to) businesses competitive with the businesses of the Company Group,
with competitiveness determined for these purposes as set forth in Section 13(a) or (ii) to provide
services to a private equity firm or hedge fund, in either case, that holds investments in a
business which directly competes with the business in which the Company Group is engaged so long as
the Executive has no involvement with or direct or indirect responsibilities with respect to (A)
the management, operations or supervision of such investments or (B) advising such firm with
respect to such investments. In addition, it shall not be a violation of this Section 13 for the
Executive to remain as a board member of the entities for which he was serving as a board member on
the date of his termination of employment, provided such membership is consistent with Section 3(b)
hereof.




          (d) Upon a Change of Control, the definition of Company Group and their respective employees
and independent contractors for the purposes of this Section 13 shall refer only to the Company,
its Subsidiaries and its affiliates (and the businesses in which they were engaged) as of
immediately prior to such Change of Control.




          (e) 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.




          (f) Except as otherwise set forth in Section 12 and this Section 13, there shall be no other
restrictions on the Executive’s rights to compete, solicit or hire or use or disclose confidential
information following the Executive’s termination of employment other than those under applicable
law.




     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 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



 - 15 - 









 







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. As of the Effective Date, this Agreement, including its
Exhibits, supersedes 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 including, without limitation, the Prior
Agreement and any term sheets relating thereto. 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. In the event of any conflict between any provision of this Agreement,
including Exhibit A, and any other provision of any plan, policy, program, arrangement or other
agreement of the Company or any Subsidiary or any affiliate of the Company, this Agreement (or such
Exhibit) shall control.



     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.



     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 or of any Subsidiary or any division or business unit thereof for



 - 16 - 









 







which the Executive performs services, 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 or of any
Subsidiary or any division or business unit thereof for which the Executive performs services
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 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.



     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, heirs or other successors) to the fullest extent permitted (including a payment of
expenses in advance of final disposition of a proceeding) by the Company’s certificate of
incorporation, or if greater, 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



 - 17 - 









 







sustained by him or his legal representatives, heirs or other successors (including but not
limited to any judgment entered by a court of law or any costs, including reasonable attorneys’
fees the Executive incurs to enforce the terms of this Section 20) 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
(including any acts or omissions which are alleged to have occurred in such service), 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
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 8, 10, 11, 12, 13, 14, 15, 16, 17,
20, 22 and 23 (and the terms defined therein) 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) “401(k) Plan” means the HealthMarkets 401(k) and Savings Plan.



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



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



          (d) “Annual Bonus Percentage” has the meaning specified in Section 4(b)(i).



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



 - 18 - 









 





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



          (g) “Call Right” has the meaning specified in Section 8.



          (h) “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;




     (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); or




     (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.




The cessation of the Executive’s employment shall not be deemed to be for Cause
pursuant to clauses (i), (iii), (iv) or (v) hereof unless and until the Board has
provided the Executive with written notice of the acts or omissions giving rise to
Cause and an opportunity to be heard before the full Board (represented by counsel),
and after such hearing there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of no less than 51% of the entire
membership of the Board (excluding the Executive) at a meeting of the Board called
and held for such purpose, finding that, in the good faith opinion of the Board, the
Executive is guilty of the conduct described in clauses (i), (iii), (iv) or (v)
above.



               (i) “Change of Control” has the meaning specified in Section 4( c).



               (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).



 - 19 - 









 





               (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.



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



               (s) “Fair Market Value” has the meaning specified in Section 8(b).



               (t) “First Year Guaranteed Annual Bonus” has the meaning specified in the Prior Agreement.



               (u) “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 clauses (iv), (v), (vi) or (vii) of this Good Reason definition);




     (ii) a material decrease in the Executive’s Base Salary or Target Bonus
Percentage, which for this purpose shall mean one or more reductions that,
individually or in the aggregate, exceed 5% of the Executive’s highest Base Salary
or, Target Bonus Percentage (excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith which is promptly remedied after notice
by the Executive to the Company);




	 
	[***] = 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.





 - 20 - 









 






     (iii) a material 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 (it being understood that in no event shall the Company’s failure to grant
equity or equity-based compensation awards or awards in lieu thereof to the Executive
or the Company’s grant of such awards to other senior executives of the Company
constitute a basis for the Executive to resign for Good Reason); or




     (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.




     (v) any change in reporting structure so that the Executive reports to someone
other than the Chief Executive Officer of the Company or the Board (or the Chief
Executive Officer or board of directors of any Successor);




     (vi) failure to appoint or elect or removal of Executive from the offices of
Executive Vice President and Chief Financial Officer;




     (vii) following a Change of Control, failure of the Executive to be the Chief
Financial Officer of the successor entity (including the ultimate parent of such
entity); or




     (viii) any failure of the Company to obtain within 30 days following a
transaction the assumption in writing by any successor to all or substantially all of
the business or assets of the Company to perform this Agreement, except where such
assumption occurs by operation of law.




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 120 days following the date he first learns of the event(s) 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 two years following the occurrence of the event(s) on which the
Good Reason termination is based.



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



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



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



(y) [***]



(z) [***]





	 
	[***] = 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 - 









 





          (aa) [***]



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



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



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



          (ee) “Initial Payment Period” has the meaning specified in Section 10(d).



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



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



          (hh) “Limit” has the meaning specified in Section 10(d).



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



          (jj) “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.



          (kk) “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



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



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



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



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



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



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



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




	 
	[***] = 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 - 









 





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



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



          (uu) “Second Installment” means that portion of the First-Year Guaranteed Annual Bonus equal
to $333,333.33, that the Company was required to pay to the Executive on September 1, 2009 pursuant
to Section 4(b)(i) of the Prior Agreement and is now required to pay to the Executive on September
18, 2009 pursuant to Section 4(b)(i) of this Agreement.



          (vv) “Shares” means shares of Class A-1 Common Stock of the Company.



          (ww) “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.



          (xx) “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;
provided that such controlling interest shall be fifty percent (50%) for purposes of Sections
24(i)(i) and 24(i)(iv) of this Agreement.



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



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



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



     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 - 









 





     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.



	 	 	 	 	 
	 	 	 
	 	 	Steven P. Erwin
	 
	 	 	 	 
	 	 	HealthMarkets, Inc.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Phillip J. Hildebrand
	 

	 	 	 	Chief Executive Officer






	 	 	 
	Solely with respect to Section
	 	 
	8 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 Financial Officer



Reporting Person: HealthMarkets Chief Executive Officer



Outside Activities: Member of the Board of Directors of Infometrix





			
	Base Salary:	 	$525,000, 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 Annual Bonus Opportunity: 250% for the Company’s 2009 fiscal year and 200% thereafter





 - 26 - 









 








Exhibit B




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, except to the extent such claims or
causes of action are not released by you in Paragraph 2 hereof (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 (including Paragraph 1 hereof) shall be deemed to
affect, impair or diminish in any respect (or deemed to be a release by you of any claims or an
agreement not to sue or bring an action with respect to) (i) any vested rights as of the date of
termination or entitlement you may have under the ESOP or 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 to enforce this Release and/or the Employment Agreement,
including Exhibit A, including but not limited to your right to bring a claim for breach of this
Release or the Employment Agreement, including Exhibit A; (v) any rights you may have under that
Section 8 (Investment), Section 11 (Certain Additional Payments by the Company) or Section 20
(Indemnification) of the Employment Agreement; (vi) any rights to indemnification and/or
advancement of expenses that you have or may have under the terms of the HealthMarkets Amended and
Restated Bylaws and/or Certificate of Incorporation or any rights you have pursuant to any
applicable directors’ and officers’ liability insurance policies; (vii) your rights as a
shareholder of the Company; or (viii) 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 taking into account your other business and personal commitments, 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 with respect to matters of which you have relevant knowledge. Notwithstanding the
foregoing, you shall not be required to cooperate if such cooperation is adverse to your legal
interests. In addition, the Company agrees to pay promptly any reasonable expenses incurred by you
in connection with such cooperation, including, without limitation, business class airfare,
reasonable meals, reasonable hotels and reasonable legal fees to the extent the Company and you
agree (the Company’s agreement not to be unreasonably withheld) separate representation is
warranted by the circumstances; and



B-28









 





     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.




B-29