EXHIBIT 10.2
AMENDMENT TO EMPLOYMENT AGREEMENT
BY AND BETWEEN
AMERICAN MEDICAL SECURITY GROUP, INC.
AND
XXXXXX X. XXXXXX
This Amendment ("Amendment") to the Employment Agreement by and between
AMERICAN MEDICAL SECURITY GROUP, INC. ("Company") and XXXXXX X. XXXXXX
("Employee") is effective this 15th day of September, 2004.
WITNESSETH:
WHEREAS, on September 28, 2000, Company and Employee entered into an
Employment Agreement which was amended September 28, 2000 and further amended
January 1, 2004 (as amended, the "Agreement").
WHEREAS, Company and Employee mutually agree to amend the Agreement as
set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree to amend the Agreement as follows:
1. Section 1.1 is amended by the addition of the following sentence to
the end of Section 1.1.
Notwithstanding the foregoing, no written notice of intention not to
renew shall be given prior to December 3, 2004.
2. Section 4.5(f) is amended to provide that the Company shall satisfy
obligations under Section 4.5(f) by providing individual insurance policies and
is hereby amended and restated in its entirety to read as follows:
(f) individual medical, dental, long-term disability, and life
insurance policies (one or more of which may be furnished directly by the
Company) which shall provide the Employee and his dependents with substantially
equivalent insurance coverage to each coverage that was in place at the time of
the Qualifying Separation for a period of three (3) years immediately following
the Qualifying Separation.
3. Section 4.5(g) is hereby amended and restated in its entirety to
read as follows:
(g) if the excise tax imposed under the Internal Revenue Code of 1986,
as amended, (the "Code") Section 4999 on "excess parachute payments", as defined
in the Code Section 280G, is incurred on account of (A) any amount paid or
payable to or for the benefit of the Employee pursuant to this Article IV, (B)
fees and expenses under Section 6.7 of this Agreement or (C) any other amount
paid or payable by the Company, any entity whose actions result in a Change of
Control or an affiliate of the Company or any such entity (the "Change of
Control Benefits"), the Company shall indemnify the Employee and hold him
harmless against all claims, losses, damages, penalties, expenses, and excise
taxes. To effect this indemnification, the Company shall pay the Employee the
Additional Amount on the date the Employee becomes entitled to receive any
payment or benefit purusant to clause (i) or (ii) above that is subject to the
excise tax imposed under Section 4999 of the Code (or such successor provision
thereto) (the "Excise Tax"). For purposes of the Plan, the "Additional Amount"
shall mean the amount necessary to indemnify and hold the Employee harmless from
(A) the Excise Tax with respect to the Change of Control Benefits and (B) the
amount required to satisfy (y) the additional Excise Tax, and (z) the federal,
state and local income taxes for which the Employee is liable with respect to
the Additional Amount (the sum of items (A) and (B) of this Section 4.5(g) being
hereunder referred to as the "Additional Tax Liability").
(1) For purposes of determining the amount and timing of the
payments of the Additional Amount, (i) all Change of Control Benefits
shall be treated as "parachute payments" (within the meaning of Section
280G(b)(2) of the Code) unless, in the opinion of the Company's
independent auditors or other qualified professional engaged by the
Company (the "Auditor"), such payments or benefits (in whole or in
part) do not constitute parachute payments including by reason of
Section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments"
within the meaning of Section 280G(b)(1) of the Code shall be treated
as subject to the Excise Tax unless, in the opinion of the Auditor,
such excess paracute payments (in whole or in part) represent
reasonable compensation for services actually rendered (within the
meaning of Section 280G(b)(4)(B) of the Code) in excess of the base
amount (within the meaning of Section 280G(b)(3) of the Code) allocable
to such reasonable compensation, or are otherwise not subject to the
Excise Tax, and (iii) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Auditor in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code. For
purposes of determining the amount of the Additional Amount, the
Employee shall be deemed to pay federal income tax at the highest
marginal rate of federal income taxation and state and local income
taxes at the highest marginal rate of taxation in the state and
locality of the Employee's residence, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such
state and local taxes. The Auditor shall address any opinion required
hereunder to the Employee and such opinion shall state that the
Employee is entitled to rely on such opinion without risk of any
penalty.
(2) If the Employee's Additional Tax Liability is subsequently
determined to be less than the amount of the Additional Amount paid to
the
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Employee, the Employee shall repay to the Company that portion of
the Additional Amount payment attributable to such reduction (plus
interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code). If the Employee's Additional Tax
Liability is subsequently determined to be more than the amount of the
Additional Amount paid to the Employee, the Company shall make an
additional payment in respect of such excess, as well as the amount of
any penalty or interest assessed with respect thereto at the time that
the amount of such excess, penalty or interest is finally determined.
(3) Notwithstanding any other provision of this Section 4.5(g)
to the contrary, if the aggregate "After-Tax Amount" (as defined below)
of the Change of Control Benefits that would be payable to the Employee
does not equal or exceed 110% of the "After-Tax Floor Amount" (as
defined below), then no Additional Amount shall be payable to the
Employee and the aggregate amount of Change of Control Benefits payable
to the Employee shall be reduced (but not below the "Floor Amount" as
defined below) to the largest amount that would both (i) not cause any
Additional Tax Liability to be payable by the Employee and (ii) not
cause any Change of Control Benefits to become nondeductible by the
Company by reason of Section 280G of the Code (or any successor
provision). For purposes of the preceding sentence, the Employee shall
be deemed to be subject to the highest marginal rate of federal, state,
and local taxes, excluding Social Security, Medicare, and alternative
minimum taxes or similar tax consequences.
"After-Tax Amount" means the portion of a specified amount that would
remain after payment of all federal, state, and local taxes (excluding Social
Security, Medicare, and alternative minimum taxes or similar tax consequences),
and Additional Tax Liability paid or payable by the Employee in respect of such
specified amount.
"After-Tax Floor Amount" means the After-Tax Amount of the Floor
Amount.
"Floor Amount" means the greatest pre-tax amount of Change of Control
Benefits that could be paid to the Employee without causing the Employee to
become liable for any Additional Tax Liability in connection therewith.
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IN WITNESS WHEREOF, the parties have executed this Amendment on this
15th day of September, 2004.
AMERICAN MEDICAL SECURITY GROUP
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President of
Corporate Affairs, General
Counsel and Secretary
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
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