EXHIBIT 10.18
HEALTH NET, INC.
DEFERRED COMPENSATION
PLAN
(as amended and restated effective January 1,
2004)
I. INTRODUCTION
The purpose of the Health Net, Inc.
Deferred Compensation Plan (the “Plan”) is to permit
certain key employees of Health Net, Inc., a Delaware corporation
(the “Company”), and certain of its subsidiaries to
defer receipt of compensation payable to such employees until such
times as set forth herein.
II. DEFINITIONS
For purposes of the Plan, the
following capitalized terms shall have the meanings set forth in
this Article.
2.1 “Account” shall mean the account
kept on the books and records of the Company established on behalf
of a Participant in the Plan to which amounts deferred by such
Participant (and deemed earnings and losses thereon), other than
amounts credited to the Participant’s In-Service Withdrawal
Account, are credited.
2.2 “Beneficiary” shall mean the
beneficiary or beneficiaries (including any contingent beneficiary)
designated pursuant to Section 4.5, except that the beneficiary or
beneficiaries entitled to amounts credited to the subaccounts of an
Eligible Employee’s Former Account shall be the beneficiary
or beneficiaries as designated pursuant to The Health Net Executive
Deferral Plan and The Health Net Supplemental Credit Plan (such
plans terminated effective as of December 31, 2000), unless a
change to such a beneficiary is made pursuant to Section 4.5
hereof.
2.3 “Board” shall mean the Board of
Directors of the Company.
2.4 “Code” shall mean the Internal
Revenue Code of 1986, as amended.
2.5 “Committee” shall mean the
Compensation and Stock Option Committee of the Board.
2.6 “Common Stock” shall mean the
Class A Common Stock, $.001 par value, of the Company.
2.7 “Company” shall mean Health Net,
Inc. (formerly known as Foundation Health Systems, Inc.), a
Delaware corporation, or any successor thereto.
2.8 “Compensation” shall mean the
total earnings paid by an Employer to an Eligible Employee and
properly reportable on IRS Form W-2 for a Deferral Year (including
bonuses and overtime), and all amounts not includible in such
Eligible Employee’s gross income for federal
income tax purposes solely on account of his or
her election to have compensation reduced pursuant to the Plan, a
qualified cash or deferred arrangement described in Section 401(k)
of the Code or a cafeteria plan as defined in Section 125 of the
Code, but excluding any reimbursements or other allowances for
automobile, relocation, travel or education expenses (even if
includible in the Eligible Employee’s gross income for
federal income tax purposes).
2.9 “Deferral Year” shall mean the
twelve-month period beginning each January 1, except that the first
Deferral Year shall be the eight-month period beginning on May 1,
1998.
2.10 “Disability” shall mean a
disability within the meaning of the long-term disability plan
maintained by the Employer of an Eligible Employee, pursuant to
which such Eligible Employee is receiving long-term disability
benefits.
2.11 “Eligible Employee” shall mean
an individual (i) who is treated by an Employer as its employee,
(ii) whose employment position is categorized as
“director-level” or above, and (iii) whose annual base
rate of salary for a Deferral Year is at least $100,000 (or such
other amount determined by the Company from time to time) as of the
first day of such Deferral Year.
2.12 “ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended.
2.13 “Effective Date” shall mean May
1, 1998.
2.14 “Employer” shall mean the
Company or a Subsidiary, other than a Subsidiary that the Committee
excludes from participation in the Plan.
2.15 “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
2.16 “Former Account” shall mean an
account kept on the books and records of the Company established on
behalf of an Eligible Employee to which shall be credited the
following: (i) amounts equal to the benefits earned by such
Eligible Employee as of December 31, 2000 (the “Plan
Termination Date”) under The Health Net Executive Deferral
Plan (the “Deferral Plan”) and The Health Net
Supplemental Credit Plan (the “Supplemental Credit
Plan”) and (ii) deemed earnings and losses on such amounts
after the Plan Termination Date. An Eligible Employee’s
Former Account shall consist of two subaccounts, i.e. , (x)
a Deferral Plan Subaccount, to which shall be credited such
Eligible Employee’s benefit under the Deferral Plan as of the
Plan Termination Date, and deemed earnings and losses thereon after
the Plan Termination Date, and (y) a Supplemental Credit Plan
Subaccount, to which shall be credited such Eligible
Employee’s benefit under the Supplemental Credit Plan as of
the Plan Termination Date, and deemed earnings and losses thereon
after the Plan Termination Date.
2.17 “In-Service Withdrawal Account”
shall mean the account kept on the books and records of the Company
established on behalf of a Participant to which amounts deferred by
such Participant pursuant to Section 3.2(f) shall be paid in a lump
sum at the time described in Section 4.1(b).
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2.18 “In-Service Withdrawal Year”
shall mean the calendar year designated by a Participant on his or
her deferral election form filed pursuant to Section 3.2(f), which
year begins at least three years after the year in respect of which
the Participant has filed such election form.
2.19 “Investment Fund” shall mean an
“open-end,” “closed-end” or other
collective investment fund selected by the Company from time to
time as a measure for allocating deemed investment gains and losses
to Participants’ accounts.
2.20 “Merger” shall mean any merger
of the Company in which the holders of the Class A common stock,
$.001 par value, of the Company immediately prior to the merger
have the same proportionate ownership of common stock of the
surviving or resulting parent corporation immediately after the
merger.
2.21 “Participant” shall mean an
Eligible Employee who has elected to defer, pursuant to the terms
of the Plan, an amount that would otherwise be payable as
Compensation in a Deferral Year.
2.22 “Payment Date” shall mean the
date chosen by the Company, in its sole discretion, that occurs
within the 90-day period beginning immediately after the last day
of a calendar year.
2.23 “Regular Compensation” shall
mean an Eligible Employee’s Compensation for a Deferral Year,
excluding any bonuses payable to such Eligible Employee during, or
with respect to, such Deferral Year.
2.24 “Subsidiary” shall mean any
corporation other than the Company in an unbroken chain of
corporations beginning with the Company if, at the time of
reference, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50 percent or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
III. PARTICIPATION AND DEFERRALS
(a) In General . Each
Eligible Employee may participate in the Plan in a Deferral Year by
specifying on an election form filed with the Company prior to the
beginning of such Deferral Year the percentage of Compensation for
the Deferral Year to be deducted from such Compensation and
deferred for payment at a later date pursuant to the Plan. The
Company shall establish rules and procedures prescribing the time
and manner in which election forms shall be filed with the
Company.
(b) Initial Participation .
An individual may participate in the Plan during the first Deferral
Year in which the individual begins employment with an Employer,
provided that on the individual’s date of hire he or
she satisfies the conditions set forth in clauses (i) and (ii) of
the definition of “Eligible Employee” and his or her
annual base rate of salary for such Deferral Year is at least
$100,000. To participate in the Plan, such individual must file a
deferral election form with the Company within 30 days of his or
her date of hire (hereinafter, such individual is referred to as an
“Eligible Employee”).
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(a) In General . Except as
provided in Section 3.1(b), a deferral election form must be filed
in accordance with rules and procedures prescribed by the Company
prior to the Deferral Year for which the election is to be
effective. A Participant may not revoke or change a deferral
election for a Deferral Year after the beginning of such year. A
Participant must file a new election form with the Company prior to
each Deferral Year for which the election is to be effective. In no
event shall an election under the Plan apply to Compensation earned
prior to the date on which the election to participate in the Plan
for a Deferral Year is received by the Company.
(b) Deferral Amount . An
Eligible Employee may elect on the election form (in the time and
manner designated by the Company) to defer the receipt of (i)
between 5% and 90% of the amount that would otherwise be the
Eligible Employee’s Regular Compensation for a Deferral Year,
(ii) between 5% and 100% of any bonus payable to such Eligible
Employee during, or with respect to, the Deferral Year or (iii) any
combination of such percentages described in clauses (i) and
(ii).
(c) Deemed Investment
Election . Upon the commencement of participation in the Plan,
each Participant shall specify on his or her election form any one
or more of the Investment Funds in which all of the
Participant’s accounts under the Plan are to be deemed
invested.
(d) Change of Deemed Investment
Election . A Participant may elect to change his or her deemed
investment election as frequently as may be designated by the
Company, and in any event at least quarterly. Any such change shall
specify the whole percentages (or amounts if so permitted by the
Company) to be deemed invested in one or more of the then available
Investment Funds. A Participant may change his or her election (i)
with respect to the balance of his or her account(s) as of the
effective date of the Participant’s new investment election,
(ii) with respect to future amounts credited to the
Participant’s account(s) under Section 3.3(a) and (b) or
(iii) both. A Participant’s change of a deemed investment
election must be made in accordance with the written rules and
conditions provided by the Company to the Participants.
(e) Payment Election . Except
as provided in subsection (f) of this Section 3.2, an Eligible
Employee must designate on each deferral election form filed with
the Company (i) a manner of payment in which his or her Account
shall be paid, provided that such manner of payment is
permitted under Section 4.2, and (ii) whether the Account is to be
paid on the Payment Date occurring immediately after (x) the
calendar year in which the Eligible Employee terminates employment
with the Employer, or (y) the calendar year immediately following
the calendar year in which such employment terminates. The
Participant’s election on the deferral election form most
recently filed with the Company shall supercede the
Participant’s election on all previously filed deferral
election forms with respect to the payment of the
Participant’s Account, provided that the most recent
election form has been on file with the Company for at least twelve
(12) months.
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(f) In-Service Withdrawals .
A Participant may elect for any Deferral Year on a deferral
election form filed with the Company (i) to designate any
percentage of the amount to be deferred to be credited to an
In-Service Withdrawal Account established on behalf of the
Participant and (ii) to receive payment of the balance of such
In-Service Withdrawal Account in a lump-sum within 90 days after
the last day of the In-Service Withdrawal Year so designated by the
Participant.
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3.3
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Deferred
Compensation Account .
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(a) Crediting Deferred
Compensation . Any amount otherwise payable as Compensation
that is deferred by a Participant hereunder shall be credited to
the applicable account of the Participant as of the date on which,
absent such election, such amount would have been payable to the
Participant as Compensation.
(b) Earnings . Each
Participant’s account(s) under the Plan shall be credited
with deemed earnings, or reduced by deemed losses, equal to the
earnings or losses that would