Exhibit 10.38
AMERIGROUP CORPORATION
2003 CASH INCENTIVE PLAN
1. Purpose
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The purpose of the AMERIGROUP Corporation 2003 Cash Incentive Plan is to
reinforce corporate, organizational and business-development goals; to promote
the achievement of year-to-year and long-range financial and other business
objectives; and to reward the performance of individual officers and other key
employees in fulfilling their personal responsibilities for long-range
achievements.
2. Definitions
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The following terms, as used herein, shall have the following meanings:
a. "Affiliate" shall mean any entity, whether now or hereafter existing,
that controls, is controlled by, or is under common control with, the Company
(including, but not limited to, joint ventures, limited liability companies, and
partnerships). For this purpose, "control" shall mean ownership of 50% or more
of the voting power of the entity.
b. "Award" shall mean an annual incentive compensation award, granted
pursuant to the Plan, which is contingent upon the attainment of Performance
Goals with respect to a Performance Period.
c. "Award Agreement" shall mean any written agreement, contract, or other
instrument or document between the Company and a Participant evidencing an
Award.
d. "Base Salary" shall mean the base salary paid to a Participant during
any Performance Period.
e. "Board" shall mean the Board of Directors of the Company.
f. "Change in Control" shall have the meaning set forth in the AMERIGROUP
Corporation 2003 Equity Incentive Plan.
g. "Code" shall mean the Internal Revenue Code of 1986, as amended.
h. "Committee" shall mean the Compensation Committee of the Board.
i. "Common Stock" shall mean shares of common stock, par value $0.01 per
share, of the Company.
j. "Company" shall mean AMERIGROUP Corporation and its successors.
k. "Covered Employee" shall have the meaning set forth in Section
162(m)(3)of the Code.
1 "Participant" shall mean an officer or other key employee of the Company
who is, pursuant to Section 4 of the Plan, selected to participate herein.
m. "Performance Goals" shall mean Performance Goals determined by the
Committee in its sole discretion. Such goals may be based on one or more of the
following criteria: (i) return on total stockholder equity; (ii) earnings per
share of Common Stock; (iii) net income (before or after taxes); (iv) earnings
before all or any interest, taxes, depreciation and/or amortization ("EBIT,"
"EBITA," or "EBITDA"); (v) gross revenue; (vi) return on assets; (vii) market
share; (viii) cost reduction goals; (ix) earnings from continuing operations,
levels of expense, cost or liability, and (x) membership goals, in each case, as
applicable, as determined in accordance with generally accepted accounting
principles. Where applicable, the Performance Goals may be expressed in terms of
attaining a specified level of the particular criteria or the attainment of a
percentage increase or decrease in the particular criteria, and may be applied
to one or more of the Company, a Subsidiary or Affiliate, or a division or
strategic business unit of the Company, or may be applied to the performance of
the Company relative to a market index, a group of other companies or a
combination thereof, all as determined by the Committee. The Performance Goals
may include a threshold level of performance below which no vesting will occur,
levels of performance at which specified vesting will occur, and a maximum level
of performance at which full vesting will occur. Each of the foregoing
Performance Goals shall be determined in accordance with generally accepted
accounting principles and shall be subject to certification by the Committee;
provided that the Committee shall have the authority to make equitable
adjustments to the Performance Goals in recognition of unusual or non-recurring
events affecting the Company or any Subsidiary or Affiliate or the financial
statements of the Company or any Subsidiary or Affiliate in response to changes
in applicable laws or regulations, or to account for items of gain, loss or
expense determined to be extraordinary or unusual in nature or infrequent in
occurrence or related to the disposal of a segment of a business or related to a
change in accounting principles.
n. "Performance Period" shall mean, in the discretion of the Committee,
the Company's fiscal year, a period of two Company fiscal years, or a period of
three Company fiscal years, which periods may overlap (or, for any individual
who becomes a Participant during the pendency of any such period, the remainder
of such period).
o. "Plan" shall mean the AMERIGROUP Corporation 2003 Cash Incentive Plan,
as amended from time to time.
p. "Subsidiary" and "Subsidiaries" shall mean only a corporation or
corporations, whether now or hereafter existing, within the meaning of the
definition of a subsidiary corporation provided in Section 424(f) of the Code,
or any successor thereto of similar import.
3. Administration
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The Plan shall be administered by the Committee. The Committee shall have
the authority in its sole discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
powers and authorities either specifically granted to under the Plan or
necessary or advisable in the administration of the
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Plan, including, without limitation, the authority to grant Awards; to determine
the persons to whom and the time or times at which Awards shall be granted; to
determine the terms, conditions, restrictions and performance criteria,
including Performance Goals, relating to any Award; to determine whether, to
what extent, and under what circumstances an Award may be settled, cancelled,
forfeited, or surrendered; to make adjustments in the Performance Goals in
recognition of unusual or non-recurring events affecting the Company or the
financial statements of the Company, or in response to changes in applicable
laws, regulations or accounting principles; to construe and interpret the Plan
and any Award; to prescribe, amend and rescind rules and regulations relating to
the Plan; to determine the terms and provisions of Award Agreements; and to make
all other determinations deemed necessary or advisable for the administration of
the Plan.
The Committee shall consist of two or more persons, each of whom shall be
an "outside director" within the meaning of Section 162(m) of the Code. The
Committee may appoint a chairperson and a secretary and may make such rules and
regulations for the conduct of its business as it shall deem advisable, and
shall keep minutes of its meetings. All determinations of the Committee shall be
made by a majority of its members either present in person or participating by
conference telephone at a meeting or by written consent. The Committee may
delegate to one or more of its members or to one or more agents such
administrative duties as it may deem advisable, and the Committee or any person
to whom it has delegated duties as aforesaid may employ one or more persons to
render advice with respect to any responsibility the Committee or such person
may have under the Plan. All decisions, determinations and interpretations of
the Committee shall be final and binding on all persons, including the Company,
the Participant (or any person claiming any rights under the Plan from or
through any Participant) and any shareholder.
No member of the Board or the Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any Award
granted hereunder.
4. Eligibility
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Awards may be granted to officers and other key employees of the Company
selected by the Committee in its sole discretion. Subject to Section 5(b) below,
in determining the persons to whom Awards shall be granted and the Performance
Goals relating to each Award, the Committee shall take into account such factors
as the Committee shall deem relevant in connection with accomplishing the
purposes of the Plan.
5. Terms of Awards
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Awards granted pursuant to the Plan shall be evidenced by an Award
Agreement in such form as the Committee shall from time to time approve.
a. In General The Committee shall specify with respect to a Performance
Period the Performance Goals applicable to each Award, the minimum, target and
maximum levels applicable to each Performance Goal, and the amounts payable
under attainment of thresholds within such range. The minimum level reflects the
level of performance at which 80% of the Performance Goal is achieved and below
which no payment shall be made; the target level reflects the level of
performance at which 100% of the Performance Goal is
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achieved; and the maximum level reflects the level of performance at which 120%
of the Performance Goal is achieved. Awards for any Performance Period may be
expressed as a dollar amount or as a percentage of the Participant's Base
Salary. Unless otherwise provided by the Committee in connection with specified
terminations of employment, payment in respect of Awards shall be made only if
and to the extent the Performance Goals with respect to such Performance Period
are attained.
b. Special Provisions Regarding Awards Notwithstanding anything to the
contrary contained in this Section 5, in no event shall payment in respect of
Awards granted for a Performance period be made to a participant who is a
Covered Employee in an amount that exceeds the lesser of (i) $2,000,000
multiplied by the number of years in the Performance Period, or (ii) 200% of
such Participant's Base Salary multiplied by the number of years in the
Performance Period.
c. Time and Form of Payment Unless otherwise determined by the Committee,
all payments in respect of Awards granted under this Plan shall be made, in
cash, within a reasonable period after the end of the Performance Period;
provided that in order to receive such payment, a Participant must be employed
by the Company or one of its affiliates on the day such payment is to be made.
In addition, in the case of Participants who are Covered Employees, unless
otherwise determined by the Committee, such payments shall be made only after
achievement of the Performance Goals has been certified by the Committee.
6. General Provisions
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a. Compliance With Legal Requirements The Plan and the granting and
payment of Awards, and the other obligations of the Company under the Plan and
any Award Agreement or other agreement shall be subject to all applicable
federal and state laws, rules and regulations, and to such approvals by any
regulatory or governmental agency as may be required.
b. Nontransferability Awards shall not be transferable by a Participant
except by will or the laws of descent and distribution.
c. No Right to Continued Employment Nothing in the Plan or in any Award
granted or any Award Agreement or other agreement entered into pursuant hereto
shall confer upon any Participant the right to continue in the employ of the
Company or to be entitled to any remuneration or benefits not set forth in the
Plan or such Award Agreement or other agreement or to interfere with or limit in
any way the right of the Company to terminate such Participant's employment.
d. Withholding Taxes The Company shall have the right to withhold the
amount of any taxes that the Company may be required to withhold before delivery
of payment of an Award to the Participant or other person entitled to such
payment, or to make such other arrangements for the withholding of taxes that
the Company deems satisfactory
e. Amendment, Termination and Duration of the Plan The Board or the
Committee may at any time and from time to time alter, amend, suspend, or
terminate the
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Plan in whole or in part; provided that no amendment that requires shareholder
approval in order the for the Plan to continue to comply with Code Section
162(m) shall be effective unless the same shall be approved by the requisite
vote of the shareholders of the Company. Notwithstanding the foregoing, no
amendment shall affect adversely any of the rights of any Participant, without
such Participant's consent, under any Award theretofore granted under the Plan.
f. Participant Rights No Participant shall have any claim to be granted
any Award under the Plan, and there is no obligation for uniformity of treatment
among Participants.
g. Unfunded Status of Awards The Plan is intended to constitute an
"unfunded" plan for incentive compensation.
h. Successor to the Company Unless otherwise agreed by the Company in an
applicable agreement, any successor to the Company shall be required to (i)
expressly assume the Company's obligations under the Plan in connection with a
Change in Control, and (ii) honor the Company's obligations under the Plan and
any Award granted thereunder, without adverse alteration to the rights of any
Participant, with respect to the Performance Period during which such Change in
Control occurs.
i. Governing Law The Plan and all determinations made and actions taken
pursuant hereto shall be governed by the laws of the State of Delaware without
giving effect to the conflict of laws principles thereof.
j. Beneficiary A Participant may file with the Committee a written
designation of a beneficiary on such form as may be prescribed by the Committee
and may, from time to time, amend or revoke such designation. If no designated
beneficiary survives the Participant, the executor or administrator of the
Participant's estate shall be deemed to be the grantee's beneficiary.
k. Interpretation The Plan is designed and intended to comply, to the
extent applicable, with Section 162(m) of the Code, and all provisions hereof
shall be construed in a manner to so comply.
l. Effective Date The Plan shall take effect upon its adoption by the
Board.
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