x | No fee required. | ||
o
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
(1) |
Title of
each class of securities to which transaction applies:
|
|
(2) |
Aggregate
number of securities to which transaction applies:
|
|
(3) |
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
|
|
(4) |
Proposed
maximum aggregate value of transaction:
|
|
(5) | Total fee paid: |
o
|
Fee paid previously with preliminary materials. |
o
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its
filing.
|
|
(1)
|
Amount
Previously Paid:
|
(2) | Form, Schedule or Registration Statement No.: | |
(3) | Filing Party: | |
(4) | Date Filed: |
Dear
Shareholder:
|
|
TIME
AND DATE
|
10:00
a.m. Eastern Time on July 30, 2009.
|
PLACE
|
Grand
Hyatt Tampa Bay
2900
Bayport Drive
Tampa,
Florida 33607
|
PURPOSE
|
a.
To elect seven Directors;
b.
To approve and adopt an amendment to our certificate of incorporation to
declassify our Board of Directors and to provide that Directors may be
removed with or without cause (except for Class III Directors serving the
remaining portion of a multi-year term, who, if the amendment is approved
and adopted, could not be removed without cause prior to the end of their
current multi-year term);
c.
To ratify the appointment of Deloitte & Touche LLP as our independent
registered public accounting firm for fiscal year 2009; and
d. To
transact such other business as may properly come before the meeting or
any adjournment or postponement of the meeting.
|
RECORD
DATE
|
You
can vote if you were a shareholder of record at the close of business on
June 3, 2009.
|
PROXY
VOTING
|
It
is important that you vote your shares. You can vote your
shares by completing and returning the proxy card sent to
you. Most shareholders have the option of voting through the
internet or by telephone. Please refer to your proxy card to
determine if there are other voting options available to
you. You can revoke a proxy at any time prior to its exercise
at the meeting by following the instructions in the accompanying proxy
statement.
|
|
|
Timothy
S. Susanin
|
|
Senior
Vice President, General Counsel and
Secretary
|
PAGE
|
||
INTRODUCTION
|
1
|
|
REDUCE
PRINTING AND MAILING COSTS
|
1
|
|
ABOUT
THE MEETING
|
1
|
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
3
|
|
PROPOSAL
NUMBER ONE – ELECTION OF DIRECTORS
|
6
|
|
BOARD
OF DIRECTORS
|
8
|
|
EXECUTIVE
OFFICERS
|
9
|
|
CORPORATE
GOVERNANCE AND RELATED MATTERS
|
11
|
|
DIRECTOR
COMPENSATION AND RELATED INFORMATION
|
19
|
|
COMPENSATION
DISCUSSION AND ANALYSIS
|
23
|
|
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
|
34
|
|
EXECUTIVE
COMPENSATION
|
34
|
|
PROPOSAL
NUMBER TWO – AMENDMENT OF CERTIFICATE OF INCORPORATION
|
49
|
|
AUDIT
MATTERS
|
51
|
|
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
|
51
|
|
REPORT
OF THE AUDIT COMMITTEE
|
51
|
|
PROPOSAL
NUMBER THREE – RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
|
52
|
|
ADDITIONAL
INFORMATION
|
53
|
|
APPENDIX
A – AUDIT
COMMITTEE CHARTER
|
A -
1
|
|
APPENDIX
B – PROPOSED
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
|
B -
1
|
Ownership
|
||||
Name and Address
|
Common Stock
|
Percent (%)
|
||
Fairholme Capital Management, et al.(1)
4400 Biscayne Boulevard, 9th Floor
Miami, FL 33137
|
8,313,407
|
19.7
|
||
Renaissance
Technologies, et
al. (2)
800
Third Avenue
New
York, NY 10022
|
2,857,200
|
6.8
|
||
Barclays
Global Investors, et
al.(3)
400 Howard Street
San Francisco, CA 94105
|
2,306,969
|
5.5
|
(1)
|
This
disclosure is based upon a Schedule 13G/A filed by Fairholme Capital
Management, L.L.C. (“Fairholme”) and other affiliated entities with the
SEC on February 17, 2009. Fairholme and the other affiliated
entities reported shared voting and dispositive power as of December 31,
2008 as follows: (i) Fairholme, shared voting power as to 5,088,603 shares
and shared dispositive power as to 8,025,777 shares; (ii) Bruce R.
Berkowitz, sole voting and dispositive power as to 287,630 shares, shared
voting power as to 5,088,603 shares and shared dispositive power as to
8,025,777 shares; and (iii) Fairholme Funds, Inc., shared voting and
dispositive power as to 4,166,200 shares. We have not attempted
to verify independently any of the information contained in the Schedule
13G/A.
|
|
(2)
|
This
disclosure is based upon a Schedule 13G filed by Renaissance Technologies
LLC (“Renaissance”) and James H. Simons (“Simons”) with the SEC on
February 13, 2009. Renaissance and Simons reported sole voting and
dispositive power as of December 31, 2008 as to 2,857,200
shares. We have not attempted to verify independently any of
the information contained in the Schedule 13G.
|
|
(3)
|
This
disclosure is based upon a Schedule 13G filed by Barclays Global
Investors, N.A. (“Barclays”) and other affiliated entities with the SEC on
February 5, 2009. Barclays and the other affiliated entities
reported sole voting and dispositive power as of December 31, 2008 as
follows: (i) Barclays, sole voting power as to 1,171,495 shares and sole
dispositive power as to 1,397,117 shares; (ii) Barclays Global Fund
Advisors, sole voting power as to 581,075 and sole dispositive power as to
816,712 shares; (iii) Barclays Global Investors, Ltd., sole voting power
as to 19,090 shares and sole dispositive power as to 53,029 shares; (iv)
Barclays Global Investors Japan Limited, sole voting and dispositive power
as to 15,330 shares; (v) Barclays Global Investors Canada Limited, sole
voting and dispositive power as to 24,781 shares; and (vi) Barclays Global
Investors Australia Limited and Barclays Global Investors (Deutschland)
AG, sole voting and dispositive power as to no shares. We have
not attempted to verify independently any of the information contained in
the Schedule 13G.
|
Name
|
Common Stock (1)
|
Percent
|
||
David
Gallitano
|
14,354
|
*
|
||
Robert
Graham
|
17,260
|
|
*
|
|
Regina
Herzlinger
|
46,959
|
*
|
||
Kevin
Hickey
|
44,353
|
|
*
|
|
Alif
Hourani
|
18,871
|
*
|
||
Ruben
King-Shaw, Jr.
|
25,746
|
*
|
||
Christian
Michalik
|
82,997
|
*
|
||
Neal
Moszkowski
|
25,107
|
*
|
||
Charles
G. Berg
|
380,799
|
*
|
||
Heath
G. Schiesser
|
520,979
|
1.2
|
||
Todd
S. Farha(2)
|
618,835
|
(5)
|
1.5
|
|
Thomas
L. Tran
|
75,000
|
*
|
||
Paul
L. Behrens(3)
|
197,977
|
(5)
|
*
|
|
Anil
Kottoor(4)
|
—
|
(5)
|
*
|
|
Adam
T. Miller
|
64,605
|
*
|
||
Thomas
F. O’Neil III
|
70,912
|
*
|
||
All
Directors and Executive Officers as a Group (20 persons)
|
1,683,741
|
|
3.9
|
*
|
Less
than one percent
|
|
(1)
|
Certain
of our executive officers and Directors hold their shares in brokerage
accounts where there may be a loan balance from time to time that is
secured by all of the assets in the account, including shares of our
common stock. Accordingly, even though there may be substantial
assets in the account, the shares of our stock in these accounts could
technically be sold in a margin sale.
|
|
(2)
|
Mr.
Farha resigned his positions as chairman and as President and Chief
Executive Officer effective January 25, 2008 and ceased employment with us
on March 31, 2008.
|
|
(3)
|
Mr.
Behrens resigned his positions as Senior Vice President and Chief
Financial Officer effective January 25, 2008 and ceased employment with us
on March 31, 2008.
|
|
(4)
|
Mr.
Kottoor’s employment was terminated effective December 19,
2008.
|
|
(5)
|
Based
on information known to the
Company.
|
Included
|
Excluded
|
||||||||||||||
Name
|
Common
Stock
|
Unvested
Common Stock
|
Vested
Stock
Options
|
Stock
Options that Vest within 60 Days
|
Stock
Options that Vest in More than 60 Days
|
Restricted
Stock Units that Vest in More than 60 Days
|
Performance
Shares that Vest in More than 60 Days
|
||||||||
David
Gallitano
|
—
|
14,354
|
—
|
—
|
—
|
—
|
—
|
||||||||
Robert
Graham
|
2,777
|
—
|
14,483
|
—
|
—
|
—
|
|
—
|
|||||||
Regina
Herzlinger
|
18,331
|
|
—
|
28,628
|
—
|
—
|
—
|
—
|
|||||||
Kevin
Hickey
|
26,063
|
—
|
18,290
|
—
|
—
|
—
|
—
|
||||||||
Alif
Hourani
|
581
|
—
|
18,290
|
—
|
—
|
—
|
—
|
||||||||
Ruben
King-Shaw, Jr.
|
15,081
|
—
|
10,665
|
—
|
—
|
—
|
—
|
||||||||
Christian
Michalik
|
31,050
|
—
|
51,947
|
—
|
—
|
—
|
—
|
||||||||
Neal
Moszkowski
|
10,822
|
—
|
14,285
|
—
|
—
|
—
|
—
|
||||||||
Charles
G. Berg
|
80,799
|
75,000
|
187,500
|
37,500
|
75,000
|
—
|
—
|
||||||||
Heath
G. Schiesser
|
101,904
|
175,709
|
217,543
|
25,823
|
324,675
|
—
|
—
|
||||||||
Todd
S. Farha
|
618,835
|
—
|
—
|
—
|
—
|
—
|
130,000
|
(1)
|
|||||||
Thomas
L. Tran
|
—
|
50,000
|
—
|
25,000
|
75,000
|
|
8,232
|
—
|
|||||||
Paul
L. Behrens
|
197,977
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||
Anil
Kottoor
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||
Adam
T. Miller
|
13,732
|
14,054
|
35,409
|
1,410
|
80,458
|
10,681
|
—
|
||||||||
Thomas
F. O’Neil III
|
8,412
|
37,500
|
25,000
|
—
|
75,000
|
13,109
|
—
|
||||||||
All
Directors and Executive Officers as a Group (20
persons)
|
329,755
|
479,928
|
774,889
|
99,169
|
1,013,755
|
72,535
|
130,000
|
|
(1)
|
Pursuant
to an award agreement dated June 6, 2005, Mr. Farha was eligible to
receive a maximum of 130,000 shares of our common stock based upon the
achievement of certain performance criteria. Specifically, Mr.
Farha was eligible to earn, if any shares, a (i) threshold of 32,500
shares, (ii) target of 65,000 shares, or (iii) a maximum of 130,000 shares
on June 6, 2008 based on the achievement of compounded annual percentage
increases in diluted net income per share over the three-year period
measured from January 1, 2005 through December 31, 2007. It has
not yet been determined whether Mr. Farha has earned any of these
shares. See “Potential Payments to Named
Executive Officers upon Termination or Change in Control” above for
a discussion of Mr. Farha’s separation agreement and the treatment of
these shares.
|
|
·
|
A
Director, who is, or has been within the last three years, an employee of
the Company or any subsidiary, or whose immediate family member is, or has
been within the last three years, an executive officer of the Company, is
not independent until three years after the end of such employment
relationship;
|
|
·
|
A
Director who has received, or has an immediate family member who has
received, more than $120,000 per year in direct compensation from the
Company or any subsidiary, other than director and committee fees and
pension or other forms of deferred compensation for prior service
(provided such compensation is not contingent in any way on continued
service), is not independent until three years after he or she ceases to
receive more than $120,000 per year in such
compensation;
|
|
·
|
A
Director is not independent if he or she: is a current partner or employee
of the firm that is the internal or external auditor of the Company or any
subsidiary; has an immediate family member who is a current partner of
such firm; has an immediate family member who is a current
employee of such firm and who personally worked on the Company’s audit;
was, or has, an immediate family member who was, within the last three
years, a partner or employee of such firm and personally worked on the
Company’s audit within that time;
|
|
·
|
A
Director or an immediate family member who is, or has been within the last
three years, employed as an executive officer of another company where any
of our present executives at the same time serves or served on that
company’s compensation committee, is not independent until three years
after the end of such service or the employment relationship;
and
|
|
·
|
A
Director who, or whose immediate family member, is a current executive
officer of a company that has made payments to, or received payments from,
our Company or any of our subsidiaries for property or services in an
amount which, in any of the last three fiscal years, exceeded the greater
of $1 million or 2% of such other company’s consolidated gross revenues,
is not independent until three years after such payments fall below such
threshold.
|
|
·
|
Senator
Graham and/or his immediate family members have an ownership interest of
approximately 23% in The Graham Companies, the landlord under a lease
agreement with one of our subsidiaries with respect to office space in
south Florida. The Board concluded that this relationship did
not impair Senator Graham’s independence primarily because we have had a
relationship with The Graham Companies for many years prior to Senator
Graham becoming a member of our
Board.
|
|
·
|
Mr.
Hickey is a senior advisor to D2Hawkeye, Inc., now a part of Verisk, Inc.,
a company where he previously served as President from January 2006 to
December 2007. In February 2007, we entered into a services
contract with D2Hawkeye pursuant to which D2Hawkeye has developed an
internet-based portal for certain of our health care
providers. The Board has reviewed the salient facts regarding
this relationship, including compensation received from D2Hawkeye by Mr.
Hickey, Mr. Hickey’s former ownership interest in D2Hawkeye, amounts paid
by us to D2Hawkeye, D2Hawkeye’s revenues, the fact that D2Hawkeye has
since been purchased by a larger company, Insurance Services Office, Inc.
(ISO), and other facts. Following this review, our Board
concluded that this relationship did not impair Mr. Hickey’s independence
under the standards set forth above. In particular, our
payments to D2Hawkeye did not exceed the greater of $1 million or 2% of
D2Hawkeye’s gross revenues in any
year.
|
|
·
|
Todd
Farha, the Company’s President and Chief Executive Officer until his
resignation in January 2008, in the past had invested in several funds
managed, directly or indirectly, by private equity firms affiliated with
Messrs. Michalik and Moszkowski. In each case Mr. Farha’s
investment represented less than 1% of the funds’ aggregate committed
capital. Mr. Farha also had a small direct investment in a
company in which Mr. Michalik’s firm held a majority ownership
interest. Based on a review of these circumstances, our Board
determined that these relationships did not impair the independence of
Messrs. Michalik and Moszkowski. In addition, Mr. Farha is a
first cousin of Mr. Hourani. However, our Board determined that
this relationship did not impair Mr. Hourani’s
independence.
|
Director
|
Audit
Committee
|
Compensation
Committee
|
Nominating
and Corporate Governance Committee
|
Regulatory
Compliance Committee
|
Health
Care Quality and Access Committee
|
Charles
Berg
|
X
|
||||
David
Gallitano
|
X
|
X
|
X
|
||
D.
Robert Graham
|
X
|
X
(chair)
|
X
|
||
Regina
Herzlinger
|
X*
(chair)
|
||||
Kevin
Hickey
|
X
(chair)
|
X
|
X
|
||
Alif
Hourani
|
X
|
X
|
X
|
||
Ruben
King-Shaw, Jr.
|
X
(chair)
|
||||
Christian
Michalik
|
X*
|
X
|
|||
Neal
Moszkowski
|
X
(chair)
|
||||
Heath
Schiesser
|
X
|
*
|
Dr.
Herzlinger and Mr. Michalik are our “audit committee financial experts,”
as defined in the Exchange Act, and each has accounting or related
financial management expertise.
|
|
·
|
The
diversity, age, background and experience of the
candidate;
|
|
·
|
The
personal qualities and characteristics, accomplishments and reputation in
the community of the candidate;
|
|
·
|
The
knowledge and contacts of the candidate in the communities in which we
conduct business and in our business industry or other industries relevant
to our business;
|
|
·
|
The
ability and expertise of the candidate in various activities deemed
appropriate by the Board; and
|
|
·
|
The
fit of the candidate’s skills, experience and personality with those of
other Directors in maintaining an effective, collegial and responsive
Board.
|
|
•
|
Formation of the Regulatory
Compliance Committee. As discussed above, our Board
formed a Regulatory Compliance Committee to oversee our compliance
activities and programs. This committee receives periodic reports from our
Chief Compliance Officer and is responsible for oversight of management’s
corporate compliance committee, which is discussed
below.
|
|
•
|
Appointment of the Chief
Compliance Officer. Our Chief Compliance Officer reports directly
to our Chief Executive Officer and the Regulatory Compliance
Committee. The Chief Compliance Officer is responsible for
monitoring regulatory reporting and regulatory communications, affiliated
company arrangements, and political contributions and fund-raising, among
other things.
|
|
•
|
Reorganization of the
compliance department. We have separated the compliance
function from our legal department and created a standalone compliance
department under the supervision of our Chief Compliance
Officer. In addition, under the leadership of our Chief
Compliance Officer, the compliance department has been reorganized into
the following units: Medicare, Medicaid, privacy and corporate
compliance.
|
|
•
|
Enhanced corporate compliance
committee. Our corporate compliance committee operates under a
charter approved by the Board’s Regulatory Compliance
Committee. The reconstituted corporate compliance committee is
chaired by our Chief Compliance Officer and comprised of other members of
senior management, including our General Counsel, Chief Operating Officer
and leaders of our Medicare and Medicaid businesses. The
corporate compliance committee
has recently introduced iCare, an improved corporate ethics and compliance
program for all of our lines of business and corporate
functions. In addition, the corporate compliance committee
reviews areas of legal, regulatory and compliance risk throughout the
Company and, under the oversight of the Regulatory Compliance Committee,
is responsible for developing appropriate policies and procedures to
address such risks.
|
|
•
|
Communications with
regulators. We are implementing a comprehensive program to help us
identify regulatory reporting issues and report such issues to the
appropriate federal or state regulator. The program, which is
administered under the supervision of our Chief Compliance Officer, is
designed to ensure the reliability of the information we communicate to
regulators. As part of this program, we have established an
internal certification process relating to the data contained in, and
preparation of, the reports that we file with regulators. In addition, we
will audit sample reports we have filed with state regulators to confirm
that they were prepared in compliance with applicable law and are
otherwise accurate and complete.
|
|
•
|
Effective compliance
training. iCare includes mandatory compliance training programs, or
training modules, for all associates. So far, we have
implemented a general compliance training module and a training module on
fraud, waste and abuse, and intend to add new training modules from time
to time. These training modules are designed to strengthen our
associates’ competency, independent judgment and identification of
potential violations of applicable law or Company
policy.
|
|
•
|
Enhanced communication of
non-retaliation policies and improved reporting channels. As an
integral part of the iCare program, we are re-emphasizing to all of our
associates that any form of employee retaliation or retribution is
prohibited and will result in disciplinary action, including possible
termination. We are also continuing to encourage our associates
to express concerns or report violations of which they have become aware
or have observed. Associates may express concerns through a
variety of channels, including an anonymous telephonic hotline, the
Company’s compliance intranet, or by contacting directly our Chief
Compliance Officer or any member of our legal
department.
|
|
•
|
Enhancement of written
policies and procedures. We have adopted new or revised written
policies and procedures to reflect a clear commitment to corporate
integrity and compliance and a duty to report. As part of this process,
earlier this year the Board adopted a new Code of Conduct, which replaced
our previous standards of conduct. The Code of Conduct applies
to all of our Directors and associates, including our Chief Executive
Officer, Chief Financial Officer and Chief Accounting
Officer. Collectively, these written policies will serve as
guiding principles that emphasize, among other things, our commitment to
financial reporting integrity.
|
Annual
Board Fee
|
Annual
Audit
Committee
Chair Fee
|
Annual Audit
Committee
Non-Chair
Member Fee
|
Annual
Special
Committee
Chair Fee
|
Annual
Special
Committee
Non-Chair
Fee
|
Annual Fee
for Serving
As the Chair
of Other
Committees(1)
|
Annual Fee
for Serving
as a Non-
Chair
Member of
Other
Committees(1)
|
Annual
Lead
Director
Fee
|
||||||||||||||||
$
|
37,500
|
$
|
10,000
|
$
|
5,000
|
$
|
90,000
|
$
|
60,000
|
$
|
2,500
|
$
|
2,000
|
$
|
10,000
|
(1)
|
These
fees are for the Compensation Committee, the Nominating and Corporate
Governance Committee, the Regulatory Compliance Committee and the Health
Care Quality and Access Committee.
|
Annual
Board Fee
|
Annual
Audit
Committee
Chair Fee
|
Annual
Audit
Committee
Non-Chair
Member Fee
|
Annual
Special
Committee
Chair Fee
|
Annual
Special
Committee
Non-Chair
Fee
|
Annual
Special
Litigation Committee Fee
|
Annual Fee
for Serving
As the Chair
of Other
Committees(1)
|
Annual Fee
for Serving
as a Non-
Chair
Member of
Other
Committees(1)
|
Annual
Lead
Director
Fee
|
||||||||||||||||||
$
|
50,000
|
$
|
20,000
|
$
|
12,000
|
$
|
90,000
|
$
|
60,000
|
$
|
90,000
|
$
|
12,000
|
$
|
8,000
|
$
|
15,000
|
|
(1) These
fees are for the Compensation Committee, the Nominating Committee, the
Regulatory Compliance Committee and the Health Care Quality and Access
Committee.
|
|
·
|
One
hundred percent (100%) of the value of shares of our common stock owned
individually, either directly or indirectly, including vested and unvested
restricted stock or restricted stock unit awards or shares acquired upon
exercise of stock options; and
|
|
·
|
Shares
of our common stock owned jointly, or separately by a spouse, domestic
partner and/or minor children, directly or
indirectly.
|
Name
|
Fees Earned or
Paid in
Cash
($)
|
Stock
Awards(1)
($)
|
Option
Awards(1)
($)
|
Total
($)
|
|||||
Robert
Graham
|
50,250
|
125,170
|
—
|
175,420
|
|||||
Regina
Herzlinger
|
59,875
|
—
|
1,189
|
61,064
|
|||||
Kevin
Hickey
|
57,375
|
—
|
594
|
57,969
|
|||||
Alif
Hourani
|
57,125
|
—
|
594
|
57,719
|
|||||
Ruben
King-Shaw, Jr.
|
123,750
|
—
|
594
|
124,344
|
|||||
Christian
Michalik
|
129,625
|
—
|
594
|
130,219
|
|||||
Neal
Moszkowski
|
164,375
|
125,180
|
—
|
289,555
|
|||||
David
Gallitano(2)
|
—
|
—
|
—
|
—
|
(1)
|
The
amounts included in the “Stock Awards” and “Option Awards” columns are the
amounts of compensation cost related to restricted stock and stock option
awards, respectively, recognized by us in our financial statements during
fiscal year 2008 in accordance with Statement of Financial Accounting
Standards No. 123R (“FAS 123R”). Pursuant to SEC rules,
the amounts shown exclude the impact of estimated forfeitures related to
service-based vesting conditions, as applicable. These amounts
reflect our accounting expense for these awards and do not correspond to
the actual value that will be realized by the Directors. For a
discussion of valuation assumptions and methodologies, see Note 2 to our
2008 consolidated financial statements included in our annual report on
Form 10-K for the year-ended December 31,
2008.
|
(2)
|
Mr. Gallitano
was appointed to our Board of Directors in March
2009.
|
Option Awards
|
Stock
Awards
|
||||||||||||
Name
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
(#)
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not
Vested(1)
($)
|
|||||||
Robert
Graham
|
10,693
|
—
|
90.05
|
10/26/11
|
1,389
|
(2)
|
17,863
|
||||||
3,790
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
Regina
Herzlinger
|
10,000
|
—
|
17.00
|
07/07/14
|
—
|
—
|
|||||||
7,000
|
—
|
36.45
|
07/27/12
|
—
|
—
|
||||||||
6,500
|
—
|
47.40
|
06/07/13
|
—
|
—
|
||||||||
5,128
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
Kevin
Hickey
|
5,000
|
—
|
17.00
|
07/07/14
|
—
|
—
|
|||||||
4,500
|
—
|
36.45
|
07/27/12
|
—
|
—
|
||||||||
5,000
|
—
|
47.40
|
06/07/13
|
—
|
—
|
||||||||
3,790
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
Alif
Hourani
|
5,000
|
—
|
17.00
|
07/07/14
|
—
|
—
|
|||||||
4,500
|
—
|
36.45
|
07/27/12
|
—
|
—
|
||||||||
5,000
|
—
|
47.40
|
06/07/13
|
—
|
—
|
||||||||
3,790
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
Ruben
King-Shaw, Jr.
|
1,875
|
—
|
17.00
|
07/07/14
|
—
|
—
|
|||||||
5,000
|
—
|
47.40
|
06/07/13
|
—
|
—
|
||||||||
3,790
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
Christian
Michalik
|
33,657
|
—
|
6.47
|
12/31/13
|
—
|
—
|
|||||||
5,000
|
—
|
17.00
|
07/07/14
|
—
|
—
|
||||||||
4,500
|
—
|
36.45
|
07/27/12
|
—
|
—
|
||||||||
5,000
|
—
|
47.40
|
06/07/13
|
—
|
—
|
||||||||
3,790
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
Neal
Moszkowski
|
10,495
|
—
|
91.64
|
10/20/11
|
1,364
|
(3)
|
17,541
|
||||||
3,790
|
—
|
90.52
|
12/12/11
|
—
|
—
|
||||||||
David
Gallitano(4)
|
—
|
—
|
—
|
—
|
—
|
—
|
(1)
|
Value
based on $12.86 per share which was the closing price of our common stock
on the NYSE on December 31, 2008.
|
(2)
|
These
shares vested on April 26, 2009.
|
(3)
|
These
shares vested on April 20, 2009.
|
(4)
|
Mr. Gallitano
was appointed to our Board of Directors in March 2009.
|
Option Awards
|
Stock Awards
|
||||||||
Name
|
Number of
Shares
Acquired
on Exercise
(#)
|
Value Realized
on Exercise(1)
($)
|
Number of
Shares
Acquired
on Vesting
(#)
|
Value Realized
on Vesting(2)
($ )
|
|||||
Robert
Graham
|
—
|
—
|
1,388
|
56,936
|
|||||
Regina
Herzlinger
|
—
|
—
|
—
|
—
|
|||||
Kevin
Hickey
|
—
|
—
|
—
|
—
|
|||||
Alif
Hourani
|
—
|
—
|
—
|
—
|
|||||
Ruben
King-Shaw, Jr.
|
—
|
—
|
—
|
—
|
|||||
Christian
Michalik
|
—
|
—
|
—
|
—
|
|||||
Neal
Moszkowski
|
—
|
—
|
1,364
|
58,106
|
|||||
David
Gallitano(3)
|
—
|
—
|
—
|
—
|
(1)
|
The
value realized is calculated by multiplying the number of shares by the
difference between the market price of our common stock at time of
exercise and the exercise price of the stock option.
|
(2)
|
The
value realized is calculated by multiplying the number of shares vested by
the closing market price of our common stock on the date of
vesting.
|
(3)
|
Mr. Gallitano
was appointed to our Board of Directors in March
2009.
|
|
·
|
Heath
G. Schiesser and Todd S. Farha, two individuals who served as our
principal executive officer during
2008;
|
|
·
|
Thomas
L. Tran and Paul L. Behrens, two individuals who served as our principal
financial officer during 2008;
|
|
·
|
Charles
G. Berg, Adam T. Miller and Thomas F. O’Neil III, our three other most
highly compensated executive officers who were serving as executive
officers at the end of 2008; and
|
|
·
|
Anil
Kottoor, an individual who would have been one of our three other most
highly compensated executive officers if he had served as an executive
officer at the end of 2008.
|
2008
Peer Group
|
||||
· Aetna
Inc.
|
·
Express Scripts Inc.
|
|||
·
AMERIGROUP Corp.
|
·
Health Net, Inc.
|
|||
·
Centene Corp.
|
·
HealthSpring Inc.
|
|||
·
Cigna Corp.
|
·
Humana, Inc.
|
|||
·
Coventry Health Care, Inc.
|
·
Sierra Health Services, Inc.
|
|
·
|
Watson
Wyatt 2007/08 Survey Report on Top Management Compensation;
|
|
·
|
Watson
Wyatt 2007/08 Survey Report on Health, Annuity, and Life Insurance
Management Compensation;
|
|
·
|
2007
U.S. Mercer Benchmark Database: Executive Survey Report;
and
|
|
·
|
2007
Mercer Integrated Health Networks (IHN): U.S. Integrated Health Networks
Compensation Survey Suite.
|
|
·
|
cash
compensation paid to our executives in the aggregate, consisting of base
salary and annual incentive cash compensation, was 16% below the median of
the market data; and
|
|
·
|
ongoing
equity awards to our executives in the aggregate was 40% above the 75th
percentile of the market data.
|
|
·
|
base
salary adjustments;
|
|
·
|
annual
cash bonus awards related to prior fiscal year performance based on
targets established in the prior fiscal
year;
|
|
·
|
long-term
incentive awards based on targets established in the prior fiscal
year;
|
|
·
|
new
annual cash bonus targets; and
|
|
·
|
new
long-term incentive targets.
|
|
·
|
base
salary;
|
|
·
|
an
annual cash bonus;
|
|
·
|
long-term
incentive awards in the form of cash, restricted stock and stock options;
and
|
|
·
|
retention-related
incentive awards in the form of cash and stock
options.
|
|
·
|
Annual
merit increases. The Compensation Committee begins to
review potential merit increases in February and merit increases, if any,
are usually effective in mid-February or early March. Annual
merit increases are not guaranteed and any adjustments take into account
the individual’s performance, responsibilities and
experience. When making these determinations, the Compensation
Committee relies to a large extent on the Chief Executive Officer’s
evaluation of the performance of executive officers who report directly to
him.
|
|
·
|
Promotions
or changes in role. The Compensation Committee may
determine to increase an executive’s base salary to recognize an increase
in responsibilities resulting from a change in an executive’s role or a
promotion to a new position. The Compensation Committee
considers new responsibilities, market data and internal pay equity in
addition to past performance and experience when approving any such salary
increases.
|
|
·
|
Market
adjustments. Market adjustments may be awarded to an
executive when, in the judgment of the Compensation Committee, a
significant gap between the market data and the individual’s base salary
is recognized. In general, market adjustments are determined as
part of the annual merit review
process.
|
Bonus
Payout
|
=
|
Pre-Established
Bonus Target
|
x
|
Company
Performance Modifier
|
x
|
Individual
Performance Modifier
|
|
·
|
budgets
that were achieved, including revenue, membership and selling, general and
administrative expenses (when adjusted to exclude investigation-related
expenses);
|
|
·
|
budgets
that were not achieved, including
earnings;
|
|
·
|
expansion
into the Hawaii market;
|
|
·
|
Medicare
growth versus our industry’s growth
rate;
|
|
·
|
major
projects, including the completion of CMS and NCQA audits and Medicaid
compliance;
|
|
·
|
medical
cost improvements in our Ohio
market;
|
|
·
|
improving
regulatory relationships; and
|
|
·
|
our
stock price performance.
|
|
·
|
2008 Annual
Cash Bonus Targets. For 2008,
the Compensation Committee established new annual cash bonus targets for
Messrs. Kottoor and Miller for their annual cash bonus to be paid in
March 2009 (the annual cash bonus related to fiscal year 2008
performance is referred to as the “2008 Annual Cash Bonus
Award”). Mr. Kottoor’s target was increased from 35% of base
salary to 80% of base salary. Mr. Miller’s target was increased
from 50% of base salary to 80% of base salary. The new bonus
targets were largely based on the recommendation of Mr. Schiesser and
reflected the Compensation Committee’s desire to target total cash
compensation of Messrs. Kottoor and Miller at the 70th percentile of
the market data. As a result of the further discussions with
Mr. Miller in April 2008, as discussed above under “Base Salary – Fiscal Year
2008,” the Compensation Committee approved increasing
Mr. Miller’s fiscal year 2008 bonus target from 80% to 100% of base
salary.
|
|
Messrs.
Schiesser, Tran, Berg and O’Neil were each hired for their respective
positions during 2008. Each of these executives, with the
exception of Mr. Berg, negotiated an annual cash incentive bonus target in
connection with being recruited as discussed above. Although
Mr. Berg did not negotiate a specific target, his employment agreement
provides that he is eligible to receive an annual cash bonus as determined
in the discretion of the Compensation Committee. For 2008, and
as set forth in their respective employment agreements, the annual cash
bonus targets for Messrs. Schiesser, Tran and O’Neil are 200%, 100% and
50% of base salary, respectively. In addition, Messrs. Tran and
O’Neil negotiated guaranteed minimum bonuses of $475,000 (pro rated for
the portion of the calendar year employed) and $250,000, respectively, for
the initial calendar year of employment. See “Employment Agreements with
Named Executive Officers” below for a description of these
agreements.
|
|
·
|
2008 Annual
Cash Bonus Awards. Applying
the company performance modifier of 60% and Mr. Miller’s individual
performance modifier of 115% to Mr. Miller’s annual cash bonus target
(100% of base salary) resulted in a payout of $276,000, or 69% of his base
salary, in 2009 related to 2008 performance. Messrs. Tran and
O’Neil received the guaranteed minimum bonus payouts of $212,706 and
$250,000, respectively, in 2009 related to 2008 performance, each in
accordance with the terms of their respective employment
agreements. Pursuant to the terms of his severance agreement,
Mr. Kottoor was paid a bonus in the amount of $201,600, as discussed below
under “Separation
Agreements” and “Potential Payments to Named
Executive Officers upon Termination or Change in
Control.” As discussed above, Messrs. Schiesser and Berg
requested that they not be paid cash bonuses for 2008. As
discussed below under “Separation Agreements”
and “Potential Payments
to Named Executive Officers upon Termination or Change in Control,”
no bonuses were awarded to Messrs. Farha and Behrens for fiscal year
2008.
|
|
·
|
2008
Long-Term Incentive Targets. In
March 2008, in order to impose more structure and consistency to our
equity compensation program, the Compensation Committee set long-term
incentive targets for each of Messrs. Kottoor and
Miller. Expressed as a percentage of each officer’s fiscal year
2008 base salary, the long-term incentive targets were established at 150%
for each executive and were determined based on the desire of the
Compensation Committee to target annual and long-term incentive
compensation at the 50th to 75th percentile of the market
data. Although the long-term incentive targets were first
established by the Compensation Committee and communicated to the
executives in March 2008, these targets were used to determine the
long-term incentive awards made in March 2008 and were also the
basis for determining the long-term incentive awards to be made in
March 2009 (other than for Mr. Kottoor, whose annual 2009
long-term incentive award was determined in connection with the
termination of his employment effective December 19, 2008) (the
long-term incentive award related to fiscal year 2008 performance is
referred to as the “2008 Long-Term
Incentive”).
|
|
·
|
2008
Long-Term Incentive Stock Option Award. As
discussed above, each executive’s long-term incentive award
granted in March 2008 (related to fiscal year 2007 performance) was
divided between a stock option award and a potential performance-based
long-term cash incentive award, each as described in more detail
below. In March 2008, based on the recommendation of
Mr. Schiesser, the Compensation Committee approved a stock option
award to purchase 17,898 shares of common stock for Mr. Kottoor and a
stock option award to purchase 16,004 shares of common stock for Mr.
Miller. The options have an exercise price of $43.45 per share
and will vest in equal annual installments on each of the first through
fourth anniversaries of the grant date of the award. These
stock option awards were determined based on 50% of each executive’s
long-term incentive target, adjusted based on each executive’s overall
fiscal year 2007 performance. In determining the size of Mr.
Kottoor’s award, the Compensation Committee considered his progress in
building our information technology team, upgrading and stabilizing our
information technology systems and building new capabilities in our
enrollment process. In determining the size of Mr. Miller’s
award, the Compensation Committee considered the growth in our private
fee-for-service business and Mr. Miller’s leadership in addressing
compliance concerns with CMS. See the table entitled “Grants of Plan-Based
Awards” below for details regarding these equity
awards.
|
|
·
|
2008
Special Performance-Based Long-Term Cash Incentive Award. As stated
above, in March 2008, each of Messrs. Kottoor and Miller
received an annual equity award consisting solely of stock options which
represented half of their targeted long-term incentive award opportunity
related to fiscal year 2007 performance. Because we could not
issue restricted stock for the other half of their long-term incentive
award opportunity due to securities law restrictions we were then subject
to as discussed above, the Compensation Committee approved a special
performance-based long-term cash incentive opportunity (the “2008 Special
Performance-Based Long-Term Cash Incentive Award”), payable in
September 2009 (other than for Mr. Kottoor, as discussed below),
in lieu of a restricted stock award. All associates eligible to
receive a long-term incentive award in March 2008, including
Messrs. Kottoor and Miller, are eligible to participate in this
special incentive program.
|
|
The
target amounts for each associate, including Messrs. Kottoor and
Miller, were determined by the Compensation Committee based on 50% of each
executive’s targeted long-term incentive award opportunity, as adjusted
for individual performance. The target amounts are subject to
increase or decrease by the Board by up to 50% at the conclusion of the
period based on the Board’s subjective review of the Company’s performance
during the period (that is, March 2008 through
September 2009). Mr. Kottoor was awarded a target amount
of $354,375 and Mr. Miller was awarded a target amount of
$316,875. As a result of the termination of Mr. Kottoor’s
employment, Mr. Kottoor’s bonus was paid at target on
December 29, 2008 pursuant to the terms of his severance
agreement. See “Separation Agreements”
and “Potential
Payments to Named Executive Officers
upon Termination or Change in Control” below for the 2008 Special
Performance-Based Long-Term Cash Incentive Award paid to
Mr. Kottoor.
|
|
·
|
2008 New
Hire Equity Awards. As discussed above, Messrs.
Schiesser, Tran, Berg and O’Neil each negotiated an initial equity award
of restricted stock and non-qualified stock options in connection with
being recruited in 2008. For a description of their initial equity awards,
see “Negotiation of
Employment Agreement Terms for 2008 Hires” above and “Employment Agreements with
Named Executive Officers” below. See also the table
entitled “Grants of
Plan-Based Awards” below for details regarding these equity
awards.
|
|
·
|
2009
Long-Term Incentive Targets. Messrs.
Schiesser, Tran, Berg and O’Neil were each hired for their respective
positions during 2008. Only Mr. Tran negotiated a long-term
incentive target in connection with being hired, equal to 150% of base
salary and included a guaranteed minimum for the initial calendar year of
employment. Although Messrs. Schiesser, Berg and O’Neil did not
negotiate specific targets, their respective employment agreements provide
that each is eligible to receive an annual equity award as determined in
the discretion of the Compensation Committee. In March 2009,
the Compensation Committee determined to establish a long-term incentive
target for Mr. O’Neil at 150% of base salary, which was applied to awards
related to fiscal year 2008 performance and also will be the basis for
determining his long-term incentive awards in future years, unless
otherwise adjusted by the Compensation Committee. Mr. O’Neil’s
target was determined by the Compensation Committee to be reasonable and
in line with the other senior executives at Mr. O’Neil’s level, based in
part on market data provided by Watson
Wyatt.
|
|
·
|
2009
Long-Term Cash Bonus Awards. As discussed above, due to
the limitations on shares available for issuance under our 2004 Equity
Plan and current volatile economic conditions as well as restrictions on
our ability to grant restricted stock in March 2009, in lieu of
awarding an executive’s long-term incentive related to fiscal year 2008
performance entirely in equity, the Compensation Committee determined to
approve a special long-term potential cash incentive representing 50% of
an executive’s long-term incentive award opportunity. All
associates eligible to receive a long-term incentive award in
March 2009, other than Messrs. Schiesser and Berg, were granted a
2009 Long-Term Cash Bonus Award. In March 2009, at the request
of Mr. Schiesser, Mr. Tran agreed to an amendment to his employment
agreement providing for a cash award in lieu of 50% of the equity award
that he would otherwise be entitled to receive under his employment
agreement.
|
|
The
target amounts for each associate, including Messrs. Tran, Miller and
O’Neil, were determined by the Compensation Committee based on 50% of each
executive’s targeted long-term incentive award opportunity, as adjusted
for individual performance. Applying the company performance
modifier of 60% and each executive’s individual performance modifier as
discussed above to 50% of each executive’s long-term incentive target
results in awards of $159,530, $207,000 and $254,052 to Messrs. Tran,
Miller and O’Neil respectively. As provided under the 2009
Long-Term Cash Bonus Plan, 50% of each executive’s award will be paid in
September 2010 and 50% will be paid in September 2011, each payment
subject to continued employment. The 2009 Long-Term Cash Bonus
Plan also provides for acceleration of any unpaid amounts in the event an
executive’s employment is terminated without cause within one year
following a change in control. As stated above, no long-term
cash awards were made to Messrs. Schiesser or
Berg.
|
|
·
|
2009 Equity
Awards. As discussed above, due to the limitations on
shares available for issuance under our 2004 Equity Plan and current
volatile economic conditions as well as restrictions on our ability to
grant restricted stock in March 2009, the Compensation Committee has
deferred making determinations with regard to the other half of long-term
incentive awards related to 2008 performance until a later
date. The Compensation Committee has not determined when, if at
all, equity awards will be granted in
2009.
|
|
·
|
wrongdoing
that contributed to (i) any material misstatement or omission from
any report or statement filed by WellCare with the SEC, or (ii) any
statement, certification, cost report, claim for payment or other filing
made under Medicare or Medicaid that was false, fraudulent, or for an item
or service not provided as claimed;
|
|
·
|
gross
misconduct;
|
|
·
|
breach
of fiduciary duty to the Company;
or
|
|
·
|
fraud,
|
The
Compensation Committee
|
|
Neal
Moszkowski (Chairperson)
Alif
Hourani
Kevin
Hickey
|
Name and
Principal Position
|
Year
|
Salary(9)
($)
|
Bonus(10)
($)
|
Stock
Awards(11)
($)
|
Option
Awards(11)
($)
|
Non-Equity
Incentive Plan Compensation(12)
($)
|
All Other
Compensation(13)
($)
|
Total
($)
|
|||||||||
Heath
G. Schiesser
President
and Chief Executive Officer(1)
|
2008
|
365,292
|
—
|
2,609,963
|
2,379,614
|
—
|
2,722,849
|
8,077,718
|
|||||||||
Todd
S. Farha
Chairman,
President and
Chief
Executive Officer(2)
|
2008
|
109,231
|
—
|
551,132
|
511,894
|
—
|
43,079
|
1,215,336
|
|||||||||
2007
|
400,000
|
—
|
3,383,307
|
2,224,015
|
—
|
86,790
|
6,094,112
|
||||||||||
2006
|
400,000
|
400,000
|
2,758,269
|
1,635,495
|
—
|
77,061
|
5,270,825
|
||||||||||
Thomas
L. Tran
Senior
Vice President and
Chief
Financial Officer(3)
|
2008
|
200,962
|
287,706
|
163,717
|
139,165
|
—
|
41,309
|
832,859
|
|||||||||
Paul
L. Behrens
Senior
Vice President and
Chief
Financial Officer(4)
|
2008
|
83,462
|
—
|
80,002
|
39,369
|
—
|
662
|
203,495
|
|||||||||
2007
|
305,000
|
—
|
341,438
|
382,134
|
—
|
—
|
1,028,572
|
||||||||||
2006
|
282,269
|
200,000
|
361,232
|
136,597
|
—
|
4,079
|
984,177
|
||||||||||
Charles
G. Berg
Executive
Chairman(5)
|
2008
|
453,846
|
—
|
4,019,086
|
2,582,640
|
—
|
118,162
|
7,173,734
|
|||||||||
Anil
Kottoor
Senior
Vice President and
Chief
Information Officer(6)
|
2008
|
305,000
|
—
|
1,094,079
|
962,027
|
—
|
718,855
|
3,079,961
|
|||||||||
2007
|
244,231
|
131,250
|
206,013
|
204,504
|
—
|
20,031
|
806,029
|
||||||||||
Adam
T. Miller
Senior
Vice President, National Medicare and Government Relations(7)
|
2008
|
381,539
|
276,000
|
295,596
|
538,071
|
162,500
|
6,673
|
1,660,379
|
|||||||||
2007
|
278,077
|
182,000
|
249,320
|
262,261
|
—
|
10,687
|
982,345
|
||||||||||
Thomas
F. O’Neil III
Vice
Chairman(8)
|
2008
|
365,385
|
350,000
|
372,862
|
335,826
|
—
|
57,113
|
1,481,186
|
(1)
|
Mr.
Schiesser began his service as principal executive officer in January
2008. Compensation for Mr. Schiesser is provided only for 2008
because he was not a named executive officer for 2006 or
2007.
|
(2)
|
Mr.
Farha’s service as principal executive officer terminated in January
2008.
|
(3)
|
Mr.
Tran began his service as principal financial officer in July
2008. Mr. Tran was not employed by the Company prior to July
2008.
|
(4)
|
Mr.
Behrens’ service as principal financial officer terminated in January
2008.
|
(5)
|
Mr.
Berg began his service as an executive officer in January
2008. Mr. Berg was not employed by the Company prior to January
2008.
|
(6)
|
Mr.
Kottoor’s service as an executive officer terminated in December
2008. Compensation for Mr. Kottoor is provided only for 2007
and 2008 because he was not employed by the Company in
2006.
|
(7)
|
Compensation
for Mr. Miller is provided only for 2007 and 2008 because he was not a
named executive officer for 2006.
|
(8)
|
Mr.
O’Neil began his service as an executive officer in April
2008. Mr. O’Neil was not employed by the Company prior to April
2008. On June 3, 2009, Mr. O’Neil ceased serving as our
Senior Vice President, General Counsel and Secretary and was appointed our
executive Vice Chairman.
|
(9)
|
Represents
total salary earned by these named executive officers and includes amounts
of compensation contributed by the named executive officers to our
401(k) savings plan for each respective fiscal
year.
|
(10)
|
Represents
discretionary bonuses earned by the named executive officers during each
respective fiscal year. Mr. Tran’s bonus for 2008 consists of a
signing bonus in the amount of $75,000 and a minimum guaranteed bonus for
2008 in the amount of $212,706. Mr. O’Neil’s bonus for 2008
consists of a signing bonus in the amount of $100,000 and a minimum
guaranteed bonus for 2008 in the amount of $250,000. See “Employment Agreements with
Named Executive Officers” below.
|
(11)
|
The
amounts included in the “Stock Awards” and “Option Awards” columns are the
amounts of compensation cost related to performance shares (with respect
to Mr. Farha only), restricted stock awards and stock option awards,
respectively, recognized by us in our financial statements during fiscal
years 2008, 2007 and 2006, respectively, in accordance with FAS
123R. Pursuant to SEC rules, the amounts shown exclude the
impact of estimated forfeitures related to service-based vesting
conditions. These amounts reflect our accounting expense for these awards
and do not correspond to the actual value that will be realized by the
executives. For a discussion of valuation assumptions and
methodologies, see Note 2 to our 2008 consolidated financial statements
included in our annual report on Form 10-K for the year-ended
December 31, 2008; Note 2 to our 2007
consolidated financial statements included in our annual report on Form
10-K for the year-ended December 31, 2007; Note 2 to our 2006 consolidated
financial statements included in our annual report on Form 10-K for
the year-ended December 31, 2006; and Note 14 to our 2005
consolidated financial statements included in our annual report on
Form 10-K for the year-ended December 31,
2005.
|
(12)
|
Represents
bonus earned by Mr. Miller in 2008 under the WellCare Health Plans, Inc.
Special Retention Bonus Plan. See “Retention-Related Incentive
Awards – Special Retention Bonus” above.
|
(13)
|
The
following table shows the components of the “All Other Compensation” for
fiscal year 2008:
|
Name
|
Year
|
Separation
Payments(1)
($)
|
Housing &
Automobile
Allowance(2)
($)
|
Commuting
Reimbursements(3)
($)
|
Relocation(4)
($)
|
401(k)
Match
($)
|
Legal
Fees and Expenses(5)
($)
|
Tax
Gross-Ups(6)
($)
|
All Other
Compensation
($)
|
||||||||||
Heath
G. Schiesser
|
2008
|
—
|
—
|
—
|
—
|
1,266
|
240,591
|
2,480,992
|
2,722,849
|
||||||||||
Todd
S. Farha
|
2008
|
17,223
|
16,000
|
—
|
—
|
2,100
|
—
|
7,756
|
43,079
|
||||||||||
Thomas
L. Tran
|
2008
|
—
|
30,000
|
3,516
|
538
|
4,925
|
1,380
|
950
|
41,309
|
||||||||||
Paul
L. Behrens
|
2008
|
662
|
—
|
—
|
—
|
—
|
—
|
—
|
662
|
||||||||||
Charles
G. Berg
|
2008
|
—
|
—
|
—
|
—
|
—
|
118,162
|
—
|
118,162
|
||||||||||
Anil
Kottoor
|
2008
|
713,475
|
—
|
—
|
—
|
5,380
|
—
|
—
|
718,855
|
||||||||||
Adam
T. Miller
|
2008
|
—
|
—
|
—
|
—
|
6,673
|
—
|
—
|
6,673
|
||||||||||
Thomas
F. O’Neil III
|
2008
|
—
|
41,400
|
4,369
|
44
|
5,768
|
3,318
|
2,214
|
57,113
|
(1)
|
Represents
amounts paid upon separation of employment. With respect to
Messrs. Farha and Behrens, the amounts represent the value of accrued but
unused vacation days as of their respective dates of termination of
employment. With respect to Mr. Kottoor, the amount represents
the payment made in 2008 pursuant to his separation agreement and general
release. Subject to Mr. Kottoor’s compliance with
non-competition, non-solicitation, confidentiality and non-disparagement
covenants, he is also entitled to additional payments during 2009 and 2010
totaling $666,346. See “Potential
Payments to Named Executive Officers
upon Termination or Change in Control” below.
|
(2)
|
Represents
cash allowances to cover housing and automobile expenses in New York, New
York with respect to Mr. Farha and in Tampa, Florida with respect to
Messrs. Tran and O’Neil. See “Employment Agreements with
Named Executive Officers” below.
|
(3)
|
Represents
amounts paid by the Company or reimbursed to the executive for travel
between executive’s home and the Company’s headquarters in Tampa,
Florida.
|
(4)
|
Represents
amounts paid by the Company for the relocation of Messrs. Tran and
O’Neil to Tampa, Florida in connection with their hire. See
“Employment Agreements
with Named Executive Officers” below.
|
(5)
|
Represents
amounts paid by the Company for legal fees and expenses in connection with
the negotiation of executive’s employment agreement and related
agreements, including, in the case of Messrs. Schiesser and Berg, legal
diligence with regard to the pending governmental investigations and civil
actions. See “Employment Agreements with
Named Executive Officers” below.
|
(6)
|
With
respect to Mr. Schiesser, the amount represents the payment to cover
income taxes in connection with Mr. Schiesser making an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended, with
respect to 100,000 shares of restricted stock granted in January
2008. See “Employment Agreements”
below. With respect to Mr. Farha, the amount represents the
payment to cover income taxes attributed to his housing and automobile
allowance. With respect to Messrs. Tran and O’Neil, the amounts
represent the payments to cover income taxes attributed to their
respective commuting reimbursements. See “Employment Agreements with
Named Executive Officers”
below.
|
Name
|
Grant
Date(1)
|
Approval
Date(1)
|
Estimated
Future Payouts
Under
Non-Equity
Incentive
Plan Awards(2)
|
All Other
Stock
Awards:
Number
of
Shares
of Stock
or Units(3)
(#)
|
All Other
Option
Awards:
Number
of Securities
Underlying
Options(4)
(#)
|
Exercise
or Base
Price of
Option
Awards(5)
($/Sh)
|
Grant
Date Fair
Value of
Stock
and
Option
Awards(6)
($)
|
||||||||||||
Threshold
($)
|
Target
($)
|
Maximum
($)
|
|||||||||||||||||
Heath
G. Schiesser
|
01/25/08
|
01/25/08
|
—
|
—
|
—
|
250,000
|
(7)
|
—
|
—
|
10,780,000
|
|||||||||
01/25/08
|
01/25/08
|
—
|
—
|
—
|
—
|
500,000
|
(8)
|
43.12
|
9,599,450
|
||||||||||
Thomas
L. Tran
|
07/21/08
|
07/14/08
|
—
|
—
|
—
|
50,000
|
(9)
|
—
|
—
|
1,461,500
|
|||||||||
07/21/08
|
07/14/08
|
—
|
—
|
—
|
—
|
100,000
|
(9)
|
29.23
|
1,242,320
|
||||||||||
Charles
G. Berg
|
01/25/08
|
01/25/08
|
—
|
—
|
—
|
200,000
|
(10)
|
—
|
—
|
8,624,000
|
|||||||||
01/25/08
|
01/25/08
|
—
|
—
|
—
|
—
|
300,000
|
(11)
|
43.12
|
5,541,750
|
||||||||||
Anil
Kottoor
|
—
|
—
|
177,188
|
354,375
|
531,563
|
—
|
—
|
—
|
—
|
||||||||||
03/05/08
|
03/05/08
|
—
|
—
|
—
|
—
|
55,000
|
(12)
|
45.25
|
737,088
|
||||||||||
03/06/08
|
03/06/08
|
—
|
—
|
—
|
—
|
17,898
|
(9)
|
43.45
|
304,568
|
||||||||||
Adam
T. Miller
|
—
|
—
|
158,438
|
316,875
|
475,313
|
—
|
—
|
—
|
—
|
||||||||||
03/05/08
|
03/05/08
|
—
|
—
|
—
|
—
|
40,000
|
(13)
|
45.25
|
536,064
|
||||||||||
03/06/08
|
03/06/08
|
—
|
—
|
—
|
—
|
16,004
|
(9)
|
43.45
|
272,338
|
||||||||||
Thomas
F. O’Neil III
|
04/01/08
|
03/03/08
|
—
|
—
|
—
|
50,000
|
(9)
|
—
|
—
|
1,985,000
|
|||||||||
04/01/08
|
03/03/08
|
—
|
—
|
—
|
—
|
100,000
|
(9)
|
39.70
|
1,787,830
|
(1)
|
Our
equity award process is described in more detail under “Equity Award Process”
above.
|
(2)
|
This
column shows the 2008 Special Performance-Based Long-Term Cash Incentive
Awards made in March 2008 and payable in September 2009. See
“2008 Special
Performance-Based Long-Term Cash Incentive Award” above for a
description of these awards. With regard to Mr. Kottoor, his
award was paid at target pursuant to his separation agreement and general
release. See “Separation Agreements”
and “Potential
Payments to Named Executive Officers
upon Termination or Change in Control” below.
|
(3)
|
This
column shows the number of shares of restricted stock granted to our named
executive officers in fiscal year 2008. All grants were made
under our 2004 Equity Incentive Plan, except the grant to Mr. O’Neil which
was a non-plan grant. These awards are subject to continued
service through the applicable vesting dates, and are not subject to
pre-established performance goals. Acceleration of vesting of
awards is described in more detail below under “Potential Payments to Named
Executive Officers upon Termination or Change in
Control.”
|
(4)
|
This
column shows the number of stock options granted to our named executive
officers in fiscal year 2008. All grants were made under our
2004 Equity Incentive Plan, except the grant to Mr. O’Neil which was a
non-plan grant. These awards are subject to continued service
through the applicable vesting dates, and are not subject to
pre-established performance goals. Acceleration of vesting of
awards is described in more detail below under “Potential Payments to Named
Executive Officers upon Termination or Change in
Control.”
|
(5)
|
This
column shows the exercise price for the stock options granted, which was
the closing market price of our stock on the date of
grant.
|
(6)
|
This
column shows the full grant date fair value of stock options and
restricted stock granted to our named executive officers in fiscal year
2008 calculated in accordance with FAS 123R. These amounts
reflect the accounting expense that we will recognize over the vesting
term for these awards and do not correspond to the actual value that will
be realized by the executives.
|
(7)
|
Award
vests in equal quarterly installments on the 25th day of every third
calendar month for forty-eight months, commencing on the date of
grant.
|
(8)
|
Award
vests in approximately equal monthly installments on the 25th day of each
calendar month following the date of grant for forty-eight consecutive
months.
|
(9)
|
Award
vests in equal annual installments on each of the first through fourth
anniversaries of the date of grant.
|
(10)
|
Award
vests as to twenty-five percent (25%) on the 25th day of the sixth
calendar month following the date of grant and the remaining balance vest
in equal quarterly installments on the 25th day of every third calendar
month for eighteen months.
|
(11)
|
Award
vests in equal quarterly installments on the 25th day of every third
calendar month for twenty-four months, commencing on the date of
grant. The original terms of this award were amended in 2008 to
accurately reflect the intent of the parties as expressed in Mr. Berg’s
employment agreement that, in the event of any termination of employment
by Mr. Berg without good reason (as defined in the employment agreement)
on or after January 25, 2010, the option would remain exercisable for its
full ten-year term. See “Employment Agreements with
Named Executive Officers” below.
|
(12)
|
Award
originally scheduled to vest in full in November 2009. However,
this award was amended in 2008 and vested in full in December 2008 in
connection with Mr. Kottoor’s termination of
employment. See “Potential
Payments to Named Executive Officers
upon Termination or Change in Control” below.
|
(13)
|
Award
vests in full in November 2009.
|
|
Separation
Agreements
|
|
·
|
A
potential additional retention bonus (the “Additional Retention Bonus”) in
the amount of $236,250, which such amount represented 50% of
Mr. Kottoor’s target 2008 Long-Term Incentive opportunity, as
described above. The Additional Retention Bonus was payable in
the event Mr. Kottoor’s employment terminated prior to vesting of the
equity awards, if any, awarded pursuant to his 2008 Long-Term Incentive
opportunity, as described above, or in the event his employment terminated
for any reason prior to June 1,
2009.
|
|
·
|
Continuation
of Mr. Kottoor’s base salary as in effect on the date of termination
of employment from the date of termination through May 1, 2010 (the
“Severance Payment”).
|
|
·
|
Accelerated
vesting of all of his unvested restricted stock grants, as of July 2,
2008, or a total of 13,934 shares, to the
extent not already vested on his termination
date.
|
|
·
|
Accelerated
vesting of his Equity Retention Stock Option Award, exercisable for 55,000
shares.
|
|
·
|
A lump-sum
payment of $713,475 on December 29, 2008, consisting of his (i) Special
Retention Bonus in the amount of $157,500, (ii) 2008 Special
Performance-Based Long-Term Cash Incentive Award in the amount of $354,375
and (iii) 2008 Annual Cash Bonus in the amount of $201,600 (representing
80% of his target) (See “Summary Compensation
Table” above);
|
|
·
|
Continuation
of Mr. Kottoor’s base salary from December 19, 2008 through May 1, 2010,
in the aggregate amount of $430,096;
and
|
|
·
|
A
lump-sum payment of $236,250 due May 1,
2010.
|
Option Awards
|
Stock Awards
|
||||||||||||||||
Name
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
(#)
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not
Vested(1)
($)
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested
(#)
|
Equity
Incentive
Plan
Awards:
Market
or
Payout
Value
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested(1)
($)
|
|||||||||
Heath
G. Schiesser
|
1,186
|
—
|
8.33
|
02/06/14
|
600
|
(6)
|
7,716
|
—
|
—
|
||||||||
10,740
|
7,160
|
(2)
|
36.45
|
07/27/12
|
5,751
|
(7)
|
73,958
|
—
|
—
|
||||||||
28,600
|
—
|
48.50
|
06/08/13
|
203,125
|
(8)
|
2,612,188
|
—
|
—
|
|||||||||
4,582
|
4,230
|
(3)
|
50.16
|
07/27/13
|
—
|
—
|
—
|
—
|
|||||||||
2,885
|
8,658
|
(4)
|
85.53
|
09/13/11
|
—
|
—
|
—
|
—
|
|||||||||
114,581
|
385,419
|
(5)
|
43.12
|
01/25/18
|
—
|
—
|
—
|
—
|
|||||||||
Todd
S. Farha
|
—
|
—
|
—
|
—
|
—
|
—
|
130,000
|
(9)
|
1,671,800
|
||||||||
Thomas
L. Tran
|
—
|
100,000
|
(10)
|
29.23
|
07/21/15
|
50,000
|
(11)
|
643,000
|
—
|
—
|
|||||||
Charles
G. Berg
|
112,500
|
187,500
|
(12)
|
43.12
|
01/25/18
|
125,000
|
(13)
|
1,607,500
|
—
|
—
|
|||||||
Anil
Kottoor
|
5,903
|
(14)
|
—
|
69.14
|
04/15/09
|
—
|
—
|
—
|
—
|
||||||||
981
|
(14)
|
—
|
85.53
|
04/15/09
|
—
|
—
|
—
|
—
|
|||||||||
3,121
|
(14)
|
—
|
85.53
|
04/15/09
|
—
|
—
|
—
|
—
|
|||||||||
55,000
|
(14)
|
—
|
45.25
|
04/15/09
|
—
|
—
|
—
|
—
|
|||||||||
Adam
T. Miller
|
12,000
|
36,000
|
(15)
|
38.11
|
01/18/13
|
15,000
|
(20)
|
192,900
|
—
|
—
|
|||||||
3,172
|
4,230
|
(16)
|
50.16
|
07/27/13
|
720
|
(21)
|
9,259
|
—
|
—
|
||||||||
817
|
2,453
|
(17)
|
85.53
|
09/13/11
|
1,169
|
(22)
|
15,033
|
—
|
—
|
||||||||
2,601
|
—
|
85.53
|
09/13/11
|
2,696
|
(23)
|
34,671
|
—
|
—
|
|||||||||
—
|
40,000
|
(18)
|
45.25
|
11/28/12
|
—
|
—
|
—
|
—
|
|||||||||
—
|
16,004
|
(19)
|
43.45
|
03/06/15
|
—
|
—
|
—
|
—
|
|||||||||
Thomas
F. O’Neil III
|
—
|
100,000
|
(24)
|
39.70
|
04/01/18
|
50,000
|
(25)
|
643,000
|
—
|
—
|
(1)
|
Value
based on $12.86 per share which was the closing price of our common stock
on the NYSE on December 31, 2008.
|
(2)
|
Of
this amount, 3,580 options vest on July 27, 2009 and 3,580 options vest on
July 27, 2010.
|
(3)
|
Of
this amount, 1,140 options vest on July 27, 2009; 1,140 options vest on
July 27, 2010; and 1,140 options vest on July 27, 2011.
|
(4)
|
Of
this amount, 2,886 options vested on March 13, 2009; 2,886 options vest on
march 13, 2010; and 2,886 options vest on March 13,
2011.
|
(5)
|
Of
this amount, 10,417 options vested on January 1, 2009; 10,416 options
vested on February 25, 2009; 10,417 vested on March 25, 2009; 10,416
options vested on April 25, 2009; and approximately 10,417 options vest on
the 25th
day of each calendar month thereafter until fully
vested.
|
(6)
|
These
shares vested on March 15, 2009.
|
(7)
|
Of
this amount, 1,917 shares vested on March 13, 2009; 1,917 shares vest on
March 13, 2010; and 1,917 shares vest on March 13,
2011.
|
(8)
|
Of
this amount, 15,625 shares vested on January 1, 2009; 15,625 shares vested
on April 25, 2009; 15,625 shares vest on July 25, 2009; 15,625
shares vest on October 25, 2009; 15,625 shares vest on January
1, 2010; 15,625 shares vest on April 25, 2010; 15,625 shares vest on July
25, 2010; 15,625 shares vest on October 25,
2010; 15,625 shares vest on January 1, 2011; 15,625 shares vest
on April 25, 2011; 15,625 shares vest on July 25, 2011; 15,625
shares vest on October 25, 2011; and 15,625 shares vest on
January 1, 2012.
|
(9)
|
Pursuant
to an award agreement dated June 6, 2005, Mr. Farha was eligible
to receive a maximum of 240,279 shares of our common stock based upon the
achievement of certain performance criteria. Specifically, Mr. Farha
was eligible to earn a (i) threshold of 32,500 shares,
(ii) target of 65,000 shares, or (iii) a maximum of 130,000
shares subject to the award (the maximum of 130,000 shares are referred to
as the “First Tranche Shares”) on June 6, 2008 based on achievement
of compounded annual percentage increases in diluted net income per share
(“EPS”) over the three-year period measured from January 1, 2005
through December 31, 2007. Any portion of the First
Tranche Shares not earned as of June 6, 2008 were to be available for
issuance on June 6, 2010 (together with the remaining 110,279 shares)
based on achievement of cumulative EPS goals for the five-year period
measured from January 1, 2005 through December 31, 2010 (the
“Second Tranche Shares”). Due to his termination of employment
in January 2008, Mr. Farha forfeited the Second Tranche
Shares. As of December 31, 2008, our cumulative EPS growth
over the three-year performance period applicable to the First Tranche
Shares exceeded the maximum cumulative EPS goal of $5.59 per
share. Accordingly, pursuant to SEC disclosure requirements, we
have included the maximum number of shares subject to the First Tranche
Shares in the table above; however, Mr. Farha’s ability to receive
these shares is subject in entirety to the additional conditions and terms
of his separation agreement with us, as discussed under “Potential Payments to Named
Executive Officers upon Termination or Change in Control”
below.
|
(10)
|
Of
this amount, 25,000 options vest on July 21, 2009; 25,000 options vest on
July 21, 2010; 25,000 options vest on July 21, 2011; and 25,000 options
vest on July 21, 2012.
|
(11)
|
Of
this amount, 25,000 shares vest on July 21, 2009; 25,000 shares vest on
July 21, 2010; 25,000 shares vest on July 21, 2011; and 25,000 shares vest
on July 21, 2012.
|
(12)
|
Of
this amount, 37,500 options vested on January 25, 2009; 37,500 options
vest on April 25, 2009; 37,500 options vest on July 25, 2009; 37,500
options vest on October 25, 2009; and 37,500 options vest on January 25,
2010.
|
(13)
|
Of
this amount, 25,000 shares vested on January 25, 2009; 25,000 shares vest
on April 25, 2009; 25,000 shares vest on July 25, 2009; 25,000 shares vest
on October 25, 2009; and 25,000 shares vest on January 25,
2010.
|
(14)
|
These
options expired unexercised on April 15, 2009.
|
(15)
|
Of
this amount, 12,000 options vested on January 18, 2009; 12,000 options
vest on January 18, 2010; and 12,000 options vest on January 18,
2011.
|
(16)
|
Of
this amount, 1,140 options vest on July 27, 2009; 1,140 options vest on
July 27, 2010; and 1,140 options vest on July 27, 2011.
|
(17)
|
Of
this amount, 818 options vested on March 13, 2009; 817 options vest on
march 13, 2010; and 818 options vest on March 13, 2011.
|
(18)
|
These
options vest on November 28, 2009.
|
(19)
|
Of
this amount, 4,001 options vested on March 6, 2009; 4,001 options vest on
March 6, 2010; 4,001 options vest on March 6, 2011; and 4,001 options vest
on March 6, 2012.
|
(20)
|
Of
this amount, 5,000 shares vested on January 18, 2009; 5,000 shares vest on
January 18, 2010; and 5,000 shares vest on January 18,
2011.
|
(21)
|
Of
this amount, 239 shares vested on March 13, 2009; 240 shares vest on March
13, 2010; and 241 shares vest on March 13, 2011.
|
(22)
|
Of
this amount, 292 shares vested on March 13, 2009; 293 shares vest on March
13, 2010; 292 shares vest on March 13, 2011; and 292 shares vest on March
13, 2012.
|
(23)
|
Of
this amount, 674 shares vest on August 3, 2009; 674 shares vest on August
3, 2010; 674 shares vest on August 3, 2011; and 674 shares vest on August
3, 2012.
|
(24)
|
Of
this amount, 25,000 options vested on April 1, 2009; 25,000 options vest
on April 1, 2010; 25,000 options vest on April 1, 2011; and 25,000 options
vest on April 1, 2012.
|
(25)
|
Of
this amount, 25,000 shares vested on April 1, 2009; 25,000 shares vest on
April 1, 2010; 25,000 shares vest on April 1, 2011; and 25,000 shares vest
on April 1, 2012.
|
Option Awards
|
Stock Awards
|
||||||||
Name
|
Number of
Shares
Acquired
on Exercise
(#)
|
Value Realized
on Exercise(1)
($)
|
Number of
Shares
Acquired
on Vesting
(#)
|
Value Realized
on Vesting(2)
($ )
|
|||||
Heath
G.
Schiesser
|
—
|
—
|
49,392
|
1,625,754
|
|||||
Todd
S. Farha
|
191,315
|
2,864,286
|
4,000
|
149,720
|
|||||
Thomas
L. Tran
|
—
|
—
|
—
|
—
|
|||||
Paul
L. Behrens
|
8,131
|
278,162
|
3,978
|
148,289
|
|||||
Charles
G. Berg
|
—
|
—
|
75,000
|
2,309,250
|
|||||
Anil
Kottoor
|
—
|
—
|
16,453
|
299,715
|
|||||
Adam
Miller
|
—
|
—
|
6,206
|
315,605
|
|||||
Thomas
F. O’Neil III
|
—
|
—
|
—
|
—
|
(1)
|
The
value realized is calculated by multiplying the number of shares by the
difference between the market price of our common stock at time of
exercise and the exercise price of the stock option.
|
(2)
|
The
value realized is calculated by multiplying the number of shares vested by
the closing market price of our common stock on the date of
vesting.
|
|
·
|
A
“change in control” generally occurs upon: (i) certain
persons acquiring more than 50% of our outstanding voting shares or more
than 50% of the fair market value of such shares; (ii) a majority of
our incumbent Directors being replaced under certain circumstances;
(iii) the consummation of a merger, consolidation or other business
combination in which more than 50% of the outstanding common stock of the
Company is no longer held by the shareholders of the Company prior to such
transaction; or (iv) or a liquidation or sale of all or substantially all
of our assets under certain
circumstances.
|
|
·
|
“termination
for good reason” generally means that the executive terminated as the
result of: (i) a material diminution in authority, duties
and responsibilities or change in title; (ii) any material diminution
of executive’s base salary or bonus opportunity; (iii) any material breach
by the Company of the terms of the respective agreement; (iv) a
change in the executive’s office location by more than 50 miles from the
executive’s offices in Tampa, Florida; or (v) with respect to Messrs.
Schiesser and Berg only, removal from the Board other than pursuant to
cause, pursuant to shareholder vote or due to executive’s resignation from
the Board, in each case, subject to notice and the Company’s right to a
reasonable opportunity to cure.
|
|
·
|
“termination
for cause” generally means that we terminate the executive as the result
of: (i) any willful act or omission by the executive
representing a material breach of the respective agreement; (ii) the
executive being convicted of, or pleading guilty to, a felony or other
crime that involves fraud, conversion, misappropriation or embezzlement
under any federal or state law; or (iii) the executive’s bad faith,
willful acts in the performance of executive’s duties, to the material
detriment of the Company; in each case, subject to notice and the
executive’s right to a reasonable opportunity to
cure.
|
|
·
|
“termination
for disability” generally means the executive’s employment is terminated
as of result of the executive being unable to engage in any substantial
gainful business activity, by reason of any medically determinable
physical or mental impairment, that has caused the executive to be unable
to carry out his duties for specified time
periods.
|
|
·
|
Mr. Schiesser. If Mr.
Schiesser’s employment is terminated by the Company without cause or by
Mr. Schiesser for good reason, he will be entitled to severance benefits
including: (i) a lump sum cash payment equal to two times (or if the
termination date occurs on or after January 25, 2009, one times) the sum
of Mr. Schiesser’s annual salary as in effect on the termination date and
the greater of Mr. Schiesser’s target bonus for the fiscal year during
which the termination date occurs or the highest performance bonus earned
by Mr. Schiesser with respect to any preceding fiscal year; and (ii) for a
period of twenty-four months (or, if the termination date occurs on or
after January 25, 2009, twelve months) after the termination date,
reimbursement on an after-tax basis for the cost of continued
participation in the medical, dental and vision care and life insurance
benefits in which Mr. Schiesser and his family participated prior to the
termination date. In the event of Mr. Schiesser’s death or
disability, he (or his estate, as the case may be) will be entitled to
severance benefits including: (i) a lump sum cash payment equal to the sum
of Mr. Schiesser’s annual salary as in effect on the termination date and
the greater of Mr. Schiesser’s target bonus for the fiscal year during
which the termination date occurs or the highest performance bonus earned
by Mr. Schiesser with respect to any preceding fiscal year; and (ii) for a
period of twelve months after the termination date, reimbursement on an
after-tax basis for the cost of continued participation in the medical,
dental and vision care and life insurance benefits in which Mr. Schiesser
and his family participated prior to the termination date. If
Mr. Schiesser’s employment is terminated by the Company for
cause or by Mr. Schiesser without good reason, Mr. Schiesser will be
entitled to receive the value of his accrued vacation time as of the time
of termination of his employment. For a discussion of the
treatment of Mr. Schiesser’s equity awards upon certain termination
benefits, see “Treatment
of Equity Awards”
below.
|
|
·
|
Mr. Tran. If Mr. Tran’s
employment is terminated by the Company without cause or by Mr. Tran for
good reason, he will be entitled to severance benefits that include: (i) a
lump sum cash payment equal to one times (or if the termination date
occurs within one year of a change in control, one-and-a-half times) the
sum of Mr. Tran’s annual salary as in effect on the termination date and
the average of the two highest cash bonuses earned by Mr. Tran over the
three prior years or, if Mr. Tran has not been employed for three years,
the target cash bonus for the year in which the termination occurs, and
(ii) for the duration of the applicable COBRA period (generally 18 months,
but under certain circumstances up to 36 months following termination),
reimbursement on an after-tax basis for the cost of continued
participation in the medical, dental and vision care and life insurance
benefits in which Mr. Tran and his family participated prior to the
termination date. In the event of Mr. Tran’s death or
disability, or if his employment is terminated by the Company for cause or
by Mr. Tran without good reason, Mr. Tran (or his estate, as the case may
be) will be entitled to receive the value of his accrued vacation time as
of the time of termination of his employment. For a discussion
of the treatment of Mr. Tran’s equity awards upon certain termination
benefits, see “Treatment
of Equity Awards” below.
|
|
·
|
Mr. Berg. If Mr. Berg’s
employment is terminated prior to the end of the term of his letter
agreement on January 25, 2010 (i) by the Company without cause;
(ii) by Mr. Berg for good reason; or (iii) by reason of Mr.
Berg’s death or disability, Mr. Berg will receive an amount equal to his
base salary for the remainder of the term. For a discussion of
the treatment of Mr. Berg’s equity awards upon certain termination
benefits, see “Treatment
of Equity Awards” below.
|
|
·
|
Mr. Miller. If Mr.
Miller’s employment is terminated by the Company without cause or by Mr.
Miller for good reason, he will be entitled to severance benefits that
include: (i) continuation of his base salary in effect immediately prior
to such termination for twelve months following the date of termination;
(ii) continuation of medical benefits for twelve months following the date
of termination; and (iii) an outplacement service provided by
us. For a discussion of the treatment of Mr. Miller’s equity
awards upon certain termination benefits, see “Treatment of Equity
Awards” below.
|
|
·
|
Mr. O’Neil. If Mr.
O’Neil’s employment is terminated by the Company without cause or by Mr.
O’Neil for good reason, he will be entitled to severance benefits that
include: (i) a lump sum cash payment equal to one times (or if the
termination date occurs within one year of a change in control, two times)
the sum of Mr. O’Neil’s annual salary as in effect on the termination date
and the average of the two highest cash bonuses earned by Mr. O’Neil over
the three prior years or, if Mr. O’Neil has not been employed for three
years, the target cash bonus for the year in which the termination occurs,
and (ii) for the duration of the applicable COBRA period (generally 18
months, but under certain circumstances up to 36 months following
termination), reimbursement on an after-tax basis for the cost of
continued participation in the medical, dental and vision care and life
insurance benefits in which Mr. O’Neil and his family participated prior
to the termination date. In the event of Mr. O’Neil’s death or
disability, or if his employment is terminated by the Company for cause or
by Mr. O’Neil without good reason, Mr. O’Neil (or his estate, as the case
may be) will be entitled to receive the value of his accrued vacation time
as of the time of termination of his employment. For a
discussion of the treatment of Mr. O’Neil’s equity awards upon certain
termination benefits, see “Treatment of Equity
Awards” below. Mr. O’Neil’s employment agreement was amended
and restated on June 3, 2009. The amended and restated
employment agreement provides some terms that differ from his employment
agreement in effect as of December 31, 2008 as relating to his termination
under certain circumstances. See below under “Amended and Restated
Employment Agreement.”
|
|
·
|
Mr. Schiesser. Mr.
Schiesser’s unvested stock options and shares of restricted stock will
immediately vest: (i) in the event of a change of control of the Company
or (ii) in the event of Mr. Schiesser’s death or disability. If
Mr. Schiesser’s employment is terminated by the Company without cause or
by Mr. Schiesser for good reason, Mr. Schiesser’s unvested stock options
and shares of restricted stock will vest to the same extent, and over the
same period, that such awards would have vested had Mr. Schiesser’s
employment continued for 24 months (or, if the termination date occurs on
or after January 25, 2009, twelve months) after the termination date. In
addition to the foregoing, unvested shares of restricted stock issued to
Mr. Schiesser prior to January 25, 2008 will immediately vest in the event
of Mr. Schiesser’s retirement.
|
|
·
|
Mr. Tran. Mr. Tran’s
unvested stock options and shares of restricted stock will immediately
vest: (i) in the event of Mr. Tran’s death or disability; or (ii) if there
is a change in control of the Company and Mr. Tran’s employment is
terminated within one year following the change in control by the Company
without cause or by Mr. Tran for good
reason.
|
|
·
|
Mr. Berg. Mr. Berg’s
unvested stock options and shares of restricted stock will immediately
vest: (i) in the event of a change in control of the Company; (ii) in the
event Mr. Berg’s death or disability; or (iii) in the event Mr. Berg’s
employment is terminated by the Company without cause or by Mr. Berg for
good reason.
|
|
·
|
Mr. Miller. Mr.
Miller’s unvested awards of restricted stock will immediately vest:
(i) in the event of Mr. Miller’s death, disability or retirement; or
(ii) if there is a change in control of the Company and Mr. Miller’s
employment is terminated within one year of the change in control by the
Company without cause or by Mr. Miller for good
reason. Unvested awards of stock options will immediately vest
if there is a change in control of the Company and Mr. Miller’s employment
is terminated within one year of the change in control: (i) by the
Company without cause; (ii) by Mr. Miller for good reason; or
(iii) by reason of Mr. Miller’s death, disability or
retirement.
|
|
·
|
Mr.
O’Neil. Mr. O’Neil’s
unvested stock options and shares of restricted stock will vest: (i) in
the event of Mr. O’Neil’s death or disability; or (ii) if there is a
change in control of the Company and Mr O’Neil’s employment is terminated
within one year following the change in control by the Company without
cause or by Mr. O’Neil for good
reason.
|
Termination
by Executive for Good Reason or by the Company without
Cause
|
||||||||||||||||||||
Name
|
Severance
Payment
($)
|
Acceleration
of
Vesting
of
Stock Options
(#)
|
Acceleration
of
Vesting
of
Stock Options
($)
|
Acceleration
of
Vesting
of
Restricted Stock
(#)
|
Acceleration
of
Vesting
of
Restricted Stock
($)
|
Accrued
Vacation
($)
|
Welfare
Benefits
($)
|
Out-placement
Services
($)
|
Excise
Taxes
and
Gross-Ups
($)
|
Total
($)
|
||||||||||
Heath
G. Schiesser
|
2,400,000
|
265,748
|
—
|
129,434
|
1,664,521
|
7,692
|
13,951
|
—
|
8,002
|
4,094,166
|
||||||||||
Thomas
L. Tran
|
950,000
|
—
|
—
|
—
|
—
|
9,135
|
12,237
|
—
|
8,663
|
980,035
|
||||||||||
Charles
G. Berg
|
541,667
|
187,500
|
—
|
125,000
|
1,607,500
|
—
|
—
|
—
|
—
|
2,149,167
|
||||||||||
Adam
T. Miller
|
400,000
|
—
|
—
|
—
|
—
|
—
|
7,061
|
7,000
|
—
|
414,061
|
||||||||||
Thomas
F. O’Neil III
|
750,000
|
—
|
—
|
—
|
—
|
25,481
|
6,698
|
—
|
5,041
|
787,220
|
Termination
upon Death or Disability
|
||||||||||||||||||||
Name
|
Severance
Payment
($)
|
Acceleration
of
Vesting
of
Stock Options
(#)
|
Acceleration
of
Vesting
of
Stock Options
($)
|
Acceleration
of
Vesting
of
Restricted Stock
(#)
|
Acceleration
of
Vesting
of
Restricted Stock
($)
|
Accrued
Vacation
($)
|
Welfare
Benefits
($)
|
Out-placement
Services
($)
|
Excise
Taxes
and
Gross-Ups
($)
|
Total
($)
|
||||||||||
Heath
G. Schiesser
|
1,200,000
|
405,467
|
—
|
209,476
|
2,693,861
|
7,692
|
6,975
|
—
|
4,001
|
3,912,529
|
||||||||||
Thomas
L. Tran
|
—
|
100,000
|
—
|
50,000
|
643,000
|
9,135
|
—
|
—
|
—
|
652,135
|
||||||||||
Charles
G. Berg
|
541,667
|
187,500
|
—
|
125,000
|
1,607,500
|
—
|
—
|
—
|
—
|
2,149,167
|
||||||||||
Adam
T. Miller
|
—
|
—
|
—
|
19,585
|
251,863
|
—
|
—
|
—
|
—
|
251,863
|
||||||||||
Thomas
F. O’Neil III
|
—
|
100,000
|
—
|
50,000
|
643,000
|
25,481
|
—
|
—
|
—
|
668,481
|
Termination
upon Retirement
|
||||||||||||||||||||
Name
|
Severance
Payment
($)
|
Acceleration
of
Vesting
of
Stock Options
(#)
|
Acceleration
of
Vesting
of
Stock Options
($)
|
Acceleration
of
Vesting
of
Restricted Stock
(#)
|
Acceleration
of
Vesting
of
Restricted Stock
($)
|
Accrued
Vacation
($)
|
Welfare
Benefits
($)
|
Out-placement
Services
($)
|
Excise
Taxes
and
Gross-Ups
($)
|
Total
($)
|
||||||||||
Heath
G. Schiesser
|
—
|
—
|
—
|
6,351
|
81,674
|
—
|
—
|
—
|
—
|
81,674
|
||||||||||
Thomas
L. Tran
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||
Charles
G. Berg
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||
Adam
T. Miller
|
—
|
—
|
—
|
19,585
|
251,863
|
—
|
—
|
—
|
—
|
251,863
|
||||||||||
Thomas
F. O’Neil III
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Termination
by Executive for Good Reason or by the Company without Cause within twelve
(12) months following a Change in Control
|
||||||||||||||||||||
Name
|
Severance
Payment
($)
|
Acceleration
of
Vesting
of
Stock Options
(#)
|
Acceleration
of
Vesting
of
Stock Options
($)
|
Acceleration
of
Vesting
of
Restricted Stock
(#)
|
Acceleration
of
Vesting
of
Restricted Stock
($)
|
Accrued
Vacation
($)
|
Welfare
Benefits
($)
|
Out-placement
Services
($)
|
Excise
Taxes
and
Gross-Ups
($)
|
Total
($)
|
||||||||||
Heath
G. Schiesser
|
2,400,000
|
405,467
|
—
|
209,476
|
2,693,861
|
7,692
|
13,951
|
—
|
1,153,788
|
6,269,292
|
||||||||||
Thomas
L. Tran
|
1,425,000
|
100,000
|
—
|
50,000
|
643,000
|
9,135
|
12,237
|
—
|
8,663
|
2,098,035
|
||||||||||
Charles
G. Berg
|
541,667
|
187,500
|
—
|
125,000
|
1,607,500
|
—
|
—
|
—
|
—
|
2,149,167
|
||||||||||
Adam
T. Miller
|
400,000
|
98,687
|
—
|
19,585
|
251,863
|
—
|
7,061
|
7,000
|
—
|
665,924
|
||||||||||
Thomas
F. O’Neil III
|
1,500,000
|
100,000
|
—
|
50,000
|
643,000
|
25,481
|
6,698
|
—
|
5,041
|
2,180,220
|
Change
in Control
|
||||||||||||||||||||
Name
|
Severance
Payment
($)
|
Acceleration
of
Vesting
of
Stock Options
(#)
|
Acceleration
of
Vesting
of
Stock Options
($)
|
Acceleration
of
Vesting
of
Restricted Stock
(#)
|
Acceleration
of
Vesting
of
Restricted Stock
($)
|
Accrued
Vacation
($)
|
Welfare
Benefits
($)
|
Out-placement
Services
($)
|
Excise
Taxes
and
Gross-Ups
($)
|
Total
($)
|
||||||||||
Heath
G. Schiesser
|
—
|
405,467
|
—
|
209,476
|
2,693,861
|
—
|
—
|
—
|
—
|
2,693,861
|
||||||||||
Thomas
L. Tran
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||
Charles
G. Berg
|
—
|
187,500
|
—
|
125,000
|
1,607,500
|
—
|
—
|
—
|
—
|
1,607,500
|
||||||||||
Adam
T. Miller
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||
Thomas
F. O’Neil III
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Termination
by Executive without Good Reason or by the Company with
Cause
|
||||||||||||||||||||
Name
|
Severance
Payment
($)
|
Acceleration
of
Vesting
of
Stock Options
(#)
|
Acceleration
of
Vesting
of
Stock Options
($)
|
Acceleration
of
Vesting
of
Restricted Stock
(#)
|
Acceleration
of
Vesting
of
Restricted Stock
($)
|
Accrued
Vacation
($)
|
Welfare
Benefits
($)
|
Out-placement
Services
($)
|
Excise
Taxes
and
Gross-Ups
($)
|
Total
($)
|
||||||||||
Heath
G. Schiesser
|
—
|
—
|
—
|
—
|
—
|
7,692
|
—
|
—
|
—
|
7,692
|
||||||||||
Thomas
L. Tran
|
—
|
—
|
—
|
—
|
—
|
9,135
|
—
|
—
|
—
|
9,135
|
||||||||||
Charles
G. Berg
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||
Adam
T. Miller
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||
Thomas
F. O’Neil III
|
—
|
—
|
—
|
—
|
—
|
25,481
|
—
|
—
|
—
|
25,481
|
Actual
Benefits Received upon Termination of Employment During
2008
|
||||||||||||||||
Name
|
Termination
Date
|
Salary
Continuation
($)
|
Acceleration
of
Bonus Payments
($)
|
Acceleration
of
Vesting
of
Stock
Options
($)
|
Acceleration
of
Vesting
of
Restricted
Stock
($)
|
Performance
Shares
($)
|
Accrued
Vacation
($)
|
Total
($)
|
||||||||
Todd
S. Farha
|
03/31/08
|
—
|
—
|
—
|
—
|
—
|
(5)
|
17,223
|
17,223
|
|||||||
Paul
L. Behrens
|
03/31/08
|
—
|
—
|
—
|
—
|
—
|
662
|
662
|
||||||||
Anil
Kottoor
|
12/19/08
|
430,096
|
(1)
|
949,725
|
(2)
|
—
|
(3)
|
165,340
|
(4)
|
—
|
—
|
1,545,161
|
(1)
|
Represents
the aggregate payments to be paid during the period from December 19, 2008
through May 1, 2010.
|
(2)
|
$713,475
was paid on December 29, 2008 and the remaining amount of $236,250 will be
paid on May 1, 2010 subject to Mr. Kottoor’s compliance with
non-competition, non-solicitation, confidentiality and non-disparagement
covenants.
|
(3)
|
A
stock option to purchase 55,000 shares of common stock vested in full upon
termination of employment. In addition, Mr. Kottoor’s
post-termination exercise period was extended for options to purchase up
to 10,005 shares of our common stock until 30 days after the date on which
the exercise of such options will no longer violate applicable Federal,
state, local and foreign laws, including securities laws. The
exercise prices of Mr. Kottoor’s stock options discussed above exceeded
the closing price of our common stock on the NYSE on Mr. Kottoor’s date of
termination, and therefore such options expired
unexercised.
|
(4)
|
13,164
shares of restricted stock vested in full upon Mr. Kottoor’s termination
of employment. The amount represents the value of such shares
based on the closing price of our stock on the NYSE on Mr. Kottoor’s date
of termination.
|
(5)
|
Mr.
Farha’s performance share award agreement was amended so that he is
eligible to vest in up to 130,000 of his unvested performance shares if
certain specified conditions have been satisfied prior to June 6, 2010,
and the value of shares that vest, if any, will be based on the closing
price of our common stock on the vesting date. Specifically,
Mr. Farha’s rights to receive up to 130,000 of the shares subject to the
performance award are to be extinguished and will lapse unless all of the
following conditions have been met by June 6, 2010:
·
the Company has achieved the maximum cumulative adjusted EPS goal
for the vesting of the full 130,000 shares, the target cumulative adjusted
EPS goal for the vesting of 65,000 shares, or the threshold cumulative
adjusted EPS goal for the vesting of 32,500 shares, as applicable, for the
measurement period of January 1, 2005 through December 31,
2007;
· no
loss contingencies have been identified for subsequent periods which, had
they been identified and accrued in such measurement period, would have
resulted in the cumulative adjusted EPS not meeting the relevant
cumulative adjusted EPS described above;
·
Mr. Farha has not become subject to any legal proceeding brought or
threatened, or that could be but has not yet been brought, by any
governmental entity in connection with the ongoing investigations;
and
· we
have not been required to have entered into or become subject to any
criminal or civil order of any court or agency relating to the ongoing
investigations, or any agreement with any governmental agency, by which
there has been found to have been violations of laws, rules or regulation
by us during the measurement period for such shares, or the period prior
thereto.
|
Independent
Registered Public Accounting Firm
|
Services
|
2008
|
2007
|
||||||
Audit
Fees..............................................................................................................................................
|
$
|
12,018,500
|
(1)
|
$
|
3,164,500
|
(1)
|
||
Audit-related
Fees.................................................................................................................................
|
$
|
129,104
|
(2)
|
$
|
271,621
|
(2)
|
||
Tax
Fees..................................................................................................................................................
|
—
|
—
|
||||||
All
Other
Fees........................................................................................................................................
|
—
|
—
|
(1)
|
The
audit services billed by Deloitte & Touche LLP in 2008 and 2007
include services rendered for the audit of our annual consolidated
financial statements, management’s assessment on internal control over
financial reporting, the effectiveness of internal control over financial
reporting and review of the interim financial statements included in our
quarterly reports on Form 10-Q. This amount also includes fees billed
for services normally provided by an independent auditor in connection
with subsidiary audits, statutory requirements, regulatory filings and
similar engagements. The 2008 audit fees include services
provided to expand the audit scope relating to the investigation of the
Company by certain federal and state agencies in connection with the audit
of the 2007 financial statements and the restatement of the Company’s
2004, 2005 and 2006 financial statements.
|
(2)
|
The
audit-related services billed by Deloitte & Touche LLP in 2008
and 2007 related to consultations regarding financial accounting and
reporting standards, information systems audits and other attest
services.
|
Audit
and Non-Audit Services Pre-Approval
Policy
|
The
Audit Committee
|
Regina
Herzlinger (Chairperson)
Alif
Hourani
Christian
Michalik
|
·
|
The
appointment, compensation, retention and oversight of the work of any
registered public accounting firm engaged by the Corporation for the
purpose of preparing or issuing an audit report or performing other audit,
review or attest services for the Corporation, and such firm shall report
directly to the audit committee.
|
·
|
The
resolution of any disagreements between management and the independent
auditors regarding the Corporation’s financial
reporting.
|
·
|
Seeking
any information it requires from employees providing services for the
Corporation or its affiliates—all of whom are directed to cooperate with
the committee’s requests—or external
parties.
|
·
|
Meeting
with the Corporation’s officers, independent auditors, or outside counsel,
as necessary.
|
·
|
Review
significant accounting and reporting issues, including complex or unusual
transactions and critical accounting policies, including matters that
involve or require significant judgments or estimates, and recent
professional and regulatory pronouncements, and understand their impact on
the financial statements. The committee shall review regular
periodic reports from the independent auditors on the critical policies
and practices of the Corporation, and all alternative treatments of
financial information within generally accepted accounting principles that
have been discussed with
management.
|
·
|
Review
with the independent auditors the results of the audit, any audit problems
or difficulties encountered and management’s response to such problems or
difficulties, including any restrictions on the scope of the independent
auditors’ activities or on access to requested information, and any
significant disagreements with management. Such review may also
include a discussion of:
|
-
|
any
accounting adjustments that were noted or proposed by the independent
auditors but were passed (as immaterial or
otherwise);
|
-
|
any
communications between the independent auditors and its national office
respecting auditing or accounting issues presented by the
engagement;
|
-
|
any
“management” or “internal control” letters issued, or proposed to be
issued, by the independent auditors to the Corporation, including any
required attestation reports; and
|
-
|
the
responsibilities, budget and staffing of the internal audit
function.
|
·
|
Review
and discuss earnings press releases (paying particular attention to any
use of “pro forma” or “adjusted” financial measures and any other non-GAAP
information), as well as other financial information and earnings guidance
provided to analysts and rating
agencies.
|
·
|
Review
with management and the independent auditors the annual audited financial
statements and disclosures contained in drafts of the Corporation’s annual
reports on Form 10-K, including without limitation under “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,”
including their judgment about the quality, not just the acceptability, of
accounting principles, the reasonableness of significant accounting and
actuarial judgments and estimates, and the clarity of the disclosures in
the financial statements. Also, the committee shall discuss the results of
the annual audit and any other matters required to be communicated to the
committee by the independent auditors under generally accepted auditing
standards.
|
·
|
Review
the interim financial statements and disclosures under “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”
with management and the independent auditors prior to the filing of the
Corporation’s Quarterly Report on Form 10-Q with the Securities and
Exchange Commission. Also, the committee shall discuss the
results of the quarterly review and any other matters required to be
communicated to the committee by the independent auditors under generally
accepted auditing standards.
|
·
|
In
connection with the committee’s review of the Corporation’s annual audited
and/or quarterly unaudited financial statements, review and discuss the
following:
|
-
|
Major
issues regarding accounting principles and financial statement
presentations, including any significant changes in the Corporation’s
selection or application of accounting principles, and any major issues as
to the adequacy of the Corporation’s internal controls and any special
audit steps adopted in light of any identified significant deficiencies or
material weaknesses;
|
-
|
Analyses
prepared by management and/or the independent auditors setting forth
significant financial reporting issues and accounting and actuarial
judgments and estimates made in connection with the preparation of the
financial statements, including analyses of the effects of alternative
generally accepted accounting principle methods on the financial
statements; and
|
-
|
The
effect of regulatory and accounting initiatives, as well as off-balance
sheet structures, on the Corporation’s financial
statements.
|
·
|
Review
the following matters with the independent auditors (such matters shall be
timely reported to the committee by the independent
auditors):
|
-
|
All
critical accounting policies and practices to be used, including without
limitation, significant accounting and actuarial judgments and
estimates;
|
-
|
All
alternative treatments of financial information within generally accepted
accounting principles that have been discussed with management,
ramifications of the use of such alternative disclosures and treatments,
and the preferred treatment of the auditor;
and
|
-
|
Other
material written communications between the independent auditors and
management, including any management letter or schedule of unadjusted
differences.
|
·
|
Consider
the effectiveness of the Corporation’s internal control system, including
information technology security and
control.
|
·
|
Understand
the scope of internal and independent auditors’ review of internal control
over financial reporting, and obtain reports on significant findings and
recommendations, together with management’s
responses.
|
·
|
Review
with management and the head of internal audit the charter, plans,
activities, staffing, and organizational structure of the internal audit
function.
|
·
|
Ensure
there are no unjustified restrictions or limitations on internal auditing
activities, and review and concur in the appointment, replacement, or
dismissal of the head of internal
audit.
|
·
|
Review
the effectiveness of the internal audit
function.
|
·
|
On
a regular basis, meet separately with the head of internal audit to
discuss any matters that the committee or internal audit believes should
be discussed privately.
|
·
|
Review
management’s annual report on internal control over financial reporting
prior to the Corporation’s inclusion of such annual report in the
Corporation’s Annual Report on Form
10-K.
|
·
|
Review
and discuss with the independent auditors the independent auditors’
attestation report regarding management’s assessment of the Corporation’s
internal control over financial reporting prior to the inclusion of such
attestation report in the Corporation’s Annual Report on Form
10-K.
|
·
|
Review
with management any changes in the Corporation’s internal control over
financial reporting that occurred during the most recently completed
fiscal quarter that have materially affected, or are reasonably likely to
materially affect, the Corporation’s internal control over financial
reporting.
|
·
|
Review
any significant deficiencies or material weaknesses identified in the
Corporation’s internal control over financial reporting, and any special
steps taken as a result thereof.
|
·
|
Review
the independent auditors’ proposed audit scope and approach, including
coordination of audit effort with internal
audit.
|
·
|
Review
the performance and qualifications of the independent auditors, and
exercise final approval on the appointment or discharge of the
auditors.
|
·
|
Review
and confirm the independence of the independent auditors by obtaining
statements from the auditors on relationships between the auditors and the
Corporation, including any non-audit services, and discussing the
relationships with the
auditors.
|
·
|
Review
a report, at least annually, by the independent auditors describing the
auditors’ internal quality control procedures, and any material issues
raised by the most recent internal quality control review, or peer review,
of the firm, or by any inquiry or investigation by governmental or
professional authorities, within the preceding five years, respecting one
or more independent audits carried out by the firm, and any steps taken to
deal with any such issues.
|
·
|
Discuss
with the independent auditors the matters required to be discussed by
Statement on Auditing Standards No. 61, as amended, relating to the
conduct of the audit.
|
·
|
Request
a representation letter from the Corporation’s independent auditors prior
to the commencement of the audit engagement confirming that (i) the lead
(or coordinating) audit partner and the reviewing audit partner have not
performed audit services for the Corporation for more than five (5)
consecutive years, and (ii) if either of such persons performed audit
services for the Corporation for five (5) consecutive years, the last year
of such period was more than five (5) years
ago.
|
·
|
Consider
whether, in order to assure continuing auditor independence, it is
appropriate to adopt a policy of rotating the lead audit partner or even
the independent auditing firm itself on a regular
basis.
|
·
|
Set
polices regarding hiring by the Corporation of employees or former
employees of the independent
auditors.
|
·
|
On
a regular basis, meet separately with the independent auditors to discuss
any matters that the committee or auditors believe should be discussed
privately.
|
·
|
Establish
and periodically review procedures for the receipt, retention, and
treatment of complaints received by the Corporation regarding accounting,
internal accounting controls, or auditing matters, and the confidential,
anonymous submission by employees providing services for the Corporation
or its affiliates of concerns regarding questionable accounting or
auditing matters.
|
·
|
Receive
reports from, and coordinate with, the Regulatory Compliance Committee
regarding regulatory compliance matters that may affect the Corporation’s
business, financial statements or related compliance policies, including
any material reports or inquiries from regulatory or governmental agencies
as necessary.
|
·
|
Report
to, and coordinate with, the Regulatory Compliance Committee regarding
regulatory compliance issues arising as a result of the Corporation’s
internal audit function as
necessary.
|
·
|
Regularly
report to the board of directors about committee activities, issues, and
related recommendations.
|
·
|
Provide
an open avenue of communication between internal auditors, the independent
auditors, and the board of
directors.
|
·
|
Report
annually to the shareholders, describing the committee’s composition,
responsibilities and how they were discharged, and any other information
required by rule, including approval of non-audit
services.
|
·
|
Review
any other reports the Corporation issues that relate to committee
responsibilities.
|
·
|
On
a regular basis, meet separately with management to discuss any matters
that the committee or management believe should be discussed
privately.
|
·
|
Perform
other activities related to this Charter as requested by the board of
directors.
|
·
|
Discuss
the Corporation’s policies with respect to risk assessment and risk
management, including the Corporation’s major financial risk exposures and
the steps management has taken to monitor and control such
exposures.
|
·
|
Review
and assess the adequacy of the committee charter annually, requesting
board approval for proposed changes, and ensure appropriate disclosure as
may be required by law or
regulation.
|
·
|
Confirm
annually that all responsibilities outlined in this Charter have been
carried out.
|
·
|
Self-evaluate
the committee’s performance on an annual
basis.
|
WELLCARE
HEALTH PLANS, INC
|
By
____________________________
|
Electronic
Voting Instructions
You
can vote by Internet or telephone!
Available
24 hours a day, 7 days a week!
Instead
of mailing your proxy, you may choose one of the two voting methods
outlined below to vote your proxy.
VALIDATION
DETAILS ARE LOCATED BELOW IN THE TITLE BAR.
Proxies
submitted by the Internet or telephone must be received by 1:00 a.m.,
Eastern Time, on July 30, 2009.
|
|||
Using
a black
ink pen, mark your
votes with an X as shown
in
this
example. Please do not write outside the designated areas.
|
x
|
Vote
by Internet
• Log on to the Internet and go to
www.investorvote.com/wcg
• Follow the steps outlined on the secured website.
Vote
by telephone
• Call toll free 1-800-652-VOTE (8683) within the United
States, Canada & Puerto Rico any time on a touch tone
telephone. There is NO
CHARGE to you for the call.
• Follow the instructions provided by the recorded message.
|
Annual
Meeting Proxy
Card
|
For
|
Withhold
|
For
|
Withhold
|
For
|
Against
|
Abstain
|
||||
01
- Kevin Hickey
|
¨
|
¨
|
05 - Christian
Michalik
|
¨
|
¨
|
2.
Approval and adoption of an amendment to the Company’s certificate of
incorporation to declassify the Company’s Board of Directors and to
provide that Directors may be removed with or without cause (except for
Class III Directors serving the remaining
portion of a multi-year term, who, if the amendments approved and adopted,
could not be removed without cause prior to the end of such current
multi-year term).
|
¨
|
¨
|
¨
|
|
02
- Regina Herzlinger
|
¨
|
¨
|
06 - Ruben Jose
King-Shaw, Jr.
|
¨
|
¨
|
|||||
03
- Heath Schiesser
04 - David Gallitano
|
¨
¨
|
¨
¨
|
07 - D. Robert
Graham
|
¨
|
¨
|
For
|
Against
|
Abstain
|
||
|
|
|
3.
Ratification of the appointment of Deloitte & Touche LLP as the
Company’s independent registered public accounting firm for fiscal year
2009.
|
¨
|
¨
|
¨
|
||||
|
||||||||||
4.
As the proxies may in their discretion determine in respect of any other
business properly to come before the annual meeting (the
Board of Directors currently knowing of no such other
business).
|
||||||||||
|
C
|
Authorized Signatures — This section must be completed for your vote to be
counted — Date and Sign Below
|
Date
(mm/dd/yyyy) — Please print date below
|
Signature
1 — Please keep signature within the box
|
Signature
2 — Please keep signature within the box.
|
||
/
/
|
Proxy
— WellCare Health Plans, Inc.
|