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EX-31.1 - EX-31.1 - AMERICA SERVICE GROUP INC /DE | g27005exv31w1.htm |
EX-31.2 - EX-31.2 - AMERICA SERVICE GROUP INC /DE | g27005exv31w2.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
ANNUAL REPORT PURSUANT TO SECTIONS 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2010
or
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number: 0-19673
America Service Group Inc.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) |
51-0332317 (I.R.S. Employer Identification No.) |
|
105 Westpark Drive, Suite 200 Brentwood, Tennessee (Address of principal executive offices) |
37027 (Zip Code) |
Registrants telephone number, including area code: (615) 373-3100
Securities Registered Pursuant to Section 12(b) of the Act:
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | |
Common Stock, par value $.01 per share | Nasdaq Global Select Market |
Securities Registered Pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule
405 of the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section
13 or Section 15 (d) of the Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation
S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one)
Large Accelerated Filer o | Accelerated Filer þ | Non-Accelerated filer o | Smaller Reporting Company o | |||
(Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes o No þ
The aggregate market value of the Common Stock held by non-affiliates of the registrant as of
June 30, 2010 (based on the last reported closing price per share of Common Stock as reported on
the Nasdaq Global Select Market on such date) was approximately $149,243,832. As of April 26,
2011, the registrant had 9,297,566 shares of Common Stock outstanding.
Documents Incorporated by Reference
None.
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EXPLANATORY NOTE
In its Annual Report on Form 10-K for the year ended December 31, 2010, filed with the
Securities and Exchange Commission (SEC) on March 3, 2011 (the Original Filing), America
Service Group Inc. (the Company), provided certain of the information required by Items 10
through 14 of Part III of the Original Filing by incorporating by reference portions of the
definitive proxy statement for the Companys 2011 Annual Meeting of Stockholders, pursuant
to General Instruction G of Form 10-K. The Company is filing this Amendment No. 1 on Form
10K/A (Amendment No. 1) solely: (i) to timely provide such Part III information, and (ii)
to amend the section of the cover page captioned Documents Incorporated by Reference to
read None. In accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as
amended (Rule 12b-15), each Item of the Original Filing that is affected by this Amendment
No. 1 has been amended and restated in its entirety. All other Items of the Original Filing
are unaffected by this Amendment No. 1 and such Items have not been included in this
Amendment No. 1. Except as otherwise noted, information included in this Amendment No. 1 is
stated as of December 31, 2010 and does not reflect any subsequent information or events.
Accordingly, this Amendment No. 1 should be read in conjunction with the Companys filings
with the SEC subsequent to the date of the Original Filing.
As required by Rule 12b-15, new certifications of our principal executive officer and
principal financial officer are being filed as exhibits to this Amendment No. 1.
As previously disclosed on March 3, 2011, the Company entered into an Agreement and
Plan of Merger (the Merger Agreement) dated March 2, 2011, with Valitás Health Services,
Inc., a Delaware corporation (Valitás), and Whiskey Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Valitás (Merger Sub), providing for the
merger (the Merger) of Merger Sub with and into the Company (the Merger), with the
Company surviving the Merger as a wholly owned subsidiary of Valitás.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Directors
Pursuant to the Companys Bylaws, the Board determines the overall size of the Board.
The Board had seven members during 2010. As previously announced on March 3, 2011, John C.
McCauley filled the newly created position of Chief Risk Officer of the Company and stepped
down from the Companys Board effective March 1, 2011.
The Board believes that all of the Companys Directors have a reputation for integrity
and honesty and adherence to high ethical standards. They each have demonstrated business
acumen, strategic insight, an ability to exercise sound judgment, and a commitment to
service and community involvement.
The following table sets for information with respect to Directors of the Company who
served during 2010.
Principal Occupation of Employment | ||||||
Name and Age | (of ASG unless otherwise indicated) | Qualifications | Director Since | |||
Burton C. Einspruch, M.D., 75 |
Practicing physician since 1966; Clinical Professor of Psychiatry at Southwestern Medical Center since 1997; Former Chairman and Board Member, Holocaust Studies Advisory Committee at the University of Texas in Dallas, since 1993; Fellow of the American College of Psychiatrists. Member of the Advisory Board, American National Bank of Texas. | Dr. Einspruch has served as a practicing physician and consultant since 1966. He has over 50 years of experience in the healthcare industry and has been a member of the Board since 2000. Through Dr. Einspruchs extensive experience as a practicing physician and his management experience on various private and public company boards, he provides valuable | 2000 |
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Principal Occupation of Employment | ||||||
Name and Age | (of ASG unless otherwise indicated) | Qualifications | Director Since | |||
insights into healthcare, corporate governance, strategic planning and corporate development. | ||||||
William M.
Fenimore, Jr., 67
|
Managing partner of BridgeLink LLC, a
Swiss-based capital advising firm,
since 2003. Chairman of the Board of
Wausau Financial Systems, a Wisconsin
based payments systems company.
Director of Wausau Financial Systems since 2004. |
Mr. Fenimore has served in executive positions in banking and related industries for the last 35 years. His experience is in technology, operations and managing critical business functions. He has served on the Board of Directors of 6 public and private companies over the last 10 years. | 2006 | |||
John W. Gildea, 67
|
Managing director of Gildea
Management Co. since 2002. Director of Misonix, Inc. since 2005. Director of Sterling Chemicals, Inc. since 2002. Also previously served as a member of the Companys Board of Directors from 1986 to 1999. |
Mr. Gildea was a founding principal of Gildea Management Co., a management company of special situations with middle market companies in the United States and Central Europe, since 2002. As a result, he has extensive management experience within a wide range of business functions including investment analysis and executive compensation. Mr. Gildea also has experience serving as a director of several other publicly-traded corporations. | 2006 | |||
Richard Hallworth, 55 (1) |
Chief Executive Officer since January 2009 and President since December 2007; Chief Operating Officer of the Company and President and Chief Executive Officer and Director of Prison Health Services, Inc. (PHS), the Companys primary operating subsidiary, since March 2006; Chief Operating Officer for Tufts Health Plan, a health insurance company, from May 2002 to June 2005; Senior Vice President of Administration and Chief Financial Officer for Tufts Health Plan from September 1998 to May 2002. Prior to joining Tufts Health Plan, Mr. Hallworth was a partner at Ernst & Young, LLP and was responsible for leading the healthcare practice in the Portland, Maine office. | Mr. Hallworth is the Companys Chief Executive Officer. His experience as the Companys Chief Operating Officer, his strong background in the healthcare industry and his extensive experience in corporate finance and accounting as the Chief Financial Officer of Tufts Health Plan and a partner at Ernst & Young LLP, allows him to bring extensive insights and knowledge of the details of the healthcare industry as well as the Company and its employees, to his service as a member of the Board. | 2008 | |||
John C. McCauley,
62
|
Chief Risk Officer since March 2011, Assistant Vice Chancellor, Risk and Insurance Management and University Counsel in the Office of General | Mr. McCauley has served in various positions in risk management within the healthcare industry for over 30 years. In his | 2006 |
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Principal Occupation of Employment | ||||||
Name and Age | (of ASG unless otherwise indicated) | Qualifications | Director Since | |||
Counsel for Vanderbilt University
from January 2007 to February 2011;
Assistant Vice Chancellor, Risk and
Insurance Management for Vanderbilt
University from August 2004 to
February 2011.
Director of American Retirement Corporation from 2003 to 2006. |
current role, he is responsible for oversight of the Companys risk management and insurance programs. In his previous role at Vanderbilt University, he was responsible for oversight of the risk management and insurance program for overall university operations including a large academic medical center. Mr. McCauley also has experience serving as a director of another publicly-traded corporation. | |||||
Michael W. Taylor,
45 (1)
|
Executive Vice President, Chief Fianncial Officer and Tresurer since December 2007; Senior Vice President, Chief Financial Officer and Treasurer of the Company from November 2001 to December 2007, Director of PHS since November 2001. | Mr. Taylor is the Companys Chief Financial Officer and, in that capacity, has extensive experience with public and financial accounting matters for complex organizations and strong skills in corporate finance, accounting, strategic planning and corporate development. Mr. Taylor has served as the lead financial executive for U.S. and United Kingdom publicly traded companies since 1994. | 2008 | |||
Richard D. Wright,
65
|
Non-Executive Chairman of the Board since January 2009. Senior partner of Southwind, since March 2006, a physician practice management and consulting company and a Division of The Advisory Board; Vice Chairman of Operations of ASG from December 2001 to March 2005; President and Chief Executive Officer of Covation LLC, a provider of software integration and data management services for health care providers and organizations, from October 1998 through January 2001. Mr. Wright is also a co-founder of PhyCor, Inc., where he served as Director and Executive Vice President of Operations over a ten-year period. | Mr. Wright has over 30 years of experience in the healthcare industry, including serving as the Vice Chairman of Operations of ASG for four years. He has led large business organizations and has extensive executive experience in corporate operations, strategic planning and corporate development, combined with strong skills in corporate governance, executive compensation and mergers and acquisitions. | 1999 |
(1) | Messrs. Hallworth and Taylor serve in their capacities as officers of the Company pursuant to individual employment agreements which may be terminated upon 30 days notice by either party. |
Executive Officers
During 2010, the Companys executive officers were Mr. Richard Hallworth, President and
CEO; Mr. Michael W. Taylor, Executive Vice President, CFO and Treasurer; Mr. Jonathan B.
Walker, Senior Vice President and Chief Development Officer; Carl J. Keldie, M.D., Chief
Medical Officer of PHS and Mr. J. Scott King, Senior Vice President and Chief Legal Officer.
Information regarding Messrs. Hallworth and Taylor are set forth above under Directors.
Certain information with respect to Mr. Walker, Dr. Keldie and Mr. King is set
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forth below. Messrs. Walker, Keldie and King serve in their capacities pursuant to individual
employment agreements which may be terminated upon 30 days notice by either party.
As discussed above and previously announced on March 3, 2011, John C. McCauley filled
the newly created position of Chief Risk Officer of the Company and stepped down from the
Companys Board effective as of March 1, 2011.
Principal Occupation of Employment | ||
Name and Age | (of ASG unless otherwise indicated) | |
Jonathan B. Walker, 43
|
Senior Vice President and Chief Development Officer since March 2009; Vice President of State Systems Development for ARAMARK Corporation from November 2007 to March 2009; Vice President of Business Development for Prison Health Services, Inc. from November 2004 to November 2007; Head of Business Development for Portion Pac Chemical Corporation from January 2004 to October 2004. | |
Carl J. Keldie, M.D., 57
|
Chief Medical Officer of PHS since August 2000. | |
J. Scott King, 43
|
Senior Vice President, Secretary and Chief Legal Officer since June 2008; Vice President, Assistant Secretary and Assistant General Counsel from February 2005 to June 2008. |
Audit Committee
The Company has a separately-designated standing Audit Committee established in
accordance with Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended (the
Exchange Act). The Audit Committee during 2010 consisted of Messrs. Fenimore (Chairman),
Gildea, and McCauley. The Audit Committee held seven meetings during 2010. The functions
of the Audit Committee, among other things, include:
| recommending the appointment of the Companys independent registered public accounting firm; | ||
| engaging and approving the fees of the Companys independent registered public accounting firm; | ||
| meeting periodically with the Companys management, internal audit, and the Companys independent registered public accounting firm on matters relating to the annual audit, internal controls, and accounting principles of the Companys financial reporting; and | ||
| reviewing potential conflict of interest situations, where appropriate. |
In addition, the Audit Committee has the authority to investigate any matter brought to
its attention, within the scope of its duties, with full access to the Companys books,
records, facilities, personnel and independent auditors, along with the power to retain, at
the Companys expense, such independent counsel, auditors or other experts as the Audit
Committee deems necessary or appropriate.
The Board has determined that each Audit Committee member meets the financial knowledge
requirements under the Nasdaq listing standards, and that Mr. Fenimore is designated as the
audit committee financial expert as defined in Item 407(d) of Regulation S-K under the
Exchange Act and meets the Nasdaq professional experience requirements. In addition, the
Board has determined that each Audit Committee member met the independence requirements
prescribed by all applicable laws, the rules and regulations of the SEC and the Nasdaq
listing standards during 2010.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Companys officers and directors, and
persons who own more than ten percent of a registered class of our equity securities, to
file reports of ownership and changes in ownership on Forms 3, 4 and 5 with the SEC.
Officers, directors and greater than ten percent stockholders are required by law to furnish
us copies of all Forms 3, 4 and 5 they file. Based solely on the Companys review of the
copies of such forms it has received and representations from certain reporting persons that
they were not required to file
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Form 5s for specified fiscal years, the Companys believes that its officers, directors
and greater than ten percent beneficial owners complied with all filing requirements
applicable to them with respect to transactions during 2010.
America Service Group Code Of Conduct & Ethics
America Service Group has a Code of Conduct & Ethics that applies to all its employees,
including senior executives and its Board of Directors. This ethics policy may be viewed
on the Companys web site at www.asgr.com. The Company intends to satisfy the disclosure
requirement under Item 5.05 of Form 8-K relating to amendments to or waivers from any
provision of the Code of Conduct & Ethics applicable to the Companys Chief Executive
Officer and Chief Financial Officer by posting such information on its website.
Item 11. Executive Compensation
Compensation Discussion & Analysis
The objective of the Companys executive compensation program is to provide
compensation to its management team that allows the Company to recruit, retain, and motivate
highly capable executive personnel, and that incorporates the concepts of:
| being competitive in applicable labor markets; | ||
| offering an appropriate return on investment for stockholders; | ||
| being simple and easy to understand and administer; | ||
| being responsive to the needs of our executives; | ||
| complying with the Companys standards of corporate governance and all applicable legal guidelines; and | ||
| reward results, not merely effort. |
Incentive Stock and Compensation Committee and the Compensation Decision Process. The
Incentive Stock and Compensation Committee (the Committee as used in this section only) of
the Board is composed of three directors who each meet the independence requirements of the
Nasdaq listing standards. The Committee is charged with, among other things:
| monitoring compensation of all executive officers and directors; | ||
| reviewing and approving compensation of the CEO and other named executive officers; | ||
| administering the America Service Group Inc. 2009 Equity Incentive Plan (the 2009 Equity Plan), America Service Group Inc. Amended and Restated Incentive Stock Plan (the Amended and Restated Incentive Stock Plan) and the America Service Group Inc. Amended and Restated 1999 Incentive Stock Plan (the Amended and Restated 1999 Incentive Stock Plan); and | ||
| reviewing all incentive plans to ensure that the goals are suitably aggressive to result in a good return on investment while also guarding against the assumption of undesirable risk. |
The Committee engages a management compensation consultant, McDaniel & Associates (the
Consultant), to advise the Committee on executive and director compensation. The
Consultant develops suggested benchmark companies to be used as external references, advises
the Committee on industry best practices, recommends base salary modifications for the
Companys named executive officers, reviews and recommends modifications to the Companys
annual incentive compensation plan, advises the Company as to the form of long-term
compensation to use, and recommends long-term compensation awards for the Companys named
executive officers and overall equity grants for the entire organization. The Committee
meets with the Consultant in executive session at least twice per year. Management is not
present during any part of an executive session. While the primary relationship between the
Company and the Consultant is through the Committee, a few times a year the Consultant
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may work directly with management, primarily in providing market data on jobs below the
executive level in the organization. The amount of such work is immaterial in relation to
the work for the Committee.
The Companys Chief Human Resources Officer (the CHRO) works directly with the
Committee and the Consultant throughout the compensation deliberation and determination
process. Typically, the CHRO and the CEO meet with the Committee to discuss all pay
decisions other than those related to the CEO. The Committee delegates to the CEO:
| decisions regarding base salary levels for positions other than named executive officers, as long as such decisions are within the overall salary budget; | ||
| the responsibility to develop annual incentive plans for positions below the senior vice president level; | ||
| the development of recommendations of all equity grants other than those for named executive officers; and | ||
| the recommendation of all compensation plan changes for the Companys executive officers other than the CEO. |
The Committee makes all decisions on compensation for the CEO and other named executive
officers through consultation in executive session with the Consultant. The CHRO is not
involved in any discussions with the Consultant or the Committee regarding his own
compensation.
Comprehensive Plan. To compensate its executive management, the Company provides a
number of compensation elements it believes are competitive relative to the benchmark group,
as discussed below, and best supports its compensation objectives. The following are the
elements of compensation that form the Companys compensation program, along with a brief
description of the Companys reasons for using such elements:
| base salary to recognize sustained, individual long-term performance; | ||
| annual incentive compensation to promote the achievement by the Company of annual objectives that the Committee believes will lead to long-term increases in stockholder value; | ||
| long-term equity incentive to promote retention of executive talent and to foster long-term planning and execution, which the Committee believes will lead to an increase in stockholder value; | ||
| benefits to provide programs that meet employee needs and promote recruitment and retention; and | ||
| executive severance and change in control agreements to provide competitive programs to help the Company recruit and retain qualified senior personnel. |
Use of Compensation Benchmarks. Each year, the Consultant develops a recommended group
of companies based on the parameters set forth below to use as benchmarks in comparing
compensation. After discussion with the Consultant and management, and possible
modification of the benchmark group, the Committee approves the final list of companies.
This group of companies will comprise the Market for executive officers as that term is
used throughout this Compensation Discussion and Analysis. The Consultant uses a primary
database composed of publicly-traded and privately-held companies. These companies are
geographically diverse and situated in the health services industry, and are in a comparable
size range to the Company, considering revenue, market capitalization and other appropriate
indicators. At all times, the Consultant utilizes as large a number of companies in the
database as it deems necessary to mitigate against year to year volatility, as long as such
companies fit the parameters set forth above. The list of benchmark companies is modified
from time to time as needed to reflect changes in described parameters. During 2010, the
benchmark group consisted of the following companies:
Advocat, Inc. | Cross Country Healthcare, Inc. | MedCath Corporation | ||||
Allied Healthcare International | Five Star Quality Care, Inc. | National HealthCare Corp. | ||||
Alliance Healthcare Services, Inc. | Gentiva Health Services | Odyssey Healthcare, Inc. | ||||
Amedisys, Inc. | Hanger Orthopedic Group | Psychiatric Solutions, Inc. |
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American Dental Partners, Inc. | Healthways Inc. | RehabCare Group, Inc. | ||||
AMN Healthcare Services | Hooper Holmes, Inc. | Sun Healthcare Group, Inc. | ||||
AmSurg Corp. | LHC Group, Inc. | SXC Health Solutions Corp. | ||||
Brookdale Senior Living, Inc. |
While the Committee realizes that there may be other companies suitable for inclusion
in the benchmark group, it is comfortable with the size and diversity of the primary
database and the competitive benchmarks it provides. The Consultant may also recommend
using secondary databases, as appropriate, that may consist of other companies in the
healthcare industry, and various functional surveys, as needed, regardless of industry
relevance.
As the Committee compares the Companys compensation to the Market, the Committee
considers data from the primary database as the most relevant. The Consultant, in
developing recommendations, also accesses secondary sources as a quality check against the
primary databases. If there are substantial discrepancies between the primary database and
the secondary sources, those are reviewed and the Consultant may recommend to the Committee
what action to take regarding those differences. There were no such discrepancies in 2010.
Unless otherwise specified herein, each component of an individuals compensation
package is set at levels targeted to be competitive with the Market. Generally, the target
is the 50th percentile of the Market. The actual amount that an executive may
realize may be higher or lower than the 50th percentile depending on Company and
individual performance and certain other factors. Each element of compensation is compared
discretely and no exception in one element, either high or low, has any impact on any other
element. For example, the lack of an annual incentive payout in one year will not affect
base salary increases or long term incentive awards in that or subsequent years.
It is the objective to have a strong link between individual and Company performance
and executive compensation such that if the Company and individual perform at an optimal
level, total compensation is higher relative to the Market. Conversely, if either the
Company or individual performance is below goals set by the Board, total compensation may be
lower relative to the Market.
Link to Organizational Performance. The Company believes that its executive
compensation program has a strong link to organizational performance, both short- and
long-term. A close correlation between the rewards to its executives and the strategic and
financial success of the Company is expected.
Base Salary. The target level for an executives base salary is within the
50th percentile of the Market, modified to reflect individual long-term
performance and experience. Base salary is reviewed annually and possibly adjusted based on
changes in competitive pay levels, the executives performance as measured against
individual, business group, and Company-wide goals, as well as changes in the executives
role with the Company. Base salary changes for the executive group are typically effective
at the beginning of each year. Therefore, on December 8, 2009, after consideration of
presentations and recommendations of the CEO (except as it relates to the CEOs salary) and
the Consultant, and such other matters and information as deemed appropriate, the Committee
approved resolutions with respect to 2010 base salaries of the Companys named executive
officers concluding that the named executive officers would receive no increases in base
salaries at the beginning of 2010. However, on June 7, 2010, after conferring with its
Consultant, the Committee approved an increase in fiscal 2010 base salary, effective June 1,
2010, for the Companys CEO as noted below.
2009 Base | 2010 Base | Increase | ||||||||||
Name | Salary ($) | Salary ($) | (%) | |||||||||
Richard Hallworth(1) |
500,000 | 525,000 | 5.0 | |||||||||
Michael W. Taylor |
385,000 | 385,000 | | |||||||||
Jonathan B. Walker |
250,000 | 250,000 | | |||||||||
Carl J. Keldie, M.D. |
340,683 | 340,683 | | |||||||||
T. Scott Hoffman(2) |
234,365 | 234,365 | | |||||||||
J. Scott King(2) |
200,000 | 220,000 | 10.0 |
(1) | Mr. Hallworths 2010 base salary was increased effective June 1, 2010. | |
(2) | On June 16, 2010, T. Scott Hoffman resigned his position as Senior Vice President and Chief Administrative Officer of the Company, effective July 16, 2010. As of that date, J. Scott King, the Companys Senior Vice President and Chief Legal Officer became a named executive officer. |
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Annual Incentive Compensation. The targeted cash payout amount (as a percent of
base salary) under the Companys 2010 Incentive Compensation Plan (the 2010 Plan) was set
by job title and description at amounts no higher than the 50th percentile of the
Market on an overall basis, as determined by the Consultant when it reviewed Market data.
The 2010 Plan, as established on March 1, 2010, was designed to award lump-sum cash
bonuses to the Companys executive officers, including the named executive officers, and
other eligible employees based on the financial performance of the Company and achievement
of certain other key Company and individual goals. The 2010 Plan established the following
2010 targeted payouts for the named executive officers as a percent of base salary (Bonus
Target as a Percent of Base Salary):
Bonus Target as a | ||||
Named Executive Officer Positions | Percent of Base Salary | |||
President and Chief Executive Officer |
70 | % | ||
Executive Vice President and Chief Financial Officer |
60 | % | ||
Chief Legal Officer, Chief Medical Officer and
Chief Development Officer |
50 | % |
A copy of the 2010 Plan was filed as an exhibit to the Companys Annual Report on
Form 10-K for the year ended December 31, 2009.
The 2010 Plan was composed of an Adjusted EBITDA Based Bonus (the EBITDA Bonus) and
Other Key Company Goals Based Bonus (the Key Goals Bonus), each of which accounted for
one-half of the total Bonus Target as a Percent of Base Salary for all named executive
officers except the Chief Medical Officer. As set forth in the 2010 Plan, 100% of the Chief
Medical Officers Bonus Target as a Percent of Base Salary was composed of a non-financial
Key Goals Bonus.
Under the EBITDA Bonus, the primary financial performance measure was adjusted
EBITDA. The Company defines adjusted EBITDA as earnings before interest expense, income
taxes, depreciation, amortization, audit committee investigation and related expenses,
merger expenses and share-based compensation expense. The Company includes in adjusted
EBITDA the results of discontinued operations under the same definition. The adjusted
EBITDA target as defined in the 2010 Plan was $23.0 million (the EBITDA Target), which
represented a 28% increase in the adjusted EBITDA target used in the 2009 Plan.
Under the EBITDA Bonus, no bonus was paid if adjusted EBITDA is 100% or less of the
EBITDA Target. The EBITDA Bonus is funded with 50% of the earnings generated above the
EBITDA Target after the other Key Goals Bonuses have been accrued, subject to the maximums
set forth in the 2010 Plan. Under the EBITDA Bonus portion of the 2010 Plan, for executive
management, including the named executive officers, other than the Chief Medical Officer,
the maximum EBITDA Bonus award was 150% of the Bonus Target as a Percent of Base Salary.
For 2010, the Company exceeded its 2010 EBITDA Target by an amount that allowed the Company
to pay cash EBITDA Based Bonuses at approximately 40% of the EBITDA based bonus target
payment amount; therefore EBITDA based incentive cash bonuses were paid to the Companys
named executive officers as follows: Mr. Hallworth, $72,546; Mr. Taylor, $46,523; Mr.
Walker, $25,175 and Mr. King, $22,154.
The Key Goals Bonus used pre-selected financial and non-financial objectives (the Key
Goals). Key Goals Bonuses were awarded at different levels of achievement, as described
fully in the 2010 Plan, up to a maximum award of 50% of the Bonus Target as a Percent of
Base Salary. The following were the Key Goals for executive management, including named
executive officers, other than the Chief Medical Officer:
Percent of Target Award Earned in 2010 | ||||||||||||||||||||
Percent of | Richard | Michael W. | Jonathan | J. Scott | ||||||||||||||||
Company Key Goals | Target Award | Hallworth | Taylor | B. Walker | King | |||||||||||||||
Corporate net new revenue |
30 | % | 20 | % | 20 | % | 20 | % | 20 | % | ||||||||||
Integration of Michigan
DOC contract with
acceptable clinical,
operational and
financial performance |
10 | % | 10 | % | 10 | % | 10 | % | 10 | % | ||||||||||
Methodically deploy
Catalyst® to
Pennsylvania DOC intake
facilities.
Deploy/upgrade
Catalyst® to
targeted contract sites.
Place into production
enhanced IT and clinical
functionality through
the release of Version
3.3. |
10 | % | 5 | % | 5 | % | 5 | % | 5 | % |
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The goals selected were considered to be strategically critical to the success of
the organization and the Board believes that they were suitably aggressive.
Based on the percent of target award earned in 2010 as listed in the table above,
incentive cash bonuses based on Key Goals were paid to the Companys named executive
officers as follows: Mr. Hallworth, $126,073, Mr. Taylor, $80,850; Mr. Walker, $43,750 and
Mr. King, $38,500. These incentive cash bonuses were paid in addition to the cash EBITDA
Based Bonuses noted above.
The Chief Medical Officer did not participate in the EBITDA Bonus portion of the 2010
Plan as described above. As listed above, the Chief Medical Officers Bonus Target as a
Percent of Base Salary was 50%. The Key Goals Bonus for the Chief Medical Officer accounted
for 100% of his Bonus Target as a Percent of Base Salary awarded at different levels of
achievement, as described fully in the 2010 Plan, up to a maximum award of 200% of the Bonus
Target as a Percent of Base Salary.
The following were the Key Goals for the Chief Medical Officer:
Percent of Target | Percent of Target Award | |||||||
Chief Medical Officer Key Goals | Award | Earned in 2010 | ||||||
Deployment of telemedicine |
40 | % | 20 | % | ||||
Integration of Michigan DOC contract
with acceptable clinical, operational
and financial performance |
30 | % | 30 | % | ||||
Methodically deploy
Catalyst® to Pennsylvania
DOC intake facilities. Deploy/upgrade
Catalyst® to targeted
contract sites. Place into production
enhanced IT and clinical functionality
through the release of Version 3.3. |
20 | % | 10 | % | ||||
Key individual non-financial objectives |
10 | % | 5 | % |
Based on the percent of target award and level of achievement earned in 2010 as
listed in the table above, an incentive cash bonus based on Key Goals was paid to Dr. Carl
J. Keldie totaling $110,722.
Long-term Equity Incentives. The Companys long-term equity incentive program
incorporates the following objectives of:
| fostering long-term planning and execution; | ||
| reflecting prevailing competitive practices; | ||
| promoting management retention by providing (i) a fair, equitable reward program, (ii) motivation to management to work for longer-term payoffs, and (iii) rewards that are forfeitable due to time vesting requirements; and | ||
| encouraging the long-term increase in stockholder value by rewarding executives as stockholders are rewarded, and resulting in a decrease in management wealth when stockholder value decreases. |
In determining the amount of the equity awards, the Committee reviewed data presented
by the Consultant that took into account how much equity was granted by the Market both in
terms of value to the individuals and overall for the Company as well as how much the value
of the equity awards represented as a percent of the market capitalization of the Company.
The awards to individual named executive officers as well as the Company overall were
approximately the 50th percentile of the Market.
The Consultant, after extensive conversations with the Committee, recommended using
nonqualified stock options as the primary equity vehicle for 2010 due to the fact that
options are still used extensively in the industry and the Company had more equity available
to be used for awards during 2010.
On October 5, 2010, based on the recommendation of the Committee, the Board approved
option awards under the Companys 2009 Equity Plan in the following amounts: Mr. Hallworth,
62,000 options; Mr. Taylor, 36,000 options; Mr. Walker, 14,000 options; Dr. Keldie, 14,000
options and Mr. King, 14,000 shares. The options to purchase shares of common stock of the
Company pursuant to the 2009 Equity Plan have a grant date of October 5, 2010 (Grant
Date), an exercise price equal to the fair market value of the common stock on the Grant
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Date as determined in accordance with the 2009 Equity Plan, and vesting one third on
each of the first, second and third anniversaries of the Grant Date.
All equity grants are based on the value at the effective date of the award. The
Company has not issued any options at an exercise price below market. Additionally, reload
options are not used and the Company has not re-priced options.
In summary, the Committee believes that the stock awards made in 2010 were consistent
with the policy of not exceeding the 50th percentile of the Market as explained
above. From time to time, there may be some variation with individual awards from the
Market to reflect individual performance and position criticality, or other factors.
Benefits and Perquisites. The Companys named executive officers are eligible to
participate in the same benefits offered to all other employees, specifically health plans,
dental plans, 401(k) program, group-term life insurance, sick leave, long-term disability
benefits and annual paid leave. The Company has not provided any executive benefits or
perquisites or deferred compensation or special retirement plans.
Additionally, the Companys named executive officers are eligible to participate in the
Companys Employee Stock Purchase Plan in the same capacity as all other employees. The
Employee Stock Purchase Plan allows eligible employees to elect to purchase shares of common
stock through voluntary automatic payroll deductions of up to 10% of the employees annual
salary, at a discount of 15% of the stocks value on the date of purchase.
Executive Severance and Change in Control Agreements. The Company has existing
employment agreements with its 2010 named executive officers: Richard Hallworth, Michael W.
Taylor, Jonathan B. Walker, Dr. Carl J. Keldie and J. Scott King. A more detailed
description of the material terms of these employment agreements is provided under the
heading Post Employment Compensation Employment Agreements beginning on page 19. These
employment agreements govern the type and amount of compensation that the named executive
officer would receive based on various events, including a change in control, a termination
of the executives employment without cause, or a resignation by the executive for good
reason (as defined in the applicable employment agreement), and are designed to be
competitive with the severance protections offered by our competitors and are intended to
help the Company recruit and retain qualified personnel. The Committee believes that the
provisions of all of these employment agreements are within normal competitive practices for
other healthcare companies the size of the Company.
Compensation Decisions for 2011. On February 28, 2011, based on the recommendation of
the Committee, the Board approved the Companys 2011 Incentive Compensation Plan (the 2011
Plan).
The 2011 Plan is designed to award lump-sum cash bonuses to the Companys executive
officers, including the named executive officers, and other eligible employees based on the
financial performance of the Company and achievement of certain other key company and
individual goals.
The Companys 2011 Plan establishes the following 2011 targeted payouts as a percent of
base salary (Bonus Target as a Percent of Base Salary):
Bonus Target as a | ||||
Named Executive Officer Positions | Percent of Base Salary | |||
President and Chief Executive Officer |
70 | % | ||
Executive Vice President and Chief Financial Officer |
60 | % | ||
Chief Legal Officer, Chief Risk Officer, Chief
Medical Officer and Chief Development Officer |
50 | % |
The 2011 Plan is composed of an Adjusted EBITDA Based Bonus (the EBITDA Bonus) and
Other Key Company Goals Based Bonus (the Key Goals Bonus), each of which account for
one-half of the total Bonus Target as a Percent of Base Salary for all named executive
officers except the Chief Medical Officer. As set forth in the 2011 Plan, 100% of the Chief
Medical Officers Bonus Target as a Percent of Base Salary is composed of a non-financial
Key Goals Bonus.
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Under the EBITDA Bonus, the financial performance measure is adjusted EBITDA.
The Company defines adjusted EBITDA as earnings before interest expense, income taxes,
depreciation, amortization, audit committee investigation and related expenses, merger
expenses and share-based compensation expense. The Company includes in adjusted EBITDA the
results of discontinued operations under the same definition. The adjusted EBITDA target as
defined in the 2011 Plan is $26.0 million (the EBITDA Target).
Under the EBITDA Bonus, no bonus is paid if adjusted EBITDA is 100% or less of the
EBITDA Target. The EBITDA Bonus is funded with 50% of the earnings generated above the
EBITDA Target after the other Key Goals Bonuses have been accrued, subject to the maximums
set forth in the 2011 Plan. Under the EBITDA Bonus portion of the 2011 Plan, for executive
management, including named executive officers, other than the Chief Medical Officer, the
maximum EBITDA Bonus award will be 150% of the Bonus Target as a Percent of Base Salary.
Payout is subject to Board confirmation of satisfactory balance sheet management.
The Key Goals Bonus uses pre-selected financial and non-financial objectives (the Key
Goals). Key Goals Bonuses are awarded at different levels of achievement, as described
fully in the 2011 Plan, up to a maximum award of 50% of the Bonus Target as a Percent of
Base Salary. The following are the Key Goals for executive management, including named
executive officers, other than the Chief Medical Officer:
Corporate net new revenue
|
30% of target award | ||
Company specific non-financial objectives
|
20% of target award |
The Chief Medical Officer does not participate in the EBITDA Bonus portion of the 2011
Plan as described above. As listed above, the Chief Medical Officers Bonus Target as a
Percent of Base Salary is 50%. The Key Goals Bonus for the Chief Medical Officer accounts
for 100% of his Bonus Target as a Percent of Base Salary awarded at different levels of
achievement, as described fully in the 2011 Plan, up to a maximum award of 200% of the Bonus
Target as a Percent of Base Salary. The following are the Key Goals for the Chief Medical
Officer:
Company specific non-financial objectives
|
90% of target award | ||
Key individual non-financial objectives
|
10% of target award |
Certain provisions of the 2011 Plan also applly to designated corporate managers,
corporate employees, division vice presidents, regional vice presidents, regional directors,
and health service administrators.
Additionally, on December 8, 2010, after consideration of presentations and
recommendations of the CEO (except as it relates to the CEOs salary) and the Consultant,
and such other matters and information as deemed appropriate, the Committee recommended and
the Board approved resolutions with respect to 2011 base salaries of the Companys named
executive officers. The table below summarizes the 2011 base salaries approved for the
Companys named executive officers, which were effective January 1, 2011:
2011 Base | Increase | |||||||
Name | Salary ($) | (%) | ||||||
Richard Hallworth(1) |
571,000 | 8.8 | ||||||
Michael W. Taylor(1) |
420,000 | 9.1 | ||||||
Jonathan B. Walker |
270,000 | 8.0 | ||||||
Carl J. Keldie, M.D. |
361,000 | 6.0 | ||||||
J. Scott King |
235,000 | 6.8 |
Tax and Accounting Implications. Section 162(m) of the Internal Revenue Code of
1986 limits the deductibility on the Companys tax return of compensation over $1.0 million
to the CEO or any of the other four most highly compensated executive officers serving at
the end of the year unless, in general, the compensation is paid pursuant to a plan which is
performance-related, non-discretionary, and has been approved by the Companys stockholders.
The Committee intends to structure performance-base compensation paid under the long-term
equity incentive component and awarded in the future to executive officers who may be
subject to Section 162(m) in a manner that satisfies the relevant requirements. The
Committee, reserves the authority to award non-deductible compensation in the future as it
deems appropriate. Further, because of ambiguities and uncertainties as to the application
and interpretation of Section 162(m) and related regulations, no assurance can be given that
compensation intended to satisfy the requirements for deductibility under Section 162(m)
will in fact do so.
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Stock and Option Retention Program. The Board strongly believes that independent
directors and Company executives should own and retain shares of Company stock to further
align their interests with those of the Companys shareholders. Therefore, the Board
adopted independent director and executive stock holding guidelines, effective January 1,
2010.
The guidelines apply to independent directors, the CEO, the CFO, operating presidents,
group vice-presidents and senior vice-presidents. Individuals covered under the guidelines
are required to retain ownership of a minimum number of shares of the Companys common stock
equal to a designated percentage times the sum of: (i) the number of shares of restricted
stock that vest after January 1, 2010, plus (ii) net shares received upon the exercise of
stock options after January 1, 2010 that were granted subsequent to January 1, 2008. Any
vesting of restricted stock or exercise of stock options by covered individuals prior to
January 1, 2010 is excluded from the calculation of the minimum number of shares required to
be owned by an individual. The guidelines will ultimately utilize a rolling three years of
vesting of restricted stock and the exercise of options in the calculation of the minimum
number of shares required to be owned by an individual.
The designated percentages referred to above are:
| 30% for independent directors; | ||
| 30% for the CEO; | ||
| 25% for the CFO; and | ||
| 20% for all other covered employees. |
At least once per year each individual covered under the guidelines will be required to
submit a statement attesting that the retention requirement has been met. Any time an
individual covered under the guidelines plans to dispose of any stock, they will also be
required to submit a statement attesting that after such disposal the remaining shares of
stock retained by the individual are sufficient to meet these guidelines.
In the event of a stock split, reverse stock split, stock dividend or other similar
change in the Companys outstanding shares, the stock retention requirement will be adjusted
accordingly. If the Board determines that an individual under these guidelines has not met
the retention requirements, the Board may consider either eliminating or withholding future
equity awards for the individual until the guidelines are met.
There may be instances in which the retention of the required number of shares under
the guidelines required would place a severe hardship on an individual. In such instances,
the Board may make a decision to develop alternative stock holding guidelines for the
individual that reflects both the intention of these guidelines and the specific
circumstances of the hardship.
The Incentive Stock and Compensation Committee shall be responsible for monitoring the
application of the independent director and executive stock holding guidelines.
Executive Compensation Recoupment (Claw-back) Policy. On August 2, 2010, the Committee
approved and immediately adopted a claw-back policy for all executive officers, including
named executive officers, of the Company. The policy allows the Board or an appropriate
committee of the Board, in its sole discretion, to require that the Company recoup, or
claw-back, portions of the incentive compensation paid to its executive officers if there
is a restatement of the Companys financial statements filed with the SEC and the amount of
incentive compensation that was awarded to the executive officer is higher than the amount
of incentive compensation that would have been awarded to the executive officer had the
financial results subject to the restatement been properly reported.
For this purpose, the following actions may be taken by the Board or an appropriate
committee of the Board:
| Require the executive officer to repay some or all of the annual incentive compensation paid; |
| Require the executive officer to repay any gains realized on the exercise of stock operations or on the open market sale of vested restricted shares of common stock; or |
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| Cancel some or all of the executive officers restricted stock, stock options or deferred stock awards. |
No recoupment of amounts referred to above will be sought for annual incentives earned
or equity awards made before adoption of this policy on August 2, 2010 and only restatement
of financial statements relating to fiscal years beginning after the adoption of this policy
on August 2, 2010, will be subject to this policy. In no cases will recoupment be required
for any annual incentives earned or equity awards made prior to the three-year period from
the time that the restatement occurs, except in the case of fraud, where the timeframe will
be unlimited. The Board or an appropriate committee of the Board shall have discretion to
define from time to time which officers are considered executive officers for purposes of
this policy.
The
Company has not previously sought a shareholder advisory vote on
executive compensation and, therefore the Committe has not considered
the results of any such vote in determining executive compensation
policies and decisions.
Report of the Incentive Stock and Compensation Committee
The Incentive Stock and Compensation Committee has reviewed and discussed the above
Compensation Discussion and Analysis with management and based on this review and
discussion, recommended to the Board of Directors that the Compensation Discussion and
Analysis be included in this Annual Report on Form 10-K.
Respectfully submitted by
The Incentive Stock and
Compensation Committee
The Incentive Stock and
Compensation Committee
JOHN W. GILDEA, Chair
BURTON C. EINSPRUCH, MD
WILLIAM M. FENIMORE, JR
BURTON C. EINSPRUCH, MD
WILLIAM M. FENIMORE, JR
This Report of the Incentive Stock and Compensation Committee shall not be deemed to be
incorporated by reference by any general statement incorporating by reference this Annual
Report on Form 10-K into any filing under the Securities Act of 1933 or the Securities
Exchange Act of 1934 and shall not otherwise be deemed filed under such Acts.
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2010 Summary Compensation Table
The following table sets forth information concerning the compensation of our named
executive officers for the years ended December 31, 2010, 2009 and 2008.
Non-Equity | ||||||||||||||||||||||||||||
Name and Principal Position | Stock | Option | Incentive Plan | All Other | ||||||||||||||||||||||||
(of ASG unless otherwise | Salary | Awards | Awards | Compensation | Compensation | |||||||||||||||||||||||
indicated) | Year | ($) (2) | ($) (3) | ($) (4) | ($) (5) | ($) (6) | Total ($) | |||||||||||||||||||||
Richard Hallworth |
2010 | 531,699 | | 312,392 | 198,619 | 8,675 | 1,051,385 | |||||||||||||||||||||
President and Chief Executive |
2009 | 496,923 | 245,603 | | 248,308 | 5,524 | 996,358 | |||||||||||||||||||||
Officer |
2008 | 369,549 | 144,396 | 206,511 | 104,049 | 855 | 825,360 | |||||||||||||||||||||
Michael W. Taylor |
2010 | 385,000 | | 181,389 | 127,373 | 4,160 | 697,922 | |||||||||||||||||||||
Executive Vice President and |
2009 | 382,914 | 111,930 | | 160,834 | 2,863 | 658,541 | |||||||||||||||||||||
Chief Financial Officer |
2008 | 316,825 | 105,370 | 103,255 | 90,884 | 322 | 616,656 | |||||||||||||||||||||
Jonathan B. Walker (1) |
2010 | 250,000 | | 70,540 | 68,925 | 1,560 | 391,025 | |||||||||||||||||||||
Senior Vice President and |
2009 | 200,215 | 105,551 | | 73,901 | 51,194 | 430,861 | |||||||||||||||||||||
Chief Development Officer |
||||||||||||||||||||||||||||
Carl J. Keldie, M.D. |
2010 | 340,684 | | 70,540 | 110,722 | 3,666 | 525,612 | |||||||||||||||||||||
Chief Medical Officer of PHS |
2009 | 351,254 | 62,740 | | 161,825 | 2,987 | 578,806 | |||||||||||||||||||||
2008 | 328,905 | 63,417 | | 94,305 | 1,444 | 488,071 | ||||||||||||||||||||||
J. Scott King |
2010 | 223,037 | | 70,540 | 60,654 | 1,968 | 356,199 | |||||||||||||||||||||
Senior Vice President and |
2009 | 198,923 | 62,740 | | 70,945 | 1,350 | 333,958 | |||||||||||||||||||||
Chief Legal Officer |
2008 | 161,798 | 68,908 | | 46,574 | 135 | 277,415 |
(1) | Effective March 9, 2009, the Board appointed Jonathan B. Walker as Senior Vice President and Chief Development Officer of the Company. | |
(2) | The amount received in salary for Mr. Hallworth and Mr. King in 2010 includes $17,509 and $3,517, respectively, in connection with a voluntary buyback of unused vacation, on a discounted basis, pursuant to a Company-wide program. The amount received in salary for Dr. Keldie in 2009 includes $10,925 in connection with a voluntary buyback of unused vacation, on a discounted basis, pursuant to a Company-wide program. | |
(3) | Amounts in this column represent the aggregate grant date fair value as computed on the date of grant for financial reporting purposes in accordance with United States Generally Accepted Accounting Principles (U.S. GAAP) related to share-based payments. Refer to Note 16, Share-Based Compensation, in the Notes to Consolidated Financial Statements included in the Annual Report on Form 10-K for the fiscal year ended December 31, 2010 (the Form 10-K) filed on March 3, 2011 for the relevant assumptions used to determine the valuation of the stock award. | |
(4) | Amounts in this column represent the aggregate grant date fair value as computed on the date of grant for financial reporting purposes in accordance with U.S. GAAP related to share-based payments. Refer to Note 16, Share-Based Compensation, in the Notes to Consolidated Financial Statements included in the Form 10-K for the relevant assumptions used to determine the valuation of the option awards. | |
(5) | Amounts in this column for 2008 represent the dollar amount earned by the executive related to the Companys 2008 Incentive Compensation Plan. Amounts in this column for 2009 represent the dollar amount earned by the executive related to the Companys 2009 Incentive Compensation Plan. Amounts in this column for 2010 represent the dollar amount earned by the executive related to the Companys 2010 Incentive Compensation Plan. Amounts earned were paid the following year. | |
(6) | All Other Compensation for 2010 and 2009 consists of amounts paid by us for term life insurance coverage for the named executive officer and dividends paid in 2010 and 2009 on any restricted shares of the Companys common stock owned by the named executive officer on the record date of the respective quarterly dividend, except for Mr. Walker who also received a $50,000 signing bonus in 2009. All Other Compensation for 2008 consists solely of amounts paid by us for term life insurance coverage for the named executive officer. |
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2010 Grants of Plan-Based Awards Table
All Other | ||||||||||||||||||||||||||||||||
All Other | Options | |||||||||||||||||||||||||||||||
Stock | Awards: | |||||||||||||||||||||||||||||||
Awards: | Number of | Exercise or | ||||||||||||||||||||||||||||||
Number of | Securities | Base Price | Grant Date | |||||||||||||||||||||||||||||
Estimated Possible Payouts | Shares of | Underlying | of Option | Fair Value of | ||||||||||||||||||||||||||||
Under Non-Equity Incentive Plan Awards (1) | Stock or | Options | Awards | Option | ||||||||||||||||||||||||||||
Name | Grant Date | Threshold ($) | Target ($) | Maximum ($) | Units (#) | (#)(2) | ($/Sh) | Awards ($)(3) | ||||||||||||||||||||||||
Richard
Hallworth |
10/05/2010 | | | | | 62,000 | 15.33 | 312,392 | ||||||||||||||||||||||||
N/A | | 360,208 | 720,417 | | | | | |||||||||||||||||||||||||
Michael W. Taylor |
10/05/2010 | | | | | 36,000 | 15.33 | 181,389 | ||||||||||||||||||||||||
N/A | | 231,000 | 462,000 | | | | | |||||||||||||||||||||||||
Jonathan B.
Walker |
10/05/2010 | | | | | 14,000 | 15.33 | 70,540 | ||||||||||||||||||||||||
N/A | | 125,000 | 208,904 | | | | | |||||||||||||||||||||||||
Carl J. Keldie,
M.D. |
10/05/2010 | | | | | 14,000 | 15.33 | 70,540 | ||||||||||||||||||||||||
N/A | | 170,342 | 340,684 | | | | | |||||||||||||||||||||||||
T. Scott
King |
10/05/2010 | | | | | 14,000 | 15.33 | 70,540 | ||||||||||||||||||||||||
N/A | | 110,000 | 234,365 | | | | |
(1) | Represents possible payouts at target (70% of base salary for the Chief Executive Officer, 60% of base salary for the Chief Financial Officer and 50% of base salary for all other named executive officers) and maximum (140% of base salary for the Chief Executive Officer, 120% of base salary for the Chief Financial Officer and 100% of base salary for all other named executive officers) under the Companys 2010 Plan. For a further description of the 2010 Plan, see the section titled, Compensation Discussion and Analysis Annual Incentive Compensation. | |
(2) | Represents options to purchase shares of the Companys common stock pursuant to the 2009 Equity Incentive Plan with an exercise price equal to the fair market value of the common stock on the grant date. These options vest one third on each of the first, second and third anniversaries of the grant date. | |
(3) | Represents the grant date fair value calculated in accordance with U.S. GAAP. There can be no assurance that the stock options will vest; or that the value of the stock options actually realized by the named executive officer will be equal to the grant date fair value calculated in accordance with U.S. GAAP. |
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2010 Outstanding Equity Awards at Fiscal Year-End Table
The following table sets forth certain information with respect to the outstanding
stock options or restricted shares awarded to our named executive officers that are
unvested, or otherwise forfeitable, and outstanding as of December 31, 2010. Each option
included in the following table has an exercise price per share equal to the fair market
value per share of our common stock on the date of grant.
Option Awards | Stock Awards | |||||||||||||||||||||||||||
Market | ||||||||||||||||||||||||||||
Number of | Number of | Number of | Value of | |||||||||||||||||||||||||
Securities | Securities | Shares or | Shares or | |||||||||||||||||||||||||
Underlying | Underlying | Units of | Units of | |||||||||||||||||||||||||
Unexercised | Unexercised | Option | Stock | Stock | Stock That | |||||||||||||||||||||||
Options | Options | Exercise | Option | Award | That Have | Have Not | ||||||||||||||||||||||
Exercisable | Unexercisable | Price | Expiration | Grant | Not | Vested | ||||||||||||||||||||||
Name | (#)(1) | (#)(1) | ($)(1) | Date | Date | Vested (#) | ($)(2) | |||||||||||||||||||||
Richard Hallworth |
30,000 | | 13.40 | 03/28/2016 | | | | |||||||||||||||||||||
15,000 | | 14.55 | 06/16/2016 | | | | ||||||||||||||||||||||
33,333 | 16,667 | (3) | 10.01 | 09/19/2018 | | | | |||||||||||||||||||||
| 62,000 | (4) | 15.33 | 10/05/2020 | | | | |||||||||||||||||||||
| | | | 08/01/2008 | 4,933 | (5) | 74,686 | |||||||||||||||||||||
| | | | 08/05/2009 | 5,100 | (6) | 77,214 | |||||||||||||||||||||
Michael W. Taylor |
45,000 | | 23.31 | 06/16/2014 | | | | |||||||||||||||||||||
20,000 | | 19.49 | 06/15/2015 | | | | ||||||||||||||||||||||
20,000 | | 14.55 | 06/16/2016 | | | | ||||||||||||||||||||||
16,667 | 8,333 | (3) | 10.01 | 09/19/2018 | | | | |||||||||||||||||||||
| 36,000 | (4) | 15.33 | 10/05/2020 | | | | |||||||||||||||||||||
| | | | 08/01/2008 | 3,600 | (5) | 54,504 | |||||||||||||||||||||
| | | | 08/05/2009 | 1,400 | (6) | 21,196 | |||||||||||||||||||||
Jonathan B. Walker |
| 14,000 | (4) | 15.33 | 10/05/2020 | | | | ||||||||||||||||||||
| | | | 08/05/2009 | 1,000 | (6) | 15,140 | |||||||||||||||||||||
Carl J. Keldie, M.D. |
14,999 | | 11.16 | 06/24/2013 | | | | |||||||||||||||||||||
15,000 | | 23.31 | 06/16/2014 | | | | ||||||||||||||||||||||
12,750 | | 19.49 | 06/15/2015 | | | | ||||||||||||||||||||||
5,000 | | 14.55 | 06/16/2016 | | | | ||||||||||||||||||||||
| 14,000 | (4) | 15.33 | 10/05/2020 | | | | |||||||||||||||||||||
| | | | 08/01/2008 | 2,167 | (5) | 32,808 | |||||||||||||||||||||
| | | | 08/05/2009 | 1,000 | (6) | 15,140 | |||||||||||||||||||||
J. Scott King |
5,000 | | 25.77 | 02/23/2015 | | | | |||||||||||||||||||||
2,000 | | 19.49 | 06/15/2015 | | | | ||||||||||||||||||||||
4,000 | | 14.55 | 06/16/2016 | | | | ||||||||||||||||||||||
| 14,000 | (4) | 15.33 | 10/05/2020 | | | | |||||||||||||||||||||
| | | | 08/01/2008 | 2,000 | (5) | 30,280 | |||||||||||||||||||||
| | | | 08/05/2009 | 1,000 | (6) | 15,140 |
(1) | The option shares and exercise price have been adjusted, as necessary, to reflect the Companys stock split authorized on September 24, 2004. | |
(2) | Market value was calculated by multiplying the number of restricted shares in the previous column that are forfeitable as of December 31, 2010 times the closing market price of $15.14 per share as reported on Nasdaq on December 31, 2010. | |
(3) | Options vest on 9/15/2011. | |
(4) | Options vest one third on each of the first, second and third anniversaries of the grant date. | |
(5) | Restricted share grants become nonforfeitable in equal annual installments over three years beginning on the first anniversary of the date the shares were issued. | |
(6) | Restricted share grants become nonforfeitable on the earlier of the third anniversary of the date such shares were granted or on the date upon which the Companys stock has achieved an average closing stock price equal to or greater than $23.00 per share for ninety (90) consecutive days to the extent such shares are not already nonforfeitable. |
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2010 Option Exercises and Stock Vested Table
The following table sets forth certain information with respect to the vesting of stock
awards and exercise of option awards during the year ended December 31, 2010 for each of our
named executive officers.
Stock Awards | Option Awards | |||||||||||||||
Number of | Value | Number of | Value | |||||||||||||
Shares | Realized on | Shares | Realized on | |||||||||||||
Acquired on | Vesting | Acquired on | Exercise | |||||||||||||
Name | Vesting (#) | ($)(1) | Exercise (#) | ($)(2) | ||||||||||||
Richard Hallworth |
32,873 | 579,737 | | | ||||||||||||
Michael W. Taylor |
19,640 | 346,212 | | | ||||||||||||
Jonathan B. Walker |
9,000 | 159,930 | | | ||||||||||||
Carl J. Keldie, M.D. |
11,707 | 206,154 | 29,537 | 24,147 | ||||||||||||
J. Scott King |
8,700 | 153,679 | | |
(1) | The value realized was computed by multiplying the number of shares of stock acquired on vesting by the market price of the underlying security at the vesting date, as quoted on Nasdaq. | |
(2) | The value realized was computed by determining the difference between the market price of the underlying security at exercise, as quoted on Nasdaq, and the exercise price of the option. |
Post Employment Compensation
Pension Benefits. We do not provide pension arrangements or post-retirement health
coverage for our named executive officers or employees. The Company has a 401(k) Retirement
Savings Plan (the 401(k) Plan) covering substantially all employees who have completed 60
days of service. The 401(k) Plan permits eligible employees to defer and contribute to the
401(k) Plan a portion of their compensation. Our named executive officers are eligible to
participate in the 401(k) Plan. The Company may, at the Boards discretion, match employee
contributions to the 401(k) Plan ranging from 1% to 3% of eligible compensation, depending
on the employees years of participation. The Company made no matching contributions in
2010.
Nonqualified Deferred Compensation. We do not provide any nonqualified defined
contribution or other deferred compensation plans.
Employment Agreements. We have existing employment agreements with all of our named
executive officers, Richard Hallworth, Michael W. Taylor, Jonathan B. Walker, Carl J.
Keldie, MD and J. Scott King. Summaries of the employment agreements are included below.
Richard Hallworth. On September 15, 2008, we entered into an amended and restated
employment agreement with Richard Hallworth to serve as President and Chief Executive
Officer of the Company, effective January 1, 2009, and to appoint Mr. Hallworth as a member
of the Board, effective September 15, 2008. Mr. Hallworths employment agreement
established a minimum annual salary of $400,000 as of September 15, 2008 and a minimum
annual salary of $500,000 as of January 1, 2009. Additional compensation may be determined
by the Incentive Stock and Compensation Committee from time to time. Mr. Hallworths
employment agreement provides for perpetual employment until terminated by either party upon
thirty days notice. Upon a termination without cause by the Company, a termination for good
reason by Mr. Hallworth or a change in control, all unexercised stock options, restricted
stock or similar awards issued by us to Mr. Hallworth shall accelerate and immediately vest.
Also, in the event of termination as a result of death or disability, termination without
cause by the Company, termination by Mr. Hallworth for good
reason, termination by Mr.
Hallworth within one year following a change in control but not later than the tenth day of
the third month following the year in which the change in control occurs, or termination by
the Company for any reason within one year following a change in control, Mr. Hallworth, or his estate, is
entitled to a lump-sum payment equal to two times Mr. Hallworths annual base salary
as of the termination date plus an
amount equal to a lump-sum severance payment in an amount equal to 200% of the greater of
(a) the incentive compensation that Mr. Hallworth could have earned under the Companys
annual incentive compensation plan
based on projections of the Companys then current financial
results throughout the remainder of the fiscal year, or (b) 50% of Mr. Hallworths annual base salary
as of the termination date. Mr.
Hallworth is subject to a non-competition agreement following termination and certain
confidentiality provisions.
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Michael W. Taylor. On September 15, 2008, we entered into an amended and restated
employment agreement with Michael W. Taylor pursuant to which he continued his employment as
Executive Vice President and Chief Financial Officer and was appointed as a member of the
Board. Mr. Taylors amended and restated employment agreement establishes a minimum annual
salary of $385,000, effective January 1, 2009. Additionally, in the event that Mr. Taylor
did not terminate his employment prior to the close of business on December 31, 2009, he was
to be eligible for a stay bonus in an amount equal to the greater of (i) $150,000 or (ii)
the amount Mr. Taylor would have earned under the Companys 2009 Incentive Compensation
Plan. Additional compensation may be determined by the Incentive Stock and Compensation
Committee from time to time. Mr. Taylors employment agreement provides for perpetual
employment until terminated by either party upon thirty days notice. Upon a termination
without cause by the Company, a termination for good reason by Mr. Taylor or a change in
control, all unexercised stock options, restricted stock or similar awards issued by us to
Mr. Taylor shall accelerate and immediately vest. Also, in the event of termination as a
result of death or disability, termination without cause by the Company, termination by Mr.
Taylor for good reason, termination by Mr. Taylor within one year following a change in
control but not later than the tenth day of the third month following the year in which the
change in control occurs, or termination by the Company for any
reason within one year following a change
in control, Mr. Taylor, or his estate, is entitled to a lump-sum payment equal to two times
Mr. Taylors annual base salary plus an amount equal to a lump-sum severance payment in an
amount equal to 200% of the greater of (a) the incentive compensation that Mr. Taylor could
have earned under the Companys annual incentive compensation
plan based on projections of the Companys then current
financial results throughout the remainder of the fiscal year, or (b) 50% of Mr.
Taylors annual base salary. Mr. Taylor is subject to a non-competition agreement following
termination and certain confidentiality provisions.
Jonathan B. Walker. On January 26, 2009, we entered into an employment agreement with
Jonathan B. Walker pursuant to which, effective March 9, 2009, he was appointed Senior Vice
President and Chief Development Officer. Mr. Walkers employment agreement establishes a
minimum annual salary of $250,000. Additional compensation may be determined by the
Incentive Stock and Compensation Committee from time to time. Mr. Walkers employment
agreement provides for perpetual employment, but may be terminated by the Company without
cause upon thirty days advance written notice. Upon termination of Mr. Walkers employment
by the Company without cause or if there is a change in control, all unexercised stock
options, restricted stock or similar awards issued to Mr. Walker will accelerate and
immediately vest. Upon termination of Mr. Walkers employment for any reason or no reason,
he will be entitled to payment of his full base salary through the termination date and any
bonuses, incentive compensation or other payments due which have been earned or vested prior
to the termination date. Further, if his employment is terminated by the Company without
cause, due to death or disability, or if he is not offered
continuation of his employment following a change in control, Mr. Walker will be
entitled to a continuation of his monthly base salary for one year
following the termination date. Mr. Walker is subject to a non-competition agreement
following termination and certain confidentiality provisions.
Carl J. Keldie, MD. On October 11, 2010, we entered into an employment agreement with
the Companys Chief Medical Officer, Carl J. Keldie, MD. The employment agreement provides
for Dr. Keldie to receive a base salary not less than $340,683, plus additional compensation
as the Chief Executive Officer and/or the Incentive stock and Compensation Committee shall
from time to time determine. Dr. Keldies employment agreement provides for perpetual
employment, but may be terminated by the Company without cause upon thirty days advance
written notice. Upon termination of Dr. Keldies employment by the Company without cause or
if there is a change in control, all unexercised stock options, restricted stock or similar
awards issued to Dr. Keldie will accelerate and immediately vest. Upon termination of Dr.
Keldies employment for any reason or no reason, he will be entitled to payment of his full
base salary through the termination date and any bonuses, incentive compensation or other
payments due which have been earned or vested prior to the termination date. Further, if
his employment is terminated by the Company without cause, due to death or disability, or if he is not offered
continuation of his employment following a change in control, Dr. Keldie will be entitled to a continuation
of his bi-weekly base salary for one year following the termination date. Dr. Keldie
is subject to a non-competition agreement following termination and certain confidentiality
provisions.
J. Scott King. On April 13, 2008, we entered into an employment agreement with J.
Scott King, the Companys Senior Vice President and Chief Legal Officer. Mr. Kings
employment agreement establishes a minimum annual salary of $165,000. Additional
compensation may be determined by the Incentive Stock and Compensation Committee from time
to time. Mr. Kings employment agreement provides for perpetual employment, but may be
terminated by the Company without cause upon thirty days advance written notice. Upon
termination of Mr. Kings employment by the Company without cause or if there is a change in
control, all unexercised stock options, restricted stock or similar awards issued to Mr.
King will accelerate and immediately
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vest. Upon termination of Mr. Kings employment for any reason or no reason, he will
be entitled to payment of his full base salary through the termination date and any bonuses,
incentive compensation or other payments due which have been earned or vested prior to the
termination date. Further, if his employment is terminated by the Company without cause,
due to death or disability, or if he is not offered continuation of
his employment following a change in control, Mr. King will be entitled
to a continuation of his bi-weekly base salary for one year following the
termination date. Mr. King is subject to a non-competition agreement following termination
and certain confidentiality provisions.
Potential Payments Upon Termination or Change-in-Control
For Messrs. Hallworth, Taylor, Walker, King and Dr. Keldie, the following summaries
generally describe potential payments payable to such named executive officers upon
voluntary termination without good reason, termination with cause, termination without
cause, termination following a change of control and in the event of disability or death
under their current employment agreements.
Voluntary Termination without Good Reason and Termination for Cause. In the event of
voluntary termination with respect to Mr. Walker, Mr. King and Dr. Keldie and voluntary
termination without Good Reason with respect to Messrs. Hallworth and Taylor or termination
for cause of a named executive officer, such executive officer is entitled to receive
amounts earned during his term of employment. Such amounts include:
| base salary earned through the termination date; | ||
| non-equity incentive compensation earned through the termination date; | ||
| vested stock options as of the termination date; and | ||
| accrued but unpaid leave such as holidays and vacation under the Companys paid leave plan as of the termination date. |
Cause, as defined in the named executive officer employment agreements, includes, among
other things: (i) violation of the material terms of the employment agreement; (ii)
intentional commission of an act, or failure to act, in a manner which constitutes
dishonesty or fraud or which has a direct material adverse effect on the Company or its
business; or (iii) the employees conviction of or a plea of guilty to any felony or crime
involving moral turpitude.
Good Reason, as defined in Mr. Hallworths amended and restated employment agreement,
includes, among other things: (i) a material diminution in employees base compensation;
(ii) a material diminution in employees status, title, positions, reporting relationships,
authority, duties, or responsibilities with respect to the Company including without
limitation the failure to appoint employee to the Board or the failure by the Companys
Corporate Governance and Nominating Committee of the Board to renominate employee for
election to the Board; or (iii) a material change in the geographic location at which the
employee must perform the services.
Good Reason, as defined in Mr. Taylors amended and restated employment agreement,
includes, among other things: (i) a material diminution in employees base compensation;
(ii) a material diminution in employees authority, duties, or responsibilities, including
without limitation the failure to appoint employee to the Board or the failure by the
Companys Corporate Governance and Nominating Committee of the Board to renominate employee
for election to the Board; (iii) a material diminution in the authority, duties, or
responsibilities of the supervisor to whom the employee is required to report; or (iv) a
material change in the geographic location at which the employee must perform the services.
Payments Made Upon Death or Disability. For those named executive officers where
employment agreements so provide, in the event of the death or long-term disability of a
named executive officer, in addition to the benefits listed under the headings Voluntary
Termination without Good Reason and Termination for Cause above, the named executive
officer will receive benefits under the Companys long-term disability plan or payments
under the Companys life insurance plan, as appropriate. In accordance with the provisions
of each respective employee stock grant certificate for restricted stock grants, in the
event of death or disability, all restricted stock shares become fully nonforfeitable.
Additionally, Messrs. Hallworth and Taylor are entitled to two-years base salary as of the
termination date to be paid out within five days of the termination date and 200% of the
greater of (a) the incentive compensation that he could have earned under the Companys
annual incentive plan, or (b) 50% of his base salary of the termination date to be paid out
within five days of the termination date. Mr. Walker, Mr. King and Dr. Keldie are
entitled to continue to receive their base salary for one year following such termination
date. In addition, Messrs. Hallworth and Taylor are entitled to receive the benefit for 18
months
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immediately following their termination of all medical insurance under plans and
programs in which he and/or his dependents participated.
Termination without Cause or Termination following a Change in Control. As discussed
above, the Company entered into amended and restated employment agreements with Messrs.
Hallworth and Taylor in September 2008 and initial employment agreements with Mr. Walker in
January 2009, with Mr. King in April 2008 and with Dr. Keldie in October 2010. Pursuant to
these agreements, if the executives employment is terminated for any reason with respect to Messrs. Hallworth and Taylor, or, with
respect to Messrs. Walker and King and Dr. Keldie, if the executive is not offered continuation of employment following a change of control
(as defined in the applicable employment agreements) or if the named executive officers
employment is terminated without cause, in addition to the benefits listed under the heading
Voluntary Termination without Good Reason and Termination for Cause, all unexercised stock
options, restricted stock or similar awards issued by us to the named executive officer
shall accelerate and immediately vest in addition to any such options, stock or awards that vest by their terms or otherwise on change of control. Additionally, Messrs. Hallworth and Taylor are
entitled to two-years base salary as of the termination date to be paid out within five
days of the termination date and 200% of the greater of (a) the incentive compensation that
he could have earned under the Companys annual incentive plan based on projections of the Companys then current financial results throughout the remainder of the fiscal year, or (b) 50% of his annual base
salary as of the termination date to be paid out within five days of the termination date.
Mr. Walker, Mr. King and Dr. Keldie are entitled to continue to receive their base salary
for one year following such termination date. In addition, Messrs. Hallworth and Taylor are
entitled to receive the benefit for 18 months immediately following their termination or until he is eligible to receive coverage under another employers health plan of all
medical insurance under plans and programs in which he and/or his dependents participated.
Messrs. Hallworth and Taylor have provisions that state that they are entitled to all of the
same benefits as listed above if they terminate their employment within one year following a
change in control but not later than the tenth day of the third month following the year in
which the change in control occurs.
Termination with Good Reason. As discussed above, the Company has entered into amended
and restated employment agreements with Messrs. Hallworth and Taylor. Pursuant to these
agreements, if the executive terminates his employment with Good Reason (as defined in the
applicable employment agreements), the executive will receive all of the same benefits as
listed above under the headings, Voluntary Termination without Good Reason and Termination
for Cause, Payments Made Upon Death or Disability, and Termination without Cause or
Termination following a Change in Control.
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The following tables set forth potential payments payable to our named executive
officers in the event of termination of such executives employment. The amounts shown
assume that such termination was effective as of December 31, 2010, and thus include amounts
earned through such time and are estimates of the amounts which would be paid out to the
executives upon their termination. The actual amounts to be paid out can only be determined
at the time of such executives separation from the Company.
Upon Death or Disability | ||||||||||||||||||||
Accelerated | ||||||||||||||||||||
Vesting of Stock | ||||||||||||||||||||
Severance | Continuation of | Options and | ||||||||||||||||||
Severance Payment | Sick Payment | Payment - | Insurance Benefits | Restricted Sock | ||||||||||||||||
Name | - Base Salary ($) | ($) | Bonus ($) | ($)(4) | ($) (5) | |||||||||||||||
Richard Hallworth |
1,050,000 | (1) | | 525,000 | (3) | 16,432 | 237,405 | (7) | ||||||||||||
Michael W. Taylor |
770,000 | (1) | | 385,000 | (3) | 10,368 | 118,450 | (7) | ||||||||||||
Jonathan B. Walker |
250,000 | (2) | | | | 15,140 | (7) | |||||||||||||
Carl J. Keldie, M.D. |
340,684 | (2) | | | | 47,943 | (7) | |||||||||||||
J. Scott King. |
220,000 | (2) | | | | 45,420 | (7) |
Upon Termination without Cause or Termination following a Change in Control (6) | ||||||||||||||||||||
Accelerated | ||||||||||||||||||||
Vesting of Stock | ||||||||||||||||||||
Severance | Continuation of | Options and | ||||||||||||||||||
Severance Payment | Sick Payment | Payment - Bonus | Insurance Benefits | Restricted Stock | ||||||||||||||||
Name | - Base Salary ($) | ($) | ($) | ($)(4) | ($)(5) | |||||||||||||||
Richard Hallworth |
1,050,000 | (1) | | 525,000 | (3) | 16,432 | 237,405 | |||||||||||||
Michael W. Taylor |
770,000 | (1) | | 385,000 | (3) | 10,368 | 118,450 | |||||||||||||
Jonathan B. Walker |
250,000 | (2) | | | | 15,140 | (7) | |||||||||||||
Carl J. Keldie, M.D. |
340,683 | (2) | | | | 47,943 | (7) | |||||||||||||
J. Scott King |
220,000 | (2) | | | | 45,420 | (7) |
(1) | Amount to be paid out in a lump sum as of the termination date. | |
(2) | Base salary is to be continued for one year following the termination date. | |
(3) | Amount is calculated at 100% of Messrs. Hallworth and Taylors base salary, respectively, as of December 31, 2010 to be paid out in a lump sum. | |
(4) | Consists of group health insurance coverage as applicable. The value is based upon the type of insurance coverage we carried for each named executive officer as of December 31, 2010 and is valued at the premiums in effect on December 31, 2010. | |
(5) | Accelerated vesting of stock option amounts are calculated as the difference between the fair market value of the common stock (based on the closing market price of $15.14 per share as reported on Nasdaq on December 31, 2010), and the respective exercise prices of in-the-money unvested stock options. Accelerated vesting of restricted stock amounts are calculated based on the amount of nonvested restricted shares at December 31, 2010 and the closing market price of $15.14 per share as reported on Nasdaq on December 31, 2010. | |
(6) | Messrs. Hallworth and Taylor have additional provisions in their amended and restated employment agreements that gives them the ability to terminate their employment with good reason (as defined in the amended and restated employment agreements) or within one year following a change in control but not later than the tenth day of the third month following the year in which the change in control occurs and receive the same benefits as listed in this table. | |
(7) | Accelerated vesting of restricted stock amounts is included due to the provisions in each respective employee stock grant certificate not the individual employment agreements. |
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2010 Directors Compensation Table
The following table sets forth a summary of the compensation the Company paid to its
non-employee directors in 2010.
Change in | ||||||||||||||||||||||||||||
Pension Value | ||||||||||||||||||||||||||||
and | ||||||||||||||||||||||||||||
Fees | Non-Equity | Nonqualified | ||||||||||||||||||||||||||
Earned or | Stock | Option | Incentive Plan | Deferred | All Other | |||||||||||||||||||||||
Paid in | Awards | Awards | Compensation | Compensation | Compensation | |||||||||||||||||||||||
Name | Cash ($) | ($)(1) | ($) | ($) | Earnings ($) | ($) (2) | Total ($) | |||||||||||||||||||||
Burton C.
Einspruch, M.D. |
63,000 | 41,184 | | | | 976 | 105,160 | |||||||||||||||||||||
William M. Fenimore,
Jr. |
84,000 | 41,184 | | | | 1,620 | 126,804 | |||||||||||||||||||||
John W. Gildea |
74,000 | 41,184 | | | | 3,000 | 118,184 | |||||||||||||||||||||
John C. McCauley |
72,000 | 41,184 | | | | 2,040 | 115,224 | |||||||||||||||||||||
Richard D. Wright |
144,000 | 41,184 | | | | 2,040 | 187,224 |
(1) | Amounts in this column represent the aggregate grant date fair value as computed on the date of grant for financial reporting purposes in accordance with U.S. GAAP related to share-based payments. Refer to Note 16, Share-Based Compensation, in the Notes to Consolidated Financial Statements included in the Form 10-K for the relevant assumptions used to determine the valuation of the stock award. | |
(1) | All Other Compensation consists of dividends paid in 2010 on any restricted shares of the Companys common stock owned by the director on the record date of the respective quarterly dividend. |
Base Compensation. During 2010, the Company paid each non-employee director, except
for the Non-Executive Chairman of the Board, an annual retainer of $30,000 for serving on
the Board and an additional cash fee of $1,500 per Board meeting. The Non-Executive
Chairman of the Board was paid a monthly fee of $12,000 for his service to the Company. In
addition, each director was reimbursed for out-of-pocket expenses incurred in attending
Board of Directors meetings and committee meetings. Directors who are also company
employees receive no additional compensation for attending Board or committee meetings.
Audit Committee members were compensated an additional cash fee of $2,500 per Audit
Committee meeting attended. The Audit Committee Chair was also paid an annual retainer of
$15,000 for serving in this capacity.
Members of the Incentive Stock and Compensation Committee, Corporate Governance and
Nominating Committee and the Ethics and Quality Assurance Committee were compensated an
additional cash fee of $1,000 per committee meeting attended. The chairman of each
committee was also paid an annual retainer of $5,000 for serving in such capacity.
Restricted Stock. The Board compensation program provides that each new non-employee
Director (as defined by the Amended and Restated 1999 Incentive Stock Plan or the 2009
Equity Incentive Plan as applicable) upon election to the Board receive 10,000 restricted
shares of stock. Under the terms of the restricted shares, each new non-employee Director
shall have the right, among other rights, to receive cash dividends on all of these shares
and to vote such shares unless the Directors right to such shares is forfeited. These
shares become nonforfeitable in equal annual installments over four years beginning on the
first anniversary of the date the shares are issued.
On December 8, 2010, each non-employee director received 3,000 shares of restricted
stock under the 2009 Equity Incentive Plan. Under the terms of the restricted shares, each
non-employee director shall have the right, among other rights, to receive cash dividends on
all of these shares and to vote such shares unless the Directors right to such shares is
forfeited. These shares become nonforfeitable in equal annual installments over three years
beginning on the first anniversary of the date the shares are issued.
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The aggregate number of potentially forfeitable stock awards that have been
granted to each of our non-employee directors as of December 31, 2010: Dr. Einspruch:
6,000; Mr. Fenimore: 6,000; Mr. Gildea: 6,000; Mr. McCauley: 6,000; and Mr. Wright: 8,000.
Compensation Decisions for 2011. On November 3, 2010, the Incentive Stock and
Compensation Committee elected to approve a new compensation package for non-management
directors effective January 1, 2011. Effective January 1, 2011, the Non-Executive Chairman
of the Board will be paid a monthly fee of $13,000 and the non-employee annual retainers
will be $40,000. The Incentive Stock and Compensation Committee chair will be paid an
additional $10,000 and the Ethics and Quality Assurance Committee chair and the Corporate
Governance and Nominating Committee chair will each be paid and additional $7,500. The
remaining Board of Director fees listed herein have not been changed for 2011.
Incentive Stock and Compensation Committee Interlocks and Insider Participation
The following directors served as members of the Incentive Stock and Compensation
Committee during the 2010 fiscal year: Dr. Einspruch,
Mr. Fenimore and Mr. Gildea, none of whom was an officer or
employee of the Company during such fiscal year or was formerly an
officer of the Company or had any relationship requiring disclosure
under Item 13 below. No
Compensation Committee interlocks or insider participation on compensation decisions exist.
Each of the individuals listed above are independent in accordance with the Companys
Corporate Governance Standards and the Incentive Stock and Compensation Committee Charter.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
Security Ownership of Directors and Officers
Set forth below is information with respect to beneficial ownership of the Companys
common stock, par value $.01 per share, as of April 26, 2011 by each director, the Companys
named executive officers and executive officers and all directors and executive officers as
a group. Except as otherwise indicated, each person has sole voting and dispositive power
with respect to the shares indicated as beneficially owned by such person.
Number of | Shares | Percent of | ||||||||||||||
Shares | Acquirable | Total | Common Stock | |||||||||||||
Beneficially | Within | Beneficial | Beneficially | |||||||||||||
Name | Owned | 60 Days(1) | Ownership | Owned(2) | ||||||||||||
Directors and Executive Officers: |
||||||||||||||||
Burton C. Einspruch, M.D. |
24,250 | 13,500 | 37,750 | * | ||||||||||||
William M. Fenimore, Jr. |
22,000 | | 22,000 | * | ||||||||||||
John W. Gildea |
20,000 | | 20,000 | * | ||||||||||||
John C. McCauley |
19,500 | | 19,500 | * | ||||||||||||
Richard D. Wright |
64,928 | 9,000 | 73,928 | * | ||||||||||||
Michael W. Taylor |
35,846 | 101,667 | 137,513 | 1.5 | % | |||||||||||
Richard Hallworth |
40,485 | 78,333 | 118,818 | 1.3 | % | |||||||||||
Carl J. Keldie, M.D. |
32,703 | 47,749 | 80,452 | * | ||||||||||||
J. Scott King |
11,848 | 11,000 | 22,848 | * | ||||||||||||
Jonathan B. Walker |
7,620 | | 7,620 | * | ||||||||||||
All directors and executive officers as a group
(10 persons) |
279,180 | 261,249 | 540,429 | 5.7 | % |
* | Represents beneficial ownership of less than 1% of the outstanding shares of our common stock. | |
(1) | Reflects the number of shares that could be purchased upon exercise of stock options at April 26, 2011, or within 60 days thereafter. | |
(2) | Based on 9,297,566 shares of common stock outstanding on April 26, 2011 plus shares acquirable within 60 days. |
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Table of Contents
Principal Stockholders
The following table sets forth certain information with respect to the beneficial
ownership of our common stock, par value $.01 per share, as of April 26, 2011, by each
stockholder who was known by us to beneficially own more than 5% of our common stock as of
such date, based on information known to us and filed with the SEC. Except as otherwise
indicated, each stockholder has sole voting and dispositive power with respect to the shares
indicated as beneficially owned by such stockholder.
Shares | ||||||||
Beneficially | Percentage | |||||||
Name and Address | Owned | of Class(1) | ||||||
Bruce & Co., Inc. 20 North Wacker Dr., Suite 2414 Chicago, IL 60606 |
665,617 | (2) | 7.16 | |||||
Blackrock, Inc. 40 East 52nd Street New York, NY 10022 |
621,332 | (3) | 6.68 | |||||
A group comprised of Paul Glazer and Glazer Capital, LLC 623 Fifth Avenue, Suite 2502 New York, NY 10022 |
469,147 | (4) | 5.05 |
(1) | Based on 9,297,566 shares of common stock outstanding on April 26, 2011. | |
(2) | Based solely on information provided in a Schedule 13G filed with the SEC on February 10, 2009. According to such Schedule 13G, as of December 31, 2008, Bruce & Co., Inc. may be deemed to beneficially own with sole voting and dispositive power the 665,617 shares of common stock listed above. | |
(3) | Based solely on information provided in a Schedule 13G filed with the SEC on February 3, 2011. According to such Schedule 13G, as of December 31, 2010, Blackrock, Inc. may be deemed to beneficially own with sole voting and dispositive power the 621,332 shares of common stock listed above. | |
(4) | Based solely on information provided in a Schedule 13G filed with the SEC on March 21, 2011. According to such Schedule 13G, as of March 9, 2011, the 469,147 shares of common stock listed above may be deemed to be beneficially owned, with shared voting and dispositive power, by (i) Paul Glazer, in his capacity as managing member of Glazer Capital, LLC and (ii) Glazer Capital, LLC. According to such schedule, Glazer Capital, LLC serves as the investment manager of Glazer Capital Management L.P., Glazer Qualified Partners, L.P., Glazer Enhanced Fund, L.P., Glazer Offshore Fund, Ltd. And Glazer Enhanced Offshore Fund, Ltd. In addition, according to such schedule, Glazer Capital, LLC manages separate accounts for three unrelated entities on a discretionary basis that own shares of common stock. According to such Schedule 13G, although Mr. Glazer does not directly own any shares of common stock, Mr. Glazer is deemed to beneficially own the 469,147 shares of common stock held by Glazer Capital Management L.P., Glazer Qualified Partners, L.P., Glazer Enhanced Fund, L.P., Glazer Offshore Fund, Ltd., Glazer Enhanced Offshore Fund, Ltd. And the three unrelated entities. |
Changes
in Control
The
Merger, upon closing, will result in a change in control of the
Company.
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Equity Compensation Plan Information
The following table gives information about the Companys common stock that may be
issued upon the exercise of options, warrants and rights under all of its existing equity
compensation plans as of December 31, 2010, including the Amended and Restated Incentive
Stock Plan, the Amended and Restated 1999 Incentive Stock Plan, the 2009 Equity Incentive
Plan and the Employee Stock Purchase Plan.
Number of Securities to | Number of Securities | |||||||||||
be Issued Upon | Weighted-Average Exercise | Remaining Available for | ||||||||||
Exercise of | Price of Outstanding | Future Issuance Under Equity | ||||||||||
Plan Category | Outstanding Options | Options | Compensation Plans | |||||||||
Equity compensation
plans approved by
security holders
(1) |
897,172 | $ | 17.12 | 239,000 |
(1) | Includes the Amended and Restated Incentive Stock Plan and the Amended and Restated 1999 Incentive Stock Plan which have expired. |
Item 13. Certain Relationships and Related Transactions, and Director Independence
Certain Related Person Transactions
Since the beginning of the last fiscal year, the Company is not aware of any related
person transactions between it and any of its directors, executive officers, 5% stockholders
or their family members which require disclosure pursuant to Item 404 of Regulation S-K
under the Exchange Act, except as previously discussed in Part III Item 10. Directors,
Executive Officers and Corporate Governance Directors as it relates to John C. McCauley.
As previously announced on March 3, 2011, John C. McCauley filled the newly created
position of Chief Risk Officer of the Company and stepped down from the Companys Board
effective March 1, 2011.
Pursuant to the Audit Committee charter, the Audit Committee is responsible for
reviewing and approving and/or ratifying related party transactions, including any
transactions that the Company is required to report in its proxy statements under Item 404
of Regulation S-K.
At least annually, each director and executive officer completes a detailed
questionnaire that asks questions about any business relationship that may give rise to a
conflict of interest and all transactions in which the Company is involved and in which the
executive officer, a director or a related person has a direct or indirect material
interest. The Company also conducts a review, at least annually, of its financial systems
to determine whether a director, or a company employing a director, engaged in transactions
with it during the fiscal year.
Director Independence
The Board has reviewed and analyzed the independence of each director under the
requirements of all applicable laws, rules, regulations and standards, including but not
limited to the Standards, SEC rules and regulations and the Nasdaq listing standards. The
purpose of the review was to determine whether any particular relationships or transactions
involving directors, their affiliates or immediate family members were inconsistent with a
determination that the director is independent for purposes of serving on the Board and its
committees. As a result of this review, during 2010 the Board affirmatively determined that
the following directors were independent in accordance with the Standards: Burton C.
Einspruch, M.D., William M. Fenimore, Jr., John W. Gildea, John C. McCauley and Richard D.
Wright. The Board has further determined that all members of the Incentive Stock and
Compensation Committee, Corporate Governance and Nominating Committee, and Audit Committee
were independent during 2010.
Item 14. Principal Accountant Fees and Services
The Audit Committee conducted a competitive process to select a firm to serve as the
Companys independent registered public accounting firm for the fiscal year ending December
31, 2009. The Audit Committee invited several firms to participate in this process,
including Ernst & Young LLP (E&Y), the Companys independent registered public accounting
firm for the fiscal year ended December 31, 2008.
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As a result of this process and following careful deliberation, on June 10, 2009, the
Audit Committee engaged Deloitte as the Companys independent registered public accounting
firm for the fiscal year ending December 31, 2009, and dismissed E&Y from that role on June
10, 2009.
The Audit Committee selected Deloitte to serve as the Companys independent registered
public accounting firm for fiscal year ended December 31, 2010 and the shareholders ratified
that appointment. Below is a listing of the aggregate fees billed for professional services
rendered by Deloitte and E&Y for the fiscal years ended December 31, 2010 and 2009:
Audit Fees
Fee for audit services provided by Deloitte totaled $552,150 during 2010. Such fees
were associated with the audit of the Companys 2010 consolidated financial statements, the
audit of its 2010 assessment of our internal control over financial reporting, reviews of
the Companys first, second and third quarters of 2010 financial statements and the 2010
audit of Correctional Health Services, LLC, (CHS) a limited liability corporation whose
sole member is PHS.
Fees for audit services provided by Deloitte totaled $500,000 during 2009. Such fees
were associated with the audit of the Companys 2009 consolidated financial statements, the
audit of its 2009 assessment of our internal control over financial reporting, reviews of
its second and third quarters of 2009 financial statements and the 2009 audit of CHS. Fees
for audit services provided by E&Y totaled $32,600 during 2009. Such fees were associated
with the review of the Companys first quarter of 2009 financial statements.
Audit Related Fees
Fees for audit related services provided by E&Y totaled $319,055 during 2010. Such
fees were associated with the change in independent registered accounting firm as discussed
above due to consents related to various company filings and fees associated with due
diligence and certain agreed upon procedures related to the merger announced by the Company
on March 3, 2011. Fees for audit related services provided by Deloitte totaled $64,610
during 2010. Such fees were associated with due diligence and certain agreed upon
procedures related to the merger announced by the Company on March 3, 2011.
Fees for audit related services provided by E&Y totaled $52,060 during 2009. Such fees
were associated with the change in independent registered accounting firm as discussed above
due to a workpaper review and consents related to various company filings.
Tax Fees
There were no fees paid for tax services during 2010 or 2009 to the Companys
independent registered public accounting firms.
All Other Fees
There were no other fees paid during 2010 or 2009 to the Companys independent
registered public accounting firms.
Audit Committee Policy for Pre-Approval of Independent Registered Public Accounting
Firm Services
The Audit Committee is responsible for appointing, setting compensation for and
overseeing the work of the independent registered public accounting firm. The Audit
Committee has established a policy requiring its pre-approval of all audit and permissible
non-audit services provided by the independent registered public accounting firm. For
pre-approval, the Audit Committee considers whether such services are consistent with the
rules of the SEC on auditor independence. The Audit Committees charter delegates to its
Chair the authority to address any requests for pre-approval of services between Audit
Committee meetings, and the Chair must report any pre-approval decisions to the Audit
Committee at its next scheduled meeting. The policy prohibits the Audit Committee from
delegating to management the Audit Committees responsibility to pre-approve permitted
services of the independent registered public accounting firm.
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All of the services related to the Audit Fees, Audit-Related Fees, Tax Fees and All
Other Fees described above were pre-approved by the Audit Committee or Audit Committee
Chair.
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PART IV
Item 15. Exhibits and Financial Statement Schedule
Exhibit | Description | |
31.1
|
Certification of the Chief Executive Officer Pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
31.2
|
Certification of the Chief Financial Officer Pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on April 29, 2011.
AMERICA SERVICE GROUP INC. |
||||
By: | /s/ RICHARD HALLWORTH | |||
Richard Hallworth | ||||
President and Chief Executive Officer | ||||
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