Exhibit 99.1
SENIOR EXECUTIVE EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered into as of
December 2, 2005 (the “Effective Date”), by and
between PACIFICARE HEALTH SYSTEMS, INC., a Delaware corporation
(the “Company”), with its principal place of business
located at 5995 Plaza Drive, Cypress, California 90630, and Sharon
D. Garrett (“Executive”).
RECITALS
WHEREAS , the Company desires to employ Executive in the
capacity of Executive Vice President, Enterprise
Services.
WHEREAS , the Company and Executive are entering into
this Agreement to establish the terms and conditions of the
employment relationship.
NOW, THEREFORE
, in consideration of the following
covenants, conditions and promises contained herein, and other good
and valuable consideration, the Company and Executive hereby agree
as follows:
1.1 Executive’s General
Duties . The Company will employ Executive and Executive will
serve the Company in the capacity of Executive Vice President,
Enterprise Services, having such usual and customary duties and
authority as an officer of similar capacity in a corporation of
comparable size, holdings, and business as that of the
Company.
Executive shall do and perform all
services, acts, or things necessary or advisable to manage and
conduct the business of the Company and shall preside over such
other areas of corporate activity as specified from time to time by
the Board of Directors or Chief Executive Officer of the Company.
During the term of this Agreement, Executive shall perform such
additional or different duties, and accept the election or
appointment to such other offices or positions as are mutually
agreed upon by Executive and the Company.
1.2 Devotion of Executive .
During the term of this Agreement, Executive shall devote her
entire productive time, ability, and attention to the business of
the Company. Executive shall use Executive’s best efforts,
skills, and abilities to promote the general welfare and interests
of the Company and to preserve, maintain, and foster the
Company’s business and business relationships with all
persons and entities associated therewith, including, without
limitation, employer groups, medical service providers,
stockholders, affiliates, officers, employees, and banks and other
financial institutions. The Company shall give Executive a
reasonable opportunity to perform Executive’s duties and
shall neither expect Executive to devote more time, nor assign more
duties or functions to Executive, than are customary and reasonable
for a person in Executive’s position.
1
2.1 Term . The initial term
of Executive’s employment under this Agreement shall be 24
months, commencing on the Effective Date. The Company may extend
the term of this Agreement for a successive term of 12 months or
more by giving Executive written notice at least 45 days prior to
the expiration of the term. Notwithstanding the foregoing, if a
Change-of-Control occurs, as defined in Section 5.1(c) of this
Agreement, then the term of the Agreement shall end 24 months from
the effective date of the Change-of-Control. Except as provided by
Section 2.2(f), if the Company offers Executive a new
employment agreement at the end of the term of this Agreement, but
Executive does not accept the new employment agreement, then
Executive’s continued employment with the Company will be
without the benefit of a written employment agreement, in which
case Executive’s entitlement to severance benefits on
termination shall be governed by then-existing Company policies and
practices. In the event that at the end of the term of this
Agreement, the Company neither extends the term of the Agreement
nor offers Executive a new employment agreement, then the Company
shall have been deemed to have given 45 days written notice
pursuant to Section 2.2(d) of this Agreement and
Executive’s employment with the Company shall terminate
pursuant to Section 2.2(d) of this Agreement.
2.2 Termination . This
Agreement, and Executive’s employment with the Company, shall
be terminated upon the occurrence of any one of the following
events:
a. The death of the
Executive.
b. Executive becomes incapacitated
or disabled, which incapacity or disability prevents Executive from
fully performing her duties to the Company for a period in excess
of 90 days and, after such 90-day period, the Company and a
physician, duly licensed and qualified in the specialty of
Executive’s incapacity, decide in their reasonable judgments,
that such incapacity will be of such continued duration as to
prevent Executive from resuming the rendition of services to the
Company for at least an additional six-month period. For purposes
of this Agreement, Executive shall be deemed permanently disabled,
and this Agreement terminated upon the date Executive receives
written notice from the Company that such determination has been
made.
c. Executive habitually neglects her
duties to the Company or engages in gross misconduct during the
term of this Agreement. For the purposes of this Agreement,
“gross misconduct” shall mean Executive’s
misappropriation of funds; fraud; insider trading; unauthorized
possession of corporate property; the sale, distribution,
possession or use of a controlled substance; conviction of any
criminal offense (whether or not such criminal offense is committed
in connection with Executive’s duties hereunder or in the
course of her employment with the Company); or Executive’s
action, or failure to commit an act, involving the Company which
amounts to willful misconduct, wanton misconduct or gross
negligence and which is materially and demonstrably harmful to the
Company. In such
2
event, Executive’s termination
shall be effective immediately upon receipt of written notice from
the Company.
d. Either party hereto may terminate
this Agreement, with or without cause, upon 45 days prior written
notice to the other party. Except for the circumstances described
in Subsections (a), (b), (c), (e) and (f) of this
Section 2.2, Executive’s termination shall be effective
45 days after receipt of such written notice.
e. Upon the expiration of the term
of this Agreement, the Company neither extends the Agreement
pursuant to Section 2.1 nor offers Executive a new employment
agreement.
f. Executive voluntarily terminates
her employment, upon written notice to the Company, to be effective
at the end of the term of this Agreement, after the Company offers
Executive a new employment agreement that establishes duties
materially inconsistent with those described in Section 1.1,
reduces Executive’s salary by more than 10 percent below the
salary in effect at the end of the term of this Agreement or does
not contain severance provisions comparable to those in this
Agreement.
|
3.
|
Compensation During the Term of this
Agreement
|
3.1 Base Salary . As long as
Executive satisfactorily performs all of the obligations under this
Agreement, the Company shall pay Executive an annual base salary
during the term of this Agreement, payable in equal installments on
the Company’s regular payroll dates. As of this date,
Executive’s annual base salary has been set at $460,000. On
an annual basis, the Company shall review Executive’s salary,
but shall be under no obligation to increase Executive’s
salary. Executive authorizes the Company to take such deductions
and withholdings from her base salary and other compensation,
including any bonus, as are required by law, directed by Executive,
or as reasonably directed by the Company for its employees, which
deductions shall include, without limitation, withholding for
federal and state income taxes and social security.
3.2 Benefits . Executive
shall be eligible to fully participate in all of the employee
benefit plans and programs available to other high-level executives
of the Company, including, without limitation, health, dental, and
life insurance coverage for Executive and Executive’s
dependents, pension and profit sharing programs (including the
Company’s Supplemental Executive Retirement Plan), paid time
off benefits, the Amended and Restated PacifiCare Health Systems,
Inc. Savings and Profit-Sharing Plan, and the trust agreement
implemented pursuant thereto, adopted as of July 1999, the
Company’s Statutory Restoration Plan and the Company’s
Deferred Compensation Plan. The Company shall have the right to
change, amend, modify, or terminate any existing benefit plan or
program, or to change any insurance company or modify any insurance
policy adopted incident to such existing benefit plan and
program.
3.3 Automobile Allowance .
Executive shall be eligible to participate in the Company’s
automobile allowance program, if any, at a rate consistent with
that provided to other high-level
3
executives of the Company. The Company shall
furnish Executive with a cellular telephone. Executive shall
provide and maintain automobile insurance for Executive’s car
including collision, comprehensive liability, personal and property
damage, and uninsured and underinsured motorist coverage in amounts
customarily obtained to cover such contingencies in the State of
California. Executive shall provide proof of such coverage to the
Company upon the Company’s request.
3.4 Reimbursement of Expenses
. The Company shall pay for or reimburse Executive for all
reasonable travel, entertainment, and other business expenses
incurred or paid for by Executive in connection with the
performance of her services under this Agreement. The Company shall
not be obligated to make any such reimbursement unless Executive
presents corresponding expense statements or vouchers and such
other supporting information as the Company may from time to time
reasonably request. The Company reserves the right to place
subsequent limitations or restrictions on business expenses to be
incurred or reimbursed.
3.5 Annual Incentive Plan .
Executive shall be eligible to participate in either the
Company’s 1996 Management Incentive Compensation Plan or 2003
Management Incentive Compensation Plan, as applicable, or any
replacement plan, and as such plans may be further amended,
modified, or terminated, from time to time (the
“MICP”), in accordance with the terms and conditions
set forth herein and therein.
3.6 Equity-Based Plans .
Executive shall be eligible to participate in the applicable
equity-based compensation plans for officers and key employees of
PacifiCare Health Systems, Inc., as may be amended modified or
replaced, from time to time, in accordance with the terms and
conditions set forth herein and therein including eligibility for
both stock options and restricted share awards.
3.7 Insurance . During the
term of this Agreement, the Company shall insure Executive under
its general liability insurance for all conduct committed in good
faith while acting in the capacity of Executive Vice President,
Enterprise Services or in any other capacity to which Executive may
be appointed or elected.
|
4.
|
Compensation Following Termination of Employment
Pursuant to Section 2.2
|
4.1 Death . In the event that
this Agreement is terminated by reason of Executive’s death,
Executive’s estate or legal representative shall be entitled
to receive the following:
a. Payment of benefits under the
life insurance policy purchased by the Company on Executive’s
behalf, if any;
b. Payments of benefits under the
MICP set forth in Section 3.5 in accordance with the terms of
the MICP plan document;
c. Executive’s legal
representative shall be permitted to exercise any vested and
unexercised options granted under the 1996 Stock Option Plan for
Officers and Key
4
Employees, the 2000 Employee Plan,
the 2005 Equity Incentive Plan and any other stock option plans of
the Company (collectively, the “Stock Option Plans”) in
accordance with their terms for a period of one year following
Executive’s death.
4.2 Disability . In the event
that Executive is terminated because of incapacity or disability,
the Company shall provide Executive with the following:
a. Payment of benefits under the
disability insurance policy maintained by the Company on
Executive’s behalf, if any;
b. Payment of benefits under the
MICP set forth in Section 3.5 in accordance with the terms of
the MICP plan document;
c. The right to exercise any vested
and unexercised options under the Stock Option Plans in accordance
with the terms stated therein;
d. Payment of the automobile
allowance as provided under Section 3.3 for a period of 18
months following the effective date of such termination.
4.3 Neglect, Misconduct or
Voluntary Termination . In the event this Agreement is
terminated because of Executive’s habitual neglect or gross
misconduct pursuant to Section 2.2(c) or because of
Executive’s voluntary termination (except for resignation
pursuant to Section 2.2(f)), the Company shall be relieved
from any and all further or future obligations to compensate
Executive; provided, however, that Executive shall be able to
exercise any vested and unexercised awards under the Stock Option
Plans in accordance with the terms set forth therein.
4.4 Discharge by the Company
Pursuant to Section 2.2(d) or 2.2(e) . In the event that
the Company terminates Executive pursuant to Section 2.2(d) or
2.2(e) under circumstances other than a Change-of-Control (as
defined herein) and for any reason other than Executive’s
incapacity or disability or neglect/misconduct as described in
Sections 2.2(b) and 2.2(c), respectively, then Executive shall be
entitled to the following compensation:
a. An amount equal to 2 times
Executive’s then current annual salary under
Section 3.1;
b. An amount equal to 2 times the
average of the last two MICP bonuses paid to Executive. If
Executive has been employed by the Company for more than one, but
less than two years, then the MICP bonus severance payment shall
equal 2 times the average of the MICP bonus paid to Executive for
the prior year and the target for Executive for the current year.
If Executive has been employed by the Company for less than one
year, Executive will not receive any bonus severance payment. For
purposes of this Section 4.4(b), the word “paid”
shall include $0.00 for any year in which Executive was eligible
for, but was not paid, an MICP bonus;
5
c. The right to exercise any vested
and unexercised options granted under the Stock Option Plans at a
time when Executive was at the salary grade level of X15 or higher,
or held the title of Senior Vice President or higher, in accordance
with their terms within one year of the effective date of such
termination;
d. Continuation of Executive’s
and her dependents’ medical, dental and vision benefits for a
period of 24 months following the effective date of such
termination;
e. An amount equal to 24 months of
Executive’s automobile allowance;
f. The Company shall provide to
Executive outplacement services to assist Executive in securing a
position comparable to the one from which Executive was terminated.
The Company shall be obligated to provide those outplacement
services which are customarily provided by companies of similar
size and holdings as those of the Company to executives with
comparable responsibility and longevity as Executive and for
reasonable cost as approved by the Company. The Company’s
provision of such outplacement services shall not limit, restrict,
or reduce, in any manner, any and all other compensation to which
Executive is entitled hereunder;
g. Executive shall receive, or have
paid, the amounts of severance compensation provided in clauses
(a), (b) and (e) above in equal installments over a
period of 24 months. Payments will be made either in biweekly
installments on the Company’s regular paydays or as currently
being paid to Executive;
h. Notwithstanding the foregoing, in
the event Executive engages in employment, whether as an employee,
consultant or contractor with a competitor of the Company during
the 24 month period in which Executive’s salary continues
pursuant to this Section 4.4, the severance compensation
available to Executive under this Section 4.4 shall be reduced
by the amount of any and all gross earnings Executive earns while
engaged in employment with any such competitor or competitors. For
the purposes of this Section 4.4 , a “competitor
of the Company” means any company offering managed care and
other health insurance products, including specialty managed care
products and services, including without limitation, managed care
organizations, health maintenance organizations, competitive
medical plans, preferred provider organizations, provider sponsored
organizations (“PSO”), health insurance companies,
pharmacy benefit management companies, behavioral health companies,
and dental and vision benefit plans. Executive agrees to provide
immediate notice to the Company upon receipt of any gross earnings
received by Executive from a competitor of the Company. Quarterly,
Executive shall provide the Company a certificate certifying as to
her employment status and if employed, the name and business of her
current employer;
i. If Executive is rehired by the
Company, payments of severance compensation provid