UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 15, 2013
AEROFLEX HOLDING CORP.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-34974 | 01-0899019 | ||
| (State or Other Jurisdiction | (Commission | (I.R.S. Employer | ||
| of Incorporation) | File Number) | Identification No.) |
| 35 South Service Road, P.O. Box 6022 | ||
| Plainview, New York | 11803 | |
| (Address of Principal Executive Offices) | (Zip Code) |
(516) 694-6700
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers. |
On November 15, 2013, the stockholders of Aeroflex Holding Corp. (the “Company”) approved the Aeroflex Holding Corp. 2013 Performance Bonus Plan (the “2013 Plan”) at the Annual Meeting of Stockholders. The 2013 Plan will become effective on July 1, 2014. The 2013 Plan will be administered by the Compensation Committee of the Company’s Board of Directors (the “Committee”). The executive officers of the Company and such other officers and employees of the Company selected by the Committee are eligible to participate in the 2013 Plan. The maximum amount of the incentive compensation bonuses payable to any participant under the 2013 Plan in, or in respect of, any single fiscal year shall not exceed $3,000,000. All incentive compensation bonuses paid pursuant to the 2013 Plan will be paid in cash and will be based on satisfaction of any fiscal year performance goals; provided that, such goals will be set in accordance with the regulations under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”). Performance goals must be based on one or more of the performance criteria enumerated in the 2013 Plan. For each selected performance goal, the Committee shall provide a threshold level of performance below which no incentive compensation bonus will be paid, a maximum level of performance above which no additional incentive compensation bonus will be paid and a target level in between such other levels.
The 2013 Plan is designed to qualify any awards payable to certain named executive officers of the Company as “performance-based compensation” within the meaning of Section 162(m) of the Code. In general Section 162(m) disallows a tax deduction to the Company for any compensation paid to certain named executive officers in excess of $1,000,000 per year, unless the compensation qualifies as performance-based compensation. In general, those requirements include the establishment of objective performance goals for the payment of such compensation by a committee of the Board of Directors composed solely of two or more outside directors, stockholder approval of the material terms of such compensation prior to payment, and certification by the Committee that the performance goals for the payment of such compensation have been achieved.
This summary description of the 2013 Plan does not purport to be complete and is qualified in its entirety by reference to the 2013 Plan, a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On November 15, 2013, the Company held its 2013 Annual Meeting of Stockholders. Of the 84,942,690 shares of common stock outstanding and entitled to vote, 84,501,353 shares, or 99.48%, were represented at the meeting in person or by proxy, and therefore a quorum was present. The final results for each of the matters submitted to a vote of stockholders at the Annual Meeting are as follows:
Proposal No. 1: All of the Board of Directors’ nominees for director were elected to serve until the Company’s 2014 Annual Meeting of Stockholders, by the votes set forth below:
| Nominee | For | Withheld | Broker Non- Votes | |||||||||
| Hugh Evans | 78,298,987 | 3,098,973 | 3,103,393 | |||||||||
| Leonard Borow | 77,600,844 | 3,797,116 | 3,103,393 | |||||||||
| John Buyko | 78,650,902 | 2,747,058 | 3,103,393 | |||||||||
| Prescott Ashe | 78,307,852 | 3,090,108 | 3,103,393 | |||||||||
| Joe Benavides | 78,651,502 | 2,746,458 | 3,103,393 | |||||||||
| Bradley J. Gross | 78,651,502 | 2,746,458 | 3,103,393 | |||||||||
| John D. Knoll | 78,651,502 | 2,746,458 | 3,103,393 | |||||||||
| Ramzi M. Musallam | 78,631,366 | 2,766,594 | 3,103,393 | |||||||||
| Richard N. Nottenburg | 81,201,655 | 196,305 | 3,103,393 | |||||||||
| Benjamin M. Polk | 78,298,962 | 3,098,998 | 3,103,393 | |||||||||
| Charles S. Ream | 80,899,825 | 498,135 | 3,103,393 | |||||||||
| Mark H. Ronald | 80,878,689 | 519,271 | 3,103,393 | |||||||||
| General Peter J. Schoomaker (USA Ret.) | 81,181,519 | 216,441 | 3,103,393 | |||||||||
Proposal No. 2: The stockholders approved, on an advisory basis, the compensation of the named executive officers as disclosed in the Company’s proxy statement, by the votes set forth below:
| For | Against | Abstain | Broker Non- votes | |||||||||||
| 74,564,554 | 3,576,679 | 3,256,727 | 3,103,393 | |||||||||||
Proposal No. 3: The stockholders approved the adoption of the Aeroflex Holding Corp. 2013 Performance Bonus Plan as disclosed in the Company’s proxy statement, by the votes set forth below:
| For | Against | Abstain | Broker Non- | |||
| 76,161,777 | 1,980,211 | 3,255,972 | 3,103,393 |
Proposal No. 4: The stockholders ratified the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2014, by the votes set forth below:
| For | Against | Abstain | ||
| 84,453,114 | 35,713 | 12,526 |
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| 10.1 | Aeroflex Holding Corp. 2013 Performance Bonus Plan. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AEROFLEX HOLDING CORP. | |||
| By: | /s/ John Adamovich, Jr. | ||
| John Adamovich, Jr. | |||
| Senior Vice President and | |||
| Chief Financial Officer | |||
Date: November 18, 2013
AEROFLEX HOLDING CORP.
2013 PERFORMANCE BONUS PLAN
Section 1. Purpose. The purpose of the Aeroflex Holding Corp. 2013 Performance Bonus Plan (the “Plan”) is to advance the interests of Aeroflex Holding Corp. (the “Company”) by rewarding selected employees of the Company and its subsidiaries for their contributions to the Company’s financial success and thereby motivate them to continue to make such contributions in the future by granting performance-based Awards (as hereinafter defined).
Section 2. Definitions. For purposes of the Plan, the following terms will have the meanings defined below, unless the context clearly requires a different meaning:
(a) “Affiliate” means, with respect to any Person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control,” including its correlative terms “controlled by” and “under common control with,” mean, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
(b) “Applicable Employee Remuneration” has the meaning given to such term in Section 162(m)(4) of the Code.
(c) “Award” means a cash bonus opportunity under the Plan.
(d) “Board” means the Board of Directors of the Company.
(e) “Code” means the Internal Revenue Code of 1986, as amended.
(f) “Committee” means the Compensation Committee (or a subcommittee thereof) of the Board.
(g) “Covered Employee” has the same meaning given to such term in Section 162(m)(3) of the Code; provided, however, that a person will be considered a Covered Employee for purposes of this Plan only if such employee's Applicable Employee Remuneration for the relevant Fiscal Year is expected to exceed $1,000,000.
(h) “Fiscal Year” means the period beginning on July 1 and ending on June 30 or such other period that the Company may hereafter adopt as its fiscal year.
(i) “Participant” means the executive officers of the Company, any officer of the Company whose employment agreement refers to the Plan for the determination of an annual Award thereunder, and any other employee of the Company or any Affiliate selected by the Committee to participate in the Plan.
(j) “Person” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization.
(k) “Performance Criterion or Criteria” shall have the meaning set forth in Section 4(b) of the Plan.
(l) “Performance Period” means each Fiscal Year after the Effective Date.
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Section 3. Administration of Plan. The Committee shall administer the Plan and is authorized to interpret the Plan and from time to time to adopt such rules, regulations and guidelines consistent with the provisions of the Plan as it may deem advisable to carry out the Plan, except that the Committee may authorize any one or more of its members, or any officer of the Company, to execute and deliver documents on behalf of the Committee. Additionally, the Committee shall have the power, from time to time, to: (i) select the employees of the Company and its Affiliates who will participate in the Plan in accordance with Section 4(a); (ii) determine the terms and conditions of each Award, provided that such terms are in accordance with the Plan and not inconsistent with any employment or other agreement then extant; (iii) establish specific performance goals with respect to the Performance Criterion or Criteria for any Performance Period in accordance with Section 4 and certify whether and the extent to which such goals have been satisfied; and (iv) correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award. All decisions made by the Committee shall be made in the Committee’s sole and absolute discretion and shall be final and binding on the Participants and all other Persons.
Section 4. Awards.
(a) Eligibility. Each executive officer of the Company and any other officer whose employment agreement refers to the Plan for the determination of an annual Award thereunder shall be entitled to participate in the Plan for each fiscal year. Additionally, the Committee may, in its discretion, select other officers and employees of the Company to participate in the Plan in any Fiscal Year.
(b) Performance Levels or Goals. Within 90 days after each Performance Period begins (or such other date as may be required or permitted under Section 162(m)), the Committee shall establish and recommend to the Board for approval the three specific levels or goals of the selected Performance Criterion or Criteria, i.e., a Threshold, Target and Maximum goal or level that must be satisfied in order for an Award to become payable upon, respectively, the partial, full or over-achievement of the selected Performance Criterion or Criteria. Such performance objectives will be based upon the following criterion or criteria (the “Performance Criterion or Criteria”), as determined by the Committee for the Performance Period (subject to further adjustment in accordance with Section 4(d), below):
(i) the attainment of certain target levels of, or a specified percentage increase in, revenues (including, without limitation, specified subsets or measures of revenue, such as “net sales”, “net income” or “pro forma net income”);
(ii) the attainment of certain target levels of, or a specified percentage increase in, earnings before interest, taxes, depreciation and amortization (“EBITDA”), subject to such adjustments or modifications as may be appropriate, to reflect various types of accounting adjustments that historically and otherwise have been or are approved by the Compensation Committee;
(iii) the attainment of certain target levels of, or a specified percentage increase in, operating income; or
(iv) the attainment (whether expressed as an actual amount or as a percentage) of a certain level of, reduction of, or other specified objectives with regard to limiting the level in or increase in all or a portion of controllable items or expenditures.
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(c) Bonus Levels upon Achievement of Performance Criterion. The bonus opportunity awarded to each Participant will be set by the Committee; provided however, the bonus payable upon achievement of threshold, target or maximum levels of the selected Performance Criterion or Criteria will, in the aggregate, be no less than:
| Executive Level | Attainment of Threshold Performance | Attainment of Target Performance | Attainment of Maximum Performance |
| Chief Executive Officer | 50% of Base Salary | 100% of Base Salary | 150% of Base Salary |
| Executive Vice Presidents | 50% of Base Salary | 100% of Base Salary | 150% of Base Salary |
| Senior Executive Officers | 33 1/3% of Base Salary | 66 2/3% of Base Salary | 100% of Base Salary |
| Other Officers | 33 1/3% of Base Salary | 54% of Base Salary | 75% of Base Salary |
| Other Participants | Committee Discretion | ||
Amounts payable as an Award under the Plan based on the achievement of the Performance Criterion or Criteria selected shall be determined by interpolation if the actual performance attained is either between (X) the Threshold Performance level or goal and the Target Performance level or goal for such Performance Criterion or (Y) the Target Performance level or goal and the Maximum Performance level or goal for such Performance Criterion.
(d) Adjustments to Performance Goals. The Committee will, as appropriate, equitably redetermine the threshold, target and maximum for each Performance Criterion in the event of a divestiture or acquisition or the occurrence of an extraordinary, unforseen circumstance of consequence during the Performance Period; provided, however, that no such adjustment may be made unless such adjustment would be permissible under Section 162(m) of the Code.
(e) Maximum Award Amount Payable. The maximum amount payable hereunder to any single Participant with respect to any particular Performance Period will not exceed $3,000,000.
(f) Payment Conditioned on Continued Employment. Unless otherwise provided by the Committee or as may be required pursuant to the terms of an employment or other agreement between the Company and a Participant, no Participant will be entitled to any payment hereunder with respect to any particular Performance Period unless such Participant has remained continuously employed by the Company or its Affiliates through the last day of that Performance Period.
(g) Committee Discretion to Increase Awards. At any time prior to the payment of an Award, the Committee may, in its sole discretion, increase any amount payable to a Participant who the Committee has determined, prior to the payment of the Award, is not a Covered Employee and who would not become a Covered Employee as a result of any such increase.
Section 5. Payment. No Award shall be payable except upon written certification by the Committee that the selected Performance Criteria have been satisfied to a particular extent, provided that no such written certification shall be required if the Participant is not a Covered Employee as determined by the Committee prior to the payment of an Award. Payment hereunder will be made as soon as practicable after such certification, but in no event later than March 15th following the end of the Performance Period to which the Award relates.
Section 6. General Provisions
(a) Amendment. The Board or the Committee may at any time amend the Plan; provided, however, that no such amendment shall be effective without approval by the shareholders of the Company to the extent such approval is necessary to continue to qualify the amounts payable hereunder to Participants as “qualified performance-based compensation” under Section 162(m) of the Code and provided further that no such amendment to the Plan shall in any way impair the rights of a Participant pursuant to an Award without such Participant’s consent.
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(b) Non-Assignment of Awards. The Participant shall not be permitted to sell, transfer, pledge or assign any amount payable pursuant to the Plan or an Award, provided that the right to payment of an Award earned hereunder may pass by will or the laws of descent and distribution.
(c) Continued Employment. Neither the adoption of the Plan nor the execution of any document in connection with the Plan will confer upon any employee of the Company or an Affiliate any right to continued employment with the Company or such Affiliate.
(d) Withholding. The Company shall have the right to deduct any Federal, foreign, state or local taxes required by law to be withheld from any payments made under the Plan.
(e) Governing Law. The Plan and all Awards granted hereunder will be governed by and construed in accordance with the laws and judicial decisions of the State of New York, without regard to the application of the principles of conflicts of laws.
(f) Headings. The headings of sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Plan.
(g) Effective Date. The Plan shall be effective as of July 1, 2014 (the “Effective Date”), provided that the stockholders of the Company (the “Stockholders”) approve the plan prior to such date. If such approval is not obtained, then the Plan shall not be effective and shall be void ab initio.
(h) Reapproval by Stockholders. To the extent required under Section 162(m) of the Code and the regulations thereunder, (i) any change to the material terms of the Performance Criteria shall be disclosed to and approved by the Stockholders at the next annual meeting of Stockholders to be held following such change, and (ii) the material terms of the Performance Criteria shall be disclosed to and reapproved by the Stockholders no later than the annual meeting of Stockholders that occurs in the fifth year following the year in which Stockholders last approved the Performance Criteria.
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