Maryland | 1-9977 | 86-0611231 | ||||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||||
8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260 | ||||||
(Address of Principal Executive Offices) (Zip Code) | ||||||
(480) 515-8100 | ||||||
(Registrant’s telephone number, including area code) | ||||||
17851 N. 85th Street, Suite 300, Scottsdale, Arizona 85255 | ||||||
(Former Name or Former Address, if Changed Since Last Report) | ||||||
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): o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Effective Date: | January 1, 2014 | ||||
Expiration Date: | December 31, 2016 | ||||
Renewal Provisions: | Each agreement is subject to automatic one year renewal provisions, unless on or before August 31, 2016 (or August 31 of any renewal term), the executive officer or the Company notifies the other that it wishes to terminate the agreement. | ||||
Base Salary: | Steven J. Hilton | $ | 1,000,000 | ||
Larry W. Seay | $ | 600,000 | |||
C. Timothy White | $ | 525,000 | |||
Steven Davis | $ | 500,000 |
Bonus: | Each agreement entitles the executive officer to an annual cash incentive bonus based upon the achievement of certain performance goals established by the Executive Compensation Committee of the Board of Directors (the “Compensation Committee”). The amount of the target bonus and payout ranges for each officer is set forth below. The amount of the bonus to be paid is contingent upon the achievement of the performance criteria established by the Compensation Committee. Where the actual performance falls below the threshold level, no incentive bonus will be paid with respect to that performance goal. In addition to the financial performance goals established by the Compensation Committee, the Compensation Committee may also consider individual performance for certain officer positions as appropriate. |
Executive Officer | Threshold | Intermediate | Target | Maximum |
Steven J. Hilton | $625,000 | $1,250,000 | $2,500,000 | $5,000,000 |
Larry W. Seay | $150,000 | $ 300,000 | $ 600,000 | $1,200,000 |
C. Timothy White | $150,000 | $ 300,000 | $ 600,000 | $1,200,000 |
Steven M. Davis | $250,000 | $ 500,000 | $1,000,000 | $2,000,000 |
Performance Share Awards: | Each agreement entitles the executive officer to an annual performance share award (or restricted stock unit award), subject to the achievement of certain performance goals over a three year performance period, as established by the Compensation Committee. Each executive officer will be entitled to a number of shares based on a target dollar value on the grant date. The number of performance shares awarded will be determined based by dividing the target dollar amount as provided in the respective officer’s employment agreement by the closing price of the Company’s common stock on such date. The number of shares payable under the performance share award will be an amount ranging from 0% to 150% of the target number of shares awarded, depending on the level of achievement of the specified performance goals over the three year performance period. The target dollar value of the annual performance share award applicable to each executive officer is set forth below. |
Executive Officer | Target Dollar Value of Performance Share Award |
Steven J. Hilton | $1,000,000 |
Larry W. Seay | $450,000 |
C. Timothy White | $425,000 |
Steven Davis | $500,000 |
Restricted Stock Unit Awards: | Each agreement entitles the executive officer to an annual grant of restricted stock units that vest over a three year period beginning on January 1 of each year. The number of restricted stock units to be granted to each executive officer will be equal to the dollar value specified for each executive officer in his employment agreement divided by the closing price of the Company’s stock on the grant date. The dollar value of restricted stock units to be granted annually to each officer is set forth below. |
Executive Officer | Target Dollar Value of Performance Share Award |
Steven J. Hilton | $1,000,000 |
Larry W. Seay | $450,000 |
C. Timothy White | $425,000 |
Steven Davis | $500,000 |
Other Benefits: | Each employment agreement provides the executive officer with certain specified other benefits. With respect to Mr. Hilton, he is entitled to receive payments annually to purchase life insurance in the amount of $5,000,000; disability insurance with monthly benefits of $20,000; reimbursement for business use of his airplane at an amount equal to comparable charter rates; and the use of a Company car. With respect to Messrs. Seay, White and Davis, they are entitled to receive payments annually for life insurance in the amount of $3,000,000 and disability insurance with monthly benefits of $20,000. |
Termination Provisions: | Each employment agreement provides for certain payments upon termination of employment, including voluntary resignation, resignation by the officer for good reason, termination by the Company, with and without cause, death or disability, and retirement. Following is a summary of the key termination provisions of each executive officer’s employment agreement. |
Voluntary Resignation by Officer Without Good Reason | Voluntary Resignation by Officer With Good Reason (1) (4) | Termination by the Company Without Cause (1) (4) | Termination by the Company With Cause | Death or Disability | Retirement (1) (2) | |
Base salary and paid time off through date of termination | X | X | X | X | X | X |
Annual cash incentive awards, performance share awards and restricted stock unit awards earned in a previous year but not yet paid | X | X | X | X | X | X |
Pro rata annual cash incentive bonus for period in which termination occurs | X | X | X | |||
Target bonus for the performance period in which the termination occurs (5) | X | |||||
Certain previously granted time based awards and restricted stock units that are outstanding shall immediately vest and become unrestricted | X | X | X | X | ||
Performance shares awarded shall be delivered and shall continue to vest subject to achievement of specified performance goals | X | X | X | |||
Previously granted performance based restricted stock units that have not vested will immediately vest and become unrestricted following the end of the applicable performance period based on actual performance achieved | X | X | X | |||
Target number of previously granted performance based restricted stock awards that have not vested will immediately vest and become unrestricted (5) | X | |||||
Any outstanding stock options shall vest and remain exercisable for the remainder of the original term | X | X | X | X | ||
Payment for health coverage equal to 150% of monthly COBRA premium | X | X | X | |||
Severance payment equal to two times (A) the executive officer’s base salary on the date of termination and two times (B) the higher of (x) the average of the bonus compensation paid to the executive officer for the two years prior to his termination of employment or (y) the annual bonus paid to the executive officer for the year preceding the date of termination (3) | X | X |
(1) | Mr. Hilton shall render reasonable consulting services during the 24-month period following termination. Messrs. Seay, White and Davis shall render reasonable consulting services during the 12-month period following termination. |
(2) | In order to qualify for the above retirement termination benefits, in addition to any time restrictions as contemplated in each individual employment agreement, executive must complete 15 cumulative years as a named executive officer or member of the board. |
(3) | In the case for Messrs. Seay, White and Davis for termination without cause, the severance payment has a multiple of one in the calculation. |
(4) | Mr. Hilton's severance payment may not be less than $5 million and may not exceed $10 million. Messrs. Seay, White and Davis' severance payments may not exceed $2 million, each. |
(5) | For the 2014 performance period, the annual incentive bonus and performance share compensation will be equal to the actual performance results. Target compensation amounts as referenced above are paid out for performance periods beginning on or after January 1, 2015. |
• | Consistent with his prior employment agreements, Mr. Hilton’s Employment Agreement provides that the Company shall use its reasonable efforts to cause Mr. Hilton to be nominated for election as a director and recommended to the stockholders for election to the Board of Directors. |
• | Each employment agreement provides that the executive officer must execute a customary release to be entitled to the termination payments provided in the agreements. |
• | Each employment agreement includes customary non-solicitation and confidentiality provisions, and in the case of Mr. Hilton, non-compete provisions in certain circumstances, that govern each executive officer’s conduct post-termination. |
• | Each employment agreement provides for a clawback of incentive awards where the Company’s financial results are misstated as a result of the executive officer’s misconduct or gross negligence, provided, however, any clawback amounts will first be offset against future bonuses and then against bonuses previously earned and delivered. |
• | Provide that a termination of employment arising from expiration of the executive officer’s employment agreement will be treated as a termination of employment by the Company without cause. |
• | Modify the equity award acceleration provisions to provide that upon a change of control (i) any stock options, restricted stock, restricted stock units and other equity based awards shall be immediately accelerated and become fully vested, paid or issued as applicable (ii) any stock option grants that remain outstanding as of the date of termination shall continue to vest and (iii) all restrictions on awards granted shall lapse. |
• | Clarify that any severance payments made under the executive officer’s employment agreement will reduce the severance payment otherwise payable under the change of control agreement. |
• | Provide that the severance payment to Messrs. Seay, White and Davis shall not exceed $6 million, each. Mr. Hilton's severance payment maximum remained unchanged at $15 million from his previous employment agreement. |
10.1 | Steven J. Hilton Fourth Amended and Restated Employment Agreement |
10.2 | Larry W. Seay Fourth Amended and Restated Employment Agreement |
10.3 | C. Timothy White Second Amended and Restated Employment Agreement |
10.4 | Steven Davis Second Amended and Restated Employment Agreement |
10.5 | Steven J. Hilton Second Amendment to Third Amended and Restated Change of Control Agreement |
10.6 | Larry W. Seay Second Amendment to Third Amended and Restated Change of Control Agreement |
10.7 | C. Timothy White Second Amendment to Amended and Restated Control Agreement |
10.8 | Steven Davis Second Amendment to Amended and Restated Control Agreement |
10.9 | Representative Form of Performance Share Award Agreement |
10.10 | Representative Form of Restricted Stock Unit Agreement |
MERITAGE HOMES CORPORATION | |
/s/ | Larry W. Seay |
By: | Larry W. Seay |
Executive Vice President and Chief Financial Officer |
By: | /s/ Raymond Oppel | ||
Name: | Raymond Oppel | ||
Title: | Executive Compensation Committee Chair |
/s/ Steven J. Hilton |
A. | Bonus Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be entitled to a Bonus based on his Target Bonus, as set forth in paragraph C below, subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit A, the Performance Period shall be the 12 month period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Target Bonus and Bonus. Executive’s Target Bonus shall be $2,500,000. Executive’s Bonus that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 200% of the Target Bonus, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the Bonus payable to the Executive shall not exceed the maximum bonus that could be payable under the Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the Target Bonus payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Incentive Plan. This Exhibit A, subject to any action taken by the Committee pursuant thereto shall be subject to the terms and conditions of, the Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit A and the Incentive Plan, or any award agreement, the Agreement or this Exhibit A (as applicable) shall control. |
F. | Pro Rata Bonus. A pro rata Bonus, where applicable, shall be an amount equal to (1) the Bonus otherwise determined by the Committee based upon actual performance for the Performance Period in accordance with the foregoing provisions of this Exhibit A, multiplied by (2) a fraction, the numerator of which is the number of days that Executive is employed by the Company during the Performance Period, and the denominator of which is the total number of days in the Performance Period. |
G. | Payment. Except as otherwise provided in the Agreement, any Bonus payable under this Exhibit A (including any pro rata Bonus determined under paragraph F) shall be paid in cash to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that the Bonus shall be paid in its entirety no later than March 15 of the calendar year following the calendar year to which the payment relates. |
A. | Performance Share Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be granted a Performance Share Award (“PSA”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”), based on a target specified in paragraph C below and subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit B, the Performance Period shall be the three year period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Shares. A target number of Shares with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $1,000,000 shall be established for the PSA for each Performance Period. The PSA that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 150% of such target number of Shares, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the maximum number of shares deliverable pursuant to any PSA shall not exceed the maximum number of shares that could be granted during a calendar year under the Stock Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the target number of Shares determined under paragraph C for such Performance Period payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Stock Incentive Plan. This Exhibit B, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of, the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit B and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit B (as applicable) shall control. |
F. | Payment. Except as otherwise provided in the Agreement, any PSAs payable under this Exhibit B shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that such Shares shall be delivered (and such cash, if any, shall be paid) no later than March 15 of the calendar year following the Performance Period to which the payment relates. |
G. | Restricted Stock Units. The Company may grant Executive performance based restricted stock units in lieu of the PSAs; provided, however, that such restricted stock units shall be on the same terms and conditions as the PSAs and the provisions herein and in the Agreement with respect to PSAs shall apply to the performance based restricted stock units. |
A. | Restricted Stock Unit. For each Vesting Period, as defined in paragraph B below, Executive shall be granted in January or February of each calendar year a Restricted Stock Unit Award (“RSU”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”) with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $1,000,000. Notwithstanding the foregoing, the maximum number of Shares deliverable pursuant to any RSU shall not exceed the maximum number of Shares that could be granted during a calendar year under the Stock Incentive Plan, reduced by the maximum number of shares deliverable pursuant to a PSA granted under Exhibit B during the same calendar year. |
B. | Vesting Period. For purposes of this Exhibit C, the Vesting Period for any RSU shall be the three year period beginning on January 1 of each calendar year. |
C. | Vesting. The RSU for any Vesting Period shall become fully vested and nonforfeitable as of the earlier of (i) the last day of the Vesting Period, provided that Executive remains continuously employed by the Company through and including such day, and (ii) the Executive’s termination of employment to the extent provided in the Agreement. Any RSU Award that does not vest prior to or on account of the Executive’s termination of employment shall be forfeited. |
D. | Stock Incentive Plan. This Exhibit C shall be subject to the terms and conditions of, the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit C and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit C (as applicable) shall control. |
E. | Payment. Except as otherwise provided in the Agreement, any RSUs which become fully vested and nonforfeitable under paragraph C of this Exhibit C shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive within 60 days after the end of the Vesting Period. Notwithstanding anything in this Exhibit C to the contrary, if the 60 day payment distribution period spans two calendar years, the payment to which Executive is entitled under this paragraph E shall be made in the second calendar year. |
By: | /s/ Steven J. Hilton | ||
Name: | Steven J. Hilton | ||
Title: | Chairman and CEO |
/s/ Larry W. Seay |
A. | Bonus Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be entitled to a Bonus based on his Target Bonus, as set forth in paragraph C below, subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit A, the Performance Period shall be the 12 month period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Target Bonus and Bonus. Executive’s Target Bonus shall be $600,000. Executive’s Bonus that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 200% of the Target Bonus, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the Bonus payable to the Executive shall not exceed the maximum bonus that could be payable under the Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the Target Bonus payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Incentive Plan. This Exhibit A, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of, the Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit A and the Incentive Plan, or any award agreement, the Agreement or this Exhibit A (as applicable) shall control. |
F. | Pro Rata Bonus. A pro rata Bonus, where applicable, shall be an amount equal to (1) the Bonus otherwise determined by the Committee based upon actual performance for the Performance Period in accordance with the foregoing provisions of this Exhibit A, multiplied by (2) a fraction, the numerator of which is the number of days that Executive is employed by the Company during the Performance Period, and the denominator of which is the total number of days in the Performance Period. |
G. | Payment. Except as otherwise provided in the Agreement, any Bonus payable under this Exhibit A (including any pro rata Bonus determined under paragraph F) shall be paid in cash to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that the Bonus shall be paid in its entirety no later than March 15 of the calendar year following the calendar year to which the payment relates. |
A. | Performance Share Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be granted a Performance Share Award (“PSA”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”), based on a target specified in paragraph C below and subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit B, the Performance Period shall be the three year period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Shares. A target number of Shares with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $450,000 shall be established for the PSA for each Performance Period. The PSA that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 150% of such target number of Shares, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the maximum number of shares deliverable pursuant to any PSA shall not exceed the maximum number of shares that could be granted during a calendar year under the Stock Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the target number of Shares determined under paragraph C for such Performance Period payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Stock Incentive Plan. This Exhibit B, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit B and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit B (as applicable) shall control. |
F. | Payment. Except as otherwise provided in the Agreement, any PSAs payable under this Exhibit B shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that such Shares shall be delivered (and such cash, if any, shall be paid) no later than March 15 of the calendar year following the Performance Period to which the payment relates. |
G. | Restricted Stock Units. The Company may grant Executive performance based restricted stock units in lieu of the PSAs; provided, however, that such restricted stock units shall be on the same terms and conditions as the PSAs and the provisions herein and in the Agreement with respect to PSAs shall apply to the performance based restricted stock units. |
A. | Restricted Stock Unit. For each Vesting Period, as defined in paragraph B below, Executive shall be granted in January or February of each calendar year a Restricted Stock Unit Award (“RSU”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”) with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $450,000. Notwithstanding the foregoing, the maximum number of Shares deliverable pursuant to any RSU shall not exceed the maximum number of Shares that could be granted during a calendar year under the Stock Incentive Plan, reduced by the maximum number of shares deliverable pursuant to a PSA granted under Exhibit B during the same calendar year. |
B. | Vesting Period. For purposes of this Exhibit C, the Vesting Period for any RSU shall be the three year period beginning on January 1 of each calendar year. |
C. | Vesting. The RSU for any Vesting Period shall become fully vested and nonforfeitable as of the earlier of (i) the last day of the Vesting Period, provided that Executive remains continuously employed by the Company through and including such day, and (ii) the Executive’s termination of employment to the extent provided in the Agreement. Any RSU Award that does not vest prior to or on account of the Executive’s termination of employment shall be forfeited. |
D. | Stock Incentive Plan. This Exhibit C shall be subject to the terms and conditions of, the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit C and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit C (as applicable) shall control. |
E. | Payment. Except as otherwise provided in the Agreement, any RSUs which become fully vested and nonforfeitable under paragraph C of this Exhibit C shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive within 60 days after the end of the Vesting Period. Notwithstanding anything in this Exhibit C to the contrary, if the 60 day payment distribution period spans two calendar years, the payment to which Executive is entitled under this paragraph E shall be made in the second calendar year. |
By: | /s/ Steven J. Hilton | ||
Name: | Steven J. Hilton | ||
Title: | Chairman and CEO |
/s/ C. Timothy White |
A. | Bonus Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be entitled to a Bonus based on his Target Bonus, as set forth in paragraph C below, subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit A, the Performance Period shall be the 12 month period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Target Bonus and Bonus. Executive’s Target Bonus shall be $600,000. Executive’s Bonus that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 200% of the Target Bonus, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the Bonus payable to the Executive shall not exceed the maximum bonus that could be payable under the Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the Target Bonus payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Incentive Plan. This Exhibit A, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of, the Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit A and the Incentive Plan, or any award agreement, the Agreement or this Exhibit A (as applicable) shall control. |
F. | Pro Rata Bonus. A pro rata Bonus, where applicable, shall be an amount equal to (1) the Bonus otherwise determined by the Committee based upon actual performance for the Performance Period in accordance with the foregoing provisions of this Exhibit A, multiplied by (2) a fraction, the numerator of which is the number of days that Executive is employed by the Company during the Performance Period, and the denominator of which is the total number of days in the Performance Period. |
G. | Payment. Except as otherwise provided in the Agreement, any Bonus payable under this Exhibit A (including any pro rata Bonus determined under paragraph F) shall be paid in cash to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that the Bonus shall be paid in its entirety no later than March 15 of the calendar year following the calendar year to which the payment relates. |
A. | Performance Share Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be granted a Performance Share Award (“PSA”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”), based on a target specified in paragraph C below and subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit B, the Performance Period shall be the three year period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Shares. A target number of Shares with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $425,000 shall be established for the PSA for each Performance Period. The PSA that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 150% of such target number of Shares, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the maximum number of shares deliverable pursuant to any PSA shall not exceed the maximum number of shares that could be granted during a calendar year under the Stock Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the target number of Shares determined under paragraph C for such Performance Period payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Stock Incentive Plan. This Exhibit B, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit B and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit B (as applicable) shall control. |
F. | Payment. Except as otherwise provided in the Agreement, any PSAs payable under this Exhibit B shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that such Shares shall be delivered (and such cash, if any, shall be paid) no later than March 15 of the calendar year following the Performance Period to which the payment relates. |
G. | Restricted Stock Units. The Company may grant Executive performance based restricted stock units in lieu of the PSAs; provided, however, that such restricted stock units shall be on the same terms and conditions as the PSAs and the provisions herein and in the Agreement with respect to PSAs shall apply to the performance based restricted stock units. |
A. | Restricted Stock Unit. For each Vesting Period, as defined in paragraph B below, Executive shall be granted in January or February of each calendar year a Restricted Stock Unit Award (“RSU”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”) with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $425,000. Notwithstanding the foregoing, the maximum number of Shares deliverable pursuant to any RSU shall not exceed the maximum number of Shares that could be granted during a calendar year under the Stock Incentive Plan, reduced by the maximum number of shares deliverable pursuant to a PSA granted under Exhibit B during the same calendar year. |
B. | Vesting Period. For purposes of this Exhibit C, the Vesting Period for any RSU shall be the three year period beginning on January 1 of each calendar year. |
C. | Vesting. The RSU for any Vesting Period shall become fully vested and nonforfeitable as of the earlier of (i) the last day of the Vesting Period, provided that Executive remains continuously employed by the Company through and including such day, and (ii) the Executive’s termination of employment to the extent provided in the Agreement. Any RSU Award that does not vest prior to or on account of the Executive’s termination of employment shall be forfeited. |
D. | Stock Incentive Plan. This Exhibit C shall be subject to the terms and conditions of, the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit C and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit C (as applicable) shall control. |
E. | Payment. Except as otherwise provided in the Agreement, any RSUs which become fully vested and nonforfeitable under paragraph C of this Exhibit C shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive within 60 days after the end of the Vesting Period. Notwithstanding anything in this Exhibit C to the contrary, if the 60 day payment distribution period spans two calendar years, the payment to which Executive is entitled under this paragraph E shall be made in the second calendar year. |
By: | /s/ Steven J. Hilton | ||
Name: | Steven J. Hilton | ||
Title: | Chairman and CEO |
/s/ Steven M. Davis |
A. | Bonus Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be entitled to a Bonus based on his Target Bonus, as set forth in paragraph C below, subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit A, the Performance Period shall be the 12 month period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Target Bonus and Bonus. Executive’s Target Bonus shall be $1,000,000. Executive’s Bonus that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 200% of the Target Bonus, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D.1. Notwithstanding the foregoing, the Bonus payable to the Executive shall not exceed the maximum bonus that could be payable under the Incentive Plan. |
D. | Performance Goals. |
1. | Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the Target Bonus payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
2. | Notwithstanding anything herein to the contrary, in addition to the performance goals described in paragraph D.1, for any Performance Period the Committee may also, in its sole discretion, establish one or more individual performance goals for Executive, whether objective or subjective, and may reduce the Bonus that is otherwise payable to Executive for such Performance Period if Executive fails to achieve such individual performance goals in such amount or percentage as the Committee may determine; provided, however, that any such reduction in Executive’s Bonus shall not result in an increase in any amount payable to any other employee of the Company |
E. | Incentive Plan. This Exhibit A, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of, the Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit A and the Incentive Plan, or any award agreement, the Agreement or this Exhibit A (as applicable) shall control. |
F. | Pro Rata Bonus. A pro rata Bonus, where applicable, shall be an amount equal to (1) the Bonus otherwise determined by the Committee based upon actual performance for the Performance Period in accordance with the foregoing provisions of this Exhibit A, multiplied by (2) a fraction, the numerator of which is the number of days that Executive is employed by the Company during the Performance Period, and the denominator of which is the total number of days in the Performance Period. |
G. | Payment. Except as otherwise provided in the Agreement, any Bonus payable under this Exhibit A (including any pro rata Bonus determined under paragraph F) shall be paid in cash to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that the Bonus shall be paid in its entirety no later than March 15 of the calendar year following the calendar year to which the payment relates. |
A. | Performance Share Opportunity. For each Performance Period, as defined in paragraph B below, Executive shall be granted a Performance Share Award (“PSA”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”), based on a target specified in paragraph C below and subject to the achievement of certain performance goals. |
B. | Performance Period. For purposes of this Exhibit B, the Performance Period shall be the three year period beginning on January 1 of each calendar year during the Agreement Term and any Renewal Term. |
C. | Shares. A target number of Shares with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $500,000 shall be established for the PSA for each Performance Period. The PSA that is payable for any Performance Period, if any, shall be an amount ranging from 0% to 150% of such target number of Shares, contingent upon the achievement of one or more performance goals established by the Committee for such Performance Period, as set forth in paragraph D. Notwithstanding the foregoing, the maximum number of shares deliverable pursuant to any PSA shall not exceed the maximum number of shares that could be granted during a calendar year under the Stock Incentive Plan. |
D. | Performance Goals. Subject to and in accordance with the requirements under Section 162(m) of the Code, no later than 90 days after the commencement of each Performance Period, the Committee shall, in its sole discretion, establish in writing one or more preestablished, objective performance goals for such Performance Period. Such performance goal(s) shall state, in terms of an objective formula or standard, the amount of the target number of Shares determined under paragraph C for such Performance Period payable to Executive upon achievement of each such performance goal (or any specified threshold, intermediate, target, maximum or other level with respect thereto). |
E. | Stock Incentive Plan. This Exhibit B, subject to any action taken by the Committee pursuant thereto, shall be subject to the terms and conditions of the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit B and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit B (as applicable) shall control. |
F. | Payment. Except as otherwise provided in the Agreement, any PSAs payable under this Exhibit B shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive at the time(s) determined by the Committee in its reasonable discretion, provided that such Shares shall be delivered (and such cash, if any, shall be paid) no later than March 15 of the calendar year following the Performance Period to which the payment relates. |
G. | Restricted Stock Units. The Company may grant Executive performance based restricted stock units in lieu of the PSAs; provided, however, that such restricted stock units shall be on the same terms and conditions as the PSAs and the provisions herein and in the Agreement with respect to PSAs shall apply to the performance based restricted stock units. |
A. | Restricted Stock Unit. For each Vesting Period, as defined in paragraph B below, Executive shall be granted in January or February of each calendar year a Restricted Stock Unit Award (“RSU”) under the Stock Incentive Plan giving Executive the right to receive shares of common stock of the Company (“Shares”) with a fair market value on the date of grant, based on the closing price of the Company’s stock on such date, of $500,000. Notwithstanding the foregoing, the maximum number of Shares deliverable pursuant to any RSU shall not exceed the maximum number of Shares that could be granted during a calendar year under the Stock Incentive Plan, reduced by the maximum number of shares deliverable pursuant to a PSA granted under Exhibit B during the same calendar year. |
B. | Vesting Period. For purposes of this Exhibit C, the Vesting Period for any RSU shall be the three year period beginning on January 1 of each calendar year. |
C. | Vesting. The RSU for any Vesting Period shall become fully vested and nonforfeitable as of the earlier of (i) the last day of the Vesting Period, provided that Executive remains continuously employed by the Company through and including such day, and (ii) the Executive’s termination of employment to the extent provided in the Agreement. Any RSU Award that does not vest prior to or on account of the Executive’s termination of employment shall be forfeited. |
D. | Stock Incentive Plan. This Exhibit C shall be subject to the terms and conditions of, the Stock Incentive Plan. If there is any conflict between the provisions of the Agreement or this Exhibit C and the Stock Incentive Plan or any award agreement, the Agreement or this Exhibit C (as applicable) shall control. |
E. | Payment. Except as otherwise provided in the Agreement, any RSUs which become fully vested and nonforfeitable under paragraph C of this Exhibit C shall be settled by delivery of whole Shares (with cash for any fractional share) to Executive within 60 days after the end of the Vesting Period. Notwithstanding anything in this Exhibit C to the contrary, if the 60 day payment distribution period spans two calendar years, the payment to which Executive is entitled under this paragraph E shall be made in the second calendar year. |
By: | /s/ Raymond Oppel | ||
Name: | Raymond Oppel | ||
Title: | Executive Compensation Committee Chair |
/s/ Steven J. Hilton |
By: | /s/ Steven J. Hilton | ||
Name: | Steven J. Hilton | ||
Title: | Chairman and CEO |
/s/ Larry W. Seay |
By: | /s/ Steven J. Hilton | ||
Name: | Steven J. Hilton | ||
Title: | Chairman and CEO |
/s/ C. Timothy White |
By: | /s/ Steven J. Hilton | ||
Name: | Steven J. Hilton | ||
Title: | Chairman and CEO |
/s/ Steven M. Davis |
[Vesting date] | [Number or percentage of Restricted Stock Units that vest on the Vesting Date] |