-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HV1GT333mfIt5lRxYTh3/XSnDpvbMIawx+8yykV1fEI4ffZe3bAHdnR/ij1Dhv+F 6FCGvaYcy3gKO28LJGUIZA== 0001157523-09-004520.txt : 20090619 0001157523-09-004520.hdr.sgml : 20090619 20090619060653 ACCESSION NUMBER: 0001157523-09-004520 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20090618 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090619 DATE AS OF CHANGE: 20090619 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANK JOS A CLOTHIERS INC /DE/ CENTRAL INDEX KEY: 0000920033 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-APPAREL & ACCESSORY STORES [5600] IRS NUMBER: 363189198 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-23874 FILM NUMBER: 09899825 BUSINESS ADDRESS: STREET 1: 500 HANOVER PIKE CITY: HAMPSTEAD STATE: MD ZIP: 21074 BUSINESS PHONE: 4102392700 8-K 1 a5990670.txt JOS. A. BANK CLOTHIERS, INC. 8-K ================================================================================ 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): June 18, 2009 Jos. A. Bank Clothiers, Inc. (Exact name of registrant as specified in its charter) Delaware 0-23874 36-3189198 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 500 Hanover Pike Hampstead, Maryland 21074 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (410) 239-2700 (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): |_| 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 ARRANGEMENTS OF CERTAIN OFFICERS Executive Management Incentive Plan In December 2008, the Compensation Committee of the Board of Directors of Jos. A. Bank Clothiers, Inc. (the "Company") adopted the Company's Executive Management Incentive Plan (the "Incentive Plan"), subject to approval by the Company's stockholders. At the Company's 2009 Annual Meeting of Stockholders, held on June 18, 2009, the Company submitted the Incentive Plan for stockholder approval, which approval was obtained. The purposes of the Incentive Plan are to increase stockholder value and the success of the Company by attracting, retaining and motivating selected participants to achieve the Company's business and financial goals. The Incentive Plan permits the Company to pay bonuses that meet the requirements for qualified performance-based compensation within the meaning of Section 162(m) of the Internal Revenue Code. Section 162(m) of the Internal Revenue Code denies a deduction to any publicly-held corporation (such as the Company) for compensation in excess of $1 million paid to certain executive officers in a taxable year. However, certain kinds of compensation, including qualified "performance-based compensation," are disregarded for purposes of the deduction limitation. The compensation paid pursuant to the Incentive Plan will qualify as performance-based compensation and the related compensation expense is expected to be fully deductible. The Incentive Plan is administered by the Compensation Committee. The only individuals eligible to participate in the Incentive Plan are the executive officers of the Company and any other employee of the Company whose compensation is not or may not be fully deductible under Section 162(m) or any other section of the Internal Revenue Code absent the participation of such employee in the Incentive Plan. Currently, the Company's Chief Executive Officer, R. Neal Black, and four Executive Vice Presidents (Robert B. Hensley, Gary M. Merry, James W. Thorne and David E. Ullman (together with Mr. Black, such executives are collectively referred to as the "Executive Management Team")) are the only employees eligible to be selected as participants. For each period of time determined by the Compensation Committee as the period during which performance objectives must be satisfied (a "Performance Period"), the Compensation Committee may designate one or more eligible employees as participants. Participation is generally designated on an annual basis. Participation in one Performance Period does not ensure participation in future periods. 2 Under the Incentive Plan, the Compensation Committee will establish and approve for each participant for each Performance Period one or more performance objectives, at least one of which shall be based on the business criteria discussed below. The Compensation Committee will also establish the maximum amount which may be paid to each participant in the event he or she satisfies such performance objectives for a particular Performance Period (such maximum amount being referred to herein and in the Incentive Plan as an "Award Target"). Award Targets may be expressed as a dollar amount or as a percentage of a participant's base salary. The Incentive Plan sets forth a number of business criteria (the "Business Criteria"), at least one of which must be selected by the Compensation Committee as a basis (or the basis) for determining the amount of the Award Target which should be paid to each participant ("Award Payment"). The Business Criteria are: o Net income. o Earnings before or after deduction for all or any portion of interest, taxes, depreciation or amortization, whether on an aggregate or per share basis. o Increase in the trading price of the Company's stock above the trading price at the time the criteria are established. o Total stockholder return. o Working capital. o Sales. o Expense and cost reductions or improvement in or attainment of expense levels. o Return ratios based on equity, investment, capital employed and/or assets. o Inventory levels, turns or aging. o Operating ratios based on margin, income and/or net income. o Market share. o Cash flow or operating cash flow. o The increase, decrease or ending balance of any item on the Company's consolidated balance sheets. o Any combination of the foregoing, including as compared to an index of one or more peer group companies selected by the Compensation Committee. 3 In determining whether performance objectives based on the Business Criteria have been satisfied, the following occurrences during the Performance Period will be disregarded: (1) changes in tax law or accounting principles that become effective during the Performance Period; (2) extraordinary, unusual or infrequently occurring events; (3) the disposition of a business or significant assets; (4) gains or losses from all or certain claims and/or litigation and insurance recoveries; (5) the impact of impairment of intangible assets; (6) restructuring activities; (7) the impact of investments or acquisitions; and/or (8) changes in corporate capitalization such as stock splits and certain reorganizations. Notwithstanding the foregoing, the Compensation Committee must select criteria that collectively satisfy the requirements of "performance-based compensation" for the purposes of Section 162(m) of the Internal Revenue Code, including by establishing the Award Targets at a time when the performance relative to such targets is substantially uncertain. Moreover, at the time that an Award Target is established, the Compensation Committee may establish a schedule for an Award Payment based upon the partial achievement of one or more performance objectives. The performance objectives established by the Compensation Committee as the bases for an Award Payment must include at least one of the Business Criteria. Following the close of each Performance Period, the Compensation Committee shall determine whether each Participant achieved his or her pre-established performance objectives (including the Business Criteria). If the pre-established Business Criteria were not satisfied, an Award Payment may not be authorized (even if other performance objectives were satisfied). Assuming the Business Criteria were satisfied, the Compensation Committee may authorize an Award Payment up to, but not in excess of, the pre-established Award Target. Notwithstanding the Compensation Committee's determination that the Business Criteria were fully satisfied, the Compensation Committee shall nevertheless have discretion to reduce an Award Payment and may apply subjective, discretionary criteria for this purpose. The Compensation Committee has the discretion to settle awards in cash, shares of our common stock or a combination of cash and stock. Payroll and other taxes will be withheld as required by law. The Compensation Committee may defer the payment of awards or any portion thereof to Participants to the extent necessary or desirable to preserve the deductibility of such amounts under Section 162(m) of the Internal Revenue Code. In addition, the Compensation Committee may permit Participants to defer receipt of the payment of awards that would otherwise be delivered to a Participant to the extent permitted by the tax rules relating to deferred compensation. Unless terminated earlier by the Compensation Committee or the Board of Directors, Award Payments may be made under the Incentive Plan for any Award Targets that were established before the first annual meeting of stockholders that occurs in 2014. The maximum amount that may be paid to any participant in any fiscal year is $5 million. The foregoing description of the Incentive Plan does not purport to be complete and is qualified in its entirety by reference to the Incentive Plan which is included as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference. 4 Establishment of 2009 Goals under the Management Incentive Plan - --------------------------------------------------------------- Each participant in the Incentive Plan is notified by the Company of a dollar amount or the percentage of such participant's base salary up to which he is eligible to earn as an Award Target and goals which must be achieved to be eligible to receive a payment under the Incentive Plan. For Fiscal 2009, Mr. Black is eligible to receive an Award Target of up to 200% of his base salary and Messrs. Hensley, Merry, Thorne and Ullman are each eligible to receive an Award Target of up to 65% of their respective base salaries. The fiscal 2009 goals are (a) the Company earning net income within or above a specified range (the "Eligibility Range"); (b) the participant receiving an overall job performance rating of "Effective" or better (the equivalent of 3 out of 5); (c) the participant complying with the Company's Code of Conduct, Associate Manual and other rules, regulations and policies and not engaging in any dishonest acts or other acts which are or may be detrimental to customers, fellow associates or the Company; and (d) specific goals for departmental or individual performance. For purposes of the Incentive Plan, "net income" is the reported net income of the Company for the applicable fiscal year and is therefore determined after deduction for all incentive plan and other compensation expenses. The Eligibility Range has been approved by the Compensation Committee. If the Company's net income is below the Eligibility Range, an Award Payment may not be authorized. If the Company's net income is within the Eligibility Range, the percentage of the Award Target which participants are eligible to earn increases as net income increases, up to 100%. If the Company's net income is at or above the highest level of net income within the Eligibility Range, each participant is eligible to earn his or her Award Target. All such Award Payments, if payable, are payable annually to each eligible participant. In deciding whether, and to what extent, to pay an Award Payment to each member of the Executive Management Team (other than the Chief Executive Officer), an important factor considered by the Compensation Committee is the Chief Executive Officer's evaluation of the individual performance of such member of the Executive Management Team. Generally, the Chief Executive Officer makes his recommendation based upon his evaluation of each member of the Executive Management Team's individual contribution to the performance of the Company and such other factors as he may deem relevant. The final determination of all Award Payments to the Executive Management Team is made by the Compensation Committee. The Compensation Committee has the discretion to make Award Payments in an amount less than the pre-established Award Targets, even if the objective Business Criteria are achieved. For Fiscal 2009, the Eligibility Range is $57.5 million to $63.5 million of net income. If the Company earns less than $57.5 million of net income, no participant is entitled to an Award Payment under the Incentive Plan. At $57.5 million of net income each participant is eligible to receive up to 20% of his Award Target. At or above $63.5 million of net income, each participant is eligible to receive up to 100% of his Award Target. Between $57.5 million and $63.5 million of net income, the percentage of the Award Target which each participant is eligible to receive will increase as net income increases. 5 ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS Exhibit Number Description - ------ ----------- 10.1 Executive Management Incentive Plan 6 SIGNATURE --------- 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. Jos. A. Bank Clothiers, Inc. (Registrant) By: Charles D. Frazer ---------------------------------- Name: Charles D. Frazer Title: Senior Vice President- General Counsel Dated: June 18, 2009 7 EXHIBIT INDEX Exhibit Number Description - ------ ----------- 10.1 Executive Management Incentive Plan 8 EX-10.1 2 a5990670ex10-1.txt EXHIBIT 10.1 Exhibit 10.1 JOS. A. BANK CLOTHIERS, INC. EXECUTIVE MANAGEMENT INCENTIVE PLAN Adopted Effective: December 9, 2008 Approved by the Company's Stockholders: June 18, 2009 1. PURPOSE. This Jos. A. Bank Clothiers, Inc. Executive Management Incentive Plan (the "Plan") is intended to increase stockholder value and the success of the Company by attracting, retaining and motivating selected Participants to achieve the Company's objectives. The Plan goals are to be achieved by providing such Participants with Award Targets, payment of which shall be based on the achievement of objectives relating to the performance of the Company or on the achievement of other objectively determinable performance goals. The Plan is intended to permit Award Payments that may qualify as "performance-based compensation" within the meaning of Section 162(m). Capitalized terms used but not otherwise defined herein shall have those respective meanings attributed to them in Section 17 hereof. 2. ADMINISTRATION. The Plan shall be administered by the Committee, which is composed entirely of independent directors. The Committee shall have authority to make rules and adopt administrative procedures in connection with the Plan, and shall have discretion to provide for situations or conditions not specifically provided for herein consistent with the purposes of the Plan. The Committee shall determine the beginning and ending dates for each Performance Period. Unless otherwise determined by the Committee, each Performance Period shall correspond to the Company's fiscal year. Notwithstanding any other provision of the Plan to the contrary, the Plan shall be administered and its provisions interpreted so that payments pursuant to the Plan qualify as "performance-based compensation" within the meaning of Section 162(m). All decisions, determinations, and interpretations by the Committee shall be final and binding on the Company and all Participants. 3. SELECTION OF PARTICIPANTS. For each Performance Period, the Committee may designate one or more Participants to participate in the Plan. Absent any designation to the contrary, each Executive Officer of the Company for whom the Committee has established an Award Target for any given Performance Period shall be deemed a Participant for that Performance Period. 4. ESTABLISHING PERFORMANCE OBJECTIVES. (a) During or prior to the earlier of: (i) the first 90 days of each Performance Period, or (ii) the first 25% of such Performance Period, the Committee shall establish one or more performance objectives, at least one of which shall be based on a stockholder-approved business criterion. The Committee shall have discretion to establish additional objectives that are not based on stockholder-approved business criteria, including objectives the achievement of which may require subjective assessments by the Committee. The stockholder-approved business criteria are as follows: (i) net income; (ii) earnings before or after deduction for all or any portion of interest, taxes, depreciation or amortization, whether on an aggregate or per share basis; (iii) increase in the trading price of the Company's stock above the trading price at the time the criteria is established; (iv) total stockholder return; (v) working capital; (vi) sales; (vii) expense and cost reductions or improvement in or attainment of expense levels; (viii) return ratios based on equity, investment, capital employed and/or assets; (ix) inventory levels, turns or aging; (x) operating ratios based on margin, income and/or net income; (xi) market share; (xii) cash flow or operating cash flow; (xiii) increase, decrease or ending balance of any item on the Company's consolidated balance sheets; and (xiv) any combination of the foregoing, including as compared to an index of one or more peer group companies selected by the Committee. (b) In determining whether performance objectives based on stockholder-approved business criteria have been satisfied, the following occurrences during the Performance Period shall be disregarded: (i) changes in tax law or accounting principles that become effective during the Performance Period; (ii) extraordinary, unusual or infrequently occurring events; (iii) the disposition of a business or significant assets; (iv) gains or losses from all or certain claims and/or litigation and insurance recoveries; (v) the impact of impairment of intangible assets; (vi) restructuring activities; (vii) the impact of investments or acquisitions; and/or (viii) changes in corporate capitalization such as stock splits and certain reorganizations. Notwithstanding the foregoing, the Committee must select criteria that collectively satisfy the requirements of "performance-based compensation" for the purposes of Section 162(m), including by establishing the targets at a time when the performance relative to such targets is substantially uncertain. At the time that an Award Target is established, the Committee may establish a schedule for an Award Payment based upon the partial achievement of one or more performance objectives. 5. AWARD TARGETS. During or prior to the earlier of: (a) the first 90 days of each Performance Period, or (b) the first 25% of such Performance Period, the Committee shall establish for each Participant in the Plan one or more Award Targets, which may be expressed as a percentage of Base Salary. Notwithstanding the foregoing, no Participant shall receive in any fiscal year one or more Award Payments which, in the aggregate, exceed $5,000,000. 6. AWARD PAYMENTS. No later than 30 days after the receipt by the Committee of the audited financial statements for a Performance Period, the Committee shall determine (a) whether the established performance objectives for each Participant in the Plan were achieved and (b) the amount, if any, of the Award Payment which should be paid to each Participant. The Committee shall not have discretion to authorized payment to a Participant of an amount in excess of such Participant's Award Target and may only make an Award Payment if the Committee determines that pre-established performance objectives based solely on the stockholder-approved business criterion or criteria pre-selected for the Participant was or were fully satisfied. Notwithstanding the Committee's determination that the performance objectives based solely on the stockholder-approved business criterion or criteria pre-selected for the Participant was or were fully satisfied, the Committee shall nevertheless have discretion to reduce an Award Payment based on individual performance as it considers appropriate in the circumstances, and may apply subjective, discretionary criteria for this purpose. 2 7. TERMINATION OF EMPLOYMENT. (a) Participants whose employment by the Company is terminated for any reason other than death or disability during any Performance Period will receive no payment or vesting under the Plan for such Performance Period. (b) Participants who terminate employment due to death or total and permanent disability during any Performance Period will receive the maximum Award Payment for that Performance Period in which the termination occurs, multiplied by a fraction, the numerator of which is the number of days of employment that the Participant completed during that Performance Period and the denominator of which shall be the number of days in the Performance Period. Any Award Payment remaining unpaid, in whole or in part, at the death of a Participant shall be paid or delivered to the Participant's legal representative or to a beneficiary designated by the Participant in accordance with the rules established by the Committee. (c) Participants whose employment by the Company is terminated for any reason after the close of the Performance Period but before the distribution of payments or vesting under the Plan will be paid or will vest in all amounts applicable under this Plan for such Performance Period. 8. TIME OF AND PAYMENT OF AWARD PAYMENTS. (a) Payment or vesting of Award Payments shall be made within 30 days following the later of (i) the receipt by the Committee of the audited financial statements for the applicable Performance Period or (ii) the certification by the Committee that the performance and other criteria for payment have been satisfied. The Committee shall have the discretion to direct payment of the Award Payments in the form of (i) cash, (ii) shares of Common Stock, or (iii) a combination of the foregoing. Payroll and other taxes shall be withheld as determined by the Company. (b) Notwithstanding the foregoing, the Committee, in its sole discretion, may defer the payment of Award Payments, or any portion thereof, to Participants as the Committee determines to be necessary or desirable to preserve the deductibility of such amounts under Section 162(m). In addition, the Committee, in its sole discretion, may permit Participants to defer receipt of the payment or vesting of Award Payments that would otherwise be delivered to a Participant. Any such deferral elections shall be subject to such rules and procedures as shall be determined by the Committee in its sole discretion, which shall comply with the requirements of Section 409A of the Code and the regulations and other guidance thereunder. 9. NO RIGHT TO EMPLOYMENT OR AWARD. No person shall have any claim or right to receive an Award Target or Award Payment, and selection to participate in the Plan shall not confer upon any employee any right with respect to continued employment by the Company or continued participation in the Plan. Furthermore, the Company reaffirms its at-will relationship with its employees and expressly reserves the right at any time to dismiss a Participant free from any liability or claim for benefits pursuant to the Plan, except as provided under this Plan or other written plan adopted by the Company or written agreement between the Company and the Participant. 3 10. DISCRETION OF COMPANY AND COMMITTEE. Any decision made or action taken by the Company or by the Committee arising out of or in connection with the creation, amendment, construction, administration, interpretation or effect of the Plan shall be within the sole and absolute discretion of the Company or the Committee, as the case may be, and shall be conclusive and binding upon all persons. To the maximum extent possible, no member of the Committee shall have any liability for actions taken or omitted under the Plan by such member or any other person. 11. NO FUNDING OF PLAN. The Company shall not be required to fund or otherwise segregate any cash or any other assets which may at any time be paid to Participants under the Plan. The Plan shall constitute an "unfunded" plan of the Company. The Company shall not, by any provisions of the Plan, be deemed to be a trustee of any property, and any rights of any Participant or former participant shall be no greater than those of a general unsecured creditor or stockholder of the Company, as the case may be. 12. NON-TRANSFERABILITY OF BENEFITS AND INTERESTS. Except as expressly provided by the Committee, no benefit payable under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, any such attempted action shall be void, and no such benefit shall be in any manner liable for or subject to debts, contracts, liabilities, engagements or torts of any Participant or former participant. This Section 12 shall not apply to an assignment of a contingency or payment due (i) after the death of a Participant to the deceased Participant's legal representative or beneficiary, or (ii) after the disability of a Participant to the disabled Participant's personal representative. 13. GOVERNING LAW. All questions pertaining to the construction, regulation, validity and effect of the provisions of the Plan shall be determined in accordance with the laws of the State of Maryland. 14. NON-EXCLUSIVITY. The Plan does not limit the authority of the Company, the Board or the Committee, or any current or future subsidiary of the Company to grant awards or authorize any other compensation to any person under any other plan or authority, other than that specifically prohibited herein. 15. SECTION 162(M) CONDITIONS; BIFURCATION OF PLAN. It is the intent of the Company that the Plan, and all payments made hereunder, satisfy and be interpreted in a manner that, in the case of Participants who are persons whose compensation is subject to Section 162(m), qualify as "performance-based compensation" under Section 162(m). Any provision, application or interpretation of the Plan inconsistent with this intent to satisfy the requirements of Section 162(m) shall be disregarded. However, notwithstanding anything to the contrary in the Plan, the provisions of the Plan may at any time be bifurcated by the Board or the Committee in any manner so that certain provisions of the Plan or any payment intended (or required in order) to satisfy the applicable requirements of Section 162(m) are only applicable to persons whose compensation is subject to Section 162(m). 4 16. AMENDMENT OR TERMINATION. The Board and the Committee each reserve the right at any time to make any changes in the Plan as it may consider desirable or may suspend, discontinue or terminate the Plan at any time. No Award Target may be established hereunder after the first Annual Meeting of Stockholders that occurs in 2014, unless this Plan is re-approved by the Company's stockholders on or before such meeting. Notwithstanding the foregoing, nothing in this Section 16 shall prevent the Company from making an Award Payment relating to an Award Target that was established before the first Annual Meeting of Stockholders that occurs in 2014, and this Plan shall terminate upon the Award Payment, or denial of Award Payment, for the final outstanding Award Target established hereunder. 17. DEFINITIONS. (a) "Award Payment" shall mean the payment of all or a portion of an Award Target as authorized by the Committee hereunder. (b) "Award Target" shall mean the maximum amount which may be paid to a Participant hereunder for any given Performance Period upon satisfaction of performance objectives as established by the Committee. (c) "Base Salary" shall mean with respect to a Performance Period which corresponds to the Company's fiscal year, a Participant's annualized regular rate of pay as of the beginning of the Performance Period, plus any increase which may be awarded in connection with the Participant's performance review for the immediately prior fiscal year. With respect to a Performance Period which does not correspond to the Company's fiscal year, the Committee shall determine the Participant's "Base Salary" for purposes of the Plan at the time an Award Target is established. (d) "Board" shall mean the Board of Directors of the Company. (e) "Code" shall mean the Internal Revenue Code of 1986, as amended. (f) "Committee" shall mean the Compensation Committee of the Board or such other committee of the Board that has been designated to administer programs intended to qualify as "performance-based compensation" within the meaning of Section 162(m). (g) "Common Stock" shall mean the common stock of the Company. (h) "Company" shall mean Jos. A. Bank Clothiers, Inc., a Delaware corporation. 5 (i) "Executive Officer" shall mean the chief or principal executive officer, president, chief or principal financial officer, any executive vice president, any vice president in charge of a principal business unit, division or function, any other officer who performs a policy making function, or any other person who performs similar policy making functions of or for the Company or an affiliated entity. (j) "Participant" shall mean (i) an Executive Officer or (ii) an employee of the Company or an affiliated entity whose compensation is or may not be fully deductible pursuant to Section 162(m) or any other section of the Code absent the participation of such employee in the Plan. (k) "Performance Period" shall mean a period of time determined by the Committee for performance objectives to be satisfied. (l) "Section 162(m)" shall mean Section 162(m) of the Code, as well as any applicable regulations and guidance thereunder. 6 -----END PRIVACY-ENHANCED MESSAGE-----