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): March 2, 2012
TECUMSEH PRODUCTS COMPANY
(Exact name of registrant as specified in its charter)
Michigan | 0-452 | 38-1093240 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1136 Oak Valley Drive Ann Arbor, Michigan |
48108 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (734 ) 585-9500
(not applicable)
(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:
¨ | 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 |
Performance Awards
On March 2, 2012, our Compensation Committee recommended, and our Board of Directors approved, granting Performance Awards under our Long-Term Incentive Cash Award Plan to our executive officers to provide their 2012 cash incentives. Our Compensation Committee designates our employees eligible to receive Performance Awards under our Long-Term Incentive Cash Award Plan, which for 2012, includes our three current executive officers, James J. Connor, Michael A. Noelke and Janice E. Stipp who received such Performance Awards effective March 2, 2012.
To make our annual cash incentive reflect our performance during the year, the actual amount of the cash payment under the Performance Awards for 2012 with respect to 75% of our target annual cash incentives will be determined based on our adjusted return on total capital (Adjusted ROC) compared to our target Adjusted ROC. The other 25% of our target annual cash incentives will be determined by our Compensation Committee in the exercise of its sole discretion based on its subjective evaluation of the participating employees individual and our corporate performance during 2012.
Adjusted ROC is our 2012 income or loss from continuing operations before taxes divided by total capital. Income or loss from continuing operations before taxes is our income (loss) from continuing operations before taxes, excluding (1) expense related to award agreements under the Long-Term Incentive Cash Award Plan, (2) non-recurring income and expenses, at the discretion of the Compensation Committee, (3) gains and losses on fixed asset disposals, (4) foreign exchange adjustments that are plus or minus 25% or more of the budgeted exchange rate, at the discretion of the Compensation Committee, and (5) settlement related to antitrust litigation, excluding legal fees incurred in connection with antitrust matters.
Total capital means the sum of (1) (a) the average of the amounts shown on our balance sheets at December 31, 2011, March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012 as long-term debt, minus (b) the average of the amounts shown as cash and cash equivalents on our balance sheets at December 31, 2011, March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012, excluding foreign exchange adjustments that are plus or minus 25% or more of the budgeted exchange rate, at the discretion of the Compensation Committee, plus (2) the average of the amounts shown as shareholders equity on our balance sheets at December 31, 2011, March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012.
For 2012, the Compensation Committee has established a target incentive for each participating employee under each Performance Award, expressed as a percentage of his or her salary. We use a target incentive approach because it is a formal, goals-oriented method of determining incentives that is responsive to changing internal and external business conditions from year to year.
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The actual award amount that is based on Adjusted ROC (75% of the target award amount) will vary based on a percentage equal to the actual Adjusted ROC divided by the target Adjusted ROC. If actual Adjusted ROC is less than 80% of target Adjusted ROC, the actual award amount that is based on Adjusted ROC and the payments under this portion of the Performance Award will be zero. Reaching 80% of the target Adjusted ROC would require a significant improvement over 2011 actual Adjusted ROC. If actual Adjusted ROC is 80% or more of target Adjusted ROC, the actual award amount that is based on Adjusted ROC will be 50% of this portion of the target incentive, plus 2.5% of this portion of the target incentive for each full 1% that the percentage of actual Adjusted ROC divided by target Adjusted ROC exceeds 80%, up to a maximum of 150% of the portion of the target incentive that is based on Adjusted ROC if such percentage is 120% or more. If actual Adjusted ROC is equal to target Adjusted ROC, the actual award amount that is based on Adjusted ROC is 75% of the target incentive.
Of the actual award amount, 75% will be realized based on the above formula and Adjusted ROC, and between 0% and 25% of the target incentive may be realized, as determined by the Compensation Committee in the exercise of its sole discretion, on the date between January 1, 2013 and March 1, 2013 that the Compensation Committee determines actual Adjusted ROC for 2012 (the Determination Date). The committee has discretion to include all, none or any portion of the discretionary portion of the award for 2012. The committee intends to exercise this discretion based on its subjective evaluation of the participating employees and our corporate performance during 2012. The following table illustrates the potential award amounts as a percentage of the target incentive for the threshold, target and maximum Adjusted ROC compared to target Adjusted ROC:
Adjusted ROC |
Adjusted ROC Percent | Maximum Discretionary Percent |
Maximum Total Percent |
|||||||||
Threshold (80%) |
37.50% | 25.00% | 62.50% | |||||||||
Target |
75.00% | 25.00% | 100.00% | |||||||||
Maximum (120%) |
112.50% | 25.00% | 137.50% |
The Adjusted ROC portion of the individual payment will equal (1) the participants salary, (2) multiplied by the participants target incentive percentage, (3) multiplied by 75% weighting, (4) multiplied by a percentage roughly between 50.00% and 150.00% based on the actual Adjusted ROC compared to the target Adjusted ROC.
The discretionary portion of the individual payment will equal (1) the participants salary, (2) multiplied by the participants target incentive percentage, (3) multiplied by a percentage between 0% and 25%, determined by the Compensation Committee in its discretion depending on a subjective individual and corporate performance evaluation conducted after the end of the year by the Compensation Committee for the Chief Executive Officer and by the Chief Executive Officer for other participating employees and based on the executives key responsibilities, specific improvement objectives, and leadership competencies and achieving corporate goals.
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The 2012 target incentive percentages for Performance Awards for our current executive officers are:
Executive Officer |
Target Incentive | |||
James J. Connor |
80% of salary | |||
Michael A. Noelke |
80% of salary | |||
Janice E. Stipp |
65% of salary |
Ms. Stipps target incentive is increased for 2012 to match the target incentive for our Chief Financial Officer in 2011.
Phantom Shares
In addition, on March 2, 2012 the Compensation Committee awarded performance phantom shares to the same three current executive officers under our Long-Term Incentive Cash Award Plan. To make our equity incentives reflect our performance during the year, the actual amount of the phantom shares awarded for 2012 with respect to 75% of our target phantom share awards will also be determined based on our Adjusted ROC compared to our target Adjusted ROC. The other 25% of our target phantom share awards will be determined by our Compensation Committee in the exercise of its sole discretion based on its subjective evaluation of the participating employees individual and our corporate performance during 2012.
For 2012, the Compensation Committee has established a target incentive for each participating employee under each performance phantom share award, expressed as a percentage of his or her salary. The actual award amount that is based on Adjusted ROC (75% of the target award amount) will vary based on the percentage of the actual Adjusted ROC divided by the target Adjusted ROC in the same manner as the Performance Awards are adjusted as described above.
Of the actual award amount, 75% will be realized based on the above formula and Adjusted ROC, and between 0% and 25% of the target incentive may be realized, as determined by the Compensation Committee in the exercise of its sole discretion, on the Determination Date in the same manner as the Performance Awards described above.
The 2012 target incentive percentages for phantom share awards for our current executive officers are:
Executive Officer |
Target Incentive | |||
James J. Connor |
120% of salary | |||
Michael A. Noelke |
120% of salary | |||
Janice E. Stipp |
97.5% of salary |
Ms. Stipps target incentive is increased for 2012 to match the target incentive for our Chief Financial Officer in 2011.
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The phantom shares will vest in equal one-third installments on the Determination Date, December 31, 2013 and December 31, 2014. Payment of the first vested installment will be made between January 1, 2013 and March 15, 2013, but no earlier than the determination date. Payment of the second and third vested installment will be made between January 1 and March 15 of the year after the vesting date.
The above awards were made pursuant to Award Agreements for Phantom Shares and Cash Performance Awards, a form of which is attached as Exhibit 99.1 to this report and is incorporated in this Item 5.02 by reference. The description of these awards in this Item 5.02 is qualified in its entirety by reference to the attached Award Agreements for Phantom Shares and Cash Performance Awards, which you should read.
Item 9.01 | Financial Statements and Exhibits. |
The following exhibits\ is filed with this report:
Exhibit No. |
Description | |
99.1 | Form of Award Agreement (Phantom Shares and Cash Performance Award) under Long-Term Incentive Cash Award Plan (management contract or compensatory plan or arrangement) |
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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.
TECUMSEH PRODUCTS COMPANY | ||||
Date: March 8, 2012 | By | /s/ James J. Connor | ||
James J. Connor, President, Chief Executive Officer and Secretary |
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EXHIBIT INDEX
Exhibit No. |
Description | |
99.1 | Form of Award Agreement (Phantom Shares and Cash Performance Award) under Long-Term Incentive Cash Award Plan (management contract or compensatory plan or arrangement) |
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Exhibit 99.1
2012 Award
TECUMSEH PRODUCTS COMPANY
LONG-TERM INCENTIVE CASH AWARD PLAN
AWARD AGREEMENT
FOR
PHANTOM SHARES AND CASH PERFORMANCE AWARD
This Award Agreement (including any Addendum to it), dated as of this 2nd day of March, 2012, is entered into by and between Tecumseh Products Company, a Michigan corporation (the Company), acting through the Committee as the Plans Administrator, and [specify Employees name] (the Employee, who will be a Holder under this Award Agreement). Capitalized terms have the meanings defined herein or as defined in the Plan, as applicable.
1. Incorporation of Plan. This Award, is granted as of March 2, 2012 (the Grant Date), pursuant to and subject to all of the terms and conditions of the Tecumseh Products Company Long-Term Incentive Cash Award Plan, effective as of January 1, 2008, and as may be amended from time to time (the Plan), the provisions of which are incorporated in full by reference into this Award Agreement, which means that this Award Agreement is limited by and subject to the express terms of the Plan. If there is any conflict or inconsistency between the provisions of this Award Agreement and the Plan, the Plan will control.
2. Cash Performance Award. The Company designates the Employee as a Senior Management Employee.
(a) Amount of Cash Performance Award. The Company grants the Employee an initial cash Performance Award opportunity of $[specify amount of cash Performance Award opportunity from paragraph A(1) of the Addendum], as specified in the Addendum to this Award Agreement, and subject to any adjustment as provided in the Addendum to this Award Agreement, i.e., the actual amount of the cash Performance Award the Employee may ultimately receive will be determined according to the rules specified in the Addendum to this Award Agreement (the Cash Performance Award).
(b) Determined Vesting Date. Subject to adjustment as to the actual amount of the Cash Performance Award, and subject to Section 2(c), below, the Cash Performance Award will vest on the date that is determined under the Addendum to this Award Agreement (the Vesting Date); provided, however, that nothing in this Section 2(b) amends or otherwise modifies Sections 9.6 or 9.7 of the Plan.
(c) Failure to Vest in the Event of a Termination of Employment. In the event a Termination of Employment of the Employee for any reason occurs prior to the Vesting Date, the entire unvested portion of the Cash Performance Award will automatically and immediately terminate and will not vest in favor of the Employee.
(d) Payment. Between January 1 and March 15 of the calendar year in which the Vesting Date occurs for the Employees Cash Performance Award, but no earlier than such
Vesting Date, the Company will pay to the Employee a lump sum cash amount equal to the realized amount of the Cash Performance Award as determined pursuant to the Addendum to this Award Agreement.
3. Phantom Shares Award.
(a) Phantom Shares Awarded. The Company grants the Employee an initial Award opportunity of [specify number of Phantom Shares from paragraph A(2) of the Addendum] Phantom Shares, as specified in the Addendum to this Award Agreement, and subject to any adjustment as provided in the Addendum to this Award Agreement, i.e., the actual number of the Phantom Shares the Employee may ultimately receive will be determined according to the rules specified in the Addendum to this Award Agreement. Each Phantom Share represents a notional share of the Companys Class A Common Stock and will be used as the basis for computing the amount of a cash payment to which the Employee will be entitled in accordance with the terms of the Plan and this Award Agreement. This Award of Phantom Shares confers only such rights as specified in the Plan and in this Award Agreement. The Employee will not, as a consequence of this Award of Phantom Shares, be a shareholder under the Articles of Incorporation or Bylaws of the Company or under applicable law; this Award does not entitle the Employee to any ownership interest in any actual shares of Class A Stock.
(b) Vesting Dates. Subject to adjustment as to the actual number of Phantom Shares that will vest, as provided for in the Addendum to this Award Agreement, and subject to Section 3(c), below, the Phantom Shares will vest on the following dates (each of which is a Vesting Date):
(i) | one-third of the Phantom Shares will vest on the date that is determined under the Addendum to this Award Agreement; |
(ii) | one-half of the balance of the Phantom Shares will vest on December 31, 2013; and |
(iii) | the remaining balance of the Phantom Shares will vest on December 31, 2014; |
provided, however, that nothing in this Section 3(b) amends or otherwise modifies Sections 9.6 or 9.7 of the Plan.
(c) Failure to Vest in the Event of a Termination of Employment. In the event a Termination of Employment of the Employee for any reason occurs prior to a Vesting Date, the unvested portion of the Phantom Shares Award will automatically and immediately terminate and will not vest in favor of the Employee, and the vested portion of the Phantom Shares Award will continue in effect according to terms of this Award Agreement.
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(d) Payment.
(i) | For the Phantom Shares that vest under Section 3(b)(i) above, between January 1 and March 15 of the calendar year in which the Vesting Date occurs for such Phantom Shares occurs, but no earlier than such Vesting Date, the Company will pay to the Employee a lump sum cash amount equal to: |
(A) | the Fair Market Value of one share of Class A Stock on the Vesting Date; times |
(B) | the number of Phantom Shares that vested on the Vesting Date, as determined pursuant to the Addendum to this Award Agreement. |
(ii) | For the each of the Phantom Shares that vest under Section 3(b)(ii) and (iii) above, between January 1 and March 15 of the calendar year next following the applicable Vesting Date for the Employees Phantom Shares, the Company will pay to the Employee a lump sum cash amount equal to: |
(A) | the Fair Market Value of one share of Class A Stock on the Vesting Date; times |
(B) | the number of Phantom Shares that vested on the Vesting Date, as determined pursuant to the Addendum to this Award Agreement. |
4. Tax Withholding Obligation. The applicable tax withholding obligations in connection with any payment made to the Employee under this Award will be satisfied by the Company withholding from any payment to the Employee cash sufficient to satisfy the withholding obligation.
5. General Provisions.
(a) Employee is Unsecured General Creditor. The Employee and the Employees beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, interest, or claims in any specific property or assets of the Company or any of the Companys affiliates, nor of any entity for which the Company or any affiliate of the Company provides services. Assets of the Company or such other entities shall not be held under any trust for the benefit of the Employee or the Employees estate, heirs, successors, or assigns, or held in any way as collateral security for the fulfilling of the obligations of the Company under this Award Agreement and the Plan. Any and all of the Companys and such other entities assets shall be, and remain, the general unrestricted assets of the Company or such other entities. The Companys sole obligation under the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay the Employee in the future, subject to the conditions and provisions of this Award Agreement and the Plan.
(b) Nonassignability. The Employees rights and interests under this Award may not be assigned or transferred other than by will or the laws of descent and distribution or, subject to the consent of the Administrator, pursuant to a DRO. As provided in Plan Section 9.1(b), no part of the amounts payable under this Award will, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony, or separate maintenance owed by the Employee or any other person, or be transferable by operation of law in the event of the Employees or any other persons bankruptcy or insolvency.
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(c) No Right to Continued Employment. In consideration of the grant of Awards under this Award Agreement, Employee agrees to remain in the employ of the Company or any Subsidiary for a period ending on the earliest applicable Vesting Date. The adoption and maintenance of the Plan and the grant of this Award to the Employee under this Award Agreement will not be deemed to constitute a contract of employment between the Company, or any affiliate of the Company, and the Employee, or to be a condition of the employment of the Employee. The Plan and the Award granted under this Award Agreement will not confer on the Employee any right with respect to continued employment by the Company or an affiliate of the Company, nor shall they interfere in any way with the right of the Company or an affiliate of the Company to terminate the employment of the Employee at any time, and for any reason, with or without cause, it being acknowledged, unless expressly provided otherwise in writing, that the employment of the Employee is at will.
6. Code Section 409A. Notwithstanding anything in the Plan or in this Award Agreement to the contrary, this Award Agreement and the corresponding terms of the Plan are intended to be interpreted and operated so that the payments set forth in this Award Agreement will be exempt from the requirements of Code Section 409A or shall comply with the requirements of such provision; provided, however, that in no event will the Company or any of its affiliates be liable to the Employee for or with respect to any taxes, penalties or interest that may be imposed upon the Employee pursuant to Code Section 409A. The Employee acknowledges that he or she has been advised to seek the advice of a tax advisor with respect to the tax consequences to the Employee of all payments that may be made pursuant to this Award Agreement, including any adverse tax consequences or penalty taxes under Code Section 409A and applicable state tax law. The Employee agrees to bear the entire risk of any such adverse federal and state tax consequences and penalty taxes in the event that any provision of this Award Agreement is deemed to be subject to Code Section 409A, and that no representations have been made to the Employee relating to the tax treatment of any provision of this Award Agreement under Code Section 409A and the corresponding provisions of any applicable state income tax laws.
7. Waiver and Release. In consideration of receiving the benefits granted by this Award Agreement, and except for the awards previously granted to the Employee under the Companys Annual Incentive and Long-Term Incentive Cash Award Plans, the Employee hereby waives, and releases the Company from, any and all liabilities and obligations of the Company under, (i) any severance, change of control, retention or other similar arrangements or agreements, and (ii) any provisions of any term sheet, offer letter, employment agreement or any other document, agreement or arrangement relating to incentive or bonus compensation.
8. Acknowledgment of Employee. The Employee accepts and agrees to the terms of the Award as described in this Award Agreement and in the Plan, acknowledges receipt of a copy of this Award Agreement and the Plan, and acknowledges that he or she has read all these documents carefully and understands their contents, and that he or she has been given the opportunity to consult with his or her personal legal and tax counsel with respect to this Award Agreement and the Plan.
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IN WITNESS WHEREOF, this Award Agreement is duly authorized by the Company and entered into between the Company and the Employee as of the day and year first above written.
EMPLOYEE: | ||
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Printed Name: |
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Date: |
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TECUMSEH PRODUCTS COMPANY: | ||
By: |
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Printed Name: |
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Title: |
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Date: |
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ADDENDUM TO THE AWARD AGREEMENT FOR
PHANTOM SHARES AND CASH PERFORMANCE AWARD
This Addendum is a part of the Award Agreement dated March 2, 2012, and made to [specify the Employees name] (the Employee) by Tecumseh Products Company (the Company) pursuant to the Tecumseh Products Company Long-Term Incentive Cash Award Plan. This Addendum specifies the total Award opportunity made under the Award Agreement with respect to the period January 1, 2012 through December 31, 2012 (the Performance Period), and it provides the rules for the determination of actual cash amount of the Cash Performance Award and the actual amount of Phantom Shares that may be realized by the Employee.
A. Total Award Opportunity. Subject to paragraph D, the initial total Award opportunity for the Employee is $[specify amount], which amount is sum of of:
(1) a Cash Performance Award opportunity of $[specify amount], which amount is [specify percentage]% of the Employees base salary (Cash Performance Award Opportunity); and
(2) a Phantom Shares Award opportunity of [specify number of phantom shares] Phantom Shares, which amount is equal to $[specify amount], and which dollar value amount is [specify percentage]% of the Employees base salary, based on the Fair Market Value of the Companys Class A Stock on the Grant Date (Phantom Shares Award Opportunity).
B. Performance Target. The Companys Performance Target for the Performance Period is Adjusted ROC of 3.4%.
C. Method to Determine the Adjusted ROC. Adjusted ROC represents the adjusted return on total capital for the Company, determined as follows for the Performance Period: Income or Loss From Continuing Operations Before Taxes ÷ Total Capital.
Income or Loss From Continuing Operations Before Taxes means: Income (loss) from continuing operations before taxes, determined in accordance with the Companys consolidated financial statements and GAAP, excluding, without duplication, to the extent included in such income (loss) (1) expense relating to Award Agreements under the Plan, (2) non-recurring income and expenses, at the discretion of the Committee, (3) gains and losses on fixed asset disposals, (4) foreign exchange adjustments that are plus or minus 25% or more of the budgeted exchange rate, at the discretion of the Committee, and (5) settlements related to antitrust litigation, excluding legal fees incurred in connection with antitrust matters.
Total Capital means the sum of: Average Long-Term Debt Average Cash + Average Equity.
Average Cash means: The average of the amounts shown as cash and cash equivalents on the Companys balance sheet as of December 31, 2011, March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012, determined in accordance with GAAP, excluding any foreign exchange adjustments that are plus or minus 25% or more of the budgeted exchange rate, at the discretion of the Committee.
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Average Long-Term Debt means: The average of the amounts shown as long-term debt on the Companys balance sheet as of December 31, 2011, March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012, determined in accordance with GAAP.
Average Equity means: The average of the amounts shown as stockholders equity on the Companys balance sheet as of December 31, 2011, March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012, determined in accordance with GAAP.
GAAP as used in this Addendum means United States Generally Accepted Accounting Principles, as applied in the Companys audited financial statements.
D. Determination of Actual Award Amount; Determination Date for Initial Vesting. The Employees actual Award amount will be determined on the date the Committee meets and determines the Adjusted ROC for the Performance Period, and such meeting and determination will occur on a date between January 1 and March 1 in the calendar year next following the December 31 end date of the Performance Period (the Determination Date), and the Determination Date will be the Vesting Date for the Cash Performance Award and the Determination Date will be the initial Vesting Date for the Phantom Shares Award. Once the Committee determines the Adjusted ROC, the Committee will, on the Determination Date, determine the Employees actual Award amount as follows:
(1) Adjusted ROC Equals or Exceeds 80% of the Performance Target. If the Adjusted ROC is equal to 80% of the Performance Target, then 37.50% of the Employees Cash Performance Award Opportunity and 37.50% of the Employees Phantom Shares Award Opportunity will be available. If the Adjusted ROC exceeds 80% of the Performance Target, then the 37.50% Cash Performance Award Opportunity and the 37.50% Phantom Shares Award Opportunity will each be increased by a 1.875% increment for each 1% increment, up to 40%, the Adjusted ROC divided by the Performance Target exceeds 80%, meaning a maximum of 112.50% of the Employees Cash Performance Award Opportunity and a maximum of 112.50% of the Employees Phantom Shares Award Opportunity will be available. The following formula illustrates the excess percentage of Performance Target determination (the result being the Excess Increment Factor) for any 1.875% increment increase in the Cash Performance Award Opportunity and Phantom Shares Award Opportunity under the preceding sentence:
[ |
Adjusted ROC Performance Target |
× | 100 | ] | | 80 | = | Excess Increment Factor (40 maximum) |
For purposes of the Excess Increment Factor formula in the preceding sentence, (i) the Adjusted ROC will be determined to the nearest 0.01%, and (ii) the result of the formula will be rounded down to the next whole number.
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The determined Cash Performance Award Opportunity for the Employee will be realized and vest on the applicable Vesting Date. The determined Performance Shares Award Opportunity will vest as provided Section 3(b) of the Award Agreement, using the Determination Date as the initial Vesting Date.
(2) Adjusted ROC Less Than 80% of the Performance Target. If the Adjusted ROC is less than 80% of the Performance Target, then, except as otherwise provided in paragraph D(3) below, 0% of the Employees Cash Performance Award Opportunity and 0% of the Employees Phantom Shares Award Opportunity will be realized by the Employee as the actual Award amount or otherwise vest in favor of the Employee i.e., no amounts will be payable to the Employee under the Award Agreement, except as otherwise provided in paragraph D(3) below.
(3) Discretionary Award. Notwithstanding, and in addition to, any other provision of this paragraph D, the Committee, in the exercise of its sole discretion on the Determination Date (depending on a subjective individual and corporate performance evaluation based on the Grantees key responsibilities, specific improvement objectives and leadership competencies and achievement of Company goals, with such conducted after the end of the year by (a) the Committee, if the Grantee is the Companys Chief Executive Officer or (b) the Companys Chief Executive Officer, if the Grantee is not the Companys Chief Executive Officer), may vest the Employee in between 0% and 25% of the Employees Cash Performance Award Opportunity and between 0% and 25% of the Employees Phantom Shares Award Opportunity.
The determined Cash Performance Award Opportunity for the Employee will be realized and vest on the applicable Vesting Date. The determined Performance Shares Award Opportunity will vest as provided Section 3(b) of the Award Agreement, using the Determination Date as the initial Vesting Date.
E. Example. The following hypothetical example is for illustration purposes only and does not constitute any part of the Award made to the Employee. The example assumes that 110% of the Performance Target is achieved, and that the Employee continues in employment through all applicable Vesting Dates.
(1) Grant Date: March 2, 2012.
(2) Fair Market Value of Phantom Shares on Grant Date: The Fair Market Value of a share of Class A Stock on the Grant Date is $5;
(3) Base Salary: $100,000
(4) Employees Total Award Opportunity: $50,000, consisting of:
a Cash Performance Award Opportunity = 20% of Base Salary = $20,000; and
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a Phantom Shares Award Opportunity = 30% of Base Salary = 6,000 Phantom Shares = $30,000 ÷ $5 price per Share on Grant Date (result converted to Phantom Shares).
(5) The Performance Target: Adjusted ROC of 3.4% for the January 1 through December 31, 2012 Performance Period.
(6) Determination Date: January 28, 2013.
(7) Vesting Date for the Cash Performance Award: January 28, 2013 (which date is the Determination Date).
(8) Vesting Dates for the Phantom Shares Award: January 28, 2013 (which date is the Determination Date); December 31, 2013; and December 31, 2014.
(9) Fair Market Value of Phantom Shares on Vesting Dates:
(a) | on January 28, 2013, the Fair Market Value of a share of Class A Stock is $6; |
(b) | on December 31, 2013, the Fair Market Value of a share of Class A Stock is $7; and |
(c) | on December 31, 2014, the Fair Market Value of a share of Class A Stock is $8. |
(10) Actual Adjusted ROC for the Performance Period and Excess Increment Factor: The Companys actual Adjusted ROC for the Performance Period is 3.74%, which figure is 110% of the Performance Target.
The Excess Increment Factor is 30, determined as follows:
[ |
3.74 (Adjusted ROC) 3.4 (Performance Target) |
× | 100 | ] | | 80 | = | 30 (Excess Increment Factor) |
(11) Determination of Nondiscretionary Portion of the Total Award Opportunity: The Employees total nondiscretionary portion of his total Award opportunity is as follows:
(a) | The Employees realized non-discretionary Cash Performance Award is $18,750, which amount is determined as follows: |
(1) | $7,500 ($20,000 Cash Performance Award Opportunity × 37.5% (the applicable percentage for Adjusted ROC equal to 80% of the Performance Target)); plus |
(2) | $11,250 ($20,000 Cash Performance Award Opportunity × 56.25% (which percentage is 1.875% × 30 (which is the Excess Increment Factor))). |
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(b) | The Employees realized non-discretionary Phantom Shares Award is 5,625 Phantom Shares, which amount is determined as follows: |
(1) | 2,250 Phantom Shares (6,000 Phantom Shares Award Opportunity × 37.5% (the applicable percentage for Adjusted ROC equal to 80% of the Performance Target)); plus |
(2) | 3,375 Phantom Shares (6,000 Phantom Shares Award Opportunity × 56.25% (which percentage is 1.875% × 30 (which is the Excess Increment Factor))). |
(12) Realization of the Discretionary Portion of the Total Award Opportunity: Additionally, the Committee, acting in its sole discretion, and regardless of whether the target Adjusted ROC was achieved during the Performance Period, makes a Discretionary Award of 12.5% of the Employees Cash Performance Award Opportunity and 12.5% the Employees Phantom Shares Award Opportunity, which will be allocated to and realized by the Employee in the following manner:
(a) | A Cash Performance Award of $2,500 ($20,000 × 12.50%). |
(b) | A Phantom Shares Award of 750 Phantom Shares (6,000 Phantom Shares × 12.5%). |
(13) Vesting and Payment of the Realized Amounts: The Employee will vest in and receive payment on the realized amounts determined in paragraphs (11) and (12) of the example as follows:
(a) | The realized Cash Performance Award of $21,250 ($18,750 + $2,500) will vest on January 28, 2013 (which date is the Determination Date), and will be paid in a cash lump sum between January 28 and March 15, 2013. |
(b) | The realized Phantom Shares Award of 6,375 Phantom Shares (5,625 Phantom Shares + 750 Phantom Shares) will vest and be paid as follows: |
(i) | 2,125 of the Phantom Shares (one-third of the Phantom Shares Award) will vest on January 28, 2013 (which date is the Determination Date), with the vested amount being equal to $12,750 (2,125 Phantom Shares × $6 Fair Market Value/share on applicable Vesting Date); and this amount will be paid in a cash lump sum to Employee between January 28 and March 15, 2013; |
(ii) | 2,125 of the Phantom Shares (one-half of the balance of the Phantom Shares Award) will vest on December 31, 2013, with the vested amount being equal to $14,875 (2,125 Phantom Shares × $7 Fair Market Value/share on applicable Vesting Date); and this amount will be paid in a cash lump sum to Employee between January 1 and March 15, 2014; and |
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(iii) | 2,125 of the Phantom Shares (the balance of the Phantom Shares Award) will vest on December 31, 2014, with the vested amount being equal to $17,000 (2,125 Phantom Shares × $8 Fair Market Value/share on applicable Vesting Date); and this amount will be paid in a cash lump sum to Employee between January 1 and March 15, 2015. |
(14) Summary of Amounts Realized: The following chart summarizes the amounts realized by Employee for performance under the 2012 Award Agreement under the example.
Paid in 2013 | Paid in 2014 | Paid in 2015 | ||||||||||
Cash Performance Award |
$ | 21,250 | | | ||||||||
Phantom Shares Award |
$ | 12,750 | $ | 14,875 | $ | 17,000 | ||||||
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Total = |
$ | 34,000 | $ | 14,875 | $ | 17,000 | ||||||
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The total amount realized by Employee under the example is $65,875.
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