EXHIBIT 10(f)
XXXXXXX COMPANY
2006 LONG-TERM INCENTIVE AWARD AGREEMENT
FOR APPROVED SECTION 102 AWARDS
(Under the Xxxxxxx Company 2003 Long-Term Incentive Plan)
TO: <> <>
RE: Notice of Long-Term Incentive Award
Dear <>:
This is to notify you that Xxxxxxx Company (the "COMPANY") has granted you
an Award under the Xxxxxxx Company 2003 Long-Term Incentive Plan (the "PLAN")
and the Section 102 Program established under Section 15(n) of the Plan,
effective as of Date (the "GRANT DATE"). This Award consists of three different
types of incentives: a nonqualified stock option, shares of service-based
restricted stock, and performance-based restricted stock units. The terms and
conditions of each of these incentives are set forth in the remainder of this
agreement (the "AGREEMENT"). The capitalized terms that are not otherwise
defined in this Agreement shall have the meanings ascribed to such terms under
the Plan and/or Section 102 Program.
SECTION 1
NONQUALIFIED STOCK OPTION
1.1 Grant of Option. As of the Grant Date, and subject to the terms and
conditions of this Agreement, the Plan, and the Section 102 Program and its
related trust (as described in Section 4 of the Agreement), the Company grants
you a nonqualified stock option (the "OPTION") to purchase <>
shares of the Company's common stock, without par value ("COMMON STOCK"), at a
per-share price of $xx.xx (the "OPTION PRICE"), which is equal to the Fair
Market Value of such Common Stock as of the Grant Date.
1.2 Timing and Duration of Exercise.
(a) The Option shall vest on the dates set forth below (each a
"Vesting Date" and, subject to the requirements of subsection (b) below,
may be exercised after such Vesting Dates to purchase the number of shares
of Common Stock set forth opposite each such date:
Vesting Date Vested Shares
------------ -------------
Date <> Shares
Date <> Shares
Date <> Shares
Date <> Shares
Date <> Shares
Notwithstanding the above vesting schedule, any portion of the Option that
has not vested or been forfeited previously shall immediately vest in full
and, subject to subsection (b) below, may be exercised in whole or in part
at any time after (1) the occurrence of a Change of Control that occurs
while you are employed by the Company or one of its subsidiaries, or (2)
your death, Disability, or Retirement.
(b) Except as provided below, the Option to purchase vested shares
must be exercised by you, if at all, while you are an employee of the
Company or one of its subsidiaries or within three months following your
Termination Date, but in no event after (August 15, 2016) (the "EXPIRATION
DATE"). If your Termination Date occurs by reason of your Retirement,
death or Disability, the Option may thereafter be exercised by you, or in
the event of your death, by your estate or your designated beneficiary, or
in the event of your Disability, by you or your legal representative, at
any time prior to the Expiration Date. If you die after your Termination
Date and during the period in which the Option is exercisable, the right
to exercise the Option during such period will be governed by Plan Section
11(d). If your Termination Date occurs because of Involuntarily
Termination for Economic Reasons as determined by the Chief Executive
Officer (or the Committee in the case of an Employee subject to Section 16
of the Exchange Act), the terms of Plan Section 11(b) shall apply.
Any portion of the Option that is not vested pursuant to this
Section 1.2 as of your employment Termination Date will be forfeited
immediately. If the Option is not exercised as to all of the vested shares
covered by the Option within the applicable time period and in the manner
provided herein, the Option will terminate and will not be exercisable
thereafter.
1.3 Method of Exercise. The Option, or any part of it, shall be exercised
by written notice directed to the President, Chief Financial Officer or
Secretary of the Company at the Company's principal office in Allegan, Michigan,
or by using some other notification permitted by the Company. Such notice must
satisfy the following requirements and when applicable, in accordance with the
requirements of Section 102:
(a) The notice must state the Grant Date, the number of shares
of Common Stock subject to the Option, the number of shares of Common
Stock with respect to which Option is being exercised.
(b) The notice shall be accompanied by check, bank draft,
money order or other cash payment, or by delivery of a certificate or
certificates, properly endorsed, for shares of Common Stock that you have
held for at least six months and that are equivalent in Fair Market Value
on the date of exercise to the Option Price (or any combination of cash
and shares), in full payment of the Option Price for the number of shares
specified in the notice.
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(c) The notice must be signed by the person or persons entitled to
exercise the Option and, if the Option is being exercised by any person or
persons other than you, be accompanied by proof, satisfactory to the
Committee, of the right of such person or persons to exercise the Option.
The exercise may be with respect to any one or more shares of Common Stock
covered by the Option (to the extent vested), reserving the remainder for a
subsequent timely exercise. The Company shall make prompt delivery of such
shares; provided that if any law or regulation requires the Company to take any
action with respect to such shares before the issuance thereof, then the date of
delivery of such shares shall be extended for the period necessary to take such
action; and provided further that the Company shall have no obligation to
deliver any such certificate unless and until appropriate provision has been
made for any withholding taxes in respect of such exercise.
At the time or times you wish to exercise the Option in whole or part, please
refer to the above provisions dealing with the methods and formality of exercise
of the Option and execute the proper Notice of Exercise of Stock Option and
Record of Stock Transfer.
SECTION 2
RESTRICTED SHARES - SERVICE-BASED VESTING
2.1 Grant of Restricted Shares. As of the Grant Date, and subject to the
terms and conditions of this Agreement, the Plan and the Section 102 Program (as
described in Section 4 of the Agreement), the Company grants you
<> shares of Common Stock ("Restricted Shares").
2.2 Vesting. Except as provided in Section 2.3, the Restricted Shares
awarded hereunder shall vest if the Employee remains continuously employed by
the Company until the following date (the "RESTRICTED SHARES VESTING DATE"):
Vesting Date Number of Shares Vesting
------------ ------------------------
Date <>
Except as provided in Section 2.3, if the Employee's Termination Date occurs
prior to the Restricted Shares Vesting Date, the Restricted Shares awarded under
this Agreement shall be permanently forfeited on the Employee's Termination
Date. The "RESTRICTED PERIOD" with respect to a Restricted Share awarded under
this Agreement is the period beginning on the Grant Date and ending on the
Restricted Shares Vesting Date (or, if earlier, the date the Restricted Shares
vest under Section 2.3).
2.3. Special Vesting Rules. Notwithstanding Section 2.2 above:
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(a) If the Employee's Termination Date occurs by reason of death,
Disability or Retirement with the Company's consent, any Restricted Shares
awarded under this Agreement that have not vested prior to such
Termination Date shall become fully vested.
(b) If the Employee's Termination Date occurs by reason of
Involuntary Termination for Economic Reasons, any Restricted Shares
awarded under this Agreement that would otherwise be scheduled to vest
under Section 2.2 in the 24 month period following such Termination Date
shall vest on the Termination Date. Any Restricted Shares that are not
scheduled to vest during such 24 month period will be permanently
forfeited on the Termination Date.
(c) In the event of a Change in Control of the Company, all
Restricted Shares that have not vested or been forfeited prior to the date
of such Change in Control shall become fully vested on such date.
2.4 Terms and Conditions of Restricted Shares. The Restricted Shares
granted under this Agreement shall be subject to the following additional terms
and conditions:
(a) Except as may otherwise be specifically permitted under the
Plan, Restricted Shares may not be sold, assigned, pledged or otherwise
encumbered prior to the end of the Restricted Period.
(b) Except as otherwise provided in this Agreement, the Employee
shall have all of the rights of a stockholder, including, but not limited
to, the right to vote such shares and the right to receive dividends paid
on such shares, all subject to the provisions of Section 102.
(c) Each certificate issued with respect to the Restricted Shares
shall be registered in the name of the Trustee on behalf of the Employee
and deposited with the Trustee in accordance with Section 4.
(d) After the end of the Restricted Period, and prior to the end of
the Holding Period (as defined in Section 4) with respect to the
Restricted Shares, the Employee may request that the Trustee sell or
release the shares from Trust; provided, however, if the shares are sold
or released from the Trust prior to the end of the Holding Period, the
sanctions under Section 102 shall apply and shall be borne by the
Employee, as described in Section 4. Nothing in this paragraph shall be
construed to require the Employee to sell or release vested shares from
the Trust prior to the end of the Holding Period.
SECTION 3
RESTRICTED STOCK UNITS - PERFORMANCE-BASED VESTING
3.1 Grant. As of the Grant Date, the Company grants to the Employee
<> restricted stock units ("RESTRICTED STOCK
UNITS" or "RSUS"), subject to the terms and conditions set forth in this
Agreement.
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The number of Restricted Stock Units awarded in this Section 3.1 is referred to
as the "TARGET AWARD." The Target Award may be increased or decreased depending
on whether the Company attains certain performance goals as described in Section
3.2. Each Restricted Stock Unit shall entitle the Employee to one share of
Common Stock on the RSU Vesting Date set forth in this Agreement, provided the
applicable performance goals are satisfied.
3.2 Vesting. The number of Restricted Stock Units vesting, if any, shall
be determined as of the RSU Vesting Date (defined below). That number will be
determined based on the average level of attainment of annual Target Net Income
Growth (defined below) for each fiscal year in the Performance Period (defined
below), in accordance with the following schedule:
Level of % of Target Award
Attainment RSUs Payable
---------- -----------------
Threshold 50%
Target 100%
Maximum 200%
The Committee shall establish annually the Target Net Income Growth and the
percentage of Target Net Income Growth that must be attained for Threshold and
Maximum performance for a fiscal year. The goals for the 2007 fiscal year are
set forth in Exhibit A.
Following the end of each fiscal year in the Performance Period, the Committee
will determine the percentage of Target Award RSUs that would be payable under
the foregoing schedule for such fiscal year, based on the percentage of Target
Net Income Growth attained and the Threshold and Maximum performance targets
established by the Committee for that fiscal year. The percentage of the Target
Award that would be payable under the schedule shall be adjusted, pro rata, to
reflect attained performance between Threshold and Target, and Target and
Maximum.
At the end of the Performance Period, the percentage payout for each fiscal year
in the Performance Period will be averaged to determine the actual percentage of
Target Award RSUs that will vest and be payable on the RSU Vesting Date. In no
event will the calculation of a positive payout percentage for any fiscal year
be construed to guarantee that any RSUs will vest on the RSU Vesting Date.
Payout percentages for the individual fiscal years are determined solely for
purposes of determining the average annual payout percentage for the three-year
Performance Period.
Except as provided in Section 3.3, the RSUs will be permanently forfeited if the
Employee's Termination Date occurs prior to the RSU Vesting Date. If the average
annual performance payout for the Performance Period is less than the Threshold
performance level established by the Committee, all RSUs that have not
previously been forfeited shall be forfeited as of the RSU Vesting Date. If the
average annual performance payout for the Performance Period exceeds the
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Maximum performance level established by the Committee, in no event will the
number of RSUs vesting exceed 200% of the Target Award.
The following terms shall have the following meanings under this Section 3.
(a) "NET INCOME" for any fiscal year means the Company's net income
(external operating basis) for the fiscal year and shall be determined in
accordance with generally accepted accounting principles. The Committee shall
provide how Net Income will be adjusted, if at all, as a result of extraordinary
events or circumstances, as determined by the Committee, or to exclude the
effects of extraordinary, unusual, or non-recurring items; changes in applicable
laws, regulations, or accounting principles; currency fluctuations; discontinued
operations; non-cash items, such as amortization, depreciation ,or reserves;
asset impairment; or any recapitalization, restructuring, reorganization,
merger, acquisition, divestiture, consolidation, spin-off, split-up,
combination, liquidation, dissolution, sale of assets, or other similar
corporation transaction; provided, however, that no such adjustment will be made
if the effect of such adjustment would cause an award to fail to qualify as
performance-based compensation within the meaning of Code Section 162(m).
(b) "PERFORMANCE PERIOD" MEANS the period commencing July 2, 2006 and
ending June 30, 2009.
(c) "RSU VESTING DATE" means the last day of the Performance Period.
(d) "TARGET NET INCOME GROWTH" means the targeted growth in Net Income
(external operating basis) for a fiscal year, as set forth in the Company's
annual fiscal year financial plan, approved by the Committee and Board. The
level of attainment of Target Net Income Growth will be determined separately
for each of the three fiscal years of the Company in the Performance Period,
based on the Target Net Income Growth for that fiscal year. The Committee, in
its sole discretion, shall determine to what degree, if any, that the Target Net
Income Growth has been attained.
3.3 Special Vesting Rules. Notwithstanding Section 3.2 above, in the event
of a Change in Control of the Company, all of the Restricted Stock Units awarded
hereunder that have not previously been forfeited shall become fully vested as
if Target performance had been obtained for the Performance Period effective as
of the date of any such event. If the Employee's Termination Date occurs because
of death, Disability, or Retirement, the Restricted Stock Units shall vest or be
forfeited as of the RSU Vesting Date set forth in Section 3.2, based on the
attainment of the performance goals. If the Employee's Termination Date occurs
because of Involuntary Termination for Economic Reasons, the Company's Chief
Executive Officer (or the Committee, if the Employee is subject to Section 16 of
the Exchange Act), in his or her sole and absolute discretion, may permit all or
part of the Restricted Stock Units awarded hereunder to remain outstanding and
vest or be forfeited as of the date set forth in Section 3.2, depending on the
attainment of performance goals. To the extent that the Chief Executive Office
(or Committee, if applicable) does not exercise discretionary authority to allow
Restricted Stock Units to remain outstanding on the date of the Employee's
Involuntary Termination for Economic Reasons, such Restricted Stock Units shall
be permanently forfeited.
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3.4 Settlement of Restricted Stock Units. As soon as practicable following
the date of the Committee's first regularly scheduled meeting following the last
day of the Performance Period at which the Committee certifies the average
payout for each of the three years in the Performance Period, the Company shall
transfer to the Employee one share of Common Stock for each Restricted Stock
Unit, if any, that becomes vested pursuant to Section 3.2 or 3.3 of this
Agreement; provided, however, the Company may settle Restricted Stock Units in
cash to the extent necessary to satisfy any withholding pursuant to Section 5.6.
3.5 Application of Section 102 Program. The Company, in its discretion and
after consultation with its tax advisors, may provide that the Restricted Stock
Units awarded under this Agreement shall be subject to the provisions of the
Section 102 Program, in which case the provisions of Section 4 of this Agreement
shall also apply to the Restricted Stock Units awarded hereunder.
SECTION 4
Section 102 Plan and Trust
The Company has established a Plan and Trust (the "SECTION 102 PROGRAM") that is
intended to provide the Employee with the ability to obtain certain tax
treatment under Section 102 of the Israeli Tax Ordinance (New Version), 1961 as
amended from time to time and the rules and regulation promulgated thereunder
("SECTION 102") with respect to the Option and Restricted Shares awarded under
this Agreement. The Option and Restricted Shares are intended to qualify as
Approved 102 Awards designated as CAPITAL GAIN AWARDS within the meaning of the
Section 102 Program. The following additional rules shall apply to the Option
and Restricted Shares:
(a) The shares underlying the Option grant and the Restricted Shares have
been deposited in a Trust. Xxxxx Xxxxxxx 2004 Ltd., or its duly appointed
successor, shall be the Trustee of the Trust. All fees and commissions relating
to the sale, transfer or release of shares from the Trust shall be paid by the
Employee.
(b) To obtain Section 102 tax treatment, the Employee shall not sell or
release from the Trust any Restricted Shares or shares subject to the Option
until the lapse of the minimum required holding period under Section 102
("HOLDING PERIOD"). If any such sale or release occurs during the Holding
Period, the sanctions under Section 102 and under any rules or regulation or
orders or procedures promulgated thereunder shall apply to and shall be borne by
such Employee.
(c) Prior to any distribution or release of shares from the Trust, the
Employee shall be required to remit to the Trustee funds sufficient to cover
applicable withholding taxes, plus any commissions and fees relating to the sale
or release of shares. Alternatively, the Employee may request that the Trustee
sell sufficient shares to cover applicable withholding taxes, plus any
commissions and fees relating to the sale or release. The Employee may request
that shares in excess of any shares sold to cover withholding taxes, fees and
commissions be transferred to the Employee, or the Employee may advise the
Trustee to sell such shares and transfer the net proceeds to the Employee.
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(d) The Employee may exercise any vested portion of the Option prior to
the end of the Holding Period, provided, however, if such exercise causes any
shares to be distributed or released from the Trust the sanctions under Section
102 shall apply and shall be borne by the Employee, as described in this Section
4.
(e) By execution of this Agreement, the Employee hereby acknowledges that
the Employee is familiar with the provisions of Section 102 and the regulations
and rules promulgated thereunder, including without limitation the type of
Approved 102 Awards granted to the Employee and the tax implications applicable
to such awards. The Employee accepts the provisions of the Trust agreement
signed between the Company and Trustee, and agrees to be bound by its terms.
SECTION 5
GENERAL TERMS AND CONDITIONS
5.1 Nontransferability. Awards under this Agreement shall not be
transferable other than by will or by the laws of descent and distribution.
During your lifetime, the Option granted under this Agreement shall be
exercisable only by you or by your guardian or legal representative in the event
of your disability.
As long as the Restricted Shares, Option and/or shares issued upon the exercise
of the Option are held by the Trustee, all of your rights over the Options
and/or shares are personal, can not be transferred, assigned, pledged,
mortgaged, or given as collateral and no right with respect to them maybe given
to any third party whatsoever, other than by will or laws of descent and
distribution.
5.2 No Rights as a Stockholder. You shall not have any rights as a
stockholder with respect to any shares of Common Stock subject to the Option or
RSU portion of this Agreement prior to the date of issuance to you of a
certificate or certificates for such shares, subject to the provisions of
Section 102 and the rules and regulations promulgated thereunder.
5.3 Cause Termination. If your Termination Date occurs for reasons of
Cause, all of your rights under this Agreement, whether or not vested, shall
terminate immediately.
5.4 Awards Subject to Plan. Enclosed for your review is a copy of the
Plan. The granting of the Awards under this Agreement is being made pursuant to
the Plan including the Section 102 Program and the Awards shall be exercisable
or payable, as applicable, only in accordance with the applicable terms of the
Plan. The Plan contains certain definitions, restrictions, limitations and other
terms and conditions all of which shall be applicable to this Agreement. ALL THE
PROVISIONS OF THE PLAN ARE INCORPORATED HEREIN BY REFERENCE AND ARE MADE A PART
OF THIS AGREEMENT IN THE SAME
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MANNER AS IF EACH AND EVERY SUCH PROVISION WERE FULLY WRITTEN INTO THIS
AGREEMENT. Should the Plan become void or unenforceable by operation of law or
judicial decision, this Agreement shall have no force or effect. Nothing set
forth in this Agreement is intended, nor shall any of its provisions be
construed, to limit or exclude any definition, restriction, limitation or other
term or condition of the Plan as is relevant to this Agreement and as may be
specifically applied to it by the Committee. In the event of a conflict in the
provisions of this Agreement and the Plan, as a rule of construction the terms
of the Plan shall be deemed superior and apply.
5.5 Adjustments in Event of Change in Common Stock. In the event of a
stock split, stock dividend, recapitalization, reclassification or combination
of shares, merger, sale of assets or similar event, the number and kind of
shares subject to Awards under this Agreement, and the Option Price, where
applicable, will be appropriately adjusted in an equitable manner to prevent
dilution or enlargement of the rights granted to or available for you. Any new,
substituted or additional securities or other property (including money paid
other than as a regular cash dividend), which is by reason of any such
transaction distributed to the Employee with respect to the Restricted Shares,
shall be immediately subject to a similar Restricted Period.
5.6 Withholding. Any tax consequences arising from the grant of this Award
or from any other event or act of the Company, and/or its Affiliates (as defined
under the Section 102 Program), and/or the Trustee or the Employee hereunder
shall be borne solely by the Employee. The Company and/or its Affiliates, and/or
the Trustee shall withhold taxes according to the requirements under the
applicable laws, rules and regulations including withholding taxes at source. If
the employee has not remitted the full amount of applicable withholding taxes to
the Company by the date the Company is required to pay such withholding to the
appropriate taxing authority (or such earlier date that the Company may specify
to assist it in timely meeting its withholding obligations), the Company shall
have the unilateral right to withhold Common Stock relating to this Award in the
amount it determines is sufficient to satisfy the minimum tax withholding
required by law. Furthermore, the Employee hereby agrees to indemnify the
Company and/or its Affiliates and/or the Trustee and hold them harmless against
and from any and all liability for any such tax or interest or penalty thereon,
including without limitation, liabilities relating to the necessity to withhold,
or to have withheld, any such tax from any payment made to the Employee. The
Employee will not be entitled to receive from the Company and/or the Trustee any
shares of Common Stock hereunder prior to the full payment of the Employee's tax
liabilities relating to this Award. For the avoidance of doubt, neither the
Company nor the Trustee will be required to release any share certificate to the
Employee until all payments required to be made by the Employee have been fully
satisfied.
5.7 Compliance with Applicable Law. Notwithstanding any other provision of
this Agreement, the Company shall have no obligation to issue any shares of
Common Stock under this Agreement if such issuance would violate any applicable
law or any applicable regulation or requirement of any securities exchange or
similar entity.
5.8 Successors and Assigns. This Agreement shall be binding upon any or
all successors and assigns of the Company.
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5.9 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Michigan without
regard to principals of conflict of laws. Any proceeding related to or arising
out of this Agreement shall be commenced, prosecuted or continued in the Circuit
Court in Kent County, Michigan located in Grand Rapids, Michigan or in the
United Stated District Court for the Western District of Michigan, and in any
appellate court thereof.
****
We look forward to your continuing contribution to the growth of the
Company. Please acknowledge your receipt of the Plan and this Award on the
enclosed copy of this Agreement, and return it to us.
Date Very truly yours,
---------------------------------------------
Xxxx X. Xxxxx
Executive Vice President & Chief Financial Officer
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ACKNOWLEDGMENT OF RECEIPT
I acknowledge receipt of the Xxxxxxx Company 2003 Long-Term Incentive Plan
(the "Plan") provided to me on Date. I further acknowledge receipt of this
Long-Term Incentive Agreement and agree to the terms and conditions expressed
herein and in the Plan.
Date: ----------------- ---------------------------------
<> <>
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EXHIBIT A
PERFORMANCE GOALS FOR 2007 FISCAL YEAR
Threshold 4% Net Income Growth (external operating basis)
Target 6% Net Income Growth (external operating basis)
Maximum 10% Net Income Growth (external operating basis)
The Target Net Income Growth for subsequent fiscal years within the Performance
Period, and the level of performance necessary for Threshold and Maximum payout,
shall be determined by the Committee no later than 90 days after the beginning
of such fiscal year.
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