Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”) as of the end of the Award Year. The Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination. (b) The Grantee may earn up to 960 Contingent Performance Shares for each Award Year (the “Annual Award”) of the Award Period, as follows: (1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible for the Annual Award. If the value of $10,000 invested for each Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1). (c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below: (1) The performance measured for earnings growth will be based upon the Company’s Delmarva propane distribution operation generating at least the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award Period. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for the Three-Year Award. If the target EBIT in the Company’s Delmarva propane distribution operation is not achieved for the Award Period, the Grantee will not be eligible to any Contingent Performance Shares under this Paragraph (c)(1). (2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received. (d) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2. (e) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2. (f) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption. (g) In the event of a Change in Control, as defined in the Plan, during the Award Period, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period that has expired as of the date of such Change in Control. (h) If, during the Award Period, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows: (1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately; (2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced; (3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award Period, as set forth above. (i) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 2 contracts
Samples: Performance Share Agreement (Chesapeake Utilities Corp), Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”), (2) achievement of established milestones and objectives under the Company’s long-term strategic plan (“SP”), and (3) Shareholder Value as of the end of the Award Year. The EG, SP and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 5,760 Contingent Performance Shares for each Award Year (the “Annual Maximum Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible to earn up to 1,280 Contingent Performance Shares of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(12) The performance measured for earnings growth EG will be based upon achieving a growth in earnings per share of 3.5% to 7% for the award year. If the Company earnings per share for 2007 is equal to or exceeds $1.79, the Grantee is eligible to earn 1,920 Contingent Performance Shares of the Maximum Award. If the earnings per share is equal to or greater than $1.82, the Grantee is eligible to earn an additional 640 Contingent Performance Shares of the Maximum Award. If the earnings per share is equal to or greater than $1.85, the Grantee is eligible to earn an additional 640 Contingent Performance Shares but in no event shall the Grantee earn more than 3,200 Contingent Performance Shares of the Maximum Award under this paragraph (b) (2).
(3) The performance measured for SG will be based upon execution of the Company’s Delmarva propane distribution operation generating at least long-term strategic plan, assuming attainment of pre-authorized milestones and objectives as established by the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award PeriodCompensation Committee. If the Delmarva propane distribution operation achieves the target EBITlong-term strategy is executed, the Grantee will be eligible for to earn 1,280 of the Three-Year Contingent Performance Shares of the Maximum Award. If the target EBIT in After approval from the Company’s Delmarva propane distribution operation Board of Directors, if the long-term strategic plan is not achieved for the Award Periodexecuted, the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(3).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares Shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”), (2) achievement of established milestones and objectives under the Company’s long-term strategic plan (“SP”), and (3) Shareholder Value as of the end of the Award Year. The EG, SP and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 3,600 Contingent Performance Shares for each Award Year (the “Annual Maximum Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible to earn up to 800 Contingent Performance Shares of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(12) The performance measured for earnings growth EG will be based upon achieving a growth in earnings per share of 3.5% to 7% for the award year. If the Company earnings per share for 2007 is equal to or exceeds $1.79, the Grantee is eligible to earn 1,200 Contingent Performance Shares of the Maximum Award. If the earnings per share is equal to or greater than $1.82, the Grantee is eligible to earn an additional 400 Contingent Performance Shares of the Maximum Award. If the earnings per share is equal to or greater than $1.85, the Grantee is eligible to earn an additional 400 Contingent Performance Shares of the Maximum Award but in no event shall the Grantee earn more than 2,000 Contingent Performance Shares of the Maximum Award under this paragraph (b) (2).
(3) The performance measured for SG will be based upon execution of the Company’s Delmarva propane distribution operation generating at least long-term strategic plan, assuming attainment of pre-authorized milestones and objectives as established by the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award PeriodCompensation Committee. If the Delmarva propane distribution operation achieves the target EBITlong-term strategy is executed, the Grantee will be eligible for to earn 800 Contingent Performance Shares of the Three-Year Maximum Award. If the target EBIT in After approval from the Company’s Delmarva propane distribution operation Board of Directors, if the long-term strategic plan is not achieved for the Award Periodexecuted, the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(3).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares Shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s 's independent auditors have certified the Company’s 's financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s 's (1) Shareholder Value and (2) earnings growth (“"EG”"), (2) growth in non-regulated investments ("NRIG") and (3) Shareholder Value as of the end of the Award Year. The EG, NRIG and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s 's annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [number of shares awarded] Contingent Performance Shares for each Award Year (the “Annual "Maximum Award”") of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s 's performance exceeds the Utility Index, the Grantee will be eligible to earn up to 30% of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).. [Note: Paragraphs (2) and (3) below apply to Messrs. Schimkaitis, McMasters and Boyles]
(c0) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance Xxx perfoxxxxxx measured for earnings growth EG will be based upon the performance of the Company’s 's regulated natural gas operations and the Company's Delmarva propane distribution operations.
a. The performance measured for EG for the Company's regulated natural gas operations will be based upon achieving at least 90% of the average allowed pre-tax return on investment ("target return on investment") in the Award Year. If the Company's regulated operations achieve the target return on investment in the Award Year, the Grantee will be eligible to earn at least 25% of the Maximum Award. If the target return on investment is not achieved in the Company's regulated natural gas operations, the Grantee shall not earn any Contingent Performance Shares under this paragraph (b)(2)(a).
b. The performance measured for EG for the Company's Delmarva propane distribution operation will be based upon generating at least the target level of earnings, before interest expense and income taxes (“"target EBIT”"), over for the Award PeriodYear. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for to earn 20% of the Three-Year Maximum Award. If the target EBIT in the Company’s 's Delmarva propane distribution operation is not achieved for the Award Periodachieved, the Grantee will not be eligible to any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(2)(b).
(23) If the Grantee is eligible to receive the ThreeThe performance measured for growth in non-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number regulated investments ("NRIG") will be based upon execution of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(d) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder long-term strategic plan, assuming attainment of record of pre-authorized milestones and objectives. If the Contingent Performance Shares (the "Issue Date"). If, howeverlong-term strategy is executed, the Grantee receives Shares as part of any dividend or other distribution with respect will be eligible to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all earn 25% of the terms and conditions imposed by this Section 2.
(e) SaleMaximum Award. If the long-term strategic plan is not executed, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(f) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining approval from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence Company's Board of such exemption.
(g) In the event of a Change in Control, as defined in the Plan, during the Award PeriodDirectors, the Grantee shall not earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period that has expired as of the date of such Change in Control.
(h) If, during the Award Period, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award Period, as set forth above.
(i) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Sharesunder this paragraph (b)(3).
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s 's independent auditors have certified the Company’s 's financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s 's (1) Shareholder Value and (2) earnings growth (“"EG”"), (2) growth in non-regulated net income ("NRNI"), and (3) share price relative to book value ("Price/Book Value") as of the end of the Award Year. The Shareholder EG, NRNI and Price/Book Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s 's annual reports and shall be subject to adjustment by the Committee for 2 extraordinary events events, including, but not limited to, temperature fluctuation during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [X,XXX] Contingent Performance Shares for each Award Year (the “Annual "Maximum Award”) of the Award Period"), as follows:
(1) The performance measured If the EG for Shareholder Value will be the value of $10,000 invested Award Year exceeds the median five-year weighted average growth for companies included in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility IndexC.
A. Turnxx xxxabase (natural gas distribution companies and integrated natural gas distribution companies), the Grantee will be eligible for may earn up to fifty percent (50%) of the Annual Maximum Award. , as follows:
(i) If the value EG is in the fourth quartile of $10,000 invested for each Award Year does not exceed companies in the Utility Index for C.A. Turnxx xxxabase, the respective Award YearGrantee shall earn fifty percent (50%) of the Maximum Award, or
(ii) If the EG falls between the median and the fourth quartile, the Grantee shall earn a portion of the fifty percent (50%) available under this paragraph that is pro-rated to reflect the position of the Company's earnings growth within the third quartile, or
(iii) If the EG is at or below the median, the Grantee shall not earn any Contingent Performance Shares under this Paragraph paragraph (b)(11).;
(c2) The Grantee may earn up to 6,720 Contingent Performance Shares at If the end of temperature-adjusted NRNI for the Award Period Year exceeds the temperature-adjusted NRNI for the prior calendar year by fifteen percent (the “Three-Year Award”15%) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance measured for earnings growth will be based upon the Company’s Delmarva propane distribution operation generating at least the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award Period. If the Delmarva propane distribution operation achieves the target EBITor more, the Grantee will be eligible for shall earn thirty percent (30%) of the Three-Year Maximum Award. If the target EBIT in the Company’s Delmarva propane distribution operation is not achieved temperature-adjusted NRNI for the Award PeriodYear does not exceed the temperature-adjusted NRNI for the prior calendar year by at least fifteen percent (15%), the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph paragraph (c)(12); and
(3) If the Price/Book Value for the Award Year is equal to or greater than the average Price/Book Value for the Award Year of companies in the third quartile of the C.
A. Turnxx xxxabase (natural gas distribution companies and integrated natural gas distribution companies), the Grantee shall earn twenty percent (20%) of the Maximum Award. If the Price/Book Value for the Award Year does not equal or exceed the average Price/Book Value for the Award Year of companies in the third quartile of the C.A. Turnxx xxxabase, the Grantee shall not earn any Contingent Performance Shares under this paragraph (3). If one or more of the companies in the C.A. Turnxx xxxabase is at any time during the Award Year the subject of an announced acquisition, its stock shall not be considered for purposes of this paragraph (3).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares shares of Common Stock as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shares shall be treated as if they are Contingent Performance Shares, and such Shares shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration rated based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local income taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.If
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”), (2) growth in non-regulated investments (“NRIG”) and (3) Shareholder Value as of the end of the Award Year. The EG, NRIG and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [number of shares] Contingent Performance Shares for each Award Year (the “Annual Maximum Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible to earn up to 30% of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(12) The performance measured for earnings growth EG will be based upon the performance of the Company’s regulated natural gas operations, the Company’s Delmarva propane distribution operations and the overall corporate results of operation.
a. The performance measured for EG for the Company’s regulated natural gas operations will be based upon achieving at least 90% of the average allowed pre-tax return on investment (“target return on investment”) in the Award Year. If the Company’s regulated operations achieve the target return on investment in the Award Year, the Grantee will be eligible to earn at least 12.5% of the Maximum Award. If the target return on investment is not achieved in the Company’s regulated natural gas operations, the Grantee shall not earn any Contingent Performance Shares under this paragraph (b)(2)(a).
b. The performance measured for EG for the Company’s Delmarva propane distribution operation will be based upon generating at least the target level of earnings, before interest expense and income taxes (“target EBIT”), over for the Award PeriodYear. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for to earn 12.5% of the Three-Year Maximum Award. If the target EBIT in the Company’s Delmarva propane distribution operation is not achieved for the Award Periodachieved, the Grantee will not be eligible to any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(2)(b).
(2) c. The performance measured for overall corporate results of operation will be based upon achieving a growth in earnings per share of 3% to 5% for the award year. If the Company earnings per share for 2005 is equal to or exceeds $1.65, the Grantee is eligible to receive earn 10% of the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007maximum award. If the earnings per share is equal to or greater than $1.68, the number Grantee is eligible to earn an additional 10% of the maximum award but in no event shall the Grantee earn more than a 20% of the maximum award under this paragraph (b)(2)(c). If any of the award under this paragraph is unearned in the current year, the Grantee is eligible to earn those shares, if the accumulative earnings per share for 2005 to 2007 equals or exceeds $5.19.
(3) The performance measured for growth in non-regulated investments (“NRIG”) will be based upon execution of the Company’s long-term strategic plan, assuming attainment of pre-authorized milestones and objectives. If the long-term strategy is executed, the Grantee will be eligible to earn 25% of the Maximum Award. If the long-term strategic plan is not executed, after approval from the Company’s Board of Directors, the Grantee shall not earn any Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares receivedunder this paragraph (b)(3).
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares shares of Common Stock as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shares shall be treated as if they are Contingent Performance Shares, and such Shares shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration rated based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local income taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”) as of the end of the Award Year. The Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 1,200 Contingent Performance Shares for each Award Year beginning with 2007 (the “Annual Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible for the Annual Award. If the value of $10,000 invested for each Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 7,840 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance measured for earnings growth EG will be based upon the Company’s Delmarva propane distribution operation generating regulated natural gas operations achieving at least 90% of the target level of earnings, before interest expense and income taxes average allowed pre-tax return on investment (“target EBITreturn on investment”), . If the Company’s regulated operations achieve the target return on investment over the Award Period. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for the Three-Year Award. If the target EBIT return on investment is not achieved in the Company’s Delmarva propane distribution operation is not achieved for the Award Periodregulated natural gas operations, the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph (c)(1).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 7,840 less any Forfeitable Performance Shares received.
(d) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2.
(e) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(f) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(g) In the event of a Change in Control, as defined in the Plan, during the Award Period, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period that has expired as of the date of such Change in Control.
(h) If, during the Award Period, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award Period, as set forth above.
(i) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s 's independent auditors have certified the Company’s 's financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s 's (1) Shareholder Value and (2) earnings growth (“"EG”"), (2) growth in non-regulated investments ("NRIG"), and (3) Shareholder Value as of the end of the Award Year. The EG, NRIG and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s 's annual reports and shall be subject to adjustment by the Committee for extraordinary events events, including, but not limited to, temperature fluctuation during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [XXXX] Contingent Performance Shares for each Award Year (the “Annual "Maximum Award”) of the Award Period"), as follows:
(1) If the Grantee for the Award Year exceeds the Earning's Growth measured as a return on equity or alternatively, an income target in excess of budgets for the Award Year, the Grantee will be eligible to earn up to 35% of the maximum award. If the Earnings Growth is at or below the target, the Grantee shall not earn any Contingent Performance Shares under this paragraph (1).
(2) If the Non-Regulated Investment increased from 23% to 28% of the Company's total capitalization in the Award Year, or alternatively the non-regulated investment growth may be stated as a dollar amount, the Grantee shall earn 30% of the maximum award. If the Non-Regulated Investment does not hit the target of 28% of total capitalization of the Company or the investment growth dollar target, the Grantee shall not earn any Contingent Performance Shares under is paragraph (2); and
(3) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s 's performance exceeds the Utility Index, the Grantee will be eligible for to earn up to 30% of the Annual Awardmaximum award. If the value of $10,000 invested for each the Award Year does not exceed the Utility Industry Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph paragraph (b)(13).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance measured for earnings growth will be based upon the Company’s Delmarva propane distribution operation generating at least the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award Period. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for the Three-Year Award. If the target EBIT in the Company’s Delmarva propane distribution operation is not achieved for the Award Period, the Grantee will not be eligible to any Contingent Performance Shares under this Paragraph (c)(1).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(d) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares shares of Common Stock as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shares shall be treated as if they are Contingent Performance Shares, and such Shares shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration rated based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local income taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”) as of the end of the Award Year. The Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 Contingent Performance Shares for each Award Year (the “Annual Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible for the Annual Award. If the value of $10,000 invested for each Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 6.720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance measured for earnings growth EG will be based upon the Company’s Delmarva propane distribution operation generating regulated natural gas operations achieving at least 90% of the target level of earnings, before interest expense and income taxes average allowed pre-tax return on investment (“target EBITreturn on investment”), . If the Company’s regulated operations achieve the target return on investment over the Award Period. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for the Three-Year Award. If the target EBIT return on investment is not achieved in the Company’s Delmarva propane distribution operation is not achieved for the Award Periodregulated natural gas operations, the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph (c)(1).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(d) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2.
(e) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(f) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(g) In the event of a Change in Control, as defined in the Plan, during the Award Period, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period that has expired as of the date of such Change in Control.
(h) If, during the Award Period, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award Period, as set forth above.
(i) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”), (2) achievement of established milestones and objectives under the Company’s long-term strategic plan (“SP”), and (3) Shareholder Value as of the end of the Award Year. The EG, SP and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 10,800 Contingent Performance Shares for each Award Year (the “Annual Maximum Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible to earn up to 2,400 Contingent Performance Shares of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(12) The performance measured for earnings growth EG will be based upon achieving a growth in earnings per share of 3.5% to 7% for the award year. If the Company earnings per share for 2007 is equal to or exceeds $1.79, the Grantee is eligible to earn 3,600 Contingent Performance Shares of the Maximum Award. If the earnings per share is equal to or greater than $1.82, the Grantee is eligible to earn an additional 1,200 Contingent Performance Shares of the Maximum Award. If the earnings per share is equal to or greater than $1.85, the Grantee is eligible to earn an additional 1,200 Contingent Performance Shares of the Maximum Award but in no event shall the Grantee earn more than 6,000 Contingent Performance Shares of the Maximum Award under this paragraph (b) (2).
(3) The performance measured for SG will be based upon execution of the Company’s Delmarva propane distribution operation generating at least long-term strategic plan, assuming attainment of pre-authorized milestones and objectives as established by the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award PeriodCompensation Committee. If the Delmarva propane distribution operation achieves the target EBITlong-term strategy is executed, the Grantee will be eligible for to earn 2,400 Contingent Performance Shares of the Three-Year Maximum Award. If the target EBIT in After approval from the Company’s Delmarva propane distribution operation Board of Directors, if the long-term strategic plan is not achieved for the Award Periodexecuted, the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(3).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares Shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s 's independent auditors have certified the Company’s 's financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s 's (1) Shareholder Value and (2) earnings growth (“"EG”") as of the end of the Award Year. The Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s 's annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [number of shares awarded] Contingent Performance Shares for each Award Year (the “"Annual Award”") of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s 's performance exceeds the Utility Index, the Grantee will be eligible for the Annual Award. If the value of $10,000 invested for each Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 [number of shares awarded] Contingent Performance Shares at the end of the Award Period (the “"Three-Year Award”) "), as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance measured for earnings growth will be based upon the Company’s 's Delmarva propane distribution operation generating at least the target level of earnings, before interest expense and income taxes (“"target EBIT”"), over the Award Period. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for the Three-Year Award. If the target EBIT in the Company’s 's Delmarva propane distribution operation is not achieved for the Award Period, the Grantee will not be eligible to any Contingent Performance Shares under this Paragraph (c)(1).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 2003 and/or 20072004, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 [number of shares awarded] less any Forfeitable Performance Shares received.
(d) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares shares of Common Stock as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shares shall be treated as if they are Contingent Performance Shares, and such Shares shares shall be subject to all of the terms and conditions imposed by this Section 2.
(e) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(f) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(g) In the event of a Change in Control, as defined in the Plan, during the Award Period, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration rated based on the proportion of the Award Period that has expired as of the date of such Change in Control.
(h) If, during the Award Period, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award Period, as set forth above.
(i) The Grantee shall be solely responsible for any federal, state and local income taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s 's independent auditors have certified the Company’s 's financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s 's (1) Shareholder Value and (2) earnings growth (“"EG”"), (2) growth in non-regulated investments ("NRIG") and (3) Shareholder Value as of the end of the Award Year. The EG, NRIG and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s 's annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [number of shares awarded] Contingent Performance Shares for each Award Year (the “Annual "Maximum Award”") of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s 's performance exceeds the Utility Index, the Grantee will be eligible to earn up to 30% of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(12) The performance measured for earnings growth EG will be based upon the performance of the Company’s 's regulated natural gas operations, the Company's Delmarva propane distribution operations and the overall corporate results of operation.
a. The performance measured for EG for the Company's regulated natural gas operations will be based upon achieving at least 90% of the average allowed pre-tax return on investment ("target return on investment") in the Award Year. If the Company's regulated operations achieve the target return on investment in the Award Year, the Grantee will be eligible to earn at least 12.5% of the Maximum Award. If the target return on investment is not achieved in the Company's regulated natural gas operations, the Grantee shall not earn any Contingent Performance Shares under this paragraph (b)(2)(a).
b. The performance measured for EG for the Company's Delmarva propane distribution operation will be based upon generating at least the target level of earnings, before interest expense and income taxes (“"target EBIT”"), over for the Award PeriodYear. If the Delmarva propane distribution operation achieves the target EBIT, the Grantee will be eligible for to earn 12.5% of the Three-Year Maximum Award. If the target EBIT in the Company’s 's Delmarva propane distribution operation is not achieved for the Award Periodachieved, the Grantee will not be eligible to any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(2)(b).
c. The performance measured for overall corporate results of operation will be based upon achieving an earnings per share of $1.60 or greater for the award year. If the Company achieved the targeted earnings per share, the Grantee will be eligible to earn 20% of the maximum award. If the targeted earnings per share is not achieved, the Grantee will not be eligible to receive any Contingent Performance Shares under this paragraph (b)(2)(c).
(23) The performance measured for growth in non-regulated investments ("NRIG") will be based upon execution of the Company's long-term strategic plan, assuming attainment of pre-authorized milestones and objectives. If the long-term strategy is executed, the Grantee is will be eligible to receive earn 25% of the ThreeMaximum Award. If the long-Year Awardterm strategic plan is not executed, but has received Forfeitable Performance Shares for 2006 and/or 2007after approval from the Company's Board of Directors, the number of Grantee shall not earn any Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares receivedunder this paragraph (b)(3).
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares shares of Common Stock as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shares shall be treated as if they are Contingent Performance Shares, and such Shares shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration rated based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local income taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s 's independent auditors have certified the Company’s 's financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s 's (1) Shareholder Value and (2) earnings growth (“"EG”"), (2) growth in non-regulated net income ("NRNI"), and (3) share price relative to book value ("Price/Book Value") as of the end of the Award Year. The Shareholder EG, NRNI and Price/Book Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s 's annual reports and shall be subject to adjustment by the Committee for extraordinary events events, including, but not limited to, temperature fluctuation during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [XXXX] Contingent Performance Shares for each Award Year (the “Annual "Maximum Award”) of the Award Period"), as follows:
(1) The performance measured If the EG for Shareholder Value will be the value of $10,000 invested Award Year exceeds the median five-year weighted average growth for companies included in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility IndexC.
A. Turnxx xxxabase (natural gas distribution companies and integrated natural gas distribution companies), the Grantee will be eligible for may earn up to fifty percent (50%) of the Annual Maximum Award. , as follows:
(i) If the value EG is in the fourth quartile of $10,000 invested for each Award Year does not exceed companies in the Utility Index for C.A. Turnxx xxxabase, the respective Award YearGrantee shall earn fifty percent (50%) of the Maximum Award, or
(ii) If the EG falls between the median and the fourth quartile, the Grantee shall earn a portion of the fifty percent (50%) available under this paragraph that is pro-rated to reflect the position of the Company's earnings growth within the third quartile, or
(iii) If the EG is at or below the median, the Grantee shall not earn any Contingent Performance Shares under this Paragraph paragraph (b)(11).;
(c2) The Grantee may earn up to 6,720 Contingent Performance Shares at If the end of temperature-adjusted NRNI for the Award Period Year exceeds the temperature-adjusted NRNI for the prior calendar year by fifteen percent (the “Three-Year Award”15%) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(1) The performance measured for earnings growth will be based upon the Company’s Delmarva propane distribution operation generating at least the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award Period. If the Delmarva propane distribution operation achieves the target EBITor more, the Grantee will be eligible for shall earn thirty percent (30%) of the Three-Year Maximum Award. If the target EBIT in the Company’s Delmarva propane distribution operation is not achieved temperature-adjusted NRNI for the Award PeriodYear does not exceed the temperature-adjusted NRNI for the prior calendar year by at least fifteen percent (15%), the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph paragraph (c)(12); and
(3) If the Price/Book Value for the Award Year is equal to or greater than the average Price/Book Value for the Award Year of companies in the third quartile of the C.
A. Turnxx xxxabase (natural gas distribution companies and integrated natural gas distribution companies), the Grantee shall earn twenty percent (20%) of the Maximum Award. If the Price/Book Value for the Award Year does not equal or exceed the average Price/Book Value for the Award Year of companies in the third quartile of the C.A. Turnxx xxxabase, the Grantee shall not earn any Contingent Performance Shares under this paragraph (3). If one or more of the companies in the C.A. Turnxx xxxabase is at any time during the Award Year the subject of an announced acquisition, its stock shall not be considered for purposes of this paragraph (3).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares shares of Common Stock as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shares shall be treated as if they are Contingent Performance Shares, and such Shares shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration rated based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local income taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
Appears in 1 contract
Samples: Performance Share Agreement (Chesapeake Utilities Corp)
Contingent Performance Shares. (a) As soon as practicable after the Company’s independent auditors have certified the Company’s financial statements for the Award Year, the Committee shall determine for purposes of this Agreement the Company’s (1) Shareholder Value and (2) earnings growth (“EG”), (2) achievement of established milestones and objectives under the Company’s long-term strategic plan (“SP”), and (3) Shareholder Value as of the end of the Award Year. The EG, SP and Shareholder Value and EG shall be determined by the Committee in accordance with the terms of the Plan and this Agreement based on financial results reported to shareholders in the Company’s annual reports and shall be subject to adjustment by the Committee for extraordinary events during the Award Year. The Committee shall promptly notify the Grantee of its determination.
(b) The Grantee may earn up to 960 [number of shares - 9,600 for Xxxx X. Xxxxxxxxxxx, 6,820 for Xxxx X. Xxxxxx and 5,120 for Xxxxxxx X. XxXxxxxxx] Contingent Performance Shares for each Award Year (the “Annual Maximum Award”) of the Award Period, as follows:
(1) The performance measured for Shareholder Value will be the value of $10,000 invested in the Company stock compared to a Utility Index. If the Company’s performance exceeds the Utility Index, the Grantee will be eligible to earn up to 30% of the Maximum Award for the Annual AwardAward Year. If the value of $10,000 invested for each the Award Year does not exceed the Utility Index for the respective Award Year, the Grantee shall not earn any Contingent Performance Shares under this Paragraph (b)(1).
(c) The Grantee may earn up to 6,720 Contingent Performance Shares at the end of the Award Period (the “Three-Year Award”) as follows, subject to the restrictions specified in Section 3(a), and further described in Section 2(c)(2) below:
(12) The performance measured for earnings growth EG will be based upon achieving a growth in earnings per share of 3% to 5% for the award year. If the Company earnings per share for 2006 is equal to or exceeds [pre-determined target 1], the Grantee is eligible to earn 25% of the maximum award. If the earnings per share is equal to or greater than [pre-determined target 2], the Grantee is eligible to earn an additional 15% of the maximum award but in no event shall the Grantee earn more than 40% of the maximum award under this paragraph (b) (2). If any of the award under this paragraph is unearned in the current year, the Grantee is eligible to earn those shares, if the accumulative earnings per share for 2005 to 2007 equals or exceeds [pre-determined accumulative target].
(3) The performance measured for SG will be based upon execution of the Company’s Delmarva propane distribution operation generating at least long-term strategic plan, assuming attainment of pre-authorized milestones and objectives as established by the target level of earnings, before interest expense and income taxes (“target EBIT”), over the Award PeriodCompensation Committee. If the Delmarva propane distribution operation achieves the target EBITlong-term strategy is executed, the Grantee will be eligible for to earn 30% of the Three-Year Maximum Award. If the target EBIT in After approval from the Company’s Delmarva propane distribution operation Board of Directors, if the long-term strategic plan is not achieved for the Award Periodexecuted, the Grantee will shall not be eligible to earn any Contingent Performance Shares under this Paragraph paragraph (c)(1b)(3).
(2) If the Grantee is eligible to receive the Three-Year Award, but has received Forfeitable Performance Shares for 2006 and/or 2007, the number of Contingent Performance Shares awarded at the end of the Award Period shall equal 6,720 less any Forfeitable Performance Shares received.
(dc) Contingent Performance Shares that are earned by the Grantee pursuant to this Section 2 shall be issued promptly, without payment of consideration by the Grantee, within 2 ½ months of the end of the Award Year. The Grantee shall have the right to vote the Contingent Performance Shares and to receive the dividends distributable with respect to such shares Shares on and after, but not before, the date on which the Grantee is recorded on the Company's ledger as holder of record of the Contingent Performance Shares (the "Issue Date"). If, however, the Grantee receives Shares as part of any dividend or other distribution with respect to the Contingent Performance Shares, such Shares shall be treated as if they are Contingent Performance Shares, and such Shares shall be subject to all of the terms and conditions imposed by this Section 2.
(ed) Sale, transfer, pledge, or hypothecation of the Contingent Performance Shares shall be prohibited for a period of three (3) years after the Issue Date (the "Limitation Period"), and the Performance Shares shall bear a restrictive legend to that effect. Any attempt to dispose of Contingent Performance Shares in contravention of this Agreement shall be ineffective. Upon expiration of the Limitation Period, the transfer restrictions imposed by this Section shall expire, and new certificates representing the Contingent Performance Shares, without the restrictive legend described in this paragraph (d), shall be issued, subject to the provisions of paragraph (e) of this Section 2.
(fe) The Performance Shares will be not registered for resale under the Securities Act of 1933 or the laws of any state except when and to the extent determined by the Board pursuant to a resolution. Until a registration statement is filed and becomes effective, however, transfer of the Contingent Performance Shares after expiration of the Limitation Period shall require the availability of an exemption from such registration, and prior to the issuance of new certificates, the Company shall be entitled to take such measures as it deems appropriate (including but not limited to obtaining from the Grantee an investment representation letter and/or further legending the new certificates) to ensure that the Contingent Performance Shares are not transferred in the absence of such exemption.
(gf) In the event of a Change in Control, as defined in the Plan, during the Award PeriodYear, the Grantee shall earn at least the Maximum Award of Contingent Performance Shares set forth in this Section 2, as if all employment and performance criteria were satisfied, without any pro ration based on the proportion of the Award Period Year that has expired as of the date of such Change in Control.
(hg) If, during the Award PeriodYear, the Grantee is separated from employment, Contingent Performance Shares shall be deemed earned or forfeited as follows:
(1) Upon voluntary termination by the Grantee (other than for retirement at age 65 or as accepted by the Committee) or termination by the Company for failure of job performance or other just cause as determined by the Committee, all unearned Contingent Performance Shares shall be forfeited immediately;
(2) If the Grantee separates from employment by reason of death or total and permanent disability (as determined by the Committee), the number of Contingent Performance Shares that would otherwise have been earned at the end of the Award Period Year shall be reduced by pro rating such Contingent Performance Shares based on the proportion of the Award Period Year during which the Grantee was employed by the Company, unless the Committee determines that the Contingent Performance Shares shall not be so reduced;
(3) Retirement of the Grantee at age 65 or as accepted by the Committee shall not affect the Contingent Performance Shares, which shall continue to be earned through the remainder of the Award PeriodYear, as set forth above.
(ih) The Grantee shall be solely responsible for any federal, state and local taxes of any kind imposed in connection with the delivery of Contingent Performance Shares. Prior to the transfer of any Contingent Performance Shares to the Grantee, the Grantee shall remit to the Company an amount sufficient to satisfy any federal, state, local and other withholding tax requirements. The Grantee may elect to have all or part of any withholding tax obligation satisfied by having the Company withhold Shares otherwise deliverable to the Grantee as Contingent Performance Shares, unless the Committee determines otherwise by resolution. If the Grantee fails to make such payments or election, the Company and its subsidiaries shall, to the extent permitted by law, have the right to deduct from any payments of any kind otherwise due to the Grantee any taxes required by law to be withheld with respect to the Contingent Performance Shares.
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Samples: Performance Share Agreement (Chesapeake Utilities Corp)
