DEL MONTE FOODS COMPANY PERFORMANCE SHARES AGREEMENT
Exhibit
10.5
This Performance Shares Agreement (the “Agreement”) contains the terms and conditions under
which the Compensation Committee of the Board (the “Committee”), on behalf of Del Monte Foods
Company (the “Company”), has granted to you, [EMPLOYEE NAME] (the “Participant”), as of
[Month 00, 0000] (the “Grant Date”), and pursuant to the Del Monte Foods Company 2002 Stock
Incentive Plan (the “Plan”), units representing the Common Stock of the Company known as
“Performance Shares,” in order to encourage you to continue to contribute to the Company’s growth
and success.
1. Grant of Performance Shares. The Performance Shares award consists of
00,000 units representing shares of the Common Stock of the Company, which the Company has
granted to the Participant as of the date hereof as a separate incentive in connection with his or
her service to the Company and not in lieu of any salary or other compensation for his or her
services. The Performance Shares also shall include any new, additional, or different securities
or units representing such securities the Participant may become entitled to receive with respect
to such Performance Shares by virtue of any increase or decrease in the number of issued shares of
Common Stock resulting from a subdivision or consolidation of shares of Common Stock, or the
payment of a stock dividend (but only on shares of Common Stock), or any other increase or decrease
in the number of such shares effected without receipt or payment of consideration by the Company,
or any change in the capitalization of the Company pursuant to Section 10(b) of the Plan, or by
virtue of any Change of Control or other transaction pursuant to Section 10(c) of the Plan. The
Performance Shares shall be subject to the Restrictions pursuant to Section 3 of this Agreement.
2. Participant’s Account; Certain Rights in Respect of Performance Shares.
(a) The Performance Shares granted to the Participant shall be entered into an account in the
Participant’s name. This account shall be a bookkeeping entry only and shall be utilized solely as
a device for the measurement and determination of the number of shares of Common Stock to be paid
to or in respect of the Participant pursuant to this Agreement.
(b) During the period before the release of the Restrictions on the Performance Shares as
provided in Section 4, the Participant shall have no voting rights in respect of the Performance
Shares.
(c) Dividend equivalents will be credited in the form of additional Performance Shares to the
Participant’s account, based on the Fair Market Value of Common Stock on the date the dividend is
issued.
3. Restrictions. Prior to their release from the Restrictions as set forth in Section
4 below, all Performance Shares held for or in respect of the Participant, and the shares of Common
Stock that such Performance Shares represent, may not be assigned, transferred, or otherwise
encumbered or disposed of by the Participant.
4. Release of Performance Shares from Restrictions.
(a) Subject to the provisions of paragraph (e) of this Section 4, the Restrictions shall cease
to apply to the Performance Shares granted under this Agreement, or the Performance Shares shall
be forfeited, on the Vesting / Forfeiture Date defined below, or shall vest in their entirety
upon the earlier occurrence of a Change of Control. Upon the release of the Performance Shares
from the Restrictions (except if receipt of the Performance Shares is deferred as provided in
Section 5), the Participant shall be paid the value of his or her account in the form of Common
Stock. No fractional shares of Common Stock will be issued. If the calculation of the number of
shares of Common Stock to be issued results in fractional shares, then the number of shares of
Common Stock will be rounded up to the nearest whole share of Common Stock.
(b) The Committee, in its sole discretion, has established a target performance goal based on
the Company’s Return on Invested Capital (“ROIC Target”), which will be measured annually over a
three (3) year “performance period” commencing on [Date] through [Date]. The ROIC Target or the
Performance Shares award may be adjusted by the Committee from time to time, in its sole
discretion, to the extent necessary in order to reflect a change in corporate capitalization, such
as a stock split or dividend, or a corporate transaction, such as any merger, consolidation,
separation (including a spinoff or other distribution of stock or property by the Company),
reorganization, or any partial or complete liquidation by the Company, as provided by Sections
10(b) or 10(c) of the Plan, asset write-downs, litigation or claim judgments or settlements,
effects of changes in U.S. tax laws, generally accepted accounting principles or other laws or
provisions affecting the Company’s reported financial results, extraordinary, unusual or
non-recurring items as described in Accounting Principles Board Opinion No. 30 and/or in
management’s discussion and analysis of financial condition and results of operations appearing in
the Company’s annual report to stockholders for the applicable year, foreign exchange gains and
losses, exchange rate effects, as applicable, for non-U.S. dollar denominated net sales and
operating earnings, the effects of any statutory adjustments to corporate tax rates; provided,
however, that to the extent that any such inclusions or exclusions affect awards to “covered
employees” (as such term is defined in Section 162(m) of the Code), they shall be prescribed in a
manner that strives to meet the requirements of Section 162(m) of the Code.
Based on the Company’s level of achievement of the ROIC Target, the Restrictions shall cease to
apply to the Performance Shares or the Performance Shares shall be forfeited, according to the
following matrix:
Vesting of Performance Shares based on Achievement of ROIC Targets
| Percent of | ||||||||
| Performance | ||||||||
| Shares Released | ||||||||
| from Restrictions | ||||||||
| or Forfeited Based | ||||||||
| Performance | on Achievement of | Vesting / Forfeiture | ||||||
| Period | ROIC Target | ROIC Target | Date | |||||
(“Fiscal Year [YEAR]”)
|
Greater than or equal to Fiscal Year [YEAR] ROIC Target (X.X%) = vest | 25 | % | First day after Company files its Form 10-K for | ||||
| Fiscal Year [YEAR] | ||||||||
| Less than Fiscal Year [YEAR] ROIC Target (X.X%) = forfeiture | ||||||||
(“Fiscal Year [YEAR]”)
|
Greater than or equal to Fiscal Year [YEAR] ROIC Target (X.X%) = vest | 25 | % | First day after Company files its Form 10-K for | ||||
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| Percent of | ||||||||
| Performance | ||||||||
| Shares Released | ||||||||
| from Restrictions | ||||||||
| or Forfeited Based | ||||||||
| Performance | on Achievement of | Vesting / Forfeiture | ||||||
| Period | ROIC Target | ROIC Target | Date | |||||
| Fiscal Year [YEAR] | ||||||||
| Less than Fiscal Year [YEAR] ROIC Target (X.X %) = forfeiture | ||||||||
(“Fiscal Year [YEAR]”)
|
Greater than or equal to Fiscal Year [YEAR] ROIC Target (X.X %) = vest | 50 | % | First day after Company
files its Form 10-K for Fiscal Year [YEAR] |
||||
| Less than Fiscal Year [YEAR] ROIC Target (X.X %) = forfeiture | ||||||||
The Committee shall have sole discretion to determine whether the ROIC Target has been achieved and
whether the Restrictions shall be released from any or all of the Performance Shares. The
Committee’s determinations pursuant to the exercise of discretion with respect to all matters
described in this paragraph shall be final and binding on the Participant.
(c) The vesting of the Performance Shares, if any, shall be accelerated to include
cumulatively the next level(s) of vesting commensurate with the level of ROIC Target achieved. For
example, if the Company’s Fiscal Year [2009] ROIC Target is achieved or surpassed in Fiscal Year
[2007], then 100% vesting of all Performance Shares would occur on the first day after the Company
files its Form 10-K for Fiscal Year [2007], subject to the provisions of paragraph (e) of this
Section 4. Likewise, if the Company’s Fiscal Year [2007] ROIC Target is not achieved, then 25% of
the Performance Shares shall be permanently forfeited, even if the Company achieves or exceeds its
ROIC Target in a subsequent performance period.
(d) Upon the termination of the Participant’s employment by reason of Disability or death, the
Performance Shares held by such Participant or his or her designated beneficiary (as applicable)
shall continue to vest at the time and in the amounts (if any) set forth pursuant to paragraph (a)
of this Section 4, and Common Stock that is distributed on account of Performance Shares that
become vested (if any) shall be distributed to the Participant or his or her designated beneficiary
(as applicable) subject to Section 6, below.
(e) Upon the termination of the Participant’s employment by reason of Retirement, the
Performance Shares that remain subject to the Restrictions shall cease to apply on a pro-rata basis
pursuant to the Company’s pro-rata vesting policy in effect at the time of Retirement ;
provided further, that in the case of Retirement, the maximum number of Performance Shares that may
vest shall be that number, if any, that would have vested on the next Vesting/Forfeiture Date set
forth in Section 4(b) above following the Participant’s Retirement on the basis of the degree to
which the ROIC Target has been achieved.
(f) Upon the termination of the Participant’s employment for any reason other than Disability,
death or Retirement, Performance Shares that remain subject to the Restrictions at such time
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shall be forfeited by the Participant to the Company; provided that, for Participants (i)
covered under the Executive Severance Policy or (ii) who are parties to an employment agreement
with the Company or a Subsidiary of the Company, in the case of termination of employment without
Cause or resignation for Good Reason (as defined in the Executive Severance Policy or employment
agreement, as applicable), these Performance Shares will be treated under such policy or employment
agreement; provided further, that in the case of either (i) or (ii) above, the maximum number of
Performance Shares that may vest shall be that number, if any, that would have vested on the next
Vesting/Forfeiture Date set forth in Section 4(b) above following such termination on the basis of
the degree to which the ROIC Target has been achieved.
5. Deferral. The Committee has the right to determine, in its sole discretion,
whether and in what manner Participants shall be permitted to elect to defer the receipt of a
distribution of Common Stock in respect of the Performance Shares under a deferral plan of the
Company, in which case, after the Restrictions are released, the Performance Shares would remain as
stock equivalent units in the Participant’s account. Stock equivalent units held in the
Participant’s account pursuant to this Section 5 shall accrue dividend equivalents that will be
credited in the form of additional stock equivalent units to the Participant’s account, based on
the Fair Market Value of Common Stock on the date the dividend is issued. At the end of the
deferral period, all stock equivalent units will be converted and distributed to the Participant in
the form of Common Stock. No fractional shares of Common Stock will be issued. If the calculation
of the number of shares of Common Stock to be issued results in fractional shares, then the number
of shares of Common Stock will be rounded up to the nearest whole share of Common Stock.
6. Designation of Beneficiary. The Participant may designate a beneficiary or
beneficiaries to whom, along with all other grants or awards made to the Participant under the
Plan, unvested Performance Shares or Common Stock that is distributed on account of Performance
Shares that become vested following the Participant’s death shall be transferred. A Participant
shall designate his or her beneficiary by executing the “2002 Stock Incentive Plan Beneficiary
Designation and Spousal Consent Form” and returning it to the Corporate Secretary. Any form so
submitted shall replace, in respect of all grants or awards made to the Participant under the Plan,
any previous version of the same form the Participant may have submitted to the Corporate
Secretary. A Participant shall have the right to change his or her beneficiary from time to time
by executing a subsequent “2002 Stock Incentive Plan Beneficiary Designation and Spousal Consent
Form” and otherwise complying with the terms of such form and the Committee’s rules and procedures,
as in effect from time to time. The Committee shall be entitled to rely on the last “2002 Stock
Incentive Plan Beneficiary Designation and Spousal Consent Form” submitted by the Participant, and
accepted by the Corporate Secretary, prior to such Participant’s death. In the absence of such
designation of beneficiary, unvested Performance Shares or Common Stock that is distributed on
account of Performance Shares that become vested following the Participant’s death will be
transferred to the Participant’s surviving spouse, or if none, to the Participant’s estate. If the
Committee has any doubt as to the proper beneficiary, the Committee shall have the right,
exercisable in its sole discretion, to withhold such payments until this matter is resolved to the
Committee’s satisfaction.
7. Taxes. The Company may, in its discretion, make such provisions and take such
steps as it may deem necessary or appropriate for the withholding of all federal, state, local and
other taxes required by law to be withheld with respect to the vesting of any Performance Shares or
the distribution of Common Stock on account of the vesting of any Performance Shares, including,
but not limited to, withholding shares of Common Stock granted under this Agreement equal in value
to such withholding taxes, deducting the amount of such withholding taxes from any other amount
then or thereafter payable to the Participant, or requiring the Participant or the beneficiary or
legal representative of the Participant to pay in cash to the Company the amount required to be
withheld or to execute such documents as the Company deems necessary or desirable to enable it to
satisfy its withholding obligations.
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8. No Special Rights; No Right to Future Awards. Nothing contained in this Agreement
shall confer upon any Participant any right with respect to the continuation of his or her service
with the Company, or any right to receive any other grant, bonus, or other award.
9. Address for Notices. Any notice to be given to the Company under the terms of this
Agreement shall be addressed to the Company, in care of its Corporate Secretary, at One Market @
the Landmark, Xxx Xxxxxxxxx, XX 00000, or at such other address as the Company may hereafter
designate in writing.
10. Other Benefits. The benefits provided to the Participant pursuant to this
Agreement are in addition to any other benefits available to such Participant under any other plan
or program of the Company. The Agreement shall supplement and shall not supersede, modify, or
amend any other such plan or program except as may otherwise be expressly provided.
11. Plan Governs. This Agreement is subject to all of the terms and provisions of the
Plan. In the event of a conflict between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan shall govern. Capitalized terms and phrases
used and not defined in this Agreement shall have the meaning set forth in the Plan.
12. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without reference to its principles of conflicts of laws.
13. Committee Authority. The Committee shall have all discretion, power, and
authority to interpret the Plan and this Agreement and to adopt such rules for the administration,
interpretation, and application of the Plan as are consistent therewith. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be final and binding
upon the Participant, the Company, and all other interested persons, and shall be given the maximum
deference permitted by law. No member of the Committee shall be personally liable for any action,
determination, or interpretation made in good faith with respect to the Plan or this Agreement.
14. Captions. The captions provided herein are for convenience only and are not to
serve as a basis for the interpretation or construction of this Agreement.
15. Agreement Severable. In the event that any provision in this Agreement shall be
held invalid or unenforceable, such provision shall be severable from, and such invalidity or
unenforceability shall not be construed to have any effect on, the remaining provisions of this
Agreement.
16. Definitions. For purposes of this Agreement, words and phrases bearing initial
capital letters shall have the meanings assigned in the Plan, and the following words and phrases
shall have the following meanings unless a different meaning is plainly required by the context:
(a) “Restrictions” means those restrictions on the Performance Shares set forth in
Section 3.
(b) “Return on Invested Capital” means net operating profit after tax (income from
continuing operations (adjusted for integration costs and expenses) before income taxes, plus
interest expense, plus amortization, less taxes calculated at the annual effective tax rate)
divided by average invested capital (total assets less cash less assets of discontinued operations
less deferred tax assets less accounts payable and accrued expenses less other non-current
liabilities) measured at the end of the fiscal year.
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