Exhibit 10(a)
XXXXXXX COMPANY
2006 LONG-TERM INCENTIVE AWARD AGREEMENT
(Under the Xxxxxxx Company 2003 Long-Term Incentive Plan)
TO: <><>
RE: Notice of Long-Term Incentive Award
Dear<>:
This is to notify you that Xxxxxxx Company (the "Company") has granted you
an Award under the Xxxxxxx Company 2003 Long-Term Incentive Plan (the "Plan"),
effective as of ________________ (the "Grant Date"). This Award consists of
three different types of incentives: a nonqualified stock option, shares of
service-based restricted stock, and performance-based restricted stock units.
The terms and conditions of each of these incentives are set forth in the
remainder of this agreement (the "Agreement"). The capitalized terms that are
not otherwise defined in this Agreement shall have the meanings ascribed to such
terms under the Plan.
SECTION 1
NONQUALIFIED STOCK OPTION
1.1 Grant of Option. As of the Grant Date, and subject to the terms and
conditions of this Agreement and the Plan, the Company grants you a nonqualified
stock option (the "Option") to purchase <>
shares of the Company's common stock, without par value ("Common Stock"), at a
per share price of $________ (the "Option Price"), which is equal to the Fair
Market Value of such Common Stock as of the Grant Date.
1.2 Timing and Duration of Exercise. -
(a) The Option shall vest on the dates set forth below (each a
"Vesting Date" and, subject to the requirements of subsection (b) below, may be
exercised after such Vesting Dates to purchase the number of shares of Common
Stock set forth opposite each such date; if you continue in the service of the
Company from the Grant Date through the Vesting Date:
Vesting Date Vested Shares
-------------------- -----------------
-------------------- <>Shares
-------------------- <>Shares
-------------------- <>Shares
-------------------- <>Shares
-------------------- <>Shares
Notwithstanding the above vesting schedule, any portion of the Option that has
not vested or
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been forfeited previously shall immediately vest in full upon, and, subject to
subsection (b) below, may be exercised in whole or in part at any time after,
(1) the occurrence of a Change of Control that occurs while you are employed by
or otherwise providing service to the Company or one of its subsidiaries, or (2)
your death, Disability, or Retirement.
(b) Except as provided below, the vested Option must be exercised by
you, if at all, while you are providing service to the Company or one of its
subsidiaries or within three months following your Termination Date, but in no
event after ____________________ (the "Expiration Date"). If your Termination
Date occurs by reason of your Retirement, death or Disability, the Option may
thereafter be exercised by you, or in the event of your death, by your estate or
your designated beneficiary, or in the event of your Disability, by you or your
legal representative, at any time prior to the Expiration Date. If you die after
your Termination Date and during the period in which the Option is exercisable,
the right to exercise the Option during such period will be governed by Plan
Section 11(d). If your Termination Date occurs because of Involuntarily
Termination for Economic Reasons as determined by the Chief Executive Officer
(or the Committee in the case of an Employee subject to Section 16 of the
Exchange Act), the terms of Plan Section 11(b) shall apply.
Any portion of the Option that is not vested pursuant to this
Section 1.2 as of your employment Termination Date will be forfeited
immediately. If the Option is not exercised as to all of the vested shares
covered by the Option within the applicable time period and in the manner
provided herein, the Option will terminate and will not be exercisable
thereafter. In no event may the Option be exercised after the Expiration Date.
1.3 Method of Exercise. The vested Option, or any part of it, shall be
exercised by written notice directed to the President, Chief Financial Officer
or Secretary of the Company at the Company's principal office in Allegan,
Michigan, or by using other notification permitted by the Company. Such notice
must satisfy the following requirements:
(a) The notice must state the Grant Date, the number of shares of
Common Stock subject to the Option, the number of shares of Common Stock with
respect to which Option is being exercised, the person in whose name the stock
certificate or certificates for such shares of Common Stock is to be registered
and the person's address and Social Security number (or if more than one person,
the names, addresses and Social Security numbers of such persons).
(b) The notice shall be accompanied by check, bank draft, money
order or other cash payment, or by delivery of a certificate or certificates,
properly endorsed, for shares of Common Stock that you have held for at least
six months and that are equivalent in Fair Market Value on the date of exercise
to the Option Price (or any combination of cash and shares), in full payment of
the Option Price for the number of shares specified in the notice.
(c) The notice must be signed by the person or persons entitled to
exercise the Option and, if the Option is being exercised by any person or
persons other than you, be accompanied by proof, satisfactory to the Committee,
of the right of such person or persons to exercise the Option.
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SECTION 2
RESTRICTED SHARES -- SERVICE-BASED VESTING
2.1 Grant of Restricted Shares. As of the Grant Date, and subject to the
terms and conditions of this Agreement and the Plan, the Company grants
you<>shares of Common Stock
("Restricted Shares")
2.2 Vesting. Except as provided in Section 2.3, the Restricted Shares
awarded hereunder shall vest if you continue in the service of the Company from
the Grant Date through the following vesting date (the "Restricted Shares
Vesting Date"):
Vesting Date Number of Shares Vesting
---------------------------- ---------------------------------------------------
--------------------------- <>
---------------------------- ---------------------------------------------------
Except as provided in Section 2.3, if your Termination Date occurs prior
to the Restricted Shares Vesting Date, the Restricted Shares awarded under this
Agreement shall be permanently forfeited on your Termination Date. The
"Restricted Period" with respect to a Restricted Share awarded under this
Agreement is the period beginning on the Grant Date and ending on the Restricted
Shares Vesting Date (or, if earlier, the date the Restricted Shares vest under
Section 2.3).
2.3. Special Vesting Rules. Notwithstanding Section 2.2 above:
(a) If your Termination Date occurs by reason of death, Disability
or Retirement with the Company's consent, any Restricted Shares awarded under
this Agreement that have not vested prior to such Termination Date shall become
fully vested.
(b) If your Termination Date occurs by reason of Involuntary
Termination for Economic Reasons, any Restricted Shares awarded under this
Agreement that would otherwise be scheduled to vest under Section 2.2 in the 24
month period following such Termination Date shall vest on the Termination Date.
Any Restricted Shares that are not scheduled to vest during such 24 month period
will be permanently forfeited on the Termination Date.
(c) In the event of a Change in Control of the Company while you are
employed by or otherwise providing service to the Company, all Restricted Shares
that have not vested or been forfeited prior to the date of such Change in
Control shall become fully vested on such date.
2.4 Terms and Conditions of Restricted Shares. The Restricted Shares
granted under this Agreement shall be subject to the following additional terms
and conditions:
(a) Except as may otherwise be specifically permitted under the
Plan, Restricted Shares may not be sold, assigned, pledged or otherwise
encumbered prior to the end of the Restricted Period.
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(b) Except as otherwise provided in this Agreement, the Employee
shall have all of the rights of a stockholder, including, but not limited to,
the right to vote such shares and the right to receive dividends paid on such
shares.
(c) The stock certificate(s) representing the Restricted
Shares shall be issued or held in book entry form. If a stock certificate is
issued, it shall be delivered to the Secretary of the Company or such other
custodian as may be designated by the Company, to be held until the end of the
Restricted Period or until the Restricted Shares are forfeited. Any certificates
representing Restricted Shares granted pursuant to this Agreement shall bear a
legend in substantially the form set forth below:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) contained in the Xxxxxxx Company 2003
Long-Term Incentive Plan and an agreement entered into between the
registered owner and Xxxxxxx Company. A copy of such plan and
agreement is on file in the office of the Secretary of Xxxxxxx
Company, 000 Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000."
As soon as practicable after the Restricted Period ends with respect to
Restricted Shares that have not been forfeited, the Company shall transfer share
certificates to the Employee, free of all restrictions; provided, however, the
Company may withhold unrestricted shares otherwise transferable to the Employee
to the extent necessary to satisfy withholding taxes due by reason of the
vesting of the Restricted Shares, in accordance with Section 4.6.
SECTION 3
RESTRICTED STOCK UNITS -- PERFORMANCE-BASED VESTING
3.1 Grant. As of the Grant Date, the Company grants to you
<> restricted stock units ("Restricted
Stock Units" or "RSUs"), subject to the terms and conditions set forth in this
Agreement. The number of Restricted Stock Units awarded in this Section 3.1 is
referred to as the "Target Award." The Target Award may be increased or
decreased depending on whether the Company attains certain performance goals as
described in Section 3.2. Each Restricted Stock Unit shall entitle you to one
share of Common Stock on the RSU Vesting Date set forth in this Agreement,
provided the applicable performance goals are satisfied.
3.2 Vesting. The number of Restricted Stock Units vesting, if any, shall
be determined as of the RSU Vesting Date (defined below). That number will be
determined based on the average level of attainment of annual Target Net Income
Growth (defined below) for each fiscal year in the Performance Period (defined
below), in accordance with the following schedule:
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Level of % of Target Award
Attainment RSUs Payable
---------- ------------
Threshold 50%
Target 100%
Maximum 200%
The Committee shall establish annually the Target Net Income Growth and the
percentage of Target Net Income Growth that must be attained for Threshold and
Maximum performance for a fiscal year. The goals for the 2007 fiscal year are
set forth in Exhibit A.
Following the end of each fiscal year in the Performance Period, the Committee
will determine the percentage of Target Award RSUs that would be payable under
the foregoing schedule for such fiscal year, based on the percentage of Target
Net Income Growth attained and the Threshold and Maximum performance targets
established by the Committee for that fiscal year. The percentage of the Target
Award that would be payable under the schedule shall be adjusted, pro rata, to
reflect attained performance between Threshold and Target, and Target and
Maximum.
At the end of the Performance Period, the percentage payout for each fiscal year
in the Performance Period will be averaged to determine the actual percentage of
Target Award RSUs that will vest and be payable on the RSU Vesting Date. In no
event will the calculation of a positive payout percentage for any fiscal year
be construed to guarantee that any RSUs will vest on the RSU Vesting Date.
Payout percentages for the individual fiscal years are determined solely for
purposes of determining the average annual payout percentage for the three-year
Performance Period.
Except as provided in Section 3.3, the RSUs will be permanently forfeited if
your Termination Date occurs prior to the RSU Vesting Date. If the average
annual performance payout for the Performance Period is less than the Threshold
performance level established by the Committee, all RSUs that have not
previously been forfeited shall be forfeited as of the RSU Vesting Date. If the
average annual performance payout for the Performance Period exceeds the Maximum
performance level established by the Committee, in no event will the number of
RSUs vesting exceed 200% of the Target Award.
The following terms shall have the following meanings under this Section 3.
(a) "Net Income" for any fiscal year means the Company's net income
(external operating basis) for the fiscal year and shall be determined in
accordance with generally accepted accounting principles. The Committee shall
provide how Net Income will be adjusted, if at all, as a result of extraordinary
events or circumstances, as determined by the Committee, or to exclude the
effects of extraordinary, unusual, or non-recurring items; changes in applicable
laws, regulations, or accounting principles; currency fluctuations; discontinued
operations; non-cash items, such as amortization, depreciation, or reserves;
asset impairment; or any recapitalization, restructuring, reorganization,
merger, acquisition, divestiture, consolidation, spin-off, split-up,
combination, liquidation, dissolution, sale of assets, or other similar
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corporation transaction; provided, however, that no such adjustment will be made
to an award that is designated as qualified performance-based compensation under
Code Section 162(m) if the effect of such adjustment would cause an award to
fail to qualify as performance-based compensation within the meaning of Code
Section 162(m).
(b) "Performance Period" means the period commencing
_________________ and ending ___________________.
(c) "RSU Vesting Date" means the last day of the Performance Period.
(d) "Target Net Income Growth" means the targeted growth in Net
Income (external operating basis) for a fiscal year, as set forth in the
Company's annual fiscal year financial plan, approved by the Committee and
Board. The level of attainment of Target Net Income Growth will be determined
separately for each of the three fiscal years of the Company in the Performance
Period, based on the Target Net Income Growth for that fiscal year. The
Committee, in its sole discretion, shall determine to what degree, if any, that
the Target Net Income Growth has been attained.
3.3 Special Vesting Rules. Notwithstanding Section 3.2 above, in the event
of a Change in Control of the Company while you are employed by or otherwise
providing service to the Company, all of the Restricted Stock Units awarded
hereunder that have not previously been forfeited shall become fully vested as
if Target performance had been obtained for the Performance Period effective as
of the date of any such event. If your Termination Date occurs because of death,
Disability, or Retirement, the Restricted Stock Units shall vest or be forfeited
as of the RSU Vesting Date set forth in Section 3.2, based on the attainment of
the performance goals. If your Termination Date occurs because of Involuntary
Termination for Economic Reasons, the Company's Chief Executive Officer (or the
Committee, if you are subject to Section 16 of the Exchange Act), in his or her
sole and absolute discretion, may permit all or part of the Restricted Stock
Units awarded hereunder to remain outstanding and vest or be forfeited as of the
date set forth in Section 3.2, depending on the attainment of performance goals.
To the extent that the Chief Executive Office (or Committee, if applicable) does
not exercise discretionary authority to allow Restricted Stock Units to remain
outstanding on the date of your Involuntary Termination for Economic Reasons,
such Restricted Stock Units shall be permanently forfeited.
3.4 Settlement of Restricted Stock Units. As soon as practicable following
the date of the Committee's first regularly scheduled meeting following the last
day of the Performance Period at which the Committee certifies the average
payout for each of the three years in the Performance Period, but in no event
after the later of (i) two and a half months following the end of the
Performance Period or (ii) December 31 of the calendar year in which the last
day of the Performance Period occurs, the Company shall transfer to you one
share of Common Stock for each Restricted Stock Unit, if any, that becomes
vested pursuant to Section 3.2 or 3.3 of this Agreement; provided, however, the
Company may settle Restricted Stock Units in cash to the extent necessary to
satisfy tax withholding pursuant to Section 4.6.
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SECTION 4
GENERAL TERMS AND CONDITIONS
4.1 Nontransferability. Awards under this Agreement shall not be
transferable other than by will or by the laws of descent and distribution.
During your lifetime, the Option granted under this Agreement shall be
exercisable only by you or by your guardian or legal representative in the event
of your Disability.
4.2 No Rights as a Stockholder. You shall not have any rights as a
stockholder with respect to any shares of Common Stock subject to the Option or
RSU portions of this Agreement prior to the date of issuance to you of a
certificate or certificates for such shares.
4.3 Cause Termination. If your Termination Date occurs for reasons of
Cause, all of your rights under this Agreement, whether or not vested, shall
terminate immediately.
4.4 Awards Subject to Plan. Enclosed for your review is a copy of the
Plan. The granting of the Awards under this Agreement is being made pursuant to
the Plan and the Awards shall be exercisable or payable, as applicable, only in
accordance with the applicable terms of the Plan. The Plan contains certain
definitions, restrictions, limitations and other terms and conditions all of
which shall be applicable to this Agreement. ALL THE PROVISIONS OF THE PLAN ARE
INCORPORATED HEREIN BY REFERENCE AND ARE MADE A PART OF THIS AGREEMENT IN THE
SAME MANNER AS IF EACH AND EVERY SUCH PROVISION WERE FULLY WRITTEN INTO THIS
AGREEMENT. Should the Plan become void or unenforceable by operation of law or
judicial decision, this Agreement shall have no force or effect. Nothing set
forth in this Agreement is intended, nor shall any of its provisions be
construed, to limit or exclude any definition, restriction, limitation or other
term or condition of the Plan as is relevant to this Agreement and as may be
specifically applied to it by the Committee. In the event of a conflict in the
provisions of this Agreement and the Plan, as a rule of construction the terms
of the Plan shall be deemed superior and apply.
4.5 Adjustments in Event of Change in Common Stock. In the event of a
stock split, stock dividend, recapitalization, reclassification or combination
of shares, merger, sale of assets or similar event, the number and kind of
shares subject to Awards under this Agreement, and the Option Price, where
applicable, will be appropriately adjusted consistent with such change in such
manner as the Committee may deem equitable to prevent substantial dilution or
enlargement of the rights granted to or available for you.
4.6 Withholding. This Award is subject to the withholding of all
applicable taxes. The Company may withhold, or permit you to remit to the
Company, any Federal, state or local taxes applicable to the grant, vesting or
other event giving rise to tax liability with respect to this Award. You may
elect to surrender previously acquired Common Stock or to have the Company
withhold Common Stock relating to this award in an amount sufficient to satisfy
all or a portion of the minimum tax withholding required by law.
4.7 Compliance with Applicable Law. Notwithstanding any other provision of
this Agreement, the Company shall have no obligation to issue any shares of
Common Stock under
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this Agreement if such issuance would violate any applicable law or any
applicable regulation or requirement of any securities exchange or similar
entity.
4.8 Successors and Assigns. This Agreement shall be binding upon any or
all successors and assigns of the Company.
4.9 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of
Michigan without
regard to principals of conflict of laws. Any proceeding related to or arising
out of this Agreement shall be commenced, prosecuted or continued in the Circuit
Court in Kent County,
Michigan located in Grand Rapids,
Michigan or in the
United Stated District Court for the Western District of
Michigan, and in any
appellate court thereof.
****
We look forward to your continuing contribution to the growth of the
Company. Please acknowledge your receipt of the Plan and this Award on the
enclosed copy of this Agreement, and return it to us.
Very truly yours,
---------------------------
-------------------------
Xxxx X. Xxxxx
Executive Vice President &
Chief Financial Officer
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EXHIBIT A
PERFORMANCE GOALS FOR 2007 FISCAL YEAR
Threshold 4% Net Income Growth (external operating basis)
Target 6% Net Income Growth (external operating basis)
Maximum 10% Net Income Growth (external operating basis)
The Target Net Income Growth for subsequent fiscal years within the Performance
Period, and the level of performance necessary for Threshold and Maximum payout,
shall be determined by the Committee no later than 90 days after the beginning
of such fiscal year.
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ACKNOWLEDGMENT OF RECEIPT
I acknowledge receipt of the Xxxxxxx Company 2003 Long-Term
Incentive Plan (the "Plan") provided to me on __________________. I further
acknowledge receipt of this Long-Term Incentive Agreement and agree to the terms
and conditions expressed herein and in the Plan. I further agree that all
decisions and determinations of the Committee (or Chief Executive Officer, if
applicable) shall be final and binding.
Date: ____________________ _________________________
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