Tandy Brands Accessories, Inc. 2011 Performance Unit Award Agreement
Exhibit 10.33
Tandy Brands Accessories, Inc.
2011 Performance Unit Award Agreement
2011 Performance Unit Award Agreement
This award agreement (“Award Agreement”) sets forth the terms and conditions of the 2011
Performance Unit Program (the “Program”) which is governed by the Tandy Brands Accessories, Inc.
2002 Omnibus Plan (the “Plan”). This Award Agreement, together with the Plan, govern the rights
under the Program with respect to the performance-based units (each, a “Performance Unit”) Awards
granted under this Award Agreement, and set forth all of the conditions and limitations affecting
such rights. Terms used in this Award Agreement that are not otherwise defined herein shall have
the meanings ascribed to them in the Plan. If there is any inconsistency between the terms of this
Award Agreement and the terms of the Plan, the Plan’s terms shall supersede and replace the
conflicting terms of this Award Agreement. For purposes of this Award Agreement, “Company” means
Tandy Brands Accessories, Inc., its affiliates, and/or its subsidiaries.
Award and Program Provisions
| 1. | Performance Units Granted: Performance Units granted to (the
“Participant”). |
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| 2. | Date of Grant: July 1, 2010. |
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| 3. | Performance Cycle. The performance cycle commences on July 1, 2010, and ends on June 30,
2013 (the “Performance Cycle”). |
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| 4. | Performance Unit. The value of a single Performance Unit shall equal $1.00. Each
Performance Unit shall be comprised 50% of cash and 50% of phantom shares of the Common Stock
of the Company, subject to adjustment in accordance with Section 14 of this Award Agreement.
The number of phantom shares of Common Stock attributable to the Award shall be determined
based upon the Fair Market Value of the Common Stock of the Company on the date of grant,
which was $_____. |
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| 5. | Performance Measure – Earnings Per Share. Earnings Per Share (“EPS”) shall be determined by
dividing the Company’s consolidated net income or loss by the number of basic common shares of
the Company for each twelve-month period, which shall begin each July 1 and end on the
following June 30, in the Performance Cycle (each, a “Performance Year”). All amounts
necessary to calculate EPS for each Performance Year shall be determined in accordance with
generally accepted accounting principles in the United States and, to the extent possible,
based on disclosures in the Company’s consolidated financial statements; provided, however,
with respect to the determination of: |
| (a) | consolidated net income or loss, the Company’s consolidated financial statements shall
be adjusted to exclude, as applicable, the following possible actions or effects: |
| (i) | the cumulative effect(s) of changes in accounting principles; |
| (ii) | extraordinary items; |
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| (iii) | recognized capital gains or losses; and |
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| (iv) | such one-time, non-operating items as determined by the Board; and |
| (b) | the number of basic common shares, the calculation shall: |
| (i) | be made in accordance with the provisions of Financial Accounting Standards
Board Statement No. 128, “Earnings per Share,” as amended and interpreted as of the
date of this Award Agreement and without regard to subsequent revisions, amendments,
interpretations, or replacements; and |
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| (ii) | exclude the effects, if any, during the Performance Cycle of: |
| (A) | the issuance of securities in connection with the acquisition of assets
or a business; |
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| (B) | the declaration or payment of a stock dividend; |
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| (C) | any recapitalization resulting in a stock split-up, combination, or
exchange of shares of Common Stock; or |
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| (D) | other increase or decrease in such shares of Common Stock effected
without receipt of consideration by the Company. |
| 6. | Amount of Performance Unit Award Earned: If not previously forfeited, on June 30, 2013, the
Participant shall vest in and have a nonforfeitable right to the percentage of Performance
Units that equals the average of the Achievement Percentages attained for each Performance
Year in the Performance Cycle that corresponds with the EPS Performance Level Achieved for
each such year as set forth in the table below. |
| Performance | EPS Performance Level Achieved | |||||||||||||
| Year Ending | (Income (Loss)) | |||||||||||||
| June 30, | Threshold | Target | Maximum | |||||||||||
| 2011 | $ | $ | $ | |||||||||||
Achievement Percentage |
50 | % | 100 | % | 200 | % | ||||||||
| 2012 | $ | $ | $ | |||||||||||
Achievement Percentage |
50 | % | 100 | % | 200 | % | ||||||||
| 2013 | $ | $ | $ | |||||||||||
Achievement Percentage |
50 | % | 100 | % | 200 | % | ||||||||
The Achievement Percentage for each Performance Year shall be interpolated to the actual EPS
achieved for that Performance Year; provided, however, that if the actual EPS achieved for any
Performance Year is (i) less than the corresponding threshold level set forth above, the
Achievement Percentage for such Performance Year shall be 0% or (ii) greater than the
corresponding maximum level set forth above, the Achievement Percentage for such Performance
Year shall be 200%. |
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As described above, the percentage of Performance Units that shall vest at the end of the
Performance Cycle shall be calculated by averaging the Achievement Percentages attained for each
Performance Year in the Performance Cycle. By way of example, but not limitation: |
| • | If the actual EPS Performance Level Achieved for each of 2011, 2012 and 2013 was
$_____, $_____ and $_____, respectively, the corresponding Achievement Percentages for
each of 2011, 2012 and 2013 would be
_____%,
_____% and
_____%, respectively. |
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| • | Based on the foregoing, the percentage of Performance Units that would vest at the
end of the Performance Cycle would be the average of the Achievement Percentages, or
_____%. |
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| • | As a result, the Performance Units earned would equal multiplied by
_____%, or Performance Units. |
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| • | Of the Performance Units earned, the Participant would be entitled to
receive (a) $ (calculated by multiplying Performance Units by
$1.00 and multiplying the product by 50%), and (b) $ (calculated by
multiplying Performance Units by $1.00 and multiplying the product by
50%, then, dividing by $ , the Fair Market Value of the Company’s Common Stock
on the date of grant, and then, multiplying by $ , the Fair Market Value of the
Company’s Common Stock on the date of payment). For purposes of this example, we are
assuming a Fair Market Value of $ on the date of payment. |
| 7. | Settlement of Award: The Performance Units which vest pursuant to Section 6 of this Award
Agreement shall be settled, in cash, by the Company as provided in Section 9 of this Award
Agreement. Notwithstanding the foregoing, the Company may, in its sole and absolute
discretion, settle the phantom shares attributable to the Award in shares of Common Stock of
the Company. |
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| 8. | Eligibility for Earned Performance Units: A Participant will be eligible to receive
Performance Units in which the Participant has a vested interest pursuant to Section 6 of this
Award Agreement only if: |
| (a) | The Participant was approved as a participant for the Performance Cycle; and |
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| (b) | (i) The Participant: |
| (A) | continues to be employed by the Company through the end of the
Performance Cycle; or |
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| (B) | experiences a Termination of Service during the Performance Cycle
due to death, Total and Permanent Disability or Retirement. |
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For the purposes of this Agreement, “Retirement” shall mean any Termination of
Service solely due to retirement upon attainment of age 65, permitted Early
Retirement as determined by the Committee, or Termination of Service by the
Company without Cause. Early Retirement shall mean the Participant’s
Termination of Service with the Company: (i) after attainment of age 55, but
before attainment of age 65; and (ii) after completion of 15 years of service. |
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Cause shall mean the Participant’s commission of any of the following: (1)
violation of any restrictive covenant in any applicable employment, bonus or
similar agreement with the Company, provided that such act shall have been
detrimental to the Company; (2) Participant’s willful misconduct, malfeasance,
negligence in the performance or intentional nonperformance of any of
Participant’s material duties and responsibilities hereunder; (3) Participant’s
dishonesty or fraud with respect to the business, reputation or affairs of the
Company; (4) fraud, misappropriation or embezzlement of funds or other property
of the Company, (5) Participant’s conviction of a felony crime which, in the
opinion of the Board of Directors of the Company, brings Participant or the
Company into disrepute or causes harm to the Company’s business, customer
relations, financial condition or prospects, or (6) violation of any statutory
or common law duty of loyalty to the Company. For purposes of this Agreement,
no act, or failure to act, on the part of the Participant shall be deemed
“intentional” if it was due primarily to an error in judgment or negligence,
but shall be deemed “intentional” only if done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that the
Participant’s action or omission was in the best interest of the Company); or |
| (ii) | There is a Change of Control of the Company during the Performance Cycle. |
If the Participant experiences a Termination of Service due to death, Total and Permanent
Disability, or Retirement during the Performance Cycle, the Participant shall be eligible to
vest in a fraction of the number of Performance Units in which the Participant may have
otherwise vested under Section 6 of this Award Agreement for the Performance Cycle had the
Participant remained employed until the end of the Performance Cycle. The fraction of the
number of Performance Units in which the Participant will vest in connection with the
Participant’s Termination of Service due to death, Total and Permanent Disability, or Retirement
will be determined using a numerator which equals the number of complete Performance Years that
have elapsed since the beginning of the Performance Cycle as of the date of the Participant’s
Termination of Service and a denominator which is equal to the number of Performance Years in
the Performance Cycle. In the event such pro-ration results in the Participant vesting in a
fractional number of Performance Units, the number of Performance Units in which the Participant
will vest will be rounded up to the nearest whole number. |
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Except as otherwise provided in this Award Agreement, all Performance Units that are not vested
in connection with a Participant’s experiencing a Termination of Service as a result of the
Participant’s death, Total and Permanent Disability, or Retirement shall be forfeited to the
Company. In the event of a Participant’s death, the Participant’s beneficiary or estate shall
be entitled to the Performance Units to which the Participant otherwise would have been entitled
under the same conditions as would have been applicable to the Participant. |
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If there is a Change of Control of the Company during the Performance Cycle, the Participant
shall vest in and have a nonforfeitable right to 100% of the Performance Units granted under
Section 1 of this Award Agreement without regard to the actual Achievement Percentage attained
for any Performance Year. |
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| 9. | Time of Payment: Settlement of the Performance Units which vested pursuant to Section 6 of
this Award Agreement, will be made: |
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| (a) | To a Participant who (i) experiences a Termination of Service as a result of the
Participant’s death, Total and Permanent Disability, or Retirement during the Performance
Cycle, or (ii) remains employed with the Company for the entire Performance Cycle, as soon
as administratively practicable following the end of the Performance Cycle, but not later
than the last day of the calendar year in which the Performance Cycle ends. |
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| (b) | In connection with a Change of Control during the Performance Cycle, within two and one
half (21/2) months following the earlier of the date of a Section 409A Change of Control or
the end of the Performance Cycle. |
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For purposes of this Award Agreement, a “Section 409A Change of Control” shall mean: |
| (i) | any one person, or more than one person acting as a group, acquires ownership
of stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power of the
stock of the Company; |
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| (ii) | any one person, or more than one person acting as a group, acquires (or has
acquired during any twelve (12) month period) ownership of stock of the Company
possessing 30% or more of the total voting power of the stock of the Company; |
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| (iii) | a majority of the members of the Board is replaced during any twelve (12)
month period by directors whose appointment is not endorsed by a majority of the
members of the Board before the date of the appointment or election; or |
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| (iv) | any one person, or more than one person acting as a group, acquires (or has
acquired during any twelve (12) month period) assets from the Company that have a total
gross fair market value equal to or more than 40% of the total gross fair market value
of all of the assets of the Company immediately before such acquisition or
acquisitions. |
The determination of whether a Section 409A Change of Control has occurred shall be made in
accordance with the provisions of Code Section 409A and the regulations promulgated
thereunder. |
| 10. | Termination of Service for Other Reasons: In the event a Participant experiences a
Termination of Service during the Performance Cycle by the Company for any reason other than
those reasons set forth in Section 8, this entire Award shall be forfeited and no payment
shall be made to the Participant under this Award Agreement. |
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| 11. | Nontransferability: During the Performance Cycle, Performance Units awarded pursuant to this
Award Agreement may not be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated (“Transfer”), other than by will or by the laws of descent and distribution,
except as provided in the Plan. If any Transfer, whether voluntary or involuntary, of
Performance Units is made, or if any attachment, execution, garnishment, or lien shall be
issued against or placed upon the Performance Units, the individual’s right to such
Performance Units shall be immediately forfeited to the Company, and this Award Agreement
shall lapse. |
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| 12. | Community Interest of Spouse: The community interest, if any, of any spouse of a Participant
in any of the Performance Units shall be subject to all of the terms, conditions and
restrictions of this Award Agreement and the Plan, and shall be forfeited and surrendered to
the Company upon the
occurrence of any of the events requiring the Participant’s interest in such Performance Units
to be so forfeited and surrendered pursuant to this Award Agreement. |
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| 13. | Rights: A Performance Unit represents an unsecured promise of the Company to pay cash in the
future. Until the Performance Units have vested, the Participant shall have no rights under
this Award Agreement. Notwithstanding the foregoing, the Participant’s rights under this
Agreement do not exceed that of a general unsecured creditor of the Company. |
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| 14. | Adjustments: In the event that the outstanding shares of Common Stock are changed into or
exchanged for a different number or kind of capital stock or other securities of the Company
or its successor by reason of merger, consolidation, recapitalization, reclassification, stock
split-up, stock dividend or combination of shares of Common Stock, the Committee or the Board,
subject to the provisions of the Plan and this Award Agreement, shall make an appropriate and
equitable adjustment in accordance with the provisions of the Plan in the number and kind of
Performance Units under this Award Agreement so that after such event each Participant’s
proportionate interest shall be maintained as before the occurrence of such event. Any such
adjustment made by the Committee or the Board shall be final and binding upon the Participant,
the Company and all other interested persons. |
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| 15. | Requirements of Law: The granting of Performance Units under the Program and Plan shall be
subject to all applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required. |
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| 16. | Tax Withholding: With respect to withholding required upon any taxable event arising under
this Award Agreement, by execution of this Award Agreement or any related acknowledgement, the
Participant shall be deemed to have authorized the Company to withhold from the cash to be
paid as a result of the Participant’s vesting in the Performance Units, the cash necessary to
satisfy the Participant’s minimum required withholding, if any. The amount of the minimum
required withholding and the cash required to satisfy Participant’s minimum required
withholding, if any, as well as the amount reflected on tax reports filed by the Company,
shall be based on the cash to be paid on the day the liability is determined by the Company.
Notwithstanding the foregoing, the Company may require that the Participant satisfy any
required withholding by any other means the Company, in its sole discretion, considers
reasonable. The obligations of the Company under this Award Agreement shall be conditioned on
the Participant’s satisfaction of any required withholding. |
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| 17. | Administration: This Award Agreement and the rights hereunder are subject to all the terms
and conditions of the Plan, as the same may be amended from time to time, as well as to such
rules and regulations as the Committee may adopt for administration of the Plan. It is
expressly understood that the Committee is authorized to administer, construe, and make all
determinations necessary or appropriate to the administration of the Plan and the Award
Agreement, all of which shall be binding upon the Participant. |
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| 18. | No Right to Future Grants; No Right of Employment or Continued Employment: In accepting the
Award granted hereunder, the Participant acknowledges that: (a) the Plan and this Program are
established voluntarily by the Company, they are discretionary in nature and they may be
modified, suspended or terminated by the Company at any time, as provided in the Plan and this
Award Agreement; (b) the Award is voluntary and occasional and does not create any contractual
or other right to receive future Awards; (c) all decisions with respect to future Awards, if
any, will be at the sole discretion of the Company; (d) the Participant’s participation in the
Program and Plan is
voluntary; (e) the Award is not part of normal or expected compensation or salary for any
purposes, including, but not limited to, calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments; (f) in the event that a Participant is an employee of the Company,
the Award will not be interpreted to form an employment contract or relationship with the
Company; (g) this Award shall not confer upon an individual any right to continuation of
employment by the Company, nor shall this Award interfere in any way with the Participant’s or
the Company’s right to terminate employment at any time; and (h) except as otherwise
specifically provided under this Award Agreement, in the event of the termination of a
Participant’s employment by the Company for any reason, the right to receive cash under this
Award Agreement, if any, will terminate effective as of the date that the Participant is no
longer actively employed and will not be extended by any notice period mandated under any
federal, state, provincial, or local law (including but not limited to the Worker Adjustment and
Retraining Notification Act). |
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| 19. | Amendment to the Plan: The Committee may terminate, amend, or modify the Plan and this
Program; provided, however, that no such termination, amendment, or modification of the Plan
or this Program may in any way adversely affect a Participant’s rights under this Award
Agreement, without the consent of the Participant or the Participant’s designated beneficiary. |
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| 20. | Successor: All obligations of the Company under the Plan and this Award Agreement, with
respect to the Performance Units, shall be binding on any successor to the Company, whether
the existence of such successor is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the business and/or assets of the
Company. |
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| 21. | Applicable Laws and Consent to Jurisdiction: The validity, construction, interpretation, and
enforceability of this Award Agreement shall be determined and governed by the laws of the
State of Texas without giving effect to the principles of conflicts of law. For the purpose of
litigating any dispute that arises under this Award Agreement, the parties hereby consent to
exclusive jurisdiction and agree that such litigation shall be conducted in the federal or
state courts of the State of Texas. |
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| 22. | Severability: The provisions of this Award Agreement are severable and if any one or more
provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable. |
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| 23. | Settlement in Shares. In the event the Company exercises its discretion and issues shares of
Common Stock of the Company in settlement of the phantom shares attributable to this Award,
evidence of the issuance of the shares of Common Stock may be accomplished in such manner as
the Company or its authorized representatives shall deem appropriate including, without
limitation, electronic registration, book-entry registration or issuance of a certificate or
certificates in the name of the Participant or in the name of such other party or parties as
the Company and its authorized representatives shall deem appropriate. In the event the
shares of Common Stock issued pursuant to this Award Agreement remain subject to any
additional restrictions, the Company and its authorized representatives shall ensure that the
Participant is prohibited from entering into any transaction, which would violate any such
restrictions, until such restrictions lapse. The Participant shall have no rights of a
stockholder of the Company (e.g., no right to vote the shares of Common Stock underlying the
Performance Units or to receive any dividend or dividend equivalent thereon) until such shares
of Common Stock of the Company have been issued pursuant to this Section 23. The Participant
acknowledges that the future value of the underlying shares of Common Stock is unknown and
cannot be predicted with certainty. |
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| TANDY BRANDS ACCESSORIES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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Tandy Brands Accessories, Inc.
2011 Performance Unit Award Acknowledgement
2011 Performance Unit Award Acknowledgement
**If this Acknowledgement is not dated, signed and returned as requested below, the award of
Performance Units pursuant to the Award Agreement attached will be null and void and there will be
no substitute award of Performance Units.**
Please acknowledge your agreement to participate in the Tandy Brands Accessories, Inc. 2002 Omnibus
Plan (the “Plan”), receive performance-based units (“Performance Units”) under the 2011 Performance
Unit Award Agreement (“Award Agreement”), attached, and to abide by all of the governing terms and
provisions, by signing the following acknowledgement and agreement (“Acknowledgement”) and
returning it to the Chief Financial Officer of Tandy Brands Accessories, Inc. at 0000 Xxxx Xxxxx,
Xxxxxx, Xxxxx 00000 within thirty days of receipt. For purposes of this Acknowledgement, “Company”
means Tandy Brands Accessories, Inc., its affiliates, and/or its subsidiaries.
Agreement to Participate
By signing this Acknowledgement and returning it to the Chief Financial Officer of Tandy Brands
Accessories, Inc., I acknowledge that I have read the Plan and the Award Agreement dated July 1,
2010, and that I fully understand all of my rights under the Plan and the Award Agreement, as well
as all of the terms and conditions which may limit my eligibility to retain or receive the
Performance Units or cash payable to me pursuant to the Plan and the Award Agreement.
I further acknowledge and agree that the Performance Units subject to the Award Agreement shall
vest and the restrictions resulting in the forfeiture of the Performance Units shall lapse, if at
all, only during the period of my service to the Company or as otherwise provided in the Award
Agreement (not through the act of being granted the Performance Units).
I further acknowledge and agree that nothing in the Award Agreement or the Plan shall confer on me
any right with respect to future awards or continuation of my service to the Company.
I acknowledge receipt of a copy of the Plan, represent that I am familiar with the terms and
provisions thereof, and hereby accept the Award subject to all of the terms and provisions hereof
and thereof. I have reviewed the Award Agreement and the Plan in their entirety, have had an
opportunity to obtain the advice of counsel prior to executing this Acknowledgement, and fully
understand all provisions of this Acknowledgement, the Award Agreement and the Plan.
I further acknowledge that the tax consequences associated with the Performance Units under the
Award Agreement are complex and that the Company has urged me to review the federal, state, and
local tax consequences of the award of Performance Units under the Award Agreement with my own tax
advisors. I am relying solely on such advisors and not on any statements or representations of the
Company or any of its agents. I understand that I, and not the Company, shall be responsible for
my own tax liability that may arise as a result of the Award Agreement.
| Date: | ||||||
| N. Xxxxxxxx XxXxxxxx, III | ||||||
