AMERICAN GREETINGS CORPORATION 1997 EQUITY AND PERFORMANCE INCENTIVE PLAN PERFORMANCE SHARE GRANT AGREEMENT
EXHIBIT 10.7
AMERICAN GREETINGS CORPORATION 1997 EQUITY AND
PERFORMANCE INCENTIVE PLAN
PERFORMANCE INCENTIVE PLAN
Grantee:
|
Xxx Xxxxx | |
Target Grant:
|
102,624 Class B Common Shares (the “Shares”) | |
Performance Period:
|
August 2, 2005 through | |
| August 2, 2010 | ||
Grant Date:
|
August 2, 2005 |
THIS AGREEMENT, dated as of the Grant Date stated above, is by and between American Greetings
Corporation (the “Company” or “American Greetings”) and Grantee.
W I T N E S S E T H:
WHEREAS, the Company wishes to give Xxxxxxx an opportunity to acquire or enlarge his equity
ownership in the Company for purposes of augmenting Grantee’s proprietary interest in the success
of American Greetings and thereby focusing Xxxxxxx’s efforts on increasing shareholder value.
A G R E E M E N T
NOW, THEREFORE, the Company and Grantee hereby agree as follows:
1. Performance Share Grant. Subject to the terms and conditions of this Agreement, the
Company hereby grants to Grantee the Target Grant of Shares (the “Performance Shares”) as specified
above. The grant of Performance Shares shall represent the right to receive such number of Shares,
if any, as determined in accordance with Section 2 upon the achievement of certain management
objectives over the Performance Period. The Performance Shares described in this Agreement are in
all respects subject to the terms, conditions and provisions of this Agreement and the Company’s
1997 Equity and Performance Incentive Plan (the “Plan”).
2. Award of Performance Shares.
(a) The number of Performance Shares actually earned will be based on the percentage of
Grantee’s target incentive award, if any, that Grantee achieves during the Performance Period under
the Company’s Key Management Annual Incentive Plan (the “Annual Incentive Plan”). Subject to the
certification of the Company’s Compensation and Management Development Committee (the “Committee”)
required by Section 2(b), and provided that Grantee is actively employed by the Company or a
subsidiary thereof as of the last day of such fiscal year with respect to which a calculation is
made to determine if Grantee is entitled to payment of Performance Shares, Grantee will be entitled
to payment of a portion of the Target Grant of Performance Shares as calculated in this Section
2(a) if he achieves all or a portion of his target incentive award for a given fiscal year during
the Performance Period.
(i) Grantee will be entitled to payment of all or a portion of his Target Grant of Performance
Shares during the first three years of the Performance Period as follows:
(1) With respect to each of fiscal years 2006, 2007 and 2008, Grantee will be deemed to have
earned a number of Performance Shares, if any, determined by multiplying an amount equal to
one-third of the Target Grant of Performance Shares (the “Annual Target Amount”) by the percentage
of the target incentive award that Grantee achieves for such fiscal year under the Annual Incentive
Plan as in effect for that fiscal year, not to exceed 100%, and then rounding the resulting number
up to the nearest whole number.
(2) If Grantee achieves 100% of his target incentive award under the Annual Incentive Plan in
each of fiscal years 2006, 2007 and 2008, he will be deemed to have earned 100% of the Target Grant
of Performance Shares.
(3) If Grantee earns a portion but less than 100% of the Annual Target Amount of Performance
Shares with respect to any of fiscal years 2006, 2007 or 2008, Grantee shall forfeit the remaining
portion of the Annual Target Amount not earned with respect to such fiscal year.
(4) If with respect to any of fiscal years 2006, 2007 or 2008 Grantee does not earn any
portion of the Annual Target Amount of Performance Shares, Grantee shall be entitled to earn all or
a portion of such Performance Shares in the fourth and fifth years of the Performance Period in
accordance with Section 2(a)(ii) below.
(ii) Subject to Section 2(a)(iii), any Performance Shares not earned or not otherwise
forfeited during the first three years of the Performance Period in accordance with Section 2(a)(i)
will be deemed earned as follows:
(1) With respect to each of fiscal 2009 and 2010, Grantee will be deemed to have earned a
number of Performance Shares, if any, determined by multiplying the Annual Target Amount by the
percentage of the target incentive award that Grantee achieves for such fiscal year under the
Annual Incentive Plan as in effect for that fiscal year, not to exceed 100%, and then rounding the
resulting number up to the nearest whole number.
(2) If Grantee earns a portion but less than 100% of the Annual Target Amount of Performance
Shares with respect to any of fiscal years 2009 or 2010, Grantee shall forfeit the remaining
portion of the Annual Target Amount not earned with respect to such fiscal year.
(3) If Grantee does not earn any portion of the Annual Target Amount of Performance Shares
with respect to fiscal 2009, Grantee shall be entitled to earn all or a portion of such Performance
Shares with respect to fiscal 2010.
(iii) Any portion of the Target Grant of Performance Shares not earned as of the end of the
Performance Period shall be forfeited and Grantee shall have no right to receive such Performance
Shares. Except as contemplated by Section 7(f), in no event may Grantee earn under this Agreement
more than (1) the Annual Target Amount of Performance Shares with respect to any fiscal year, (2)
an aggregate of two-thirds of the Target Grant of Performance Shares with respect to fiscal 2009
and 2010, any excess to be forfeited and (3) the total Target Grant of Performance Shares.
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(b) If Grantee is deemed to have earned any of the Performance Shares as of the end of any
fiscal year within the Performance Period as set forth in Section 2(a), the Company will pay
Grantee in accordance with Section 4 an award of Shares equal to the number of Performance Shares
so earned; provided, however, that prior to the payment of Shares pursuant to this Agreement, the
Committee must certify that the objectives establishing entitlement to the payment of Shares have
been achieved.
3. Awards on Certain Events. Notwithstanding the requirement in Section 2 of this Agreement
that a Grantee be actively employed on the last day of any fiscal year of the Company during the
Performance Period for which Grantee has earned Performance Shares, all of the Performance Shares
that have not otherwise been earned or forfeited shall be deemed earned, and Shares shall be
awarded pursuant to this Agreement, as of the date of (i) Grantee’s death or disability, (ii) a
Change in Control (as defined in the Plan) of the Company, or (iii) a termination of Grantee’s
employment by the Company “without cause”. Termination shall be deemed to be “without cause”
unless the Board of Directors of the Company, or its designee, in good faith determines that
termination is because of any one or more of the following:
Grantee’s:
| (i) | fraud; | ||
| (ii) | misappropriation of funds; | ||
| (iii) | commission of a felony or of an act or series of acts which result in material injury to the business reputation of the Company; | ||
| (iv) | commission of a crime or act or series of acts involving moral turpitude; | ||
| (v) | commission of an act or series of repeated acts of dishonesty that are materially inimical to the best interests of the Company; | ||
| (vi) | willful and repeated failure to perform his duties, which failure has not been cured in all substantial respects within fifteen (15) days after the Company gives written notice thereof to Grantee; or | ||
| (vii) | material breach of any material provision of any employment agreement with the Company, which breach has not been cured in all substantial respects within ten (10) days after the Company gives written notice thereof to Grantee. |
In addition, Xxxxxxx may terminate his employment with the Company, and such termination shall be
deemed a termination by the Company “without cause” if:
| (i) | the Company reduces Xxxxxxx’s title, responsibilities, power or authority in comparison with his title, responsibilities, power or authority on the date hereof; | ||
| (ii) | the Company assigns Grantee duties which are inconsistent with the duties assigned to Grantee on the date hereof and which duties the Company persists in assigning to Grantee despite the prior written objection of Grantee; or the Company reduces Grantee’s annual base compensation (unless such decrease is proportionate with a decrease in the base compensation of the executive officers of the Company as a group), or materially reduces his group health, life, disability or other insurance programs (including any such benefits provided to Xxxxxxx’s family), his pension, retirement or profit-sharing benefits or any benefits provided by the Company, or excludes him from any plan, program or arrangement, including but not limited to bonus or incentive plans, in which the other executive officers of the Company are included. |
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For purposes of this Agreement Grantee shall be considered “disabled” if Grantee is unable to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment, which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months or at such earlier time as the Committee
shall determine.
4. Payment of Award. As soon as practicable after any Performance Shares are deemed earned
by Grantee pursuant to Section 2 (which shall be no longer than the time period required under
Internal Revenue Code Section 409A (“Section 409A”) to qualify as a short-term deferral as
contemplated thereby), such Performance Shares shall be issued to Grantee in the form of Shares;
provided, however, in no event shall any Shares earned with respect to the fiscal year ended
February 28, 2006 be issued prior to the first anniversary of the Date of Grant. At such time,
Grantee shall enjoy full shareholder and ownership rights with respect to such Shares. A stock
certificate representing all such Shares shall be delivered to Grantee (or any person who makes a
claim through a Grantee) and shall be registered in his or her name. In the case of Xxxxxxx’s
death or disability, payment of any Shares that Xxxxxxx has earned will be made to the beneficiary
designated by Grantee in a writing filed with the Company or, if none, to Xxxxxxx’s estate.
5. Ownership Rights. Except as otherwise provided herein, Grantee will not have the rights
of a shareholder of the Company with respect to any Shares issuable upon the earning of any
Performance Shares. Upon receipt of any portion of Shares issued pursuant to Performance Shares
awarded under Section 2, Grantee shall exercise all ownership rights (including, without
limitation, the right to vote and the right to receive dividends) with respect to such Shares,
provided that voting and dividend rights with respect to the Shares will be exercisable only if the
record date for determining shareholders entitled to vote and receive dividends, as the case may
be, falls on or after the date as of which Shares are earned and issued to Grantee pursuant to this
Agreement.
6. Deferral of Exercise or Delivery of Shares. Notwithstanding any provision in this
Agreement to the contrary, if any law or regulation of any governmental authority having
jurisdiction in the matter requires the Company, the Board, the Committee or Grantee to take any
action or refrain from action in connection with the award or delivery of Shares under this
Agreement, or to delay such award or delivery, then the award or delivery of such Shares shall be
deferred until such action has been taken or such restriction on action has been removed.
7. General Provisions. Xxxxxxx acknowledges that he has read, understands and agrees with
all of the provisions in this Agreement and the Plan, including, but not limited to, the following:
(a) Administration. The interpretation and construction by the Board and/or the Committee of
any provision of this Agreement, the Plan or any notification or document evidencing the grant of
Performance Shares and that any determination by the Board or such Committee pursuant to any
provision of this Agreement or the Plan or of any such agreement, notification or document shall be
final and conclusive.
(b) Notices. Any notice that is required or permitted under this Agreement shall be in writing
(unless otherwise specified in the Agreement or in a writing from the Company to Grantee), and
delivered personally or by mail, postage prepaid, addressed as follows: (i) if to the Company, at
Xxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention: Human Resources Department, or at such other
address as the Company by notice to Grantee may have designated from time to time; (ii) if to
Grantee, at the address indicated in Grantee’s then-current personnel records, or at such other
address as Grantee by notice to the Company may have designated from time to time. Such notice
shall be deemed given upon receipt.
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(c) Taxation. Grantee shall be responsible for all applicable income and withholding taxes and
the employee share of FICA taxes with respect to any compensation income generated upon the award
of his earned Performance Shares under this Agreement. No later than the date as of which an
amount first becomes includable in the gross income of Grantee for federal income tax purposes with
respect to the Performance Shares awarded hereunder, Grantee shall pay to the Company, or make
arrangements satisfactory to the Committee regarding the payment of, any federal, state or local
taxes of any kind required by law to be withheld with respect to that amount. Unless otherwise
determined by the Committee, withholding obligations may be settled with previously owned common
shares or Shares that have been earned and that are issuable hereunder. The making of that payment
or those arrangements is a condition to the obligations of the Company under the Plan, and the
Company may, to the extent permitted by law, deduct any taxes from any payment of any kind
otherwise payable to Grantee or the Company may retain such number of the Shares issuable upon the
earning of Performance Shares covered by the grant evidenced by this Agreement as shall be equal in
value to the amount of the remaining withholding obligation.
(d) Nontransferability. This Agreement and the Performance Shares granted to Grantee shall be
nontransferable and shall not be sold, hypothecated or otherwise assigned or conveyed by Grantee to
any other person, except as specifically permitted in this Agreement. No assignment or transfer of
this Agreement or the rights represented thereby, whether voluntary or involuntary, or by operation
of law or otherwise, shall vest in the assignee or transferee any interest or right whatsoever,
except as specifically permitted in this Agreement. The Agreement shall terminate, and be of no
force or effect, immediately upon any attempt to assign or transfer the Agreement or any of the
Performance Shares to which the Agreement applies.
(e) Not an Employment Contract. This Agreement shall not be deemed to limit or restrict the
right of the Company to terminate Xxxxxxx’s employment at any time, for any reason, with or without
cause, or to limit or restrict the right of Grantee to terminate his employment with the Company at
any time.
(f) Adjustments. On any change in the number or kind of outstanding common shares of the
Company by reason of a recapitalization, merger, consolidation, reorganization, separation,
liquidation, share split, share dividend, combination of shares or any other change in the
corporate structure or common shares of the Company, the Company, by action of the Board or the
Committee is empowered to make such adjustment, if any, in the number and kind of Performance
Shares subject to this agreement as it considers appropriate for the protection of the Company and
of Grantee.
(g) Unsecured Creditor Status. This grant of Performance Shares constitutes a mere promise by
the Company to pay Grantee the benefits described in this grant (to the extent earned). Grantee
shall have the status of a general unsecured creditor of the Company with respect to the benefits
payable under this Agreement.
(h) Fractional Shares. Notwithstanding anything in this Agreement to the contrary, in the
event that any adjustment to the Target Grant of Performance Shares or an award of Shares or the
calculation of an award pursuant to this Agreement would otherwise result in the creation of a
fractional share interest, the affected award shall be rounded up to the nearest whole share.
(i) Amendment or Termination. This Agreement may be amended or terminated at any time by the
mutual agreement and written consent of Grantee and the Company, but only to the extent permitted
under the Plan. The provisions set forth in this Agreement are subject to the restrictions and
other requirements of Section 409A and related regulations and rulings. Without limiting the
generality of the preceding sentence, such provisions shall be modified and amended, as and where
necessary, to bring such provisions into compliance with the requirements set forth in Section 409A
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and related regulations and rulings. This Agreement shall be interpreted (and if necessary,
amended) to comply with Section 409A and to the extent any provision of this Agreement is
inconsistent with Section 409A, said Section 409A shall control even if such action may reduce or
diminish the value of Grantee’s award.
(j) Severability. If any provision of this Agreement should be held illegal or invalid for any
reason, such determination shall not affect the other provisions of this Agreement, and it shall be
construed as if such provision had never been included herein.
(k) Headings/Gender. Headings in this Agreement are for convenience only and shall not be
construed to be part of this Agreement. Any reference to the masculine, feminine or neuter gender
shall be a reference to other genders as appropriate.
(l) Governing Law. This Agreement shall be construed, and its provisions enforced and
administered, in accordance with the laws of the State of Ohio and, where applicable, federal law.
(m) Definitions. Initial capitalized terms used in this Agreement that are not otherwise
defined herein shall have the meaning set forth in the Plan.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized
officer, and Xxxxxxx has executed this Agreement, as of the Grant Date.
| AMERICAN GREETINGS CORPORATION |
||||
| By: | /s/ Xxxxx X. XxXxxxx | |||
| Xxxxx XxXxxxx, Vice President, | ||||
| Human Resources | ||||
GRANTEE |
||||
| /s/ Xxx Xxxxx | ||||
| Name: | Xxx Xxxxx | |||
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