Our Board of Directors has determined that all of the directors who serve on these committees are “independent” for purposes of the listing standards of the Nasdaq Stock Market, and that the members of the Audit and Finance Committee are also “independent” for purposes of Section 10A(m)(3) of the Securities Exchange Act of 1934, as amended, which we refer to in this proxy statement as the Exchange Act. Our Board of Directors based these determinations primarily on a review of the responses of the directors to questions regarding employment, compensation history, affiliations and family and other relationships, and onfollow-up discussions.
The current members of the Audit and Finance Committee are Thomas L. Saeli (Chair), Patricia C. Barron and Robert W. Shaw II. This committee selects our independent registered public
Our Board of Directors has determined that each of the members of the Audit and Finance Committee is “financially literate” in accordance with the listing standards of the Nasdaq Stock Market. In addition, our Board of Directors has determined that Mr. Saeli qualifies as an “audit committee financial expert” as defined in Item 407(d)(5) ofRegulation S-K.
The Governance Committee identifies potential nominees for directors based on its own research for appropriate candidates as well as on recommendations received by directors or from shareholders as described below. On occasion, the Governance Committee willmay retain an executive search firm to assist in the identification of potential director nominees. The committee will also evaluate information provided by the National Association of Corporate Directors about prospective Board candidates. The evaluation process and the factors considered in undertaking that evaluation are set forth under the caption “Shareholder“Shareholder Recommendations for Director Nominations” on page 9.Nominations” below.
of a Board committee receives an additional cash retainer for such committee service as summarized in the tabletables below.
| | | | | | | | |
| | Annual Retainer for
| | Annual Retainer for
|
| | Committee Members | | Committee Chair |
|
Audit and Finance Committee | | $ | 6,750 | | | $ | 16,750 | |
Compensation and Management Committee | | $ | 5,250 | | | $ | 13,250 | |
Governance Committee | | $ | 4,500 | | | $ | 9,500 | |
Strategy and Corporate Development Committee | | $ | 3,750 | | | $ | 8,750 | |
For the Period July 1, 2011 to June 30, 2012
| Annual Retainer for Committee Members | Annual Retainer for Committee Chair |
Audit and Finance Committee | $6,750 | $16,750 |
Compensation and Management Committee | $5,250 | $13,250 |
Governance Committee | $4,500 | $9,500 |
Strategy and Corporate Development Committee | $4,500 | $9,500 |
| | |
For the Period July 1, 2012 to June 30, 2013
| Annual Retainer for Committee Members | Annual Retainer for Committee Chair |
Audit and Finance Committee | $6,750 | $16,750 |
Compensation and Management Committee | $5,250 | $13,250 |
Governance Committee | $4,500 | $9,500 |
Strategy and Corporate Development Committee | $5,250 | $13,250 |
Annual retainers for both committee members and committee chairs are paid quarterly in cash. For Board and committee service during 2010,the fiscal year ended December 31, 2012, we paid our directors an aggregate $264,964.$241,640.
In addition, as described below, we decided that for the quarterly stock payments due directors on February 15, 2013 and May 15, 2013, we would pay our directors in cash rather than in shares of our common stock. For each director other than the Board Chair, this would mean an additional $20,000 of cash compensation in lieu of shares of common stock valued at $20,000, and for the Board Chair an additional $33,000 of cash compensation in lieu of shares of common stock valued at $33,000.
Our Board of Directors did not modify our equity compensation program for directors which continues to provideprovides each director with an annual award of shares of our Common Stockcommon stock without any restrictions. The aggregate value of the award for each non-employeenon-
employee director is $40,000 and the aggregate value of the award for the Board Chair is $66,000. Our directors are elected annually in June of each year. Accordingly, these grants of Common Stockcommon stock to our current directors were scheduled for four equal installments on August 15, 2010,2012, November 15, 2010,2012, February 15, 20112013 and May 15, 2011.2013. In order to receive an installment of Common Stock,common stock, a director must be a current member of our Board of Directors on the scheduled installment payment date. To determine the number of shares of Common Stockcommon stock to award based on this valuation, the value of each quarterly award, which is $10,000 for each director other than the Board Chair and $16,500 for the Board Chair, is divided by the volume weighted average price (“VWAP”) of the Common Stockcommon stock on the grant date of the award. On August 15, 2010,2012, each incumbent non-employee director received 2,1723,178 shares of Common Stockcommon stock and the Board Chair received an additional 1,3622,065 shares of Common Stock.common stock. On November 15, 2010,2012, each incumbent non-employee director received 1,5443,367 shares of Common Stock and the Board chair received an additional 1,003 shares of Common Stock. On February 15, 2011, each incumbent non-employee director received 2,529 shares of Common Stockcommon stock and the Board Chair received an additional 1,643 shares.2,189 shares of common stock.
Recently we discovered that we had inadvertently issued stock awards to our independent directors in excess of the 200,000-share limitation under our Restated LTIP on the number of shares of our common stock that may be used for awards other than stock options or stock appreciation rights (the “Limitation’). The issuances of shares of our common stock in excess of the Limitation (the “Excess Shares”) occurred during 2010 and after and were disclosed and were properly accounted for in our periodic reports and proxy statements filed with the SEC. We issued a total of 179,512 Excess Shares to our independent directors in the form of outright stock grants or restricted stock awards as part of their annual retainers. Since the Excess Shares were issued in excess of the Limitation, they were not issued pursuant to the Restated LTIP and hence the issuances of the Excess Shares were not registered under the Securities Act of 1933, as amended (the “Securities Act”) by our Form S-8 registration statement for the Restated LTIP. Although the issuances of the Excess Shares were not registered under the Securities Act, the issuances of the Excess Shares qualified for an exemption under Section 4(2) of the Securities Act. The issuances of the Excess Shares were exempt from registration under Section 4(2) of the Securities Act because those issuances did not involve a “public offering,” as defined in Section 4(2) of the Securities Act due to the small number of persons involved in the transaction, the size of the offering, the manner of the offering, the number of Excess Shares offered, the financial sophistication of our directors and their access to our financial information. Because of the Excess Shares issue, we chose not to issue any additional shares of our common stock to our non-employee directors and accordingly paid our non-employee directors cash on February 15, 2013 and will pay them cash on May 15, 2013. This cash compensation is $10,000 per quarter for each director other than the Board Chair and $16,500 per quarter for the Board Chair. We are submitting to our shareholders a proposal to amend our Restated LTIP to, among other things, increase the Limitation from 200,000 to 800,000 shares (see Proposal 3) and a separate proposal to ratify the grant of the Excess Shares (See Proposal 4).
Our directors also have stock ownership guidelines which require them to hold 2,000 shares. Directors have two years to achieve the required ownership. Furthermore, until the required stock ownership guidelines are met, directors are required to hold at least 50% of all vested after-tax shares and 50% of shares received on exercise of stock options. Currently, all of our non-employee directors meet the sharestock ownership guidelines.
The table below summarizes the compensation paid by us to our non-employee directors for their service during the fiscal year ended December 31, 2010.2012.
| | | | | | | | | | | | |
| | Fees Earned or
| | Stock Awards
| | Total
|
Name (1) | | Paid in Cash ($) | | ($)(2)(3) | | ($) |
|
Carole Lewis Anderson | | | 20,696 | | | | 20,003 | | | | 40,699 | |
Steven M. Anderson | | | 19,483 | | | | 30,005 | | | | 49,488 | |
Patricia C. Barron | | | 36,448 | | | | 40,006 | | | | 76,454 | |
Anthony J. Cavanna | | | 15,494 | | | | 20,003 | | | | 35,497 | |
Paula H.J. Cholmondeley | | | 22,080 | | | | 20,003 | | | | 42,083 | |
Daniel W. Christman | | | 6,648 | | | | 16,498 | | | | 23,146 | |
James A. Croce | | | 16,635 | | | | 20,003 | | | | 36,638 | |
Thomas L. Saeli | | | 32,014 | | | | 30,005 | | | | 62,019 | |
Robert W. Shaw II | | | 19,833 | | | | 20,003 | | | | 39,836 | |
Ranjit C. Singh | | | 40,752 | | | | 40,006 | | | | 80,758 | |
Bradford T. Whitmore | | | 34,881 | | | | 59,504 | | | | 94,385 | |
Name (1) | | Fees Earned or Paid in Cash ($) | | Stock Awards ($)(2)(3) | | Total ($) |
Steven M. Anderson | | 32,252 | | 40,003 | | 72,255 |
Patricia C. Barron | | 33,752 | | 40,003 | | 73,755 |
12
James A. Croce | | 30,128 | | 40,003 | | 70,131 |
Thomas L. Saeli | | 41,252 | | 40,003 | | 81,255 |
Robert W. Shaw II | | 38,128 | | 40,003 | | 78,131 |
Ranjit C. Singh | | 38,128 | | 40,003 | | 78,131 |
Bradford T. Whitmore | | 28,000 | | 66,004 | | 94,004 |
| | |
(1) | | John D. Kavazanjian was ineligible to receive compensation for his service as a director because he was also an employee, serving as our President and Chief Executive Officer through December 30, 2010. Michael D. Popielec is ineligible to receive compensation for his service as a director because he is also an employee, serving as our President and Chief Executive Officer. Carole Lewis Anderson, Anthony J. Cavanna and Paula H.J. Cholmondeley ceased serving as directors on June 8, 2010, and Daniel W. Christman ceased serving as a director on March 24, 2010. Thomas L. Saeli did not become a director until March 5, 2010. Steven M. Anderson did not become a director until April 13, 2010. James A. Croce and Robert W. Shaw II did not become directors until June 8, 2010. |
|
(2) | | The amounts set forth in this column reflect the aggregate grant date fair value of stock awards granted during 2010.2012. The Financial Accounting Standards Board’s Accounting Standards Codification Topic 718 (“ASC 718”) (formerly, Statement of Financial Accounting Standards No. 123(R),123R, Share-Based Payment), requires us to recognize compensation expense for stock options and other stock-related awards granted to our employees and directors based on the estimated fair value of the equity awards at the time of grant. The compensation expense for such awards is expensed at the time of grant. There was no stock option expense in 20102012 for directors’ options since no stock options were granted to directors during 2010.2012. The assumptions used to determine the valuation of the awards are discussed in Note 7 to our audited consolidated financial statements included in our Annual Report onForm 10-K for the year ended December 31, 2010. The number of shares granted in 2010 and the grant date fair value of those grants determined in accordance with ASC 718 are set forth below.2012. |
| | | | | | | | | | | | |
| | | | | | Grant Date
|
Name | | Grant Date | | Shares (#) | | Fair Value ($) |
|
Carole Lewis Anderson | | | 2/15/10 | | | | 2,529 | | | | 10,001 | |
| | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
Steven M. Anderson | | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
| | | 8/15/10 | | | | 2,172 | | | | 10,001 | |
| | | 11/15/10 | | | | 1,544 | | | | 10,002 | |
Patricia C. Barron | | | 2/15/10 | | | | 2,529 | | | | 10,001 | |
| | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
| | | 8/15/10 | | | | 2,172 | | | | 10,001 | |
| | | 11/15/10 | | | | 1,544 | | | | 10,002 | |
Anthony J. Cavanna | | | 2/15/10 | | | | 2,529 | | | | 10,001 | |
| | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
Paula H.J. Cholmondeley | | | 2/15/10 | | | | 2,529 | | | | 10,001 | |
| | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
Daniel W. Christman | | | 2/15/10 | | | | 4,172 | | | | 16,498 | |
James A. Croce | | | 8/15/10 | | | | 2,172 | | | | 10,001 | |
| | | 11/15/10 | | | | 1,544 | | | | 10,002 | |
Thomas L. Saeli | | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
| | | 8/15/10 | | | | 2,172 | | | | 10,001 | |
| | | 11/15/10 | | | | 1,544 | | | | 10,002 | |
Robert W. Shaw II | | | 8/15/10 | | | | 2,172 | | | | 10,001 | |
| | | 11/15/10 | | | | 1,544 | | | | 10,002 | |
Ranjit C. Singh | | | 2/15/10 | | | | 2,529 | | | | 10,001 | |
| | | 5/15/10 | | | | 2,142 | | | | 10,002 | |
| | | 8/15/10 | | | | 2,172 | | | | 10,001 | |
| | | 11/15/10 | | | | 1,544 | | | | 10,002 | |
Bradford T. Whitmore | | | 2/15/10 | | | | 2,529 | | | | 10,001 | |
| | | 5/15/10 | | | | 3,534 | | | | 16,502 | |
| | | 8/15/10 | | | | 3,584 | | | | 16,502 | |
| | | 11/15/10 | | | | 2,547 | | | | 16,499 | |
| | |
(3) | | The aggregate number of director stock options outstanding at December 31, 20102012 were as follows: |
| Name | | Stock Options | | |
Name
| | Stock Options |
|
Steven M. Anderson | | | —- | | |
| Patricia C. Barron | | | 25,5006,000 | | |
| James A. Croce | | | —- | | |
| Thomas L. Saeli | | | —- | | |
| Robert W. Shaw II | | | —- | | |
| Ranjit C. Singh | | | 48,50010,000 | | |
| Bradford T. Whitmore | | | —- | | |
14
PROPOSAL 2
ADVISORY RESOLUTION ON EXECUTIVE COMPENSATION
We are currently for the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act, which is referred to in this proxy statement as Dodd-Frank, we are asking our shareholders to approve an advisory resolution on ourfirst time considered a “smaller reporting company” for purposes of the SEC’s executive compensation and other disclosures. As such, we have opted to take advantage of the scaled disclosure requirements afforded to smaller reporting companies and, as reporteda result, have provided more limited (or, in thissome cases, eliminated) disclosures that we have provided in prior years’ proxy statement. As describedstatements. The executive compensation disclosures that follow comply with the SEC’s executive compensation disclosure rules for smaller reporting companies and therefore are generally more narrow in scope than the executive compensation disclosures and Compensation Discussion and Analysis on pages 16 through 27 of thisthat we have included in prior proxy statement, our Compensation and Management Committee has structured our executive compensation program to achieve the following objectives: pay for performance; align the interests of our executive officers with those of our shareholders; and attract, retain and motivate talented individuals. Our compensation programs are designed to reward our Named Executive Officers, as defined on page 16, for the achievement of both short-term and long-term strategies and operational goals while promoting enhanced shareholder return. At the same time, our compensation programs are designed to avoid encouraging unnecessary or excessive risk-taking by our Named Executive Officers.statements.
We direct our shareholders to our Compensation Discussion and Analysis on pages 16 through 27 of this proxy statement which sets forth the principles of our executive compensation programs and the policies and procedures that implement those policies. We encourage our shareholders to read this information carefully, as well as the Summary Compensation Table and other related compensation tables and narratives which follow the Compensation Discussion and Analysis.
The vote on this advisory resolution is not intended to address any specific component of our executive compensation. It is meant to address the overall compensation of our Named Executive Officers as described in this proxy statement.
In accordance with recently-adoptedRule 14a-21(a) of the Exchange Act and as a matter of good corporate governance, we are asking our shareholders to approve the following advisory resolution at the Meeting:
Resolved, that the shareholders of Ultralife Corporation (the “Company”) approve, on an advisory basis, the compensation of the Company’s Named Executive Officers disclosed in the Compensation Discussion and Analysis, the Summary Compensation Table and the related compensation tables, notes and narrative in the proxy statement for the Company’s 2011 Annual Meeting of Shareholders.Introduction
This advisory resolution, commonly referred to as a“Say-on-Pay” resolution is non-binding on our company and our Board of Directors. Although it is non-binding, the Board of Directors and the Compensation and Management Committee will review and consider the voting results when making future decisions regarding our executive compensation program and policies.
Our Board of Directors recommends a voteFORthe approval of the advisory resolution on executive compensation.
PROPOSAL 3
ADVISORY VOTE ON THE FREQUENCY OF FUTURE
ADVISORY VOTES ON EXECUTIVE COMPENSATION
As also required by Dodd-Frank and pursuant to recently adoptedRule 14a-21(b) of the Exchange Act, we are asking our shareholders to vote on an advisory basis on whether future advisory votes on executive compensation of the nature reflected in Proposal 2 above should occur every year, every two years or every three years.
After careful consideration and dialogue with our shareholders, various proxy advisory organizations and various institutional shareholder representative organizations, our Board of Directors has determined that holding an advisory vote on executive compensation every three years is the most appropriate policy for us at this time, and recommends that shareholders vote for future advisory votes on executive compensation to occur every three years. Our executive compensation programs are designed to promote a long-term connection between pay and performance. Our Board of Directors believes that providing our shareholders with the ability to vote for advisory votes on executive compensation every three years will give them the best opportunity to evaluate in context how our
15
executive compensation programs are working. Our Board of Directors also recognizes that we are required to make, and our shareholders expect to see, annual executive compensation disclosures. As theSay-on-Pay advisory vote is something new to us this year, holding a three-year advisory vote on executive compensation will provide us with appropriate feedback on our compensation disclosures without overemphasizing short-term analysis of programs that have significant long-term components. It should be noted, however, that because the advisorySay-on-Pay vote occurs after compensation for the current year has already been initiated and because the different elements of our executive compensation program are, in some instances, long-term in nature and are coordinated with our short-term incentives, it may well not be appropriate or advisable to alter our executive compensation programs as a result of any year’sSay-on-Pay advisory vote by the time of the following year’s Annual Meeting of Shareholders.
This advisory vote on the frequency of futureSay-on-Pay votes is non-binding on our company and our Board of Directors. Shareholders will be able to specify one of four choices for this proposal on the proxy card or voting instruction card: one year, two years, three years or abstain. Shareholders are cautioned that they are not voting to approve or disapprove the recommendation of our Board of Directors. Although the vote is non-binding, the Board of Directors and our Compensation and Management Committee will carefully review the voting results. Notwithstanding the recommendation of the Board of Directors and the outcome of the shareholder advisory vote, the Board of Directors may in the future decide to conduct advisory votes on a more or less frequent basis and may vary its practice based on factors not known to the Board of Directors at this time.
The Board of Directors recommends that shareholders vote to conduct future advisory votes on executive compensation on a three-year basis.
Compensation Discussion and Analysis
Introduction
This Compensation Discussion and Analysis, which we refer to as CD&A,statement provides information about the compensation programs for our President and Chief Executive Officer, our former President and Chief Executive Officer, our Chief Financial Officer and Treasurer, our next two most highly compensated executive officers employed at the end of 2010, our former Executive Vice President of Business Operations and our former Vice President, Corporate Communications Officer, to whomthose individuals we refer collectivelyhave identified as our “NamedNamed Executive Officers.”Officers for 2012 in accordance with the executive compensation disclosure rules and regulations of the SEC for smaller reporting companies. This CD&Aproxy includes our compensation philosophy and the objectives of our executive compensation programs, rewards program,
descriptions of each of the key elements of our executive compensation programsrewards program and the basis for the compensation decisions we made during 2010. 2012.
Our Named Executive Officers for 20102012 are:
| | |
| • | Michael D. Popielec, President and Chief Executive Officer (effective as of December 30, 2010) |
|
| • | John D. Kavazanjian, former President and Chief Executive Officer (ceased to be our President and Chief Executive Officer as of December 30, 2010; retired effective as of February 7, 2011) |
|
| • | Philip A. Fain, Chief Financial Officer and Treasurer |
|
| • | Peter F. Comerford, Vice President of Administration, Secretary and General Counsel |
|
| • | Patrick R. Hanna, Jr., Vice President, Corporate Compliance Officer |
|
| • | James E. Evans, former Executive Vice President of Business Operations (resigned effective as of April 30, 2010) |
|
| • | Julius M. Cirin, former Vice President, Corporate Communications Officer (died December 30, 2010) |
·Michael D. Popielec, President and Chief Executive Officer
Executive Summary·Philip A. Fain, Chief Financial Officer and Treasurer
·Peter F. Comerford, Vice President of Administration, Secretary and General Counsel
Compensation Overview
We engaged an independent executive compensation consulting firm, Grahall & Associates, to work with senior management and the Committee to establish an executive total rewards strategy, which was implemented in 2012. Grahall & Associates looked at the competitiveness of our pay practices by making peer group comparisons. They augmented the core peer group that we had used in the past with several additional organizations as some of the organizations in our original peer group had been lost to mergers and acquisitions. In addition to the core peer group analysis, they also provided analysis on a large sample of general technology organizations. Grahall presented several different potential reward strategies to the Committee for consideration.
The basic premise of Grahall’s proposal was that the compensation must be tied to the overall business strategy and the program that is needed for today will more than likely not be the same program needed three years from now, again focusing on the business strategy. The program that has been implemented is a transition model. This new program more effectively allocates the scarce resources that we have across competing needs than does our previous program. It recognizes that when resources are tight, resource allocation needs to be more surgical in nature. This structure is designed to increase our capability to recruit for key competitive advantage positions motivate core executives to reposition our company and promote the retention of high performers who can impact our business going forward.
Our compensationexecutive rewards philosophy is designed by our Compensation and Management Committee, referred to in this CD&AExecutive Compensation section of our proxy statement as the Committee, to align the interests of our Named Executive Officers with those of our shareholders by rewarding performance that enhances the long-term objective of increasing shareholder value.value, significantly grows the business, and executes our business strategy. Our executive compensation programs arerewards program is designed to motivate our executives, including our Named Executive Officers, to achieve strong financial,
16
operational and strategic performance and to provide a link between the amounts earned by our Named Executive Officersexecutives and the creation of shareholder value. The Committee establishes specific annual, long-term and strategic goals and rewards Named Executive Officers for performance that meets or exceeds those goals. In addition, we expect our Named Executive Officers to work to these objectives while maintaining the highest ethical standards.
Despite a difficult economic environment, we substantially improvedThe key components of our operatingexecutive rewards program for our Named Executive Officers are base salary, annual short-term incentive plan (“STIP”) and long-term incentive plan (“LTIP”), combined with health and welfare benefits, retirement benefits and limited perquisites and other benefits. We seek to ensure that total executive compensation is aligned with corporate performance duringand the last completed fiscal year. As described in “Management’s Discussioncreation of shareholder value by emphasizing variable compensation that is at risk, subject to the achievement of corporate and Analysis of Financial Condition and Results of Operations” in our Annual Report onForm 10-K, our fiscal 2010 financial results were strong relative to our fiscal 2009 results. The following table highlights theyear-over-year comparison of the key financial metric that we used in evaluating ourindividual performance for the purpose of making compensation decisions in 2010:
| | | | | | | | | | | | |
Performance Measure | | Fiscal Year 2009 | | Fiscal Year 2010 | | Dollar Change |
|
Operating Profit (Loss) | | $ | (7,362,000 | ) | | $ | 7,878,500 | | | $ | 15,240,500 | |
goals.
We use operating profit for purposes of determining achievement underdesign our executive rewards program to attract, retain and motivate talented individuals, and to incentivize them to achieve our business strategy with strong financial, operational and strategic performance. In particular:
· | Our goal for 2012 was to have our total rewards package reflect the value of the job not only in the marketplace but within the organization based on the ability of the executive to drive the success of our business strategy and leverage our future growth. In reviewing market data, we looked not only at our peer group data but also at a group of technology-based organizations, recognizing that in order to attract and retain a skilled work force, we must remain competitive with the pay of other employers who compete with us for talent. |
· | Our executive rewards program is also designed to support our pay-for-performance philosophy by aligning compensation with executing long-term business strategies (LTIP) and achieving near-term financial and operational targets (STIP). We base compensation decisions on a combination of the criticality of the position in the achievement of our business strategy, individual performance and corporate performance. Generally, as an individual’s level of responsibility increases, so does the amount of variable compensation that is at risk and that depends on achievement of such goals. |
· | We develop and administer our executive rewards program to foster the long-term focus required for success in our industry, but we also work to achieve an appropriate balance between short-term and long-term compensation in order to adequately motivate our executives. |
To this end, the Committee reviews our executive total rewards program annually to assess if we are achieving our business strategy and if we are able to attract and retain talented executives, and to ensure that the total compensation paid to our executives, including our Named Executive Officers, is reasonable, competitive and performance-based. The Committee also ensures that our total compensation is linked to our ability to meet our annual Short-Term Incentive Plan, referredfinancial and non-financial goals and, longer term, to in this proxy statement asdrive strong levels of shareholder return. Our President & CEO makes recommendations with respect to the STIP. Operating profit is a non-GAAP measure that is calculated by modifying operating income (as defined under GAAP) to exclude incentive compensation expensesawards of the other executive officers, and asset impairment charges associated with our Energy Services business.the Committee determines the actual awards of the executive officers, including the President & CEO.
Our fiscal 20102012 financial performance, along with the individual performance of our Named Executive Officers, served as key factors in making compensation decisions for 2010,2012, including the following:
· | | |
| • | In December 2010, based on company and individual performance and also in consideration as to where the base salaries of ourOur 2012 Named Executive Officers fell in comparison with our peer group, the Committee approved base salary increases to Messrs. Fain and Comerford of 4.2% and 10.0%, respectively. Such increases were effective February 14, 2011. |
|
| • | OurOfficer STIP is aligned directly to an annual corporate financial target in line with our“pay-for-performance” pay-for-performance philosophy. For 2010,2012, corporate operating profit wasfrom continuing operations, and corporate revenue were the key metricmetrics for our Named Executive Officers’Officer annual cash incentive awards under the STIP. OurCorporate operating profit of $15 million comprised 90% of the STIP weighting and Corporate revenue of $163.4 million comprised the remaining 10% of the STIP weighting. The threshold level of performance with respect to this metriceach of these metrics was substantially improvednot met in 2010 as compared to 2009, but was slightly below our 2010 target. As such, our 2010 performance resulted in the payment of2012. Therefore, no short-term annual cash incentive awards under the STIP that were slightly below the target levels forpaid to our Named Executive Officers.Officers for 2012. |
|
| •· | Long-term equity incentive compensation continues to make up a significant portion of the compensation for each of our Named Executive Officers. During 2010,December 2011 (for the 2012 compensation year) and during 2012, long-term equity incentive compensation was granted solely in the form of stock options, as the Committee believed that stock options presented the best incentive to our Named Executive Officers to act in a manner designed to improve our market value by rewarding them only if our market value increases over the term of the stock option. |
|
| • | As discussed in greater detail below under Awards were determined individually and were based on the subheading “New Chiefcriticality of the position and the Named Executive Officer Compensation Package,” Mr. Popielec becameOfficer’s ability to initiate positive change and to be highly focused and leveraged on our President and Chief Executive Officer effective December 30, 2010. Mr. Popielec’s compensation package includes a significant equity component designed to incentivize him to effectively manage our growth strategy and improve our market value.future growth. |
Our executive compensation programs contain other key components and features that are designed to reinforce ourpay-for-performance philosophy. For example:
| | |
| • | We do not reimburse or“gross-up”Base Salary our Named Executive Officers for any of the taxes associated with any of the compensation and benefits we provide to them. |
|
| • | We maintain “double-triggered” agreements with certain of our Named Executive Officers under which payment is triggered only by certain terminations of employment subsequent to a change in control of our company. |
We encourage you to read this CD&A for a detailed discussion and analysis of our executive compensation programs, including information about the 2010 compensation of our Named Executive Officers.
17
Compensation Philosophy and Objectives
Our compensation philosophy is designed to align the interests of our Named Executive Officers with those of our shareholders by rewarding performance that enhances the long-term objective of increasing shareholder value. The Committee establishes specific annual, long-term and strategic goals and rewards Named Executive Officers for performance that meets or exceeds those goals. In addition, we expect our Named Executive Officers to work to these objectives while maintaining the highest ethical standards.
We design our executive compensation programs to attract, retain and motivate talented individuals, and to motivate them to achieve strong financial, operational and strategic performance. In particular:
| | |
| • | Our goal is to have our compensation package reflect the value of the job in the marketplace. To attract and retain a skilled work force, we must remain competitive with the pay of other employers who compete with us for talent. |
|
| • | Our executive compensation programs are designed to support ourpay-for-performance philosophy by aligning compensation with executing long-term business strategies and achieving near-term financial targets. We base compensation decisions on a combination of the level of job responsibility, individual performance and our company performance. Generally, as an individual’s level of responsibility increases, so does the amount of compensation that is “at risk” and dependent on achievement of such goals. |
|
| • | We develop and administer our compensation programs to foster the long-term focus required for success in our industry, but we also work to achieve an appropriate balance between short-term and long-term compensation in order to adequately motivate our employees. |
To this end, the Committee reviews our executive compensation program annually to assess if we are able to attract and retain talented executives, and to ensure that the total compensation paid to our executives, including our Named Executive Officers, is fair, reasonable, competitive and, where appropriate, performance-based. The Committee also ensures that our total compensation is linked to our ability to meet our annual financial and non-financial goals, and longer term, to drive strong levels of shareholder return.
Setting Executive Compensation
The following table identifies the various individuals and groups who participated in the compensation-setting process for 2010, as well as their responsibilities in connection with such participation.
| | |
Participant
| | Responsibilities
|
|
Compensation and Management Committee | | • Responsible for establishing, implementing and monitoring adherence to our compensation philosophy and objectives for our Named Executive Officers |
| | • The Compensation and Management Committee Chair, the Audit and Finance Committee Chair and the Chair of our Board of Directors, working with a retained search firm specializing in the placement of chief executive officers, performed the initial screening of candidates to become our President and Chief Executive Officer, and recommended to the Board that Mr. Popielec be offered the position. |
| | • Reviewed the performance of our President and Chief Executive Officer and our other Named Executive Officers |
| | • Reviewed the peer group composition and compensation program evaluation prepared for the Committee in 2008 by DolmatConnell & Partners, an independent executive compensation consulting firm (due to general economic conditions and the stability of our performance, the Committee did not engage DolmatConnell, or any other compensation consultant, in 2010) |
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| | |
Participant
| | Responsibilities
|
|
| | • Reviewed the peer group data compiled by Human Resources and obtained through Equilar, an independent executive compensation data provider |
| | • Reviewed our President and Chief Executive Officer’s recommendations regarding the compensation levels of our other Named Executive Officers |
| | • Approved the compensation levels and STIP payouts for our other Named Executive Officers (except for long-term equity incentive awards of more than 10,000 shares which require full Board approval) |
| | • Made recommendations to the Board regarding the compensation levels and STIP payout for our President and Chief Executive Officer |
| | • Approved financial metrics to be used for the STIP for 2011 |
President and Chief Executive Officer | | • Reviewed the performance of our other Named Executive Officers |
| | • Made recommendations to the Committee regarding the compensation levels and STIP payouts for our other Named Executive Officers with input from our Vice President of Corporate Human Resources |
| | • Made recommendations to the Committee for financial metrics to be used for the STIP for 2011 |
Competitive Market Data
The Committee believes that the compensation of our Named Executive Officers should be generally consistent with pay practices at comparable companies, in order to attract and retain top management talent. Each year, the Committee reviews the executive compensation practices of a group of public companies in our industry that it determines to be our peers based on their revenue and market capitalization. The data for 2010 basically utilized the same peer group that was established by DolmatConnell for 2009 to include companies of similar size within our industry. The peer group we used for establishing our 2010 executive compensation programs for our Named Executive Officers was comprised of the following companies:
| | |
Advanced Energy Industries, Inc. | | LaBarge, Inc. |
Aero Vironmento, Inc. | | Motorcar Parts of America, Inc. |
AZZ, Inc. | | Performed Line Products Co. |
Bel Fuse, Inc. | | Quantum Fuel Systems Technologies Worldwide, Inc. |
C&D Technologies, Inc. | | SL Industries Inc. |
Electro Scientific Industries Inc. | | Spectrum Control, Inc. |
EMCORE Corp. | | Vicor Corp. |
Greatbatch, Inc. | | |
Peer group data for our 2010 executive compensation programs was obtained through Equilar, which is an executive compensation data provider that provides benchmark data on publicly held companies on executive compensation, equity grants and compensation practices. If peer group data is not available on a specific Named Executive Officer’s position, we use a composite of published executive compensation surveys.
The Committee uses the peer group executive compensation data as a “market check” only. While the target compensation levels for our Named Executive Officers are not set to correspond to a specific level of market competitiveness, the Committee’s general approach has been to align compensation with the 50th percentile of our peer group. In addition, the Committee exercises significant discretion and judgment in determining individual
19
compensation target levels and actual amounts paid based on its overall understanding of the labor market for executive leadership, our specific needs and each Named Executive Officer’s individual circumstances.
Executive Compensation Components
The 2010 total compensation package for our Named Executive Officers consisted of the following primary components:
| | | | | | |
Compensation
| | | | | | Performance
|
Element
| | Form of Compensation
| | Purpose
| | Metrics |
|
Base salary | | Cash | | Provide compensation that is not “at-risk” to compensate our Named Executive Officers for services rendered during the fiscal year | | None |
Annual incentive compensation | | Cash | | Motivate our Named Executive Officers to attain vital short-term business goals and objectives as reflected in our annual operating plan | | Operating Profit |
Long-term incentive compensation | | Equity | | Incent our Named Executive Officers to focus on company growth, align their compensation with our business strategy and create value for our shareholders | | None |
Health and welfare plans | | Eligibility to receive health and other welfare benefits paid for by our company, including life insurance, short- and long-term disability insurance and a comprehensive medical and dental plan (we pay the monthly premiums for our Named Executive Officers) | | Provide a competitive employee benefits program | | None |
Retirement benefits | | Eligibility to participate in our 401(k) plan (available to all employees) | | Provide an incentive for long-term retention of our Named Executive Officers | | None |
Limited perquisites and other personal benefits | | A $7,500 flexible benefits allowance for the President and Chief Executive Officer, a $5,000 allowance for benefits such as supplemental long-term disability and company-paid executive physicals and tax preparation services | | Provide a competitive compensation package, facilitate strong, focused performance and better enable us to attract and retain superior employees for key positions | | None |
Base Salary
The President and Chief Executive Officer& CEO reviews the performance of the other Named Executive Officers and then recommends base salary adjustments, if any, to the Committee. In turn, the Committee independently reviews, adjusts where appropriate and approves the base salary adjustments, if any, based upon the subjective discretion of the Committee. In itsour Board’s executive session, the Committee reviews and recommends to the full Board of Directors any
20
base salary adjustment for theour President and Chief Executive Officer.& CEO. If changes to base salaries are recommended and approved, the changes in the base salary are effective duringmade based on a date range of anywhere from 12 to 15 months since the 1st quarterdate of the following calendar year.last increase based upon an executive’s performance.
The Committee typically reviews base salary levels from the core peer group companies and other published executive compensation surveys (if required)the technology peer group on an annual basis. The Committee has endeavored to better align executive salaries with the market, moving them toward approximatelybetween the 50th25th and the 50th percentile of our peer group, since base salaries for our executive officers have traditionally been significantly below market norms for comparable companies. In addition to looking at the peer group and other published executive compensation surveys,data, salaries for executivesour Named Executive Officers are determined based upon the following factors:
| | |
| •· | Individual performance |
· | Impact of position on achievement of the business strategy |
|
| •· | Job responsibilities, including any significant change in responsibilities |
|
| • | Internal pay equity |
|
| •· | Retention |
DueIn May 2012, the Committee recommended to overall company performance during fiscal year 2009the Board and the difficulty of the global economic crisis and recession, none of our Named Executive Officers receivedBoard subsequently approved a base salary increase that was effective during 2010. to Mr. Popielec in the amount of 3% ($450,000 to $463,500).
In December 2010, the President and Chief Executive Officer recommended toMarch 2012, the Committee thatapproved base salary increases be given to Messrs. Fain and Comerford in February 2011.of 4.0% ($250,000 to $260,000) and ($231,000 to $240,240), respectively. The merit increases were approved by the Committee based on companyCompany and individual performance and also in consideration of the fact that both were positioned well below the 50th percentile of our peer group as established at the end of 2008. Mr. Fain’s salary increased from $240,000 to $250,000 and Mr. Comerford’s salary was changed from $210,000 to $231,000.group. Following their respective increases in base salary, Messrs. Fain and Comerford’s base salaries still remain below the 50th percentile of our peer group. Other than these adjustments, no changes were made to the base salaries of our Named Executive Officers during 2012.
Short-Term Incentive Plan 2012
Typically, we establish a short-term incentive plan each fiscal year, which provides the Named Executive Officers an opportunity to receive an annual cash payment in addition to their base salaries. The short-term incentive plan is designed to place “at risk” a significant portion of the annual total cash compensation of the Named Executive Officers by linking the amount of compensation that can be achieved under the plan with our financial performance. We believe that the STIP is a key component of maintaining a competitive executive compensation program because it motivates our Named Executive Officers to achieve our short-term financial and strategic objectives while making progress towards our longer term growth. Based on our new Total Rewards Strategy those Named Executive Officers and other executives who had the opportunity for an immediate short term impact on the business and were instrumental in driving our operating results had more of their pay at risk in the STIP. These individuals also were tasked with balancing short term results and decisions with creating long term value.
Setting Threshold, TargetPresident & CEO
Mr. Popielec was eligible to receive an annual cash bonus outside of the 2012 Executive STIP if we exceeded certain performance metrics that were to be agreed upon no later than January 31, 2012. In 2012, Mr. Popielec’s bonus was based on delivering 2012 operating profit and Maximumcorporate revenue goals. His target bonus amount was 75% of his base salary or $337,500. The STIP Levelswas structured such that 90% of the weighting would be based on operating profit and 10% on corporate revenue. Bonus payout ranges were from 0% to 150% of the target bonus amount based on the satisfaction of one or more the bonus plan metrics. Satisfaction of less than 75% of either or both of the bonus plan metrics would result in no bonus being paid. Satisfaction of 75% up to 100% of either or both the bonus plan metrics would in result in bonus ranges from 50% to 100% of the target bonus. Satisfaction of 100% to 125% of either or both of the bonus plan metrics would result in bonus ranges from 100% to 150% of target bonus. The target bonus of $337,500 would be paid if operating profit was equal to or greater than $15 million and corporate revenue was $163.4 million. Due to our financial performance in 2012, no STIP or bonus was paid to our President & CEO.
Other Named Executive Officers
Initially, based on the recommendation from the President and Chief Executive Officer,& CEO, the Committee establishes threshold, targetcommitment and maximum bonus levels for each Named Executive Officer, which is expressed as a percentage of his base salary. The percentages are determined by the position of the Named Executive Officers within the organization and based upon the review of peer datadata. In 2012, the target for Mr. Fain was 45% of base salary and other published executive compensation surveys if peer data is not available.the target for Mr. Comerford was 35% of base salary. The threshold level for 2012 is the minimum level of performance required before any amount would be earned under the STIP.STIP, which is 75% of the Company performance targets of operating profit and corporate revenue. The Committee also establishes a maximum bonus level under the STIP. For 2010,2012, that maximum bonus level was two times150% of the target bonus level.
Generally, the Committee sets the target bonus level such that, assuming achievement of the corporate financial metric(s),metrics, the combined base salary and annual STIP opportunity for our Named Executive Officers will be at or near the 50th50th percentile for comparable executives at the companies in our peer group or from published executive
21
compensation surveys if peer group data is not available. For the 2010 STIP, the threshold, target and maximum levels under the STIP were as follows:
| | | | | | | | | | | | |
| | Threshold
| | Target
| | Maximum
|
| | (as a % of
| | (as a % of
| | (as a % of
|
Name | | Base Salary) | | Base Salary) | | Base Salary) |
|
John D. Kavazanjian | | | 0 | % | | | 60 | % | | | 120 | % |
Philip A. Fain | | | 0 | % | | | 45 | % | | | 90 | % |
Peter F. Comerford | | | 0 | % | | | 30 | % | | | 60 | % |
Patrick R. Hanna, Jr. | | | 0 | % | | | 30 | % | | | 60 | % |
James E. Evans* | | | 0 | % | | | 30 | % | | | 60 | % |
Julius M. Cirin ** | | | 0 | % | | | 30 | % | | | 60 | % |
group.
| | |
* | | Mr. Evans resigned effective as of April 30, 2010, and forfeited his 2010 STIP payments in connection with such termination. |
|
** | | The actual amount for Mr. Cirin would have been based on full-year participation. Mr. Cirin went out on disability in June 2010 and died on December 30, 2010. Therefore, any STIP payment due for 2010 would be prorated. |
EstablishingIn setting the STIP Performance Metrics
Normally, at the December Committee meeting, based on the recommendation from2012 executive compensation, the President and Chief Executive Officer,CEO recommended and the Committee identifies financial metrics that will be used for the STIP for the following calendar year. The metrics are normally finalized in January after the annual operating plan has been approved.
For purposes of setting 2010 executive compensation, the Committee, based on recommendations from our President and Chief Executive Officer, changed its approach to the STIP for certain Named Executive Officers. In prior years, the STIP for certain Named Executive Officers was based on a combination of individual goals and the achievement of our approved operating plan, and for the President and Chief Executive Officer and the Chief Financial Officer and Treasurer, the STIP was based solely on achievement of the operating plan. In setting 2010 executive compensation, the recommendation was made by the President and Chief Executive Officer and approved by the Committee that all Named Executive Officers would have their STIP based on our operating plan financial goals only.profit and corporate revenue goals. The threshold, target and maximum performance levels under the 2010 STIP were as follows:
| | | | | | | | | | | | |
Performance Measure | | Threshold | | Target | | Maximum |
|
Operating Profit | | $ | 4,589,000 | | | $ | 7,909,667 | | | $ | 15,695,095 | |
If our operating profits were not above $4,589,000, then no cash bonus would be paid to anypotential for 2012 was based on a percentage of the Named Executive Officers for 2010 performance. Compensation would only begin to be earned under the STIP if our operating profits exceeded $4,589,000. Fifteen percent of every dollar of operating profit that we achieved in excess of $4,589,000 would go into a bonus pool for potential distribution to the participants on a pro-rata basisOfficer’s salary based on their specificusing a surgical approach in which not every Named Executive Officer’s percentage of participation. Onceparticipation in the target operating profitplan was the same. The two metrics used for computation of $7,909,667 was reached, STIP participants would be eligible to receive their targetthe 2012 bonus payout. Once the target bonus payout has been met, then the bonus pool would be funded by 7% of each dollar in additional operating profit for potential distribution to participants on a pro-rata basis. At an operating profit of $15,695,095, the Named Executive Officers could receive their maximum STIPwere company operating profit and corporate revenue, with 90% of the weighting of the bonus based on 2012 operating profit commitment of two times their$15 million and 10% of the weighting of the bonus based on 2012 corporate revenue commitment of $163.4 million.
Satisfaction of less than 75% of the bonus plan metrics of operating profit commitment or corporate revenue commitment resulted in no bonus being paid for that metric. Satisfaction of 75% to 100% of the bonus plan metrics of operating profit commitment or corporate revenue commitment would result in a bonus range payout from 50% to 100% of the target bonus amount.
Sincefor that metric. Payout of 100% of the target bonus under the plan would be achieved by meeting the targeted cashoperating profit and corporate revenue commitments. Satisfaction of over 100% to 125% of the bonus plan metrics of operating profit or corporate revenue commitment would result in a bonus range payout of 100% to 150% of the target bonus for most of the companies in our peer group is based on the achievement of the approved operating plan for those companies, the Committee believes that the approach adopted for 2010 is a more conservative approach appropriate to the way that our operating plan was constructed, in line with our current position and designed to reward performance that exceeds our operating plan targets. It also has the effect of getting all of ourmetric. Named Executive Officers focused onwere eligible for a partial payment under the same common company-wide goals. The Committee also added an additional performance metric thatplan if a bonusone of the two metrics was earned for 2010, we must be profitable each quarter orachieved. Payout under the bonus pool would be reduced by 10%.
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STIP Payments
plan is capped at 150% of the target bonus. While the decisions to make STIP payouts as well as the amounts earned under the STIP are made at the sole discretion of the Committee, in making such determinations, the Committee relies on the
recommendations from our President and Chief Executive Officer& CEO for all other Named Executive Officers. The Committee makes recommendationsDue to our financial performance in 2012, no STIP or bonus was paid to any of the full Board for the STIP payout (if any) for the President and ChiefNamed Executive Officer. In December 2010, the Committee recommended to the Board of Directors that the $14,000,000 non-cash impairment associated with the Energy Services business be excluded from the STIP financial results calculations. This was approved by the Board of Directors. Based on our overall 2010 financial results of an operating profit of $7,878,500, STIP payments were made to the eligibleOfficers.
Long-Term Incentive Compensation
Long-Term Equity Incentive Compensation – Named Executive Officers for 2010. We were profitable for each quarter in 2010, and, therefore, the amounts earned under the STIP were not reduced by 10%. The chart below shows the STIP payment made for the Named Executive Officers for 2010 performance.
| | | | |
| | 2010 STIP
|
Name
| | Payout ($) |
|
John D. Kavazanjian | | | 251,312 | |
Philip A. Fain | | | 107,705 | |
Peter F. Comerford | | | 62,828 | |
Patrick R. Hanna, Jr. | | | 56,844 | |
James E. Evans* | | | 0 | |
Julius M. Cirin ** | | | 28,422 | |
| | |
* | | Mr. Evans resigned effective as of April 30, 2010, and forfeited his 2010 STIP payments in connection with such termination. |
|
** | | Mr. Cirin earned a partial bonus under the STIP through the date he went out on disability. Mr. Cirin died on December 30, 2010. |
Long-Term Incentive Compensationother than our President & CEO
We use equity awards to motivate our Named Executive Officers to increase the long-term value of our Common Stockcommon stock and, thereby, align the interests of our Named Executive Officers with those of our shareholders. Long-term equity incentive awards are intended to further our success by ensuring that sustainable value creation is a key factor in our Named Executive Officers’ management of the business and to help retain executives over time.
Long-term equity incentive compensation may consist of equity such as awards of stock options, performance-vestedperformance vested restricted shares and time-vestedtime vested restricted shares that vest over a multi-year period. This design approach helps align the interests of our Named Executive Officers with those of our shareholders in seeing long-term increases in the value of equity instruments. We use stock options as one of our long-term incentives because, in addition to providing our executive officers with the opportunity to develop a stock ownership stake in our company, they result in compensation only to the extent that the market price of our Common Stockcommon stock increases over the term of the stock option.
The size and form of these equity awards iswas determined by the Committee with recommendations from the President and Chief Executive Officer& CEO for the other Named Executive Officers. IfBased on our total rewards strategy, in late 2011 and early 2012 the President and CEO recommended larger equity awards recommended for theour other Named Executive Officers exceed 10,000 shares, the awards will be recommended for approval by the Committeeas they were highly focused and must be approved by the full Board of Directors. The Committee also recommends to the full Board any equity awards for the President and Chief Executive Officer.
Generally, the Committee bases the overall long-term incentive compensation around the mid-point (50th percentile) of those companies in our peer group. As with other compensation components, however, the Committee can modify this target either upward or downward basedleveraged on the Committee’s subjective evaluationgrowth of the long-term value oforganization and meeting the individual Named Executive Officer to us.organization’s strategic plan.
In recognition of our current market capitalizationDecember 2011 (for plan year 2012) and to better align management with the goals of our shareholders,in January 2012, the Committee decided for 2010 notrecommended to provide additional equity compensation in the form of either time-based stock awards or performance-based stock awards for the Named Executive Officers or the other
23
executives. Instead, the Committee approved only stock options, as more fully described below, in the belief that when granted with an exercise price at or above the current market price, stock options represent the best incentive to our Named Executive Officers to act in a manner designed to improve our market value and to reward our Named Executive Officers only if the market value increases over the term of the stock option. The Committee determines the value of long-term equity incentive compensation to be granted to each Named Executive Officer based on factors including the individual’s level of responsibility with our companyBoard and the resultsBoard approved the granting of the Committee’s annual evaluation of the individual’s performance, and then utilizes the peer group compensation data as a check on the competitiveness of the level of compensation.
Typically, equity awards are granted in the regularly scheduled December Committee meeting. As was previously disclosed in our proxy statement for our 2010 Annual Meeting of Shareholders, as a component of the 2010 executive compensation program, in December 2009 the Committee granted options to purchase shares of our Common Stock under our Restated LTIP to certain of our executive officers. The options that were granted have a seven-year term, vest over a three-year period in equal installments and have an exercise price of $3.9085 per share. Mr. Kavazanjian received an option to purchase 23,500 shares; Mr. Fain and Mr. Evans each received an option to purchase 33,000 shares; Mr. Comerford received an option to purchase 24,000 shares; and Mr. Cirin and Mr. Hanna each received an option to purchase 12,000 shares.
In addition, on January 13, 2010, the Committee recommended to the Board of Directors, and it was approved by the Board, that Mr. Kavazanjian receive an additional seven-year option under our Restated LTIP, which vests over a three-year period in equal installments, for 26,500 shares at an exercise price of $4.7761 per share.
In December 2010, as a component of the 2011 executive compensation program, the Committee granted options to purchase shares of our Common Stockcommon stock under our Restated LTIP to certain Named Executive Officers. The options that were granted haveIn December 2011, Mr. Fain received an option to acquire 50,000 shares at an exercise price of $4.42 per share, with a seven-year term vestand vesting over a three-year period in equal installments, and have an exercise price of $6.9061 per share. Mr. Fain received an option to purchase 25,000 shares; Mr. Comerford received an option to purchase 20,000 shares;26,000 shares at an exercise price of $4.42 per share, with a seven-year term and vesting over a three-year period in equal installments. In January 2012, Mr. HannaFain received an additional option to purchase 10,000 shares.20,000 shares at an exercise price of $3.98 per share, with a seven-year term and vesting over a three-year period in equal installments. These grants were issued in accordance with our 2012 executive total rewards strategy. The determination of who receives long-term incentive awards and how many awards they receive is based on the criticality of their role, their performance, their potential and their ability to drive our long-term business strategy.
Long-Term Equity Incentive Compensation – President & CEO
Long-term equity incentive compensation is a significant component of Mr. Popielec’s compensation package. Under his employment agreement, Mr. Popielec received the following options to purchase shares of our common stock:
Date of Grant | | Number of Shares | | Exercise Price | | Vesting Schedule |
| | | | | | |
December 30, 2010 | | 50,000 | | $6.4218 | | Twenty five percent of the shares will vest on each of the four anniversaries of the date of grant. |
| | | | | | |
January 3, 2011 | | 50,000 | | $6.5820 | | Twenty five percent of the shares will vest on each of December 30, 2011, December 30, 2012, December 30, 2013 and December 30, 2014. |
In addition, Mr. Popielec received three additional stock options, each of which was conditioned upon shareholder approval of our Restated LTIP at our 2011 annual meeting. This approval was obtained at our 2011 annual meeting, which was held in June 2011. As detailed below, most of these stock options were granted with an exercise price substantially above the grant date fair market value of our common stock.
Date of Grant | | Number of Shares | | Exercise Price | | Vesting Schedule |
| | | | | | |
December 30, 2010 | | 250,000 | | $6.4218 | | Twenty five percent of the shares will vest on each of the four anniversaries of the date of grant. |
| | | | | | |
December 30, 2010 | | 200,000 | | $10.00 | | Vesting begins on the date the stock first reaches a closing price equal to the exercise price for 15 trading days in a 30 trading-day period, with such vesting in equal amounts over the four anniversary dates of that date. |
| | | | | | |
December 30, 2010 | | 200,000 | | $15.00 | | Vesting begins on the date the stock first reaches a closing price equal to the exercise price for 15 trading days in a 30 trading-day period, with such vesting in equal amounts over the four anniversary dates of that date. |
We provide to all active employees a tax-qualified 401(k) plan that provides for both employer and employee contributions. Employees may defer annually to the plan up to the IRS limits. We provide a company match of 50% of an employee’s deferrals, up to a maximum of 4% of the employee’s annual salary.
We provide our Named Executive Officers with perquisites and other personal benefits that we and the Committee believebelieves are reasonable and consistent with our overall compensation program to better enable us to attract and retain superior employees for key positions. The Committee periodically reviews the levels of perquisites and other personal benefits provided to our Named Executive Officers.
The aggregate incremental costs of the personal benefits provided to our Named Executive are included in the “All Other Compensation” column of the 20102011 Summary Compensation Table.
New Chief Executive OfficerOther 2012 Compensation PackageActions
Mr. Popielec became ourRelocation Benefits – President and Chief Executive Officer effective December 30, 2010. Most recently, Mr. Popielec was employed by Carlisle Companies, Inc. of Charlotte, North Carolina, as its Group President, Applied Technologies, in 2008 and 2009 and as its Group President, Diversified Components, from 2005 to 2007. Prior to that, from 2003 to 2005, Mr. Popielec held various positions at Danka Business Systems, PLC and for 17 years prior to Danka, he held various positions at General Electric Company, including President and Chief Executive Officer of GE Power Controls, Industrial Systems in Europe from 2000 to 2002. After his tenure at Carlisle Companies, Inc., Mr. Popielec was engaged in special projects and consulting to both public and private companies. Mr. Popielec received his B.S. in Mechanical Engineering from Michigan State University in 1985.& CEO
The search committee of the Board of Directors, working with a retained search firm specializing in the placement of chief executive officers, conducted an extensive search that included interviews of a large number of
24
qualified individuals and after careful consideration selected Mr. Popielec as our new President and Chief Executive Officer given his extensive sales and marketing background and his 25 years in growing domestic and international industrial businesses.
The compensation package offered Mr. Popielec reflects competitive market data provided by Equilar and the search firm retained in connection with the chief executive officer search. Based on this data, the search committee of the Board of Directors determined that the total compensation target was within the range provided to chief executives in companies of comparable size and operations to Ultralife Corporation. This was also confirmed by reviewing the peer company data from the Equilar executive compensation database. Mr. Popielec’s compensation structure includes a significant equity component designed to incentivize him to effectively manage our company’s growth strategy. The Board of Directors and the Committee believe that the success or failure of these initiatives will be reflected in our share price and Mr. Popielec’s reward will be commensurate with the results experienced by the shareholders.
Annual Cash Compensation
We have set Mr. Popielec’s base annual salary at $450,000. Mr. Popielec is also eligible to receive an annual cash bonus outside of the STIP if we exceed certain performance metrics to be agreed upon no later than January 31 of the year for which the bonus applies. For 2011, and each year thereafter, Mr. Popielec’s annual cash bonus target shall not be less than 75% of his 2011 Base Salary.
Long-Term Equity Incentive Compensation
Long-term equity incentive compensation is a significant component of Mr. Popielec’s compensation package. Under his employment agreement, Mr. Popielec received the following options to purchase shares of our Common Stock:
| | | | | | | | | | |
| | Number of
| | | Exercise
| | | |
Date of Grant | | Shares | | | Price | | | Vesting Schedule |
|
December 30, 2010 | | | 50,000 | | | $ | 6.4218 | | | Twenty five percent of the shares will vest on each of the four anniversaries of the date of grant. |
January 3, 2011 | | | 50,000 | | | $ | 6.5820 | | | Twenty five percent of the shares will vest on each of December 30, 2011, December 30, 2012, December 30, 2013 and December 30, 2014. |
In addition, Mr. Popielec received three additional stock options, each of which is conditioned upon shareholder approval of an amendment to our Restated LTIP at the Meeting. The stock options detailed below are subject to shareholder approval to increase the number of shares available under the Restated LTIP and to increase the limitation on the maximum options issuable to an employee in a given year. If such approval is not obtained, such options shall be null and void. As detailed below, most of these stock options were granted with an exercise price substantially above the grant date fair market value of our Common Stock.
| | | | | | | | | | |
| | Number of
| | Exercise
| | |
Date of Grant | | Shares | | Price | | Vesting Schedule |
|
December 30, 2010 | | | 250,000 | | | $ | 6.4218 | | | Twenty five percent of the shares will vest on each of the four anniversaries of the date of grant. |
December 30, 2010 | | | 200,000 | | | $ | 10.00 | | | Vesting begins on the date the stock first reaches a closing price equal to the exercise price for 15 trading days in a 30 trading-day period, with such vesting in equal amounts over the four anniversary dates of that date. |
December 30, 2010 | | | 200,000 | | | $ | 15.00 | | | Vesting begins on the date the stock first reaches a closing price equal to the exercise price for 15 trading days in a 30 trading-day period, with such vesting in equal amounts over the four anniversary dates of that date. |
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Relocation Benefits
Under his employment agreement, Mr. Popielec iswas also entitled to the following relocation benefits:
| | |
| • | Rent and commuting transportation to the Rochester, New York area for up to nine months during 2011, as needed, for a total actual expense not to exceed $50,000. |
|
| • | Payment of all actual reasonable relocation and moving expenses incurred in 2011, including expenses incurred by Mr. Popielec and his spouse for travel to the Rochester, New York area to locate living accommodations, packing and transporting of household items to the new household and meals, lodging and travel in connection with the move to the new household, in an aggregate amount not to exceed $60,000. |
|
| •· | Payment of all actual reasonable current house sale/closing costs, including deed preparation, tax stamps, reasonable attorneys’ fees, real estate transfer taxes and real estate commissions incurred in 2011 and 2012. |
Mr. Popielec will also be entitled to receive the retirement, fringe and other personal benefits generally provided to our senior executives, in accordance with the terms of such arrangements.
Severance and Change in Control Arrangements
We have employment agreements with Messrs. Popielec and Comerford that contain change in control and severance provisions. These potential benefits provide these Named Executive Officers with important protections that we believe are necessary to attract and retain executive talent while, at the same time, requiring certain terminations following a change in control before any severance compensation is paid. In addition, Messrs. Fain and Hanna, as well as several members of our senior management team, are currently covered by a short-term severance andchange-in-control benefit. This special benefit was put in place by the Board of Directors to alleviate any concerns that key management employees might have with their future employment opportunities with us following the retirement of Mr. Kavazanjian, and the search for a new President and Chief Executive Officer. This special benefits package is not intended to be a permanent benefit, was initially put in place for a period of one year and will be reviewed by the Committee on an annual basis.
The severance provisions of the employment agreements and the short-term severance andchange-in-control benefit are intended to address competitive concerns by providing the Named Executive Officers with compensation that may alleviate the uncertainty of having to leave for another employer or foregoing other opportunities. The change in control provisions are intended to allow us to rely upon the Named Executive Officers continued employment and objective advice, without concern that a Named Executive Officer might be distracted by the personal uncertainties and risks created by an actual or proposed change in control. The terms of these arrangements are summarized below under the headings “Employment Arrangements” and “Potential Payments upon Termination or Change in Control.”19
On May 24, 2010, we entered into an addendum to the employment agreement with Mr. Kavazanjian. This addendum gave either Mr. Kavazanjian or us the right to terminate his employment agreement by giving the other party written notice. Pursuant to the terms of this addendum, Mr. Kavazanjian notified us of his decision to retire effective February 7, 2011. Mr. Kavazanjian ceased being our President and Chief Executive Officer on December 30, 2010, when Mr. Popielec assumed the position. Upon his retirement, Mr. Kavazanjian was entitled to certain benefits discussed more fully below on page 37 under the section “Potential Payments upon Termination and/or a Change in Control.”
Stock Ownership and Retention Guidelines for 20102012
In order to better align the interests of executive officers and shareholders, several years ago the Committee implemented stock ownership and retention guidelines for executive officers. The stock ownership requirements for executive officers are as follows:
| | |
President and Chief Executive Officer | & CEO | 1.00 times salary | |
| Chief Financial Officer | | 0.50 times salary | |
| Other Executive Officers | | 0.33 times salary | |
26
For 2010,2012, the Committee established the presumed share price at $9.59$4.88 per share, which was based on the volume weighted average price of our Common Stockcommon stock for the two-year period ended December 31, 2009.2011. Each year the Committee will establish a new presumed share price for the following year based on the volume weighted average price of our Common Stockcommon stock for the preceding two-year period. Executive officers have three years to achieve the required holdings.holdings, which are based on the presumed share price. Additionally, there are shareholding requirements which require that until the share ownership guidelines are met, executive officers must hold at least 50% of all vested restricted share grants (on an after tax basis) and 50% of shares received on exercise of stock options.
For 2010, our Shares owned by an executive, as well as shares underlying awards of stock options and restricted stock count towards the executive’s goal. All Named Executive Officers with the exception of Mr. Popielec, who became our President and Chief Executive Officer on December 30, 2010, have either met or are on target to meet their applicable stock ownership guidelines.
The Committee is currently reviewing the Named Executive Officer Stock Ownership Guidelines for 20112013 to ensure that best practices are being used.
As part of its role, the Committee reviews and considers the deductibility of executive compensation under Section 162(m) of the Code which provides that we may not deduct compensation of more than $1,000,000 that is paid to certain individuals. We believe that compensation paid under the executive compensation plans is fully deductible for federal income tax purposes. However, in certain situations, the Committee may approve compensation that will not meet these requirements in order to ensure competitive levels of total compensation for our executive officers.
Beginning on January 1, 2006, we began accounting for stock-based payments, including stock options and restricted stock awards, in accordance with the requirements of SFAS 123(R), now referred to as ASC 718.
COMPENSATION AND MANAGEMENT COMMITTEE REPORT
The2012 Summary Compensation and Management Committee has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) ofRegulation S-KTable with management and, based on such review and discussions, the Compensation and Management Committee recommended to the Board that the Compensation Discussion and Analysis be included in this proxy statement.The Compensation and Management Committee:
Ranjit C. Singh, Chair
Steven M. Anderson
James A. Croce
27
2010 SUMMARY COMPENSATION TABLE
The following table sets forth information concerning the compensation awarded to, paid to or earned by the Named Executive Officers for all services in all capacities to us and our subsidiaries during 2008, 20092011 and 2010:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | Non-Equity
| | | | |
| | | | | | | | Stock
| | Option
| | Incentive Plan
| | All Other
| | |
| | | | Salary
| | Bonus
| | Awards
| | Awards
| | Compensation
| | Compensation
| | Total
|
Name and Principal Position | | Year | | ($) | | ($) | | ($)(1) | | ($)(2) | | ($) | | ($)(3) | | ($) |
|
Michael D. Popielec (4) | | | 2010 | | | | — | | | | — | | | | — | | | | 193,831 | | | | — | | | | — | | | | 193,831 | |
President and Chief | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Executive Officer | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
John D. Kavazanjian | | | 2010 | | | | 437,437 | | | | — | | | | — | | | | 70,343 | | | | 251,312 | | | | 17,363 | | | | 776,455 | |
Former President and | | | 2009 | | | | 419,360 | | | | — | | | | 53,999 | | | | 148,237 | | | | — | | | | 15,597 | | | | 637,193 | |
Chief Executive Officer | | | 2008 | | | | 349,302 | | | | 43,750 | | | | — | | | | 126,813 | | | | — | | | | 17,036 | | | | 536,901 | |
Philip A. Fain | | | 2010 | | | | 250,927 | | | | — | | | | — | | | | 97,499 | | | | 107,705 | | | | 12,090 | | | | 468,221 | |
Chief Financial Officer | | | 2009 | | | | 240,538 | | | | — | | | | 22,501 | | | | 109,956 | | | | — | | | | 9,189 | | | | 382,184 | |
and Treasurer | | | 2008 | | | | 186,660 | | | | 20,000 | | | | 85,612 | | | | 265,510 | | | | — | | | | 88,408 | (5) | | | 646,190 | |
Peter F. Comerford (6) | | | 2010 | | | | 210,453 | | | | — | | | | — | | | | 77,999 | | | | 62,828 | | | | 9,994 | | | | 361,274 | |
Vice President of | | | 2009 | | | | 210,066 | | | | — | | | | 13,505 | | | | 69,345 | | | | — | | | | 11,529 | | | | 304,445 | |
Administration, Secretary and General Counsel | | | 2008 | | | | 194,411 | | | | 12,000 | | | | — | | | | 33,817 | | | | — | | | | 9,670 | | | | 249,898 | |
Patrick R. Hanna, Jr. (7) | | | 2010 | | | | 192,429 | | | | — | | | | — | | | | 38,999 | | | | 56,844 | | | | 10,479 | | | | 298,751 | |
Vice President, Corporate | | | 2009 | | | | 190,655 | | | | — | | | | 10,797 | | | | 42,460 | | | | — | | | | 9,883 | | | | 253,795 | |
Compliance Officer | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
James E. Evans (8) | | | 2010 | | | | 100,727 | | | | — | | | | — | | | | — | | | | 79,093 | (9) | | | 8,409 | | | | 188,229 | |
Former Executive Vice | | | 2009 | | | | 231,095 | | | | — | | | | — | | | | 63,217 | | | | 165,924 | (9) | | | 9,785 | | | | 470,021 | |
President of Business Operations | | | 2008 | | | | 203,280 | | | | 10,000 | | | | — | | | | 33,817 | | | | 228,222 | (9) | | | 12,887 | | | | 488,206 | |
Julius M. Cirin (7)(10) | | | 2010 | | | | 160,923 | | | | — | | | | — | | | | — | | | | 28,422 | | | | 8,131 | | | | 197,476 | |
Former Vice President, | | | 2009 | | | | 190,347 | | | | — | | | | 10,797 | | | | 42,460 | | | | — | | | | 11,306 | | | | 254,910 | |
Corporate Communications Officer | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
2012:
Name and Principal Position | | Year | | Salary ($) | | Option Awards ($)(1)(2) | | All Other Compensation ($)(3) | | Total ($) |
| | | | | | | | | | |
Michael D. Popielec | | 2012 | | 459,265 | | - | | 158,996 | | 618,261 |
President and Chief | | 2011 | | 436,611 | | 1,413,316 | | 15,407 | | 1,865,334 |
Executive Officer | | | | | | | | | | |
| | | | | | | | | | |
Philip A. Fain | | 2012 | | 256,801 | | 37,418 | | 10,892 | | 305,111 |
Chief Financial Officer | | 2011 | | 249,608 | | 101,492 | | 15,711 | | 366,811 |
and Treasurer | | | | | | | | | | |
| | | | | | | | | | |
Peter F. Comerford | | 2012 | | 236,535 | | - | | 8,064 | | 244,599 |
Vice President of | | 2011 | | 228,717 | | 52,775 | | 11,500 | | 292,992 |
Administration, Secretary and General Counsel | | | | | | | | | | |
| | |
(1) | | The amount in the Stock Awards column is the grant date fair value of restricted share awards granted pursuant to our shareholder-approved Restated LTIP calculated in accordance with ASC 718. See Note 7 to our audited consolidated financial statements included in our Annual Reports onForm 10-K for the fiscal years ended December 31, 2008 and 2009 for the assumptions we used in valuing and expensing these restricted share awards in accordance with ASC 718. |
|
(2) | | The amounts reported in the Option Awards column represent the grant date fair value of stock option awards granted pursuant to our shareholder-approved Restated LTIP calculated in accordance with ASC 718. See Note 7 to our audited financial statements included in our Annual Reports onForm 10-K for the fiscal years ended December 31, 2008, 20092011 and 20102012 for the assumptions we used in valuing and expensing these stock options in accordance with ASC 718. |
(2) | Mr. Popielec’s 2011 stock option awards consist of stock options that were part of his compensation package that was approved by the Board of Directors in connection with the execution of his employment agreement, which was effective on December 30, 2010. Other than the two stock options for 50,000 shares each that were granted to Mr. Popielec on December 30, 2010 and January 3, 2011, the remaining stock options granted to Mr. Popielec in connection with his employment agreement were conditioned on shareholder approval of our Restated LTIP, which was approved at our annual meeting of shareholders on June 7, 2011. |
(3) | | All Other Compensation for 20102012 consists of the following: |
28
| | | | | | | | | | | | |
| | 401(k) Plan
| | | | | | | |
| | Employer
| | | Other
| | | | |
| | Match
| | | Benefits (a)
| | | Total
| |
| | ($) | | | ($) | | | ($) | |
|
Michael D. Popielec | | | — | | | | — | | | | — | |
John D. Kavazanjian | | | 8,864 | | | | 8,499 | | | | 17,363 | |
Philip A. Fain | | | 4,961 | | | | 7,129 | | | | 12,090 | |
Peter F. Comerford | | | 4,109 | | | | 5,885 | | | | 9,994 | |
Patrick R. Hanna, Jr. | | | 4,089 | | | | 6,390 | | | | 10,479 | |
James E. Evans | | | 2,085 | | | | 6,324 | | | | 8,409 | |
Julius M. Cirin | | | 2,232 | | | | 5,899 | | | | 8,131 | |
| | 401(k) Plan Employer Match ($) | | Other Benefits (a) ($) | | Total ($) |
| | | | | | |
Michael D. Popielec | | 4,893 | | 154,103 | | 158,996 |
Philip A. Fain | | 5,169 | | 5,723 | | 10,892 |
Peter F. Comerford | | 4,560 | | 3,504 | | 8,064 |
| | |
(a) | | The “Other Benefits” column of the above table includes premiums paid for group medical and dental coverage, physical rehabilitation, life insurance and long-term care insurance, and tax preparation.in the case of Mr. Popeilec includes relocation benefits in the aggregate amount of $149,864 which were prescribed by his employment agreement. |
| | |
(4) | | Mr. Popielec became our President and Chief Executive Officer effective December 30, 2010. |
|
(5) | | Prior to Mr. Fain’s employment with us, he was a partner with CXO on the Go, LLC, a management consulting firm, which we retained in connection with our acquisition activity. Disclosed in this column is $79,944 in consulting fees that we paid to CXO on the Go, LLC for services rendered by Mr. Fain and others during 2008. |
|
(6) | | Mr. Comerford was not a Named Executive Officer for 2008 and became a Named Executive Officer once again in 2009. |
|
(7) | | Messrs. Hanna and Cirin each became a Named Executive Officer in 2009. |
|
(8) | | Mr. Evans resigned as our Executive Vice President of Business Operations effective April 30, 2010. |
|
(9) | | Mr. Evans received sales commission incentive compensation based on a specified percentage of all of our qualifying defense and government sales in 2008. His sales commissions for 2009 and 2010 were based on a specified percentage of all of our sales. |
|
(10) | | Mr. Cirin went out on disability in June 2010 and died on December 30, 2010. |
2010 GRANTS OF PLAN-BASED AWARDS
The following table sets forth information concerning grants of plan-based awards to the Named Executive Officers during 2010:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | Grant
| |
| | | | | | | | | | | | | | | | | | All Other
| | | | | | | | | Date
| |
| | | | | | | | | | | | | | | | | | Option
| | | Exercise
| | | | | | Fair
| |
| | | | | | | | | Estimated Possible
| | | Awards:
| | | or
| | | Closing
| | | Value
| |
| | | | | | | | | Payouts Under
| | | Number of
| | | Base
| | | Market
| | | of Stock
| |
| | | | | | | | | Non-Equity Incentive
| | | Securities
| | | Price of
| | | Price on
| | | and
| |
| | | | | | | | | Plan Awards(1) | | | Underlying
| | | Option
| | | Grant
| | | Option
| |
| | Type of
| | | | Grant
| | | Threshold
| | | Target
| | | Maximum
| | | Options
| | | Awards
| | | Date
| | | Awards
| |
Name | | Award | | Plan | | Date | | | ($) | | | ($) | | | ($) | | | (#) | | | ($/Sh) (2) | | | ($/Sh) | | | ($) | |
|
Michael D. Popielec (3) | | Option | | LTIP | | | 12/30/10 | | | | | | | | | | | | | | | | 50,000 | | | | 6.42 | | | | 6.51 | | | | 193,831 | |
John D. Kavazanjian | | Cash Incentive | | STIP | | | — | | | | — | | | | 270,000 | | | | 540,000 | | | | | | | | | | | | | | | | | |
| | Option | | LTIP | | | 01/13/10 | | | | | | | | | | | | | | | | 26,500 | | | | 4.78 | | | | 4.77 | | | | 70,343 | |
Philip A. Fain | | Cash Incentive | | STIP | | | — | | | | — | | | | 108,000 | | | | 216,000 | | | | | | | | | | | | | | | | | |
| | Option | | LTIP | | | 12/03/10 | | | | | | | | | | | | | | | | 25,000 | | | | 6.91 | | | | 6.92 | | | | 97,499 | |
Peter F. Comerford | | Cash Incentive | | STIP | | | — | | | | — | | | | 63,000 | | | | 126,000 | | | | | | | | | | | | | | | | | |
| | Option | | LTIP | | | 12/03/10 | | | | | | | | | | | | | | | | 20,000 | | | | 6.91 | | | | 6.92 | | | | 77,999 | |
Patrick R. Hanna, Jr. | | Cash Incentive | | STIP | | | — | | | | — | | | | 57,000 | | | | 114,000 | | | | | | | | | | | | | | | | | |
| | Option | | LTIP | | | 12/03/10 | | | | | | | | | | | | | | | | 10,000 | | | | 6.91 | | | | 6.92 | | | | 38,999 | |
James E. Evans | | Commissions | | | | | — | | | | — | | | | 79,093 | (4) | | | — | | | | | | | | | | | | | | | | | |
| | Cash Incentive | | STIP | | | — | | | | — | | | | 69,000 | | | | 138,000 | | | | | | | | | | | | | | | | | |
Julius M. Cirin | | Cash Incentive | | STIP | | | — | | | | — | | | | 57,000 | | | | 114,000 | | | | | | | | | | | | | | | | | |
29
| | |
(1) | | Other than for Mr. Evans, amounts represent the potential threshold, target and maximum bonus under the STIP described in the CD&A under the heading “Short-Term Incentive Plan.” Under the terms of the STIP, the maximum award amount is payable as an overachievement award. |
|
(2) | | The exercise price of stock options granted on January 13, 2010, December 3, 2010 and December 30, 2010 is equal to the volume weighted average sales price of our Common Stock, as determined in accordance with the trading rules of the NASDAQ Global Market, on the respective date of grant. |
|
(3) | | Mr. Popielec also received additional stock options that are conditioned upon shareholder approval of an amendment to our Restated LTIP at the Meeting. Such stock options are null and void if such shareholder approval is not obtained. These conditional stock options are more specifically described on pages 38 and 39 of this proxy statement under Proposal 4. |
|
(4) | | Mr. Evans participated in a sales commission incentive compensation program, whereby he was entitled to receive a specified percentage of all of our sales. He received 0.1 percent of all sales up to our budgeted number and 0.125 percent of all sales above our budgeted number. There was no threshold award amount nor was there a maximum amount that Mr. Evans could earn under the sales commission incentive compensation program. |
Employment OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2010Arrangements
The following table sets forth information concerning the number of shares underlying exercisable and non-exercisable options outstanding at December 31, 2010 and unvested restricted stock awards outstanding at December 31, 2010 for our Named Executive Officers.
| | | | | | | | | | | | | | | | | | | | | | | | |
| | Option Awards | | Stock Awards |
| | | | | | | | | | | | Market
|
| | Number of
| | Number of
| | | | | | Number of
| | Value of
|
| | Securities
| | Securities
| | | | | | Shares or
| | Shares or
|
| | Underlying
| | Underlying
| | | | | | Units of
| | Units of
|
| | Unexercised
| | Unexercised
| | Option
| | | | Stock That
| | Stock That
|
| | Options
| | Options
| | Exercise
| | Option
| | Have Not
| | Have Not
|
| | (#) | | (#) | | Price
| | Expiration
| | Vested
| | Vested
|
Name | | Exercisable | | Unexercisable | | ($) | | Date | | (#) | | ($)(1) |
|
Michael D. Popielec | | | | | | | 50,000 | (2) | | $ | 6.4218 | | | | 12/30/2017 | | | | | | | | | |
John D. Kavazanjian | | | | | | | | | | | | | | | | | | | 1,000 | (3) | | $ | 6,610 | |
| | | | | | | | | | | | | | | | | | | 3,177 | (4) | | | 21,000 | |
| | | 50,000 | | | | 0 | | | | 15.0500 | | | | 12/07/2011 | | | | | | | | | |
| | | 50,000 | | | | 0 | | | | 12.9600 | | | | 12/09/2012 | | | | | | | | | |
| | | 48,000 | | | | 0 | | | | 12.9600 | | | | 06/08/2013 | | | | | | | | | |
| | | 30,000 | | | | 0 | | | | 10.5500 | | | | 12/21/2013 | | | | | | | | | |
| | | 22,500 | | | | 0 | | | | 13.4338 | | | | 12/07/2014 | | | | | | | | | |
| | | 5,872 | | | | 11,742 | (5) | | | 12.1848 | | | | 01/14/2016 | | | | | | | | | |
| | | 7,834 | | | | 15,666 | (6) | | | 3.9085 | | | | 12/04/2016 | | | | | | | | | |
| | | 0 | | | | 26,500 | (7) | | | 4.7761 | | | | 01/13/2017 | | | | | | | | | |
Philip A. Fain | | | | | | | | | | | | | | | | | | | 600 | (8) | | | 3,966 | |
| | | | | | | | | | | | | | | | | | | 1,324 | (9) | | | 8,752 | |
| | | 10,000 | | | | 0 | | | | 11.4217 | | | | 09/07/2014 | | | | | | | | | |
| | | 33,333 | | | | 16,667 | (10) | | | 12.7385 | | | | 03/07/2015 | | | | | | | | | |
| | | 2,659 | | | | 5,317 | (11) | | | 12.1848 | | | | 01/14/2016 | | | | | | | | | |
| | | 11,000 | | | | 22,000 | (12) | | | 3.9085 | | | | 12/04/2016 | | | | | | | | | |
| | | 0 | | | | 25,000 | (13) | | | 6.9061 | | | | 12/03/2017 | | | | | | | | | |
30
| | | | | | | | | | | | | | | | | | | | | | | | |
| | Option Awards | | Stock Awards |
| | | | | | | | | | | | Market
|
| | Number of
| | Number of
| | | | | | Number of
| | Value of
|
| | Securities
| | Securities
| | | | | | Shares or
| | Shares or
|
| | Underlying
| | Underlying
| | | | | | Units of
| | Units of
|
| | Unexercised
| | Unexercised
| | Option
| | | | Stock That
| | Stock That
|
| | Options
| | Options
| | Exercise
| | Option
| | Have Not
| | Have Not
|
| | (#) | | (#) | | Price
| | Expiration
| | Vested
| | Vested
|
Name | | Exercisable | | Unexercisable | | ($) | | Date | | (#) | | ($)(1) |
|
Peter F. Comerford | | | | | | | | | | | | | | | | | | | 400 | (14) | | | 2,644 | |
| | | | | | | | | | | | | | | | | | | 794 | (9) | | | 5,248 | |
| | | 1,000 | | | | 0 | | | | 21.2800 | | | | 03/31/2011 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 19.3600 | | | | 06/30/2011 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 10.1700 | | | | 09/30/2011 | | | | | | | | | |
| | | 15,000 | | | | 0 | | | | 15.0500 | | | | 12/07/2011 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 19.4500 | | | | 12/31/2011 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 17.1200 | | | | 03/31/2012 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 16.1500 | | | | 06/30/2012 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 12.9200 | | | | 09/30/2012 | | | | | | | | | |
| | | 21,000 | | | | 0 | | | | 12.9600 | | | | 12/09/2012 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 12.0000 | | | | 12/30/2012 | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 12.8500 | | | | 03/31/2013 | | | | | | | | | |
| | | 7,500 | | | | 0 | | | | 10.5500 | | | | 12/21/2013 | | | | | | | | | |
| | | 6,000 | | | | 0 | | | | 13.4338 | | | | 12/07/2014 | | | | | | | | | |
| | | 1,330 | | | | 2,658 | (11) | | | 12.1848 | | | | 01/14/2016 | | | | | | | | | |
| | | 8,000 | | | | 16,000 | (12) | | | 3.9085 | | | | 12/04/2016 | | | | | | | | | |
| | | 0 | | | | 20,000 | (15) | | | 6.9061 | | | | 12/03/2017 | | | | | | | | | |
Patrick R. Hanna, Jr. | | | | | | | | | | | | | | | | | | | 400 | (14) | | | 2,644 | |
| | | | | | | | | | | | | | | | | | | 635 | (9) | | | 4,197 | |
| | | 500 | | | | 0 | | | | 21.2800 | | | | 03/31/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 19.3600 | | | | 06/30/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 10.1700 | | | | 09/30/2011 | | | | | | | | | |
| | | 10,000 | | | | 0 | | | | 15.0500 | | | | 12/07/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 19.4500 | | | | 12/31/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 17.1200 | | | | 03/31/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 16.1500 | | | | 06/30/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 12.9200 | | | | 09/30/2012 | | | | | | | | | |
| | | 11,500 | | | | 0 | | | | 12.9600 | | | | 12/09/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 12.0000 | | | | 12/30/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 12.8500 | | | | 03/31/2013 | | | | | | | | | |
| | | 7,500 | | | | 0 | | | | 10.5500 | | | | 12/21/2013 | | | | | | | | | |
| | | 6,000 | | | | 0 | | | | 13.4338 | | | | 12/07/2014 | | | | | | | | | |
| | | 1,108 | | | | 2,215 | (11) | | | 12.1848 | | | | 01/14/2016 | | | | | | | | | |
| | | 4,000 | | | | 8,000 | (12) | | | 3.9085 | | | | 12/04/2016 | | | | | | | | | |
| | | 0 | | | | 10,000 | (15) | | | 6.9061 | | | | 12/03/2017 | | | | | | | | | |
James E. Evans(16) | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | |
Julius M. Cirin | | | 500 | | | | 0 | | | | 21.2800 | | | | 03/31/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 19.3600 | | | | 06/30/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 10.1700 | | | | 09/30/2011 | | | | | | | | | |
| | | 10,000 | | | | 0 | | | | 15.0500 | | | | 12/07/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 19.4500 | | | | 12/31/2011 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 17.1200 | | | | 03/31/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 16.1500 | | | | 06/30/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 12.9200 | | | | 09/30/2012 | | | | | | | | | |
| | | 15,500 | | | | 0 | | | | 12.9600 | | | | 12/09/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 12.0000 | | | | 12/30/2012 | | | | | | | | | |
| | | 500 | | | | 0 | | | | 12.8500 | | | | 03/31/2013 | | | | | | | | | |
| | | 7,500 | | | | 0 | | | | 10.5500 | | | | 12/21/2013 | | | | | | | | | |
| | | 6,000 | | | | 0 | | | | 13.4338 | | | | 12/07/2014 | | | | | | | | | |
| | | 1,108 | | | | 0 | | | | 12.1848 | | | | 01/14/2016 | | | | | | | | | |
| | | 4,000 | | | | 0 | | | | 3.9085 | | | | 12/04/2016 | | | | | | | | | |
31
| | |
(1) | | The amounts set forth in this column equal the number of time-based restricted stock awards indicated multiplied by the closing price of our Common Stock on December 31, 2010 ($6.61)Mr. |
|
(2) | | This stock option will vest in equal installments of 12,500 shares on each of December 30, 2011, 2012, 2013 and 2014. |
|
(3) | | The remaining 1,000 shares subject to this restricted stock award were forfeited upon Mr. Kavazanjian’s retirement on February 7, 2011. |
|
(4) | | 1,589 shares subject to this restricted stock award vested on January 14, 2011. The remaining 1,588 shares were forfeited upon Mr. Kavazanjian’s retirement on February 7, 2011. |
|
(5) | | This stock option vested on January 14, 2011 with respect to 5,871 shares and will vest on January 14, 2012 with respect to 5,871 shares. |
|
(6) | | This stock option will vest on December 4, 2011 with respect to 7,833 shares and on December 4, 2012 with respect to 7,833 shares. |
|
(7) | | This stock option vested on January 13, 2011 with respect to 8,834 shares and will vest with respect to 8,333 shares on each of January 13, 2012 and 2013. |
|
(8) | | The remaining 600 shares subject to this restricted stock award vested on March 7, 2011. |
|
(9) | | These restricted stock awards vest in equal installments on each of January 14, 2011 and 2012. |
|
(10) | | This stock option vested on March 7, 2011 with respect to 16,667 shares. |
|
(11) | | This stock option vested on January 14, 2011 with respect to 2,659 shares for Mr. Fain, 1,329 shares for Mr. Comerford, and 1,108 shares for Mr. Hanna, and will vest on January 14, 2012 with respect to the balance of shares subject to each option. |
|
(12) | | This stock option will vest in equal installments on December 4, 2011 and December 4, 2012. |
|
(13) | | This consists of two stock option grants: one for 9,541 shares which will vest with respect to 4,771 shares on December 3, 2011 and with respect to 4,770 shares on December 3, 2012 and another for 15,459 shares which will vest with respect to 3,563 shares on each of December 3, 2011 and December 3, 2012 and with respect to 8,333 shares on December 3, 2013. |
|
(14) | | These restricted stock awards vested on March 1, 2011. |
|
(15) | | This stock option will vest in equal installments on December 3, 2011, December 3, 2012 and December 3, 2013. |
|
(16) | | Upon his resignation, Mr. Evans forfeited all of his unvested stock options and restricted stock awards. |
2010 OPTION EXERCISES AND STOCK VESTED
The following table sets forth information concerning the number of shares of our Common Stock acquired and the value realized on vesting of restricted stock awards during 2010 by the Named Executive Officers. None of our Named Executive Officers exercised any stock options during 2010.
| | | | | | | | |
| | Stock Awards |
| | Number of Shares
| | Value Realized
|
| | Acquired on Vesting
| | on Vesting
|
| | (#) | | ($)(1) |
|
Michael D. Popielec | | | — | | | | — | |
John D. Kavazanjian | | | 2,589 | | | | 12,345 | |
Philip A. Fain | | | 1,262 | | | | 5,889 | |
Peter F. Comerford | | | 798 | | | | 3,700 | |
Patrick R. Hanna, Jr. | | | 718 | | | | 3,282 | |
James E. Evans | | | 3,300 | | | | 13,365 | |
Julius M. Cirin | | | 718 | | | | 3,282 | |
32
| | |
(1) | | The value realized on the vesting of stock awards is based on the closing price of our Common Stock on the vesting date multiplied by the number of shares acquired. |
2010 PENSION BENEFITS TABLE
We do not have any qualified or nonqualified defined benefit plans.
2010 NONQUALIFIED DEFERRED COMPENSATION TABLE
We do not have any nonqualified defined contribution or other nonqualified deferred compensation plans.
33
EMPLOYMENT ARRANGEMENTS
Mr. Popielec
On December 6, 2010, we entered into an employment agreement with Mr. Popielec which provides that, effective December 30, 2010, Mr. Popielec became our President and Chief Executive Officer, succeeding Mr. Kavazanjian. In connection with his appointment as our President and Chief Executive Officer, we set Mr. Popielec’s annual base salary at $450,000. Mr. Popielec is also eligible to receive an annual cash bonus outside our short-term cash bonus incentive plan if we exceed certain quantitative and qualitative performance metrics to be agreed upon no later than January 31 of the year for which the bonus applies. Satisfaction of 80% to 99% of the bonus plan metrics will result in bonus
ranges from 20% to 100% of Mr. Popielec’s target bonus. Satisfaction of 100% to 125% of the bonus plan metrics will result in bonus ranges from 100% to 140% of Mr. Popielec’s target bonus. In no event will the bonus exceed 140% of Mr. Popielec’s target bonus.bonus, unless subsequently approved by the entire Board of Directors. For 2011 and each year thereafter, Mr. Popielec’s target bonus shall not be less than 75% of his 2011 base salary.
Mr. Popielec is also a participant in our Restated LTIP. Pursuant to the terms of his employment agreement, Mr. Popielec was granted options to purchase shares of our Common Stock as more specifically described on pages 38 and 39 of this proxy statement under Proposal 4. As mentioned therein, threecommon stock. Certain of the options granted on December 30, 2010 arewere conditional and arewere subject to shareholder approval to increase the number of shares available under our Restated LTIP to accommodate those options and to also increase the current limitation on maximum options issuable to an employeeLTIP. Shareholder approval was obtained in a given year. If such approval is not obtained, those options shall be null and void.June 2011.
We have also agreed that Mr. Popielec shall be entitled to the following relocation benefits: (i) rent in and commute transportation to the Rochester, New York area for up to nine months, as needed, during 2011 for a total actual expense not to exceed $50,000; (ii) payment of all actual reasonable relocation and moving expenses, including expenses incurred by Mr. Popielec and his spouse for travel to the Rochester, New York area to locate living accommodations, packing and transporting of household items to the new household and meals, lodging and travel in connection with the move to the new household, incurred in 2011 in an aggregate amount not to exceed $60,000; and (iii) payment of all actual reasonable current house sale/closing costs, including deed preparation, tax stamps, reasonable attorneys’ fees, real estate transfer taxes and real estate commissions incurred in 2011 and 2012.
Mr. Popielec is also entitled to receive the retirement benefits and fringe and other personal benefits described in this proxy statement under the sections entitled “Retirement Benefits” and “Perquisites and Other Personal Benefits”.
The employment agreement provides that Mr. Popielec’s employment is “at will.” Mr. Popielec is entitled to certain severance benefits if we terminate his employment without Business Reasons or a Constructive Termination occurs (as those terms are defined in the employment agreement), including (i) salary continuation for a period of 18 months following the termination date, provided, however, that such18-month period shall be reduced to 12 months if the termination date is on or after June 30, 2012,2012; (ii) a pro rata amount (calculated on a per diem basis) of the full-year bonus which Mr. Popielec would have earned for the calendar year in which the termination of employment occurs,occurs; (iii) acceleration of vesting of all outstanding stock options and other equity arrangements, subject to the provision, however, that the acceleration shall not cover more than 18 months from the termination date,date; (iv) continuation of health benefits for Mr. Popielec, his spouse and any dependent children for a period of 12 months after the termination date followed by 18 months of executive-paid COBRA eligibility. In addition, if we terminate the employment of Mr. Popielec within 12 months of the date of a Change in Control, without Business Reasons or a Constructive Termination occurs (as those terms are defined in the Employment Agreement)employment agreement), then Mr. Popielec shall be entitled to receive (i) salary, any unpaid bonus from the prior year plus an amount equal to 18 months of his salary as then in effect, payable immediately upon the termination date,date; (ii) one and one-half times his target bonus for the calendar year in which the termination date occurs,occurs; (iii) acceleration in full of vesting of all outstanding stock options, all such options to remain exercisable for 18 months following the termination date, or through the original expiration date of the stock options, if earlier,earlier; (iv) continuation of health benefits for Mr. Popielec, his spouse and any dependent children for a period of 24 months after the termination date. To the extent the vestingand/or accelerated payment of outstanding stock options would subject Mr. Popielec to the imposition of taxand/or penalties under Section 409A of the Internal Revenue Code (the “Code”), the vestingand/or payment of such stock options and other equity shall be delayed to the extent necessary to avoid the imposition of such taxand/or penalties. The Employment Agreementemployment agreement also provides for the continuation of certain
34
benefits in the event Mr. Popielec’s employment is terminated for disability (as defined in the Employment Agreement)employment agreement) or by his death. Mr. Popielec has also executed an Employee
Confidentiality Non-Disclosure No-Compete, Non-Disparagement and Assignment Agreement in our standard form.
On April 27, 2007, we entered into a new employment agreement with Mr. Kavazanjian, which superseded his existing employment agreement. Annually, our Compensation and Management Committee reviewed Mr. Kavazanjian’s salary and made such adjustments as it deemed appropriate in accordance with our executive compensation guidelines. The agreement automatically extended for successive one-year terms, unless either of the parties provided advance written notice of such party’s desire not to renew the agreement. Such written notice was required to be provided at least 90 days prior to the scheduled expiration date of the then current term of the agreement.
In December 2008, Mr. Kavazanjian’s employment agreement was amended to bring it into compliance with Section 409A of the Code. In July 2009, Mr. Kavazanjian’s employment agreement was amended and restated to cap the severance benefits upon a specifiedchange-in-control event at no more than three times Mr. Kavazanjian’s average annual compensation for the previous five years to the extent necessary not to incur the excise tax under Section 4999 of the Code and not limit our tax deduction under Section 280G of the Code (the “Tax Limitations”). In the event a severance benefit owed to Mr. Kavazanjian exceeds the Tax Limitations, then we will determine which severance benefits are reduced so that such severance benefits are not subject to the Tax Limitations. Mr. Kavazanjian’s employment agreement was also amended to, among other things: (i) clarify that restricted stock awards and stock appreciation rights will be accelerated along with other equity arrangements (to the same extent described above) in the event of an (a) involuntary termination without business reasons or a constructive termination, (b) change in control or (c) termination upon death, as such terms are defined in his employment agreement; (ii) reflect our paid time off policy; and (iii) increase to 90 days the period of time Mr. Kavazanjian can exercise vested stock options to coincide with the period of time set forth in the Restated LTIP.
On May 24, 2010, we entered into an addendum to our employment agreement with Mr. Kavazanjian to supplement certain provisions of Mr. Kavazanjian’s employment agreement to reflect, among other things, that Mr. Kavazanjian may retire. The addendum gave either Mr. Kavazanjian or us the right to terminate Mr. Kavazanjian’s employment agreement by giving the other party written notice 60 days prior to the effective date of such termination (an “Early Termination”) and set forth Mr. Kavazanjian’s entitlements in the event of an Early Termination. Pursuant to the terms of the addendum, Mr. Kavazanjian notified us of his decision to retire effective February 7, 2011. He ceased being our President and Chief Executive Officer on December 30, 2010 when Mr. Popielec assumed those positions. Upon his retirement, Mr. Kavazanjian became entitled to: (i) the continuation of his salary for a period of 12 months, (ii) the cash value of any unused paid time off consistent with our paid time off policy, (iii) all of his equity awards which will remain exercisable through their original expiration dates, and (iv) the continuation of health benefits for him, his spouse and dependent children for a period of 12 months. Mr. Kavazanjian will also make himself available to act in a consulting capacity, at no additional cost to us, for up to 10 hours per month, as requested by us, through February 7, 2012. We will reimburse Mr. Kavazanjian for all reasonable expenses he incurs as a result of his consultation.
Mr. Comerford
On April 27, 2007, we entered into an employment agreement with Mr. Comerford. Annually, our Compensation and Management Committee reviews Mr. Comerford’s salary and makes such adjustments as it deems appropriate in accordance with our executive compensation guidelines. The agreement automatically extends for successive one-year terms, unless either of the parties provides advance written notice of such party’s desire not to renew the agreement. Such written notice must be provided at least 90 days prior to the scheduled expiration date of the then current term of the agreement.
��
If we terminate Mr. Comerford’s employment agreement without “Business Reasons” (as defined in the employment agreement) or because Mr. Comerford experiences a “Disability” (as defined in the employment agreement), or if a “Constructive Termination” (as defined in the employment agreement) occurs, then Mr. Comerford will be entitled to the following benefits: (1) salary and the cash value of any accrued vacation (consistent with our vacation policies then effect) through the termination date of his employment plus continued salary for an additional 18 months; (2) an amount equal to the average of the bonuses paid to him during the two preceding fiscal years or, if no bonuses were paid during such period, an amount equal to his then current annual target bonus; and
35
(3) acceleration of vesting of all outstanding stock options, and other equity arrangements subject to vesting and held by him, provided that the acceleration shall not cover more than two years from the termination date of his employment (and in this regard, all such options and other exercisable rights held by Mr. Comerford shall remain exercisable for one year following such termination date). In such circumstances, Mr. Comerford would also be entitled to continued health benefits at his cost for a period of 18 months.
If we terminate Mr. Comerford’s employment agreement within 18 months of the date of a “Change in Control” (as defined in the employment agreement), then Mr. Comerford will receive the same benefits as discussed above except that all of his outstanding stock options and equity arrangements will accelerate, even if the remaining vesting period is in excess of two years. If Mr. Comerford’s employment agreement is terminated because he experiences a “Disability” (as defined in the employment agreement) then Mr. Comerford will be entitled to the same benefits as described above except that he will only receive an amount equal to his then current annual target bonus, not the average of the bonuses paid to him during the two preceding fiscal years.
If Mr. Comerford’s employment agreement is terminated because of his death, his representatives will be entitled to (1) an amount equal to his annual target bonus for the fiscal year in which he died (plus any unpaid bonus from the prior fiscal year end); and (2) the acceleration of vesting of all outstanding stock options, and other equity arrangements subject to vesting and held by him, provided that the acceleration shall not cover more than two years from the termination date of his employment (and in this regard, all such options and other exercisable rights held by Mr. Comerford’s representatives shall remain exercisable for one year following such termination date).
If Mr. Comerford voluntarily terminates his employment or if he is terminated for Business Reasons, then he will be entitled to (1) salary and cash value of any accrued Paid Time Off through the termination date; (2) the right to exercise, for 90 days following the termination date or through the original expiration date of the stock options, if earlier, all stock options he holds, but only to the extent vested as of the termination date; and (3) continuation of health benefits at his cost for a period of 18 months after the termination date.
In December 2008, Mr. Comerford’s employment agreement was amended to bring it into compliance with Section 409A of the Code. In July 2009, Mr. Comerford’s employment agreement was amended and restated to cap the severance benefits upon a specified change-in-control event at no more than three times Mr. Comerford’s average annual compensation for the previous five years to the extent
necessary not to incur the excise tax under Section 4999 of the Code and not limit our tax deduction under Section 280G of the Code (the “Tax Limitations”). In the event a severance benefit owed to Mr. Comerford exceeds the Tax Limitations, then we will determine which severance benefits are reduced so that such severance benefits are not subject to the Tax Limitations. Mr. Comerford’s employment agreement was also amended to, among other things: (i) clarify that restricted stock awards and stock appreciation rights will be accelerated along with other equity arrangements (to the same extent described above) in the same mannerevent of an (a) involuntary termination without Business Reasons or a Constructive Termination, (b) change in control or (c) termination upon death, as such terms are defined in his employment agreements; (ii) reflect our paid time off policy; and (iii) increase to 90 days the period of time Mr. Kavazanjian’s employment agreement.Comerford can exercise vested stock options to coincide with the period of time set forth in the Restated LTIP.
We do not have an employment agreementsagreement with Messrs. Fain or Hanna, and did not have employment agreements with Messrs. Evans or Cirin.
Special Short-Term Severance and Change in Control BenefitMr. Fain.
Messrs. Fain and Hanna are currently covered by a short-term severance andchange-in-controlOutstanding Equity Awards at December 31, 2012 benefit that was put in place by the Board of Directors to alleviate any concerns that key management employees might have with their future employment opportunities with us as a result of the retirement of John Kavazanjian, our former President and Chief Executive Officer and the search for a new President and Chief Executive Officer. This special package of benefits was initially put in place for a period of one (1) year. This benefit is not intended to be a “permanent benefit” and will be reviewed by the Compensation and Management Committee on an annual basis. If the decision were made to terminate the benefit, the employee would be notified in writing with a thirty (30) day notice of the intent not to renew. If no notice is provided, the benefit will renew for an additional year.Under the terms of the special short-term severance and change in control benefit for Messrs. Fain and Hanna, each is entitled to certain severance benefits if we terminate their employment without cause. Mr. Fain and Mr. Hanna are entitled to these benefits for a period of 12 and 9 months, respectively. The severance benefits include accrued compensation and benefits through the date of termination, as well as: (1) salary continuation through the period specified above, paid in accordance with the normal payroll cycle; (2) continuation of medical and dental benefits through the period specified above, provided the executive pays the employee portion of such premiums; and (3) the ability to exercise vested stock options through the period specified above.
In addition, if we terminate Mr. Fain or Mr. Hanna’s employment within 12 months of the date of a Change in Control, without cause, then the terminated executive shall be entitled to receive certain change in control severance benefits. Mr. Fain and Mr. Hanna are entitled to these benefits for a period of 12 and 9 months, respectively. The change in control severance benefits include accrued compensation and benefits through the date of termination, as well as: (1) salary continuation through the period specified above, paid in a lump-sum payment; (2) continuation of medical and dental benefits through the period specified above, including a company contribution equal to the difference between the COBRA premium and the amount the executive was required to pay immediately prior to such separation from service; and (3) the ability to exercise vested stock options through the period specified above.
36
POTENTIAL PAYMENTS UPON TERMINATION AND/OR A CHANGE IN CONTROL
The following table below outlines certainsets forth information concerning the number of shares underlying exercisable and non-exercisable options outstanding at December 31, 2012 for our Named Executive Officers.
| | Option Awards |
Name | | Number of Securities Underlying Unexercised Options (#) Exercisable | | | Number of Securities Underlying Unexercised Options (#) Unexercisable | | | Option Exercise Price ($) | | | Option Expiration Date |
Michael D. Popielec | | | 25,000 | | | | 25,000 | (1) | | $ | 6.4218 | | | 12/30/2017 |
| | | 125,000 | | | | 125,000 | (2) | | | 6.4218 | | | 12/30/2017 |
| | | 25,000 | | | | 25,000 | (3) | | | 6.5820 | | | 12/30/2017 |
| | | 0 | | | | 200,000 | (4) | | | 10.0000 | | | 01/24/2019 |
| | | 0 | | | | 200,000 | (5) | | | 15.0000 | | | 01/14/2020 |
| | | | | | | | | | | | | | |
Philip A. Fain | | | | | | | | | | | | | | |
| | | 10,000 | | | | 0 | | | | 11.4217 | | | 09/07/2014 |
| | | 50,000 | | | | 0 | | | | 12.7385 | | | 03/07/2015 |
| | | 7,976 | | | | 0 | | | | 12.1848 | | | 01/14/2016 |
| | | 33,000 | | | | 0 | | | | 3.9085 | | | 12/04/2016 |
| | | 16,667 | | | | 8,333 | (6) | | | 6.9061 | | | 12/03/2017 |
| | | 16,667 | | | | 33,333 | (7) | | | 4.4218 | | | 12/09/2018 |
| | | 0 | | | | 20,000 | (8) | | | 3.9797 | | | 01/03/2019 |
Peter F. Comerford | | | | | | | | | | | | | | |
| | | 1,000 | | | | 0 | | | | 12.8500 | | | 03/31/2013 |
| | | 7,500 | | | | 0 | | | | 10.5500 | | | 12/21/2013 |
| | | 6,000 | | | | 0 | | | | 13.4338 | | | 12/07/2014 |
| | | 3,988 | | | | 0 | | | | 12.1848 | | | 01/14/2016 |
| | | 24,000 | | | | 0 | | | | 3.9085 | | | 12/04/2016 |
| | | 13,334 | | | | 6,666 | (9) | | | 6.9061 | | | 12/03/2017 |
| | | 8,667 | | | | 17,333 | (10) | | | 4.4218 | | | 12/09/2018 |
(1) | This stock option was vested on December 30, 2012 with respect to 25,000 shares and will vest in equal installments of 12,500 shares on each of December 30, 2013 and 2014. |
(2) | This stock option was vested on December 30, 2012 with respect to 125,000 shares and will vest in equal installments of 62,500 shares on each of December 30, 2013 and 2014. |
(3) | This stock option was vested on December 30, 2012 with respect to 25,000 shares and will vest in equal installments of 12,500 shares on each of December 30, 2013 and 2014. |
(4) | This stock option will vest on the date our common stock first reaches a closing price of $10 for 15 trading days in a 30-day trading period, with such vesting in equal amounts over the four anniversary dates of that date. |
(5) | This stock option will vest on the date our common stock first reaches a closing price of $15 for 15 trading days in a 30-day trading period, with such vesting in equal amounts over the four anniversary dates of that date. |
(6) | This stock option will vest with respect to 8,333 shares on December 3, 2013. |
(7) | This stock option will vest with respect to 16,666 shares on December 9, 2013 and 16,667 shares on December 9, 2014. |
(8) | This stock option vested with respect to 6,667 shares on January 3, 2013 and will vest with respect to 6,667 shares on January 3, 2014 and with respect to 6,666 shares on January 3, 2015. |
(9) | This stock option will vest with respect to 6,666 shares on December 3, 2013. |
(10) | This stock option will vest with respect to 8,667 shares on December 9, 2013 and 8,666 shares on December 9, 2014. |
Retirement Benefits and Potential Payments upon Termination or Change in Control
The only arrangement that we maintain that provides for retirement benefits is our tax-qualified defined contribution 401(k) plan. The material terms of our tax-qualified defined contribution 401(k) plan are summarized above under the heading “Retirement Benefits.”
All of the potential payments and benefits payable by us to those of our Named Executive Officers who were employed by us during 20102012 in the event of various scenarios involving either a termination of employment and/or change in control.control are pursuant to their employment agreements or the Restated LTIP. The amounts disclosed assume the Named Executive Officer’s terminationemployment agreements with Messrs. Popielec and Comerford are summarized above under the various scenarios occurred on December 31, 2010. heading “Employment Arrangements.” We do not have an employment agreement with Mr. Fain. Under the award agreements issued under the Restated LTIP, outstanding unvested stock options and shares of restricted stock become immediately vested upon the occurrence of a “Change in Control.”
RATIFY THE SELECTION OF OUR INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The valuefirm of BDO USA, LLP, independent registered public accountants, served as our independent registered public accounting firm in connection with the stock awards is based on the closing priceaudit of our Common Stock as reported on the NASDAQ Global Market on December 31, 2010, which was $6.61.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | Accelerated
| | | | | | | | |
| | Salary
| | Bonus
| | Restricted
| | Accelerated
| | Health Care
| | Gross-Up
| | |
| | Continuation
| | Payment
| | Stock Awards
| | Stock Options
| | Continuation
| | Payment
| | Total
|
Triggering Event | | ($) | | ($) | | ($) | | ($) | | ($) | | ($) | | ($) |
|
Michael D. Popielec(1) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Involuntary Termination without Business Reasons or Constructive Termination | | $ | 675,000 | | | | — | | | | — | | | | 2,375 | | | | 11,734 | | | | — | | | | 689,109 | |
Involuntary Termination without Business Reasons or Constructive Termination within 12 months of the date of a Change in Control | | | 675,000 | | | | — | | | | — | | | | 9,500 | | | | 23,469 | | | | — | | | | 707,969 | |
Change in Control | | | — | | | | — | | | | — | | | | 9,500 | | | | — | | | | — | | | | 9,500 | |
Disability | | | 450,000 | | | | — | | | | — | | | | 2,375 | | | | 11,734 | | | | — | | | | 464,109 | |
Death | | | — | | | | — | | | | — | | | | 2,375 | | | | — | | | | — | | | | 2,375 | |
John D. Kavazanjian(1)(2) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Involuntary Termination without Business Reasons or Constructive Termination | | | 840,000 | | | | 270,000 | | | | 27,610 | | | | 74,721 | | | | — | | | | — | | | | 1,212,331 | |
Involuntary Termination without Business Reasons or Constructive Termination within 18 months of the date of a Change in Control | | | 840,000 | | | | 270,000 | | | | 27,610 | | | | 90,920 | | | | — | | | | — | | | | 1,228,530 | |
Change in Control | | | — | | | | — | | | | 27,610 | | | | 90,920 | | | | — | | | | — | | | | 118,530 | |
Disability | | | 840,000 | | | | 270,000 | | | | 27,610 | | | | 74,721 | | | | — | | | | — | | | | 1,212,331 | |
Death | | | — | | | | 270,000 | | | | 27,610 | | | | 74,721 | | | | — | | | | — | | | | 372,331 | |
Philip A. Fain(3) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Involuntary Termination without Cause | | | 240,000 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 240,000 | |
Involuntary Termination without Cause within 12 months of the date of a Change in Control | | | 240,000 | | | | — | | | | — | | | | — | | | | — | | | | 11,734 | | | | 251,734 | |
Change in Control | | | — | | | | — | | | | 12,718 | | | | 59,400 | | | | — | | | | — | | | | 72,118 | |
Peter F. Comerford(1) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Involuntary Termination without Business Reasons or Constructive Termination | | | 315,000 | | | | 63,000 | | | | 7,892 | | | | 43,224 | | | | — | | | | — | | | | 429,116 | |
Involuntary Termination without Business Reasons or Constructive Termination within 18 months of the date of a Change in Control | | | 315,000 | | | | 63,000 | | | | 7,892 | | | | 43,224 | | | | — | | | | — | | | | 429,116 | |
Change in Control | | | — | | | | — | | | | 7,892 | | | | 43,224 | | | | — | | | | — | | | | 51,116 | |
Disability | | | 315,000 | | | | 63,000 | | | | 7,892 | | | | 43,224 | | | | — | | | | — | | | | 429,116 | |
Death | | | — | | | | 63,000 | | | | 7,892 | | | | 43,224 | | | | — | | | | — | | | | 114,116 | |
Patrick R. Hanna, Jr.(3) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Involuntary Termination without Cause | | | 142,500 | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 142,500 | |
Involuntary Termination without Cause within 12 months of the date of a Change in Control | | | 142,500 | | | | — | | | | — | | | | — | | | | — | | | | 8,801 | | | | 151,301 | |
Change in Control | | | — | | | | — | | | | 6,841 | | | | 21,612 | | | | — | | | | — | | | | 28,453 | |
James E. Evans(4) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Resignation | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | |
Julius M. Cirin(5) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Death | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | |
37
| | |
(1) | | All amounts appearing in this table for Messrs. Popielec, Kavazanjian and Comerford are made pursuant to their employment agreements with us. The employment agreements are summarized above under the heading “Employment Arrangements.” With respect to the acceleration of restricted stock awards and stock options, the acquisition of 51% of our outstanding shares of Common Stock by any one person or group will be deemed a “Change in Control” pursuant to the employment agreements. |
|
(2) | | Mr. Kavazanjian retired effective February 7, 2011. |
|
(3) | | All amounts appearing in this table for Messrs. Fain and Hanna are made under the short-term severance andchange-in-control benefit summarized above and the award agreements under our Restated LTIP. With respect to the acceleration of restricted stock awards and stock options, the acquisition of 30% of our outstanding shares of Common Stock by any one person or group will be deemed a “Change in Control” pursuant to award agreements under our Restated LTIP. |
|
(4) | | Mr. Evans resigned on April 30, 2010. |
|
(5) | | Mr. Cirin died on December 30, 2010. |
PROPOSAL 4
financial statements for 2011 and 2012.
APPROVAL OF AMENDMENT TO OUR AMENDED AND
RESTATED 2004 LONG-TERM INCENTIVE PLAN
On June 10, 2004,Our Audit and Finance Committee has selected Bonadio & Co., LLP as our independent registered public accounting firm for 2013. This selection will be presented to our shareholders approvedfor their ratification at the Ultralife Batteries, Inc. 2004 Long-Term Incentive Plan (the “LTIP”).Meeting. Our Board of Directors approved certain amendmentsrecommends a vote in favor of the proposal to ratify this selection, and the LTIP on July 26, 2004persons named in the enclosed proxy (unless otherwise instructed therein) will vote such proxies FOR this proposal. If the shareholders do not ratify this selection, the Audit and restatedFinance Committee will seek to identify and address the LTIP to reflect those amendments (the “Restated LTIP”). The Restated LTIP was subsequently amended with shareholder approval on June 8, 2006 to increase from 750,000 to 1,500,000reason or reasons why the number of shares of our Common Stock authorized to be issued pursuant toshareholders did not ratify the Restated LTIPcommittee’s selection and was amended again with shareholder approval on June 5, 2008 to increase from 1,500,000 to 2,000,000 the number of shares of our Common Stock authorized to be issued pursuant to the Restated LTIP.will consider such reason or reasons in selecting an independent public accounting firm for 2013.
We believehave been advised by both BDO USA, LLP and Bonadio & Co., LLP that long-term incentive awards are invaluable toolseach will have a representative present at the Meeting who will be available to respond to appropriate questions. In addition, we intend to give such representatives an opportunity to make any statements if they should so desire.
Aggregate fees for professional services rendered for us by BDO USA, LLP for 2011 and 2012 were:
| | 2011 | | | 2012 | |
| | | | | | |
Audit Fees | | $ | 363,736 | | | $ | 365,618 | |
Audit-Related Fees | | | 7,000 | | | | 0 | |
Tax Fees | | | 0 | | | | 0 | |
All Other Fees | | | 0 | | | | 0 | |
| | | | | | | | |
Total | | $ | 370,736 | | | $ | 365,618 | |
Audit fees for 2011 and 2012, respectively, were for professional services rendered for the recruitment, retention and motivation of employees, directors and consultants who can contribute materially to our success. We have used stock options for such purposes since 1992, and other forms of equity-based compensation since 2004, and we continue to believe that stock options and other forms of equity-based compensation are an appropriate vehicle to incentivize and reward our employees, directors and consultants. As of April 12, 2011, there are outstanding options to acquire up to 1,873,277 sharesaudits of our Common Stock. Of the 2,000,000 shares originally reserved for issuanceconsolidated financial statements, audits of internal controls over financial reporting pursuant to Section 404 of the Restated LTIP, only 187,946 shares remainSarbanes-Oxley Act of 2002, consents, income tax provision procedures and assistance with review of documents filed with the SEC.
There were no audit-related fees for 2012. Audit-related fees for 2011 consisted of fees incurred in connection with our filing of a registration statement on Form S-8.
There were no tax fees for 2011 and 2012.
There were no other fees for 2011 and 2012.
Our Audit and Finance Committee has not adopted pre-approval policies and procedures for audit and non-audit services. Although no pre-approval policy was in effect, all audit, audit-related and permitted non-audit services for which BDO USA, LLP was engaged were pre-approved by our Audit and Finance Committee in compliance with applicable SEC requirements.
REPORT OF THE AUDIT AND FINANCE COMMITTEE The duties and responsibilities of the Audit and Finance Committee are set forth in our Audit and Finance Committee Charter, a copy of which is available for future issuance pursuanton our website at http://investor.ultralifecorporation.com under the subheading “Corporate Governance.” Among other things, the Audit and Finance Committee reviews the adequacy of our systems of internal controls regarding financial reporting, disclosure controls and procedures and preparing our consolidated financial statements. In addition, the Audit and Finance Committee recommends to new grants or awards as of April 12, 2011. Ourour Board of Directors believes that it is importantour audited financial statements be included in our Annual Report on Form 10-K, approves our quarterly filings on Form 10-Q and selects the independent registered public accounting firm to have additional shares available to provide adequate flexibility to meet future needs.audit our books and records.
On December 6, 2010, we entered into an Employment AgreementThe Audit and Finance Committee has:
· | Reviewed and discussed our audited financial statements for 2012 with our management and with BDO USA, LLP, our independent registered public accounting firm for 2012; |
· | Discussed with BDO USA, LLP, our independent registered public accounting firm, the matters required to be discussed by statement on Auditing Standards No. 61, as amended (AICPA, Professional Standards, Vol. 1. AU section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T; and |
· | Received from BDO USA, LLP the written disclosures and the letter from BDO USA, LLP required by applicable requirements of the Public Company Accounting Oversight Board regarding the independent registered public accounting firm’s communications with the Audit and Finance Committee concerning independence, and has discussed with BDO USA, LLP their independence. |
The Audit and Finance Committee met with Michael D. Popielec pursuantour independent accountants with and without management present and discussed with them the results of their examinations, their evaluations of our internal control over financial reporting, our disclosure controls and procedures and the quality of our financial reporting. Based on the review and discussions referred to which we retained him as our Presidentabove, the Audit and Chief Executive Officer effective December 30, 2010. PursuantFinance Committee concluded that BDO USA, LLP is independent and recommended to the termsBoard of Directors that Employment Agreement, Mr. Popielec received the following options to purchase shares ofaudited financial statements be included in our Common Stock:Annual Report on Form 10-K for the year ended December 31, 2012 for filing with the SEC.
(a) 50,000 shares on December 30, 2010 with an exercise price determined on that date in accordance with our Restated LTIP, with equal vesting on each of December 30, 2011, December 30, 2012, December 30, 2013The Audit and December 30, 2014;Finance Committee:
Thomas L. Saeli, Chair
Patricia C. Barron
Robert W. Shaw II
(b) 250,000 shares on December 30, 2010 with an exercise price determined on that date in accordance with our Restated LTIP with equal vesting on each of December 30, 2011, December 30, 2012, December 30, 2013 and December 30, 2014;
(c) 200,000 shares on December 30, 2010 with an exercise price of $10 per share with vesting to begin on the date our Common Stock first reaches a closing price of $10 for 15 trading days in a 30trading-day period, with such vesting in equal amounts over the four anniversary dates of that date;
38
(d) 200,000 shares on December 30, 2010 with an exercise price of $15 per share with vesting to begin on the date our Common Stock first reaches a closing price of $15 for 15 trading days in a 30trading-day period, with such vesting in equal amounts over the four anniversary dates of that date; and27
(e) 50,000 shares on January 3, 2011 with an exercise price determined on that date in accordance with our Restated LTIP with equal vesting on each of December 30, 2011, December 30, 2012, December 30, 2013 and December 30, 2014.
All options described in (a), (b) and (e) above terminate on December 30, 2017. All options described in (c) and (d) above terminate as of the later of December 30, 2017 and five years after the initial date vesting commences, but in no event later than December 30, 2020. The options described at (b), (c) and (d) above are conditional and are subject to shareholder approval to increase the number of shares available under our RestatedAPPROVE AN AMENDMENT TO THE RESTATED LTIP to accommodate those options and to also increase the current limitation on maximum options issuable to an employee in a given year. If such approval is not obtained, these options shall be null and void.
In order to provide adequate flexibility to meet future needs and to accommodate the conditional options grantedrestricted stock units (“RSUs”) that our Compensation and Management Committee has recommended for grant to our new President and Chief Executive Officer, Michael D. Popielec, pursuant to the terms of his employment agreement, on April 20, 2011, theJanuary 29, 2013, our Board of Directors approved an amendment to the Restated LTIP to authorize the grant of RSUs and to increase from 2,000,000 to 2,900,000the limitation on the number of shares of our Common Stock authorizedcommon stock available for awards other than stock options and stock appreciation rights from 200,000 to be issued pursuant to the Restated LTIP800,000 and to provideincrease the limitation on the number of shares of our common stock that may be awarded to an exceptionindividual during a calendar year from 50,000 to the 50,000 share annual limitation provision to accommodate inducement grants in an amount not to exceed 700,000 shares per grant.150,000. The complete text of that amendment is attached as Appendix A to this proxy statement.
On January 29, 2013, our Board of Directors, on recommendation of our Compensation and Management Committee, granted 120,000 contingent RSUs to our Chief Executive Officer, Michael D. Popielec, subject to obtaining shareholder approval of this Proposal 3, which vest as follows:
| (1) | 30,000 shares of our common stock will vest on the later of January 1, 2014 or the date when our common stock first reaches a closing price of $4.00 per share for 15 trading days in a 30 trading day period; |
| (2) | 30,000 shares of our common stock will vest on the later of January 1, 2014 or the date when our common stock first reaches a closing price of $5.00 per share for 15 trading days in a 30 trading day period; |
| (3) | 30,000 shares of our common stock will vest on the later of January 1, 2015 or the date when our common stock first reaches a closing price of $4.00 per share for 15 trading days in a 30 trading day period; and |
| (4) | 30,000 shares of our common stock will vest on the later of January 1, 2015 or the date when our common stock first reaches a closing price of $5.00 per share for 15 trading days in a 30 trading day period. |
The description of the Restated LTIP (as amended) set forth below is a summary, does not purport to be complete and is qualified in its entirety by reference to the provisions of the Restated LTIP itself. The complete text of the Restated LTIP (as amended) is attached as Appendix B to this proxy statement. Unless otherwise defined in this summary, capitalized terms used in this summary have the meanings given such terms in the Restated LTIP.
The following table provides certain important information concerning our existing equity compensation plans of the Company as of April 12, 2011:December 31, 2012:
Equity Compensation Plan Information | | | | | | | | | | | | |
| | | | | | Number of Securities
|
| | | | | | Remaining Available for
|
| | | | | | Future Issuance Under
|
| | | | Weighted-Average
| | Equity Compensation
|
| | Number of Securities to be
| | Exercise Price of
| | Plans, Excluding
|
| | Used Upon Exercise of
| | Outstanding Options
| | Securities Reflected in
|
Plan Category | | Outstanding Options (a) | | (b) | | Column (a) (c) |
|
Equity compensation plans approved by security holders | | | 1,776,812 | | | $ | 9.21 | | | | 187,946 | |
Equity compensation plans not approved by security holders | | | 98,000 | (1) | | $ | 12.85 | | | | 0 | |
Total | | | 1,874,812 | | | $ | 9.40 | | | | 187,946 | |
Plan Category | Number of securities to be used upon exercise of outstanding options | Weighted-average exercise price of outstanding options | Number of securities remaining available for future issuance under equity compensation plans, excluding securities reflected in column (a) |
| (a) | (b) | (c) |
Equity Compensation Plans approved by security holders | 2,161,488 | $7.35 | 700,235 |
Equity compensation plans not approved by security holders | 229,512(1)(2) | $6.23 | — |
Total | 2,391,000 | $7.24 | 700,235 |
| | |
(1) | | On December 19, 2005, we granted our former President and Chief Executive Officer, John D. Kavazanjian, an option to purchase 48,000 shares of Common Stock at $12.96 per share outside of any of our equity-based compensation plans, subject to shareholder approval. Shareholder approval was obtained on June 8, 2006. The stock option is fully vested and expires on June 8, 2013. On March 7, 2008, in connection with his becoming employed by us, we granted our Chief Financial Officer and Treasurer, Philip A.Mr. Fain an option to purchase 50,000 shares of our Common Stock at $12.74 per share outside of any of our equity-based compensation plans. TheThis option vests in annual increments of 16,667 shares over a three-year period which commenced March 7, 2009. TheThis option expires on March 7, 2015. |
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| (2) | As more fully described in Proposal 4, we inadvertently issued a total of 179,512 shares of our Common Stock to our independent directors in excess of the 200,000 share limitation under our Restated LTIP. |
Summary of Restated LTIP (as amended)
Purpose. Like our previous option plans, the The purpose of our Restated LTIP is to provide our employees, directors and consultants who are in a position to contribute to our long-term success, with Common Stock and options to acquire Common Stock, to increase their interest in our company’s welfare and to aid in attracting and retaining employees, directors and consultants of outstanding ability.
Term. The LTIP was adopted by our Board of Directors on April 27, 2004 and became effective on June 10, 2004 when it was approved by our shareholders. The Restated LTIP was adopted by our Board of Directors on July 26, 2004 after the Annual Meeting of Shareholders. Awards may not be granted under the Restated LTIP after June 9, 2014, but awards granted before then may extend beyond that date. Our Restated LTIP was subsequently amended with shareholder approval on June 8, 2006 and June 5, 2008 so that now our Restated LTIP authorizes the issuance of 2,000,0002,900,000 shares of our Common Stock.
Administration. The Restated LTIP is administered by our Compensation and Management Committee, or such other committee as may be designated by our Board of Directors (the “Committee”); provided, however, that the Committee shall consist of not less than two directors who are “non-employee directors,” within the meaning ofRule 16b-3 under the Exchange Act.
The Committee may allocate all or any portion of its responsibilities and powers under the Restated LTIP to any one or more of its members, our President and Chief Executive Officer or other senior members
of management as the Committee deems appropriate; however, only the Committee may select and grant awards to participants who are subject to Section 16 of the Exchange Act.
The Committee has broad authority in its administration of the Restated LTIP, including, but not limited to, the authority to interpret the plan; to establish rules and regulations for the operation and administration of the plan; to select the persons to receive awards; to determine the type, size, terms, conditions, limitations, and restrictions of awards, including, without limitation, terms regarding vesting, exercisability, assignability, expiration and the effect of certain events, such as a change of control in our companythe Company or the participant’s death, disability, retirement or termination as a result of breach of agreement; and to take all other action it deems necessary or advisable to administer the Restated LTIP.
Notwithstanding the Committee’s broad authority to administer the Restated LTIP and the awards issued under the Restated LTIP, the exercise price of any stock option or stock appreciation right granted pursuant to the Restated LTIP may not be subsequently “repriced” without shareholder approval. The term “reprice” means: (1) the reduction, directly or indirectly, in the per-share exercise price of an outstanding stock option or stock appreciation right by amendment, cancellation or substitution; (2) the cancellation of a stock option or stock appreciation right when its exercise price exceeds the fair market value of the underlying Common Stock in exchange for another stock option, stock appreciation right or other equity security (unless the cancellation and exchange occurs in connection with a merger, acquisition, or similar transaction); or (3) the taking of any other action that is treated as a repricing under United States generally accepted accounting principles or by the rules or regulations of any stock exchange on which our securities are traded. The term “reprice” shallnot include adjustments made to awards by the Committee upon the occurrence of certain events (as described under “Adjustments Upon Certain Events”Events’’ below).
To facilitate the granting of awards to participants who are employed or retained outside of the United States, the Committee will be authorized to modify and amend the terms and conditions of an award to accommodate differences in local law, policy or custom.
Eligibility. All of our employees, directors and consultants are eligible to participate in the Restated LTIP; provided, however, only employees are eligible to receive incentive stock options. Participants in the Restated LTIP will be selected by the Committee from those eligible persons who are in a position to have a material impact on theour results of operations of our company and our subsidiaries.operations. Participants may be selected and awards may be made at any time during the ten-year period following the effective date of the Restated LTIP. As of December 31, 2010, four2012, approximately three executive officers, approximately 1,165120 other officers and employees, and seven non-employeeoutside directors were eligible to participate in the Restated LTIP.
40
The selection of those persons within a particular class who will receive awards is entirely within the discretion of the Committee. The Committee has not yet determined how many persons are likely to participate in the Restated LTIP. The Committee intends, however, to grant most of the Restated LTIP’s awards to those persons who are in a position to have a significant direct impact on our growth, profitability and success of the Company, which would include the participants in our current equity compensation plans.
Shares Available. A total of 187,946644,367 shares of Common Stock remain available for grant of awards under the Restated LTIP. In addition, any shares remaining available for issuance under our prior 2000 Stock Option Plan, or shares which become available upon the lapse, expiration, termination or cancellation of outstanding stock options under theour 2000 Stock Option Plan or Restated LTIP, will be available for grant of awards under the Restated LTIP. However, of the total number of shares of Common Stock available for awards under the Restated LTIP, no more than 200,000 shares of Common Stock may be used for awards other than stock options and stock appreciation rights. (The Restated LTIP authorizes the Committee to make equitable adjustments to the authorized number and class of securities to be issued under the Restated LTIP upon the occurrence of certain events, as described under “Adjustments
“Adjustments Upon Certain Events”Events’’ below.) If our shareholders approve the proposed amendment to our Restated LTIP, we will have a total of 1,087,946 shares of Common Stock available for award grants, 650,000 of whichthe 200,000 share limitation described above will be reserved for the options grantedincreased to Mr. Popielec which were subject to shareholder approval of the amendment to our Restated LTIP. That will leave 437,946 shares available for future award grants.800,000 shares.
Types of Awards. Awards under the Restated LTIP may be in the form of stock options, stock appreciation rights, restricted stock, unrestricted stock and other stock-based awards, or any combination thereof. If our shareholders approve the proposed amendment to our Restated LTIP, the form of awards under the Restated LTIP will also include Restricted Stock Units. All awards granted to participants under the Restated LTIP shall be evidenced by an award agreement which specifies the type of award granted pursuant to the Restated LTIP, the number of shares of Common Stock underlying the award and all of the terms governing the award, including, without limitation, terms regarding the vesting, exercisability and expiration of the award. The Committee has exclusive power and authority, consistent with the provisions of the Restated LTIP, to establish the terms and conditions of any award and to waive any such terms or conditions.
Award Limits. The maximum number of shares with respect to which awards may be paid or granted during each calendar year to any given participant may not exceed 50,000 shares of Common Stock.Stock, except inducement grants to new executives and key employees in amounts not to exceed 700,000 shares are not subject to the 50,000 share annual limitation. (The Restated LTIP authorizes the Committee to make equitable adjustments to the number of shares with respect to which awards may be paid or granted during each calendar year to any given participant under the Restated LTIP upon the occurrence of certain events, as described under “Adjustments Upon Certain Events”Events’’ below.) If our shareholders approve the proposed amendment to our Restated LTIP, is approved, inducement grantsthe 50,000-share limitation described above will be increased to new executives and key employees not to exceed 700,000 shares will not be subject to the 50,000 share annual limitation.150,000 shares.
Stock Options and Stock Appreciation Rights. The Committee may grant awards under the Restated LTIP in the form of stock options to purchase shares of Common Stock, which stock options may be non-qualified stock options or incentive stock options for federal income tax purposes. Any stock option granted in the form of an incentive stock option must satisfy the requirements of Section 422A of the Internal Revenue Code. Stock options shall be vested and exercisable at such times and upon such terms and conditions as may be determined by the Committee, but in no event shall a stock option be exercisable more than ten years (five years for incentive stock options issued to certain Control Persons) after the date it is granted. The exercise price per share of Common Stock for any stock option awarded shall not be less than 100 percent (110 percent for incentive stock options issued to certain Control Persons) of the fair market value of a share of Common Stock on the day the stock option is granted, except for stock options granted in assumption or replacement of outstanding awards in connection with specified corporate transactions.
A stock option may be exercised by paying the exercise price in cash or its equivalent, or, to the extent permitted by the Committee, shares of Common Stock, a combination of cash and shares of Common Stock or through the delivery of irrevocable instruments to a broker to sell the shares of Common Stock obtained upon the exercise of the stock option and to deliver to us an amount equal to the exercise price.
The Committee may grant stock appreciation rights independent of (“Freestanding SARs”) or in conjunction with (“Tandem SARs”) a stock option. The exercise price of a stock appreciation right shall be an amount determined by the Committee, but in no event shall such amount be less than the fair market value of the Common Stock on the date the stock appreciation right is granted.granted or, in the case of Tandem SARs, the exercise price of the related stock option. Each Freestanding SAR shall entitle the participant upon
41
exercise to an amount equal to (i) the excess of (A) the fair market value on the exercise date of one share of Common Stock over (B) the exercise price, times (ii) the number of shares of Common Stock as to which the stock appreciation right is exercised. Each Tandem SAR shall entitle the participant to surrender the related stock option and to receive an amount equal to (i) the excess of (A) the fair market value on the exercise date of one share of Common Stock over (B) the exercise price per share of Common Stock, times (ii) the number of shares of Common Stock covered by the related stock option
which is surrendered. Payment of a stock appreciation right may be made by us in shares of Common Stock or in cash or partly in shares of Common Stock and partly in cash, as determined by the Committee.
Stock-Based Awards. The Committee, in its sole discretion, may grant stock awards (shares of restricted stock or unrestricted stock) and other awards that are valued in whole or in part by reference to, or are otherwise based on the fair market value of, the Common Stock. If our shareholders approve the proposed amendment to our Restated LTIP, the form of awards under the Restated LTIP will also include Restricted Stock Units. Such stock-based awards shall be in such form, and dependent on such conditions, as the Committee shall determine, including, without limitation, the right to receive, or vest with respect to, one or more shares of Common Stock (or the equivalent cash value of such shares of Common Stock) upon the completion of a specified period of service, the occurrence of an eventand/or the attainment of performance objectives. The restricted period specified in respect of any stock award shall not be less than three years, except that the Committee may (i) provide for the restricted period to terminate at any time after one year upon the attainment of performance-based objectives, and (ii) grant stock awards of up to 30,000 shares of Common Stock without regard to this limitation. Furthermore, the Committee may not terminate the restrictions applicable to outstanding stock awards except in connection with a Change in Control. The Committee may grant an unrestricted stock award only if the Committee determines that such stock award is made in lieu of all or a portion of salary or cash bonus of comparable value.
Withholding. We will beare entitled to deduct from any payment to a participant under the Restated LTIP the amount of all applicable income and employment taxes required by law to be withheld with respect to such payment or may require the participant to pay to us such tax prior to and as a condition of the making of such payment. Subject to certain limitations, the Committee may allow a participant to pay the amount of taxes required by law to be withheld from an award by withholding shares of Common Stock to be paid under such award or by permitting the participant to deliver to us shares of Common Stock having a fair market value equal to the amount of such taxes.
Adjustments Upon Certain Events. In the event of any reclassification, recapitalization, merger, consolidation, reorganization, issuance of warrants, rights or debentures, stock dividend, stock split or reverse stock split, cash dividend, property dividend, combination or exchange of shares, repurchase of shares or any other change in corporate structure which in the judgment of the Committee materially affects the value of the Common Stock, the Committee shallmay determine in its sole discretion, the substitutions or adjustments to the maximum number of shares available for the grant or issuance of awards under the Restated LTIP, the maximum award payable under the Restated LTIP, the number and class of shares and the exercise price per share set forth in any award theretofore granted, or any other affected terms of an award or the Restated LTIP as the Committee deems equitable or appropriate.
Effect of Certain Events. The Committee will have the authority to promulgate rules and regulations to determine the treatment of a participant’s award in the event of the participant’s death, disability or termination. In addition, the Committee shall have the right to extend the period for exercise of any stock option or stock appreciation right, provided such extension does not exceed the term for such stock option or stock appreciation right.
Unless otherwise decided by the Committee and provided in an award agreement, upon a participant’s death or disability prior to the complete exercise of the stock options or stock appreciation rights granted to him or her under the Restated LTIP, any such remaining stock options or stock appreciation rights may be exercised within one year after the date of the participant’s death or disability and prior to the expiration of the term thereof, to the extent exercisable on the date of the participant’s death or disability.
Unless otherwise decided by the Committee and provided in an award agreement, upon a participant’s termination for any reason other than death or disability prior to the complete exercise of the stock options or stock appreciation rights granted to him or her under the Restated LTIP, any such
remaining stock options or stock
42
appreciation rights may be exercised within three months after the date of the participant’s termination and prior to the expiration of the term thereof, to the extent exercisable on the date of the participant’s termination.
Amendment and Termination. The Board of Directors may, at any time, alter, amend, suspend, discontinue or terminate the Restated LTIP; provided, however, that no such action shall adversely affect the rights of participants to awards previously granted hereunder and, provided further, however, that any shareholder approval necessary or desirable in order to comply with tax, securities, or other applicable laws or regulations, including, but not limited to, the listing requirements of the stock exchanges on which our securities are listed, shall be obtained in the manner required therein. In addition, the Board of Directors may, at any time and for any reason, with or without prior notice, amend the Restated LTIP in any manner, but may not without shareholder approval, adopt any amendment which would: (1) increase the number of shares available under the Restated LTIP; (2) expand the types of awards available; (3) expand the class of persons eligible to participate; (4) extend the term of the Restated LTIP; (5) be a material amendment to the Restated LTIP, including, but not limited to, a change in the method of determining the exercise price of options issued under the Restated LTIP; (6) allow for repricing of options or SARs; or (vii) terminate restrictions applicable to awards (except in connection with a grantee’s death, disability or termination of employment or connection with a change in control).
Because the benefits conveyed under the amendment to the Restated LTIP will largely be at the discretion of the Committee, (other than those options automatically granted at the end of each calendar quarter to executive officers and non-employee directors), it is not possible to determine what benefits participants will receive under the amendedRestated LTIP. If the Restated LTIP as proposed to be amended had been in effect in 2010, the stock options received in 2010 by the Named Executive Officers, all current executive officers as a group, all current directors who are not executive officers as a group, and all employees who are not executive officers, would have been the same as the stock options actually received by such persons for 2010 under the Restated LTIP, as set forth in the following table:
| | | | | | |
Name and Position
| | Dollar Value ($)
| | Number of Units |
|
Michael D. Popielec
President and Chief Executive Officer | | | | | 650,000 | |
Philip A. Fain
Chief Financial Officer and Treasurer | | | | | 0 | |
Peter F. Comerford
Vice President of Administration, Secretary and General Counsel | | | | | 0 | |
Patrick R. Hanna, Jr.
Vice President, Corporate Compliance Officer | | | | | 0 | |
All Executive Officers as a Group | | | | | 650,000 | |
All Non-Employee Directors as a Group | | | | | 0 | |
All Other Employees as a Group | | | | | 0 | |
43
The material terms of the 650,000 stock options granted to Mr. Popielec, which are conditioned on shareholder approval of the amendment to our Restated LTIP, are as follows:
| | | | | | | | |
Number of
| | Exercise
| | |
Shares | | Price | | Vesting Schedule |
|
| 250,000 | | | $ | 6.4218 | | | Twenty five percent of the shares will vest on each of the four anniversaries of the date of grant. |
| 200,000 | | | $ | 10.00 | | | Vesting begins on the date the stock first reaches a closing price equal to the exercise price for 15 trading days in a 30 trading-day period, with such vesting in equal amounts over the four anniversary dates of that date. |
| 200,000 | | | $ | 15.00 | | | Vesting begins on the date the stock first reaches a closing price equal to the exercise price for 15 trading days in a 30 trading-day period, with such vesting in equal amounts over the four anniversary dates of that date. |
Securities Act Registration
We intend to register the additional shares of Common Stock issuable and purchasable under the Restated LTIP pursuant to a Registration Statement onForm S-8 as soon as practicable, subject to the shareholders’ approval of the amendment to the Restated LTIP at the Meeting.
Tax Status of Restated LTIP Awards
Introduction. The following discussion of the United States federal income tax consequences of awards under the Restated LTIP, as proposed, is based on present federal tax laws and regulations and does not purport to be a complete description of the federal income tax laws. Participants may also be subject to certain foreign, state and local taxes which are not described below.
Incentive Stock Options. Pursuant to the requirements of Section 422A of the Internal Revenue Code, only employees are eligible to receive incentive stock options. If a stock option is an incentive stock option, no income is realized by the employee upon grant or exercise of the incentive stock option (except possibly for alternative minimum tax), and no deduction is available to us at such times. If the Common Stock purchased upon the exercise of an incentive stock option is held by the employee for at least two years from the date of the grant of such incentive stock option and for at least one year after exercise, any resulting gain is taxed at long-term capital gains rates. If the Common Stock purchased pursuant to the incentive stock option is disposed of before the expiration of that period, any gain on the disposition, up to the difference between the fair market value of the Common Stock at the time of exercise and the exercise price of the incentive stock option, is taxed at ordinary rates as compensation paid to the employee, and we are entitled to a deduction for an equivalent amount. Any amount realized by the employee in excess of the fair market value of the Common Stock at the time of exercise is taxed at capital gains rates.
Non-Qualified Options. If a stock option is a non-qualified option, no income is realized by the participant at the time of grant of the non-qualified stock option, and no deduction is available to us at such time. At the time of exercise (other than by delivery of previously-owned shares of Common Stock to us), ordinary income is realized by the participant in an amount equal to the difference between the exercise price and the fair market value of the shares on the date of exercise, and we receivethe Company receives an income tax deduction for the same amount. If a non-qualified stock option is exercised by delivering previously-owned shares of Common Stock to us, the number of shares received by the participant equal to the number of shares so delivered are received tax-free and have a tax basis and holding period equal to the shares so delivered. The fair market value of the additional shares received by the participant are
taxable to the participant as ordinary income, and the participant’s tax basis in such shares is their fair market value on the date of exercise. Upon disposition, any appreciation or depreciation of the Common Stock after the date of exercise may be treated as capital gain or loss depending on how long the shares have been held.
Stock Appreciation Rights. No income is realized by a participant at the time a stock appreciation right is granted, and no deduction is available to us at such time. When the stock appreciation right is exercised, ordinary income is realized in the amount of the cash or the fair market value at such time of the shares of Common Stock received by the participant, and we are entitled to a deduction of equivalent value.
44
Unrestricted Stock and Unrestricted Stock-Based Awards. Upon the grant of an award of shares of unrestricted stock or another stock-based award which is not restricted, a participant realizes taxable income equal to the cash and fair market value at such time of the shares of Common Stock received by the participant under such award (less the purchase price, if any), and we are entitled to a corresponding tax deduction at that time.
Restricted Stock, Restricted Stock Units and Restricted Stock-Based Awards. Upon the grant of an award of shares of restricted stock, restricted stock units or another stock-based award which is restricted, no income is realized by a participant (unless a participant timely makes an election under Section 83(b) of the Code to accelerate the recognition of the income under an award of restricted stock to the date of grant), and we are not allowed a deduction at that time; whentime. When the award vests and is no longer subject to a substantial risk of forfeiture for income tax purposes, the participant realizes taxable ordinary income in an amount equal to the cash and the fair market value at the time of vesting of the shares of Common Stock received by the participant under such award (less the purchase price therefor, if any), and we are entitled to a corresponding deduction at such time. If a participant makes an election, as permitted under Section 83(b) of the Code, within 30 days after the date of the transfer by us to the participant of the shares of restricted stock, or other restricted stock-based award, then the participant recognizes taxable ordinary income in an amount equal to the cash and the fair market value at the time of grant of the shares of Common Stock to be received by the participant under such award (less the purchase price therefor, if any), and we are entitled to a corresponding deduction at such time.
The closing price of our Common Stock reported on the NASDAQ GlobalNasdaq Stock Market on April 12, 2011,2013, was $4.59$4.05 per share.
Required Vote and Board of Directors’ Recommendation
We believe that our best interests will be served by the approval of Proposal 4.3. Amending the Restated LTIP will enable us to be in a position to grant stock options and other new forms of long-term incentive awards to employees, directors and consultants who can contribute materially to our success.
Approval of Proposal 43 requires the affirmative vote of a majority of shares of the Common Stockcommon stock represented at the Meeting, provided that a majority of the outstanding shares of the Common Stockcommon stock votes on the proposal.
TheOur Board of Directors recommends a voteFOR in favor of the proposal to approve the amendment to the Restated LTIP, and unlessthe persons named in the enclosed proxy (unless otherwise indicated therein, the shares represented by the enclosed properly executed proxytherein) will be votedFORvote such proxies FOR this proposal.
PROPOSAL 5
RATIFY THE SELECTIONGRANTS OF
STOCK AWARDS IN EXCESS OF
THE PREVIOUS 200,000-SHARE LIMITATION SET FORTH IN
OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMRESTATED LTIP
The firm of BDO USA, LLP, independent registered public accountants, served asAs noted in Director Compensation, Directors’ Stock-Based Incentive Compensation, we recently we discovered that we had inadvertently issued stock awards to our independent registered public accounting firmdirectors in connectionexcess of the 200,000 share limitation under our Restated LTIP on the number of shares of our common stock that may be used for awards other than stock options or stock appreciation rights (the “Limitation’). The issuances of shares of our common stock in excess of the Limitation (the “Excess Shares”) occurred during 2010 and after and were disclosed and were properly accounted for in our periodic reports and proxy statements filed with the auditSEC. We issued a total of our financial statements for 2009 and 2010.
Our Audit and Finance Committee has selected BDO USA, LLP as179,512 Excess Shares to our independent directors in the form of outright stock grants or restricted stock awards as part of their annual retainers.
Since the Excess Shares were issued in excess of the Limitation, they were not issued pursuant to the Restated LTIP and hence the issuances of the Excess Shares were not registered public accounting firmunder the Securities Act by our Form S-8 registration statement for 2011. This selection will be presentedthe Restated LTIP. Although the issuances of the Excess Shares were not registered under the Securities Act, the issuances of the Excess Shares qualified for an exemption under Section 4(2) of the Securities Act. In Proposal 3, we are submitting to our shareholders a proposal to amend our Restated LTIP to, among other things, increase the Limitation from 200,000 to 800,000 shares. In this Proposal 4, we are submitting to our shareholders a proposal to ratify the grants of the Excess Shares. Although the Excess Shares were not issued under the Restated LTIP, we plan to treat the Excess Shares as being issued under the Restated LTIP and we will therefore count the Excess Shares against the 2.9 million shares of our common stock authorized for their ratificationgrant under the Restated LTIP. As a result, the issuance of the Excess Shares will not result in us granting more than 2.9 million shares of our common stock to our directors, executive officers, employees, or consultants.
Required Vote and Board of Directors’ Recommendation Approval of Proposal 4 requires the affirmative vote of a majority of the shares of common stock represented at the Meeting. Meeting, provided that a majority of the outstanding shares of our common stock votes on the proposal.
Our Board of Directors recommends a vote in favor of the proposal to ratify this selection,the grants of stock awards in excess of the previous 200,000-share limitation set forth in our Restated LTIP, and the persons named in the enclosed proxy (unless otherwise instructed therein) will vote such proxiesFORthis proposal. If the shareholders do not ratify this selection, the Audit and Finance Committee will seek to identify and address the reason or reasons why the shareholders did not ratify the committee’s selection.
We have been advised by BDO USA, LLP that a representative will be present at the Meeting and will be available to respond to appropriate questions. In addition, we intend to give such representative an opportunity to make any statements if he or she should so desire.
45
Principal Accountant Fees and Services
Aggregate fees for professional services rendered for us by BDO USA, LLP for 2009 and 2010 were:
| | | | | | | | |
| | 2009 | | | 2010 | |
|
Audit Fees | | $ | 530,734 | | | $ | 462,703 | |
Audit-Related Fees | | | 0 | | | | 0 | |
Tax Fees | | | 9,250 | | | | 10,608 | |
All Other Fees | | | 0 | | | | 0 | |
| | | | | | | | |
Total | | $ | 539,984 | | | $ | 473,311 | |
| | | | | | | | |
Audit Fees
Audit fees for 2009 and 2010, respectively, were for professional services rendered for the audits of our consolidated financial statements, audits of internal controls over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, consents, income tax provision procedures and assistance with review of documents filed with the SEC.
Audit-Related Fees
There were no audit-related fees for 2009 and 2010.
Tax Fees
Tax fees for 2009 and 2010 were for services related to tax compliance, including the preparation of tax returns and claims for refund, and tax planning and tax advice.
All Other Fees
There were no other fees for 2009 and 2010.
Our Audit and Finance Committee has not adopted pre-approval policies and procedures for audit and non-audit services. The engagement of BDO USA, LLP for tax services during 2009 and 2010 was limited to circumstances where those services were considered integral to the audit services that it provided or where there was another compelling rationale for using BDO USA, LLP. Although no pre-approval policy was in effect, all audit, audit-related and permitted non-audit services for which BDO USA, LLP was engaged were pre-approved by our Audit and Finance Committee in compliance with applicable SEC requirements.
REPORT OF THE AUDIT AND FINANCE COMMITTEE
The duties and responsibilities of the Audit and Finance Committee are set forth in our Audit and Finance Committee Charter, a copy of which is available on our website athttp://investor.ultralifecorp.com under the subheading “Corporate Governance.” Among other things, the Audit and Finance Committee reviews the adequacy of our systems of internal controls regarding financial reporting, disclosure controls and procedures and preparing our consolidated financial statements. In addition, the Audit and Finance Committee recommends to our Board of Directors that our audited financial statements be included in our Annual Report onForm 10-K, approves our quarterly filings onForm 10-Q and selects the independent registered public accounting firm to audit our books and records.
The Audit and Finance Committee has:
| | |
| • | Reviewed and discussed our audited financial statements for 2010 with our management and with BDO USA, LLP, our independent registered public accounting firm for 2010; |
|
| • | Discussed with BDO USA, LLP, our independent registered public accounting firm, the matters required to be discussed by statement on Auditing Standards No. 61, as amended (AICPA,Professional Standards, Vol. 1. AU section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T; and |
46
| | |
| • | Received from BDO USA, LLP the written disclosures and the letter from BDO USA, LLP required by applicable requirements of the Public Company Accounting Oversight Board regarding the independent registered public accounting firm’s communications with the Audit and Finance Committee concerning independence, and has discussed with BDO USA, LLP their independence. |
The Audit and Finance Committee met with our independent accountants with and without management present and discussed with them the results of their examinations, their evaluations of our internal control over financial reporting, our disclosure controls and procedures and the quality of our financial reporting. Based on the review and discussions referred to above, the Audit and Finance Committee concluded that BDO USA, LLP is independent and recommended to the Board of Directors that the audited financial statements be included in our Annual Report onForm 10-K for the year ended December 31, 2010 for filing with the SEC.
Thomas L. Saeli, Chair
Patricia C. Barron
Robert W. Shaw II
OTHER MATTERS
Our Board of Directors does not intend to present, and has not been informed that any other person intends to present, any matters for action at the Meeting other than those specifically referred to in this proxy statement. If any other matters properly come before the Meeting, it is intended that the holders of the proxies will act in respect thereof in accordance with their best judgment.
The names of, and certain information with respect to, our executive officers who are not director nominees are presented below.
Name | | Age | | Present Principal Occupation and Employment History |
| | | | |
Name Peter F. Comerford | | Age | | Present Principal Occupation and Employment History
|
|
Peter F. Comerford
| | | 53 | 55 | | Mr. Comerford was named Vice President of Administration and General Counsel on July 1, 1999 and was elected Corporate Secretary in December 2000. He joined us in May 1997 as Senior Corporate Counsel and was appointed Director of Administration and General Counsel in December of that year. Prior to joining us, Mr. Comerford was a practicing attorney for approximately fourteen years having worked primarily in municipal law departments including the City of Niagara Falls, New York where he served as the Corporation Counsel. Mr. Comerford has a B.A. from the State University of New York at Buffalo, an MBA from Canisius College and a J.D. from the University of San Diego School of Law. |
47
| | | | | | |
Name Philip A. Fain | | Age | | Present Principal Occupation and Employment History
|
|
Philip A. Fain
| | | 56 | 58 | | Mr. Fain was named Chief Financial Officer in November 2009 and Treasurer in December 2009. He previously served as Vice President of Business Development, having joined us in February 2008. Prior to joining us, he was Managing Partner of CXO on the GO, LLC, a management-consulting firm, which he co-founded in November 2003 and which we retained in connection with our acquisition activity. Prior to founding CXO on the GO, LLC.LLC, Mr. Fain served as Vice President of Finance —- RayBan Sunoptics for Luxottica, SpA. Prior to the acquisition of Bausch & Lomb’s global eyewear business by Luxottica, Mr. Fain served as Bausch & Lomb’s Senior Vice President Finance —- Global Eyewear from 1997 to 1999 and as Vice President and Controller for the US Sunglass business from 1993 to 1996. From 1983 to 1993, Mr. Fain served in various positions with Bausch & Lomb including executive positions in corporate accounting, finance and audit. Mr. Fain began his career as a CPA and consultant with Arthur Andersen & Co. in 1977. He received his B.A. in Economics from the University of Rochester and an MBA from the William E. Simon Graduate School of Business Administration of the University of Rochester. |
Patrick R. Hanna, Jr.
|
| | 62 | | | Mr. Hanna was named Vice President, Corporate Compliance Officer in May 2009. He was previously appointed Vice President of Corporate Strategy and Business Integration in February 2006, having served as our Vice President of Corporate Strategy since December 2001. He joined us in February 2000 as Director of Strategic Planning after a 23 year career with Xerox Corporation. Mr. Hanna served in many capacities in the areas of strategic and business planning development, most recently as the Strategic Planning Manager of the Xerox Internet and Software Services organization. Mr. Hanna has a B.S. in electrical engineering from Howard University and an MBA from the William E. Simon Graduate School of Business Administration of the University of Rochester. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The table below shows certain information regarding the beneficial ownership of shares of our Common Stockcommon stock as of April 12, 20112013 by each person known by us to beneficially own more than five percent of the outstanding shares of our Common Stock,common stock, with percentages based on 17,289,11417,458,977 shares issued and outstanding.
| | | | | | | | | |
| | Number of Shares
| | Percent of Class
| |
Name and Address of Beneficial Owner | | Beneficially Owned | | Beneficially Owned | | Number of Shares Beneficially Owned | | Percent of Class Beneficially Owned |
| | | | |
Grace Brothers, Ltd.(1) 1560 Sherman Avenue, Suite 900 Evanston, IL 60201 | | | 4,518,616 | | | | 26.1 | % | |
Bradford T. Whitmore (1) | | | 5,142,726 | | 29.5% |
1560 Sherman Avenue, Suite 900 | | | | | |
Evanston, IL 60201 | | | | | |
| | | | | |
Eliot Rose Asset Management, LLC (2) | | | 1,585,956 | | 9.1% |
1000 Chapel View Boulevard, Suite 240 | | | | | |
Cranston, RI 02920 | | | | | |
| | | | | |
NGP Energy Technology Partners II, L.P. (3) | | | 950,721 | | 5.4% |
1700 K Street NW, Suite 750 | | | | | |
Washington, D.C. 20006 | | | | | |
________________________
| | |
(1) | | This information as to the beneficial ownership of shares of our Common Stockcommon stock is based on the Schedule 13D/A (Amendment No. 5)7) dated March 2, 2007December 17, 2012 filed with the SEC by Grace Brothers, Ltd., an Illinois limited partnership, Bradford T. Whitmore (“Whitmore”)individually and as general partner of Grace Brothers, Ltd. and as manager and sole voting member of Sunray I, LLC, Spurgeon Corporation, (“Spurgeon”), itsas general partners,partner of Grace Brothers, Ltd. and Sunray I, LLC, a Delaware limited liability company that reports beneficial ownership of 4,419,5425,142,726 shares of our Common Stock,common stock. In the Schedule 13D/A dated December 17, 2012, Mr. Whitmore reports sole voting and dispositive power with respect to 4,624,110 of such shares, of which 4,452,283 shares are held in the name of Sunray I, LLC. Grace Brothers, Ltd., Mr. Whitmore and Spurgeon Corporation report shared voting and dispositive power with respect to 518,616 of such shares. |
(2) | This information as to the beneficial ownership of shares of our common stock is based on a March 15, 2007 Form 4 — Statement of Changes in Beneficial Ownership,Amendment No. 1 to Schedule 13G dated January 30, 2013 filed with the SEC by Grace Brothers, Ltd. that reportsEliot Rose Asset Management, LLC, a Rhode Island limited liability company, and Gary S. Siperstein. Eliot Rose Asset Management, LLC is deemed to be the acquisitionbeneficial owner of an additional 99,074the reported securities pursuant to separate arrangements whereby it acts as investment adviser to certain persons. Gary S. Siperstein is deemed to be the beneficial owner of the reported securities pursuant to his ownership interest in Eliot Rose Asset Management, LLC. Eliot Rose Asset Management, LLC and Gary S. Siperstein each report sole voting and sole dispositive power with respect to all 1,585,956 shares. |
(3) | This information as to the beneficial ownership of shares of our Common Stock. Grace Brothers, Ltd.common stock is based on Amendment No. 2 to Schedule 13G dated February 14, 2013 filed with the SEC by NGP Energy Technology Partners II, L.P. (a Delaware limited partnership which owns the reported securities), WhitmoreNGP ETP II, L.L.C., the general partner of NGP Energy Technology Partners II, L.P, Energy Technology Partners, L.L.C., the sole manager of NGP ETP II, L.L.C., and Spurgeon sharePhilip J. Deutch, the sole member and manager of Energy Technology Partners, L.L.C. and the manager of NGP ETP II, L.L.C. Mr. Deutch is also a member of the investment committee of NGP ETP II, L.L.C. NGP Energy Technology Partners II, L.P. reports sole voting and dispositive power with respect to all 4,518,616950,721 shares. The amount reported inBy virtue of the table excludes 595,170relationships between and among the reporting persons, NGP ETP II, L.L.C., Energy Technology Partners, L.L.C. and Mr. Deutch may be deemed to have the power |
| to direct the voting and disposition of the shares of our Common Stock heldcommon stock beneficially owned by Whitmore, who has sole votingNGP Energy Technology Partners II, L.P. NGP ETP II, L.L.C., Energy Technology Partners, L.L.C. and dispositive power with respectMr. Deutch disclaim beneficial ownership of the reported securities except to such shares.the extent of their pecuniary interest therein. |
48
The table below shows certain information regarding the beneficial ownership of shares of our Common Stockcommon stock as of April 12, 20112013 by (1) each of our directors, (2) each of our Named Executive Officers (as defined on page 16)under the heading “Executive Compensation”), and (3) all of our directors and executive officers as a group.
| | | | | | | | |
| | Number of Shares
| | Percent of Class
|
Name of Beneficial Owner (1) | | Beneficially Owned (1) | | Beneficially Owned (2) |
|
Steven M. Anderson | | | 7,332 | | | | * | |
Patricia C. Barron (3) | | | 126,150 | | | | * | |
James A. Croce | | | 5,190 | | | | * | |
Michael D. Popielec | | | 0 | | | | 0 | % |
Thomas L. Saeli | | | 8,332 | | | | * | |
Robert W. Shaw II | | | 6,605 | | | | * | |
Ranjit C. Singh (4) | | | 93,678 | | | | * | |
Bradford T. Whitmore(5) | | | 5,113,786 | | | | 29.6 | % |
Peter F. Comerford (6) | | | 102,500 | | | | * | |
Philip A. Fain (7) | | | 107,604 | | | | * | |
Patrick R. Hanna, Jr. (8) | | | 61,370 | | | | * | |
Julius M. Cirin (9) | | | 57,020 | | | | * | |
James E. Evans (10) | | | 6,016 | | | | * | |
John D. Kavazanjian (11) | | | 345,338 | | | | 2.0 | % |
All directors and executive officers as a group (14 persons) (12) | | | 6,040,921 | | | | 33.9 | % |
Name of Beneficial Owner (1) | | |
* Number of Shares Beneficially Owned (1) | | Less than 1%Percent of Class Beneficially Owned (2) |
| | | | |
(1)Steven M. Anderson | | 24,872 | | * |
| | | | |
Patricia C. Barron | | 137,690 (3) | | * |
| | | | |
James A. Croce | | 22,730 | | * |
| | | | |
Michael D. Popielec | | 350,000 (4) | | * |
| | | | |
Thomas L. Saeli | | 30,122 | | * |
| | | | |
Robert W. Shaw II | | 26,497 | | * |
| | | | |
Ranjit C. Singh | | 71,218 (5) | | * |
| | | | |
Bradford T. Whitmore | | 5,142,726 (6) | | 29.5% |
| | | | |
Peter F. Comerford | | 97,830 (7) | | * |
| | | | |
Philip A. Fain | | 192,263 (8) | | * |
| | | | |
All directors and executive officers as a group (10 persons) | | 6,095,948 (9) | | 34.2% |
________________________
*Less than 1%
(1) | Except as otherwise indicated, the shareholders named in this table have sole voting and investment power with respect to the shares of our Common Stockcommon stock beneficially owned by them. The information provided in this table is based upon information provided to us by such shareholders. The table reports beneficial ownership for our directors and executive officers in accordance withRule 13d-3 under the Exchange Act. This means all our securities over which directors and executive officers directly or indirectly have or share voting or investment power are listed as beneficially owned. The amounts also include shares that may be acquired by exercise of stock options prior to June 11, 2011,12, 2012, which shares are referred to in the footnotes to this table as “shares subject to options that may be exercised,exercised.” and, for executive officers, shares of restricted stock that are subject to vesting. |
|
(2) | | Based on 17,289,11417,458,977 shares issued and outstanding. |
|
(3) | | The amount shown includes (i) 1,2006,200 shares held jointly by Ms. Barron and her husband; (ii) 10,00020,000 shares held in the Patricia C. Barron Profit Sharing Plan; and (iii) 24,0003,000 shares subject to optionsan option that may be exercised by Ms. Barron. |
|
(4) | | The amount shown includes 45,000175,000 shares subject to options that may be exercised by Mr. Singh.Popielec. |
|
(5) | | The amount shown includes 4,518,6165,000 shares subject to an option that may be exercised by Mr. Singh. |
(6) | The amount shown includes 518,616 shares beneficially owned by Grace Brothers, Ltd., an Illinois limited partnership, which shares are held in a securities margin account.account, and Spurgeon Corporation, which is a general partner of Grace Brothers, Ltd. Mr. Whitmore is a general partner of Grace Brothers, Ltd. See “Security Ownership of Certain Beneficial Owners” on page 48above for more information about Grace Brothers, Ltd. |
|
(6) | (7) | The amount shown includes (i) 68,15963,489 shares subject to options that may be exercised by Mr. Comerford; and (ii) 397 shares of restricted stock that are subject to time vesting.Comerford. |
|
(7) | (8) | The amount shown includes 76,318140,977 shares subject to options that may be exercised by Mr. Fain; and (ii) 662 shares of restricted stock subject to time vesting.Fain. |
|
(8) | (9) | The amount shown includes 45,216 shares subject to options that may be exercised by Mr. Hanna; and (ii) 317 shares of restricted stock subject to time vesting. |
49
| | |
(9) | | Mr. Cirin went out on disability in June 2010 and died on December 30, 2010. The amount shown includes 48,108 shares subject to options that may be exercised by Mr. Cirin’s estate. |
|
(10) | | Mr. Evans retired from our company effective April 30, 2010. This information as to the beneficial ownership of shares of our Common Stock is based on the last Form 4 — Statement of Changes in Beneficial Ownership, filed with the SEC on March 3, 2010 by Mr. Evans. |
|
(11) | | Mr. Kavazanjian retired from our company effective February 7, 2011. The amount shown includes (i) 1,800 shares held by Mr. Kavazanjian’s wife; and (ii) 228,911 shares subject to options that may be exercised by Mr. Kavazanjian. |
|
(12) | | The amount shown includes (i) 535,712387,466 shares subject to options that may be exercised by directors and executive officers; and (ii) 1,376 shares of restricted stock subject to time vesting.officers. |
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, executive officers and persons who own more than 10% of our Common Stockcommon stock to file with the SEC initial reports of beneficial ownership and reports of changes in beneficial ownership of our Common Stockcommon stock and our other equity securities. To our knowledge, based solely on the written representations of our directors and executive officers and the copies of such reports filed with the SEC during 2010,2012, all Section 16(a) filings applicable to our officers, directors and more than 10% beneficial owners were filed in a timely manner except for Mr. Saeli’s initial report on Form 3 which was inadvertently filed late.manner.
UnderRule 14a-8 of the Exchange Act, shareholder proposals intended for inclusion in the proxy statement for our 20122014 Annual Meeting of Shareholders must be submitted in writing to us to our Corporate Secretary at 2000 Technology Parkway, Newark, New York 14513, and must be received by December 29, 2011.23, 2013.
Any shareholder proposal submitted for consideration at our 20112014 Annual Meeting of Shareholders butnot submitted for inclusion in the proxy statement for that meeting that is received by us after March 13, 20128, 2014 will not be considered filed on a timely basis with us underRule 14a-4(c)(1) of the Exchange Act. For such proposals that are not timely filed, we retain discretion to vote proxies we receive. For such proposals that are timely filed, we retain discretion to vote proxies we receive provided that we include in our proxy statement advice on the nature of the proposal and how we intend to exercise our voting discretionand the proponent of any such proposal does not issue its own proxy statement.
Our Annual Report onForm 10-K for the year ended December 31, 2010,2012, as filed with the SEC, is included in the 20102012 Annual Report to Shareholders which accompanies this proxy statement.
By Order of the Board of Directors
April 22, 2013 | By Order of the Board of Directors Bradford T. Whitmore Bradford T. Whitmore Chair of the Board of Directors
|
April 28, 2011
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Appendix A
Amendment No. 4
To The
Ultralife Corporation
Amended And Restated 2004 Long-Term Incentive Plan
WHEREAS, Ultralife Corporation (the “Company”) maintains
Appendix A
Amendment No. 6
To The
Ultralife Corporation
Amended And Restated 2004 Long-Term Incentive Plan
Section 3(a) of the Ultralife Corporation Amended and Restated 2004 Long-Term Incentive Plan (as last amended effective as of June 5, 2008)May 25, 2011) (the “Plan”);
WHEREAS, pursuant to Section 12(i) of the Plan, the Company has reserved the right to amend the Plan;
WHEREAS, the Company desires to amend the Plan in certain respects;
WHEREAS, on April 20, 2011, subject to shareholder approval, the Board of Directors of the Company approved this amendment; and
WHEREAS, pursuant to Section 12(i) of the Plan, approval by the Company’s shareholders is required with respect to this amendment.
NOW, THEREFORE, the Plan is hereby amended to read in its entirety as follows:
1. “(a) “Award” shall mean any Option, SAR, Stock Award, Restricted Stock Unit or other incentive award granted under the Plan, whether singly, in combination, or in tandem, to a Grantee by the Committee pursuant to such terms, conditions, restrictions and/or limitations, if any, as the Committee may establish by the Award Agreement or otherwise.”
The first sentence of Section 4(a) of the Plan is hereby amended to read in its entirety as follows:
‘‘“(a) In General.General. The maximum number of shares of Stock which shall be available for the grant or issuance of Awards under the Plan (including ISOs) during its term shall not exceed 2,900,000 (plus any shares of Stock which are or become available under Section 2 hereof, which shares shall also be available for the grant or issuance of Awards under the Plan); provided, however, that no more than 200,000800,000 shares of Stock may be used for Awards other than Options or SARs.”
2. Section 4(b) of the Plan is hereby amended to read as follows:
‘‘“(b) Maximum Awards Payable.Payable. Subject to Section 4(c) hereof, and notwithstanding any provision contained in the Plan to the contrary, the maximum Award payable (or granted, if applicable) to any one Grantee under the Plan for a calendar year is 50,000150,000 shares of Stock; provided, however, that the 50,000150,000 share limitation shall not apply to inducement grants to Grantees who are new executives or key employees that do not exceed 700,000 shares of Stock.”
3. The first sentence of Section 6(b) of the Plan is hereby amended to read in its entirety as follows:
“(b) In General. Awards may, at the Committee’s sole discretion, be paid in the form of Options pursuant to Section 7 hereof, SARs pursuant to Section 8 hereof, Stock Awards or Restricted Stock Units pursuant to Section 9 hereof, or a combination thereof.”
Section 9 of the Plan is hereby amended to read in its entirety as follows:
“Section 9. Stock Awards and Restricted Stock Units
(a)In General. Awards may be granted in the form of Stock Awards or Restricted Stock Units. Stock Awards and Restricted Stock Units shall be awarded in such numbers and at such times during the term of the Plan as the Committee shall determine. “Restricted Stock Unit” means an Award that is valued by reference to Stock, which value may be paid to the Grantee by delivery of such property as the Committee shall determine, including, without limitation, cash or Stock, or any combination thereof, and that has such restrictions as the Committee, in its sole discretion, may impose.
(b)Restrictions. The Committee may condition, restrict or limit the grant of a Stock Award or Restricted Stock Units on the achievement of enumerated performance objectives or, with respect to Stock Awards or Restricted Stock Units issued to an Employee or a Consultant, on such Employee’s or Consultant’s continued employment or service to the Corporation through a specified period of time. The restricted period specified in respect of any Stock Award or Restricted Stock Unit shall not be less than three years, except that the Committee may (i) provide for the restricted period to terminate at any time after one year upon the attainment of performance-based objectives, and (ii) grant Stock Awards or Restricted Stock Units of up to 30,000 shares of Stock without regard to this limitation. Furthermore, the Committee may not terminate the restrictions applicable to outstanding Stock Awards or Restricted Stock Units except in connection with a Change in Control. The Committee may grant an unrestricted Stock Award or Restricted Stock Units only if the Committee determines that such Stock Award is made in lieu of all or a portion of salary or cash bonus of comparable value.
(c)Rights of Holders of Restricted Stock. During the period in which any shares of Stock received pursuant to a Stock Award are subject to any restrictions, the Committee may, in its sole and absolute discretion, deny the Grantee to whom such shares have been awarded all or any of the rights of a stockholder with respect to such shares, including, but not by way of limitation, limiting the right to vote such shares or the right to receive dividends on such shares.
(d) Rights of Holders of Restricted Stock Units. A Grantee receiving an Award of Restricted Stock Units shall not possess voting rights, nor the right to receive cash dividends with respect to such Award, unless a right to Dividend Equivalents is included in the Award Agreement for such Award of Restricted Stock Units. If a right to Dividend Equivalents is included in the Award Agreement for an Award of Restricted Stock Units, then any Stock or any other property distributed as a dividend or otherwise with respect to the Stock underlying such Award as to which the restrictions have not yet lapsed shall be subject to the same restrictions as such Award of Restricted Stock Units, and may
either be automatically deemed invested in additional Restricted Stock Units or held by the Company in escrow for the Grantee, and shall be paid to the Grantee at the same time as the Restricted Stock Units. “Dividend Equivalents” means an amount credited under a Grantee’s Restricted Stock Unit, which amount is equal to the dividends paid on the Stock, if any, determined as if the Restricted Stock Unit was shares of Stock on the record date of any such dividend.”
The other provisions of the Plan shall remain the same.
This amendmentAmendment No. 6 shall be effective upon approval of the shareholdersstockholders of the Company at the 2011its 2013 Annual Meeting of Shareholders on June 7, 2011.Meeting. If this amendmentAmendment is not so approved at such meeting, then the amendmentAmendment shall be null and void.
4. Except as hereinabove provided, the Plan is hereby ratified, confirmed and approved in all respects.
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Appendix B
ULTRALIFE CORPORATION
Appendix B
ULTRALIFE CORPORATION
AMENDED AND RESTATED
2004 LONG-TERM INCENTIVE PLAN
Original Plan Effective June 10, 2004
As Amended by the Board on July 26, 2004
As Further Amended by Company Shareholders on June 8, 2006
As further Amended by the Board on September 7, 2007
As Further Amended by Company Shareholders on June 5, 2008
As Further Amended by the Board on May 25, 2011
As Further Amended by Company Shareholders on June 7, 2011
As Further Amended by Company Shareholders on __________, 2013
Section 1.Purpose. Purpose.
The Plan authorizes the Committee to provide Employees, Directors and Consultants of the Corporation and its Subsidiaries, who are in a position to contribute to the long-term success of the Corporation, with Stock and options to acquire Stock, in accordance with the terms specified herein. The Corporation believes that this incentive program will cause those persons to increase their interest in the Corporation’s welfare and aid in attracting and retaining Employees, Directors and Consultants of outstanding ability.
Section 2.Successor Plan.
This Plan shall serve as the successor to the Ultralife Batteries, Inc. Amended and Restated 2000 Stock Option Plan (the “Predecessor Plan”), and no further stock options shall be made under the Predecessor Plan from and after the effective date of the Plan. All outstanding stock options under the Predecessor Plan immediately prior to the effective date of the Plan are hereby incorporated into the Plan and shall accordingly be treated as outstanding stock options under the Plan; provided, however, each such stock option shall continue to be governed solely by the terms and conditions of the instrument evidencing such stock option and interpreted under the terms of the Predecessor Plan, and, except as otherwise expressly provided herein, no provision of the Plan shall affect or otherwise modify the rights or obligations of holders of such incorporated stock options with respect to their acquisition of Stock, or otherwise modify the rights or the obligations of the holders of such stock options. Any Stock reserved for issuance under the Predecessor Plan in excess of the number of shares as to which stock options have been granted thereunder, plus any such shares as to which stock options granted under the Predecessor Plan may lapse, expire, terminate or be cancelled, shall be deemed available for issuance or reissuance under Section 4(a) hereof.
Section 3.Definitions. Definitions.
Unless the context clearly indicates otherwise, the following terms, when used in the Plan, shall have the meanings set forth in this Section 3:
(a) “Award”shall mean any Option, SAR, Stock Award, Restricted Stock Units or other incentive award granted under the Plan, whether singly, in combination, or in tandem, to a Grantee by the Committee pursuant to such terms, conditions, restrictionsand/or limitations, if any, as the Committee may establish by the Award Agreement or otherwise.
(b) “Award Agreement”shall mean the document establishing the terms, conditions, restrictions and limitations of an Award in addition to those established by the Plan and by the Committee’s exercise of its administrative powers.
(c) “Board”shall mean the Board of Directors of the Corporation.
(d) “CEO”shall mean the Chief Executive Officer of the Corporation.
(e) “Change in Control”Control” shall mean the occurrence of any of the following: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes a “beneficial owner” (as defined inRule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Corporation representing 30% or more of the voting power of the then outstanding securities of the Corporation; (ii) during any period of two consecutive calendar years there is a change of 25% or more in the composition of the Board in office at the
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beginning of the period except for changes approved by at least two-thirds of the Directors then in office who were Directors at the beginning of the period; (iii) the stockholdersconsummation of the Corporation approve an agreement providing for (A) thea merger or consolidation of the Corporation with another corporation where the stockholders of such corporation, immediately after the merger or consolidation, own shares entitling such stockholders to 50% or more of all votes (without consideration of the rights of any class of stock to elect Directors by separate class vote) to which all stockholders of the corporation issuing cash or securities in the merger or consolidation would be entitled in the election of directors or where the members of the board of directors of such corporation, immediately after the merger or consolidation, constitute a majority of the board of directors of the corporation issuing cash or securities in the merger or consolidation, or (B) the sale or other disposition of all or substantially all the assets of the Corporation, or a liquidation, dissolution or statutory exchange of the Corporation; or (iv) any person has commenced, or announced an intention to commence,the consummation of a tender offer or exchange offer for 30% or more of the voting power of the then-outstanding securities of the Corporation.
(f) “Code”shall mean the Internal Revenue Code of 1986 as it may be amended from time to time.
(g) “Committee”shall mean the Compensation and Management Committee of the Board, or such other Board committee as may be designated by the Board to administer the Plan; provided that the Committee shall consist of not less than two Directors who are “Non-Employee Directors,” as that term is defined and interpreted pursuant toRule 16b-3 under the Exchange Act. The Committee shall be appointed by and serve at the pleasure of the Board.
(h) “Consultant”shall mean any consultant, advisor or independent contractor retained by the Corporation or its Subsidiaries.
(i) “Control Person”shall mean any person who, as of the date of grant of an Option, owns (within the meaning of Section 422A(b)(6) of the Code) stock possessing more
than 10% of the total combined voting power or value of all classes of stock of the Corporation or of any Parent or Subsidiary.
(j) “Corporation”shall mean Ultralife Corporation, a Delaware corporation.
(k) “Director”shall mean any member of the Board.
(l) “Disability”shall mean permanent and total disability as defined by Section 22(e)(3) of the Code.
(m) “Employee”shall mean any person employed by the Corporation or its Subsidiaries on a full or part-time basis, including Directors who are otherwise employed by the Corporation or its Subsidiaries.
(n) “Exchange Act”shall mean the Securities Exchange Act of 1934 as it may be amended from time to time, including the rules thereunder and any successor provisions and the rules thereto.
(o) “Fair Market Value”shall mean for any day (i) if the Corporation is a registrant under Section 12 of the Exchange Act, the volume weighted average price (“VWAP”) of the Stock in theover-the-counter market, as determined in accordance with the trading rules of the National Association of Securities Dealers Automated Quotation System or, if the Stock is listed or admitted to trading on any national securities exchange, the VWAP as determined in accordance with the trading rules on such exchange or, (ii) if the Corporation is not a registrant under Section 12 of the Exchange Act, the price of the Stock will be determined by the Board on the date of grant but will not be less than the par value of such Stock.
(p) “Grantee”shall mean an Employee, Director or Consultant granted an Award under the Plan.
(q) “Immediate Family Member”shall mean the transferor and his or her spouse, children or grandchildren, whether natural, step or adopted children or grandchildren.
(r) “ISO”shall mean an Option granted pursuant to the Plan to purchase shares of Stock and intended to qualify as an incentive stock option under Section 422 of the Code, as now or hereafter constituted.
(s) “NQSO”shall mean an Option granted pursuant to the Plan to purchase shares of the Stock that is not an ISO.
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(t) “Non-Employee Director”shall mean a “non-employee director” within the meaning ofRule 16b-3 under the Exchange Act.
(u) “Options”shall refer collectively to NQSOs and ISOs subject to the Plan.
(v) “Parent”shall mean any parent (as defined in Section 425 of the Code) of the Corporation.
(w) “Plan”shall mean this 2004 Long-Term Incentive Plan as set forth herein and as amended from time to time.
(x) “SAR”shall mean a stock appreciation right granted pursuant to Section 8 hereof; a stock appreciation right shall entitle the Grantee to receive a payment equal to the appreciation in a stated number of shares of Stock from the exercise price for that stock appreciation right to the Fair Market Value of the stated number of shares of Stock on the date of exercise.
(y) “Securities Act”shall mean the Securities Act of 1933 as it may be amended from time to time, including the rules thereunder and any successor provisions and the rules thereto.
(z) “Stock”shall mean shares of the Common Stock, par value $.10 per share, of the Corporation.
(aa) “Stock Award”shall mean an award of shares of Stock or restricted shares of Stock granted pursuant to Section 9 hereof.
(bb) “Subsidiary”shall mean any subsidiary (as defined in Section 425 of the Code) of the Corporation.
Section 4.Shares of Stock Subject to the Plan.
(a) In General.The maximum number of shares of Stock which shall be available for the grant or issuance of Awards under the Plan (including ISOs) during its term shall not exceed 2,000,0002,900,000 (plus any shares of Stock which are or become available under Section 2 hereof, which shares shall also be available for the grant or issuance of Awards under the Plan); provided, however, that no more than 200,000800,000 shares of Stock may be used for Awards other than Options or SARs. Such amounts shall be subject to adjustment as provided in Section 4(c) hereof. Any shares of Stock related to Awards which terminate by expiration, forfeiture, cancellation or otherwise without the issuance of such shares, are settled in cash in lieu of Stock, or are exchanged with the Committee’s permission for Awards not involving Stock, shall be available again for grant under the Plan. Moreover, if the exercise price of any Award granted under the Plan or the tax withholding requirements with respect to any Award granted under the Plan are satisfied by tendering shares of Stock to the Corporation (by either actual delivery or by attestation), only the number of shares of Stock issued net of the shares of Stock tendered will be deemed delivered for purposes of determining the maximum number of shares of Stock available for delivery under the Plan. The shares of Stock available for issuance under the Plan may be authorized and unissued shares or treasury shares, including shares purchased in open market or private transactions. For the purpose of computing the total number of shares of Stock granted under the Plan, where one or more types of Awards, both of which are payable in shares of Stock, are granted in tandem with each other, such that the exercise of one type of Award with respect to a number of shares cancels an equal number of shares of the other, the number of shares granted under both Awards shall be deemed to be equivalent to the number of shares under one of the Awards.
(b) Maximum Awards Payable.Subject to Section 4(c) hereof, and notwithstanding any provision contained in the Plan to the contrary, the maximum Award payable (or granted, if applicable) to any one Grantee under the Plan for a calendar year is 50,000150,000 shares of Stock;
provided, however, that the 150,000 share limitation shall not apply to inducement grants to Grantees who are new executives or key employees that do not exceed 700,000 shares of Stock.
(c) Adjustment Upon Changes in Capitalization.In the event of any reclassification, recapitalization, merger, consolidation, reorganization, issuance of warrants, rights or debentures, stock dividend, stock split or reverse stock split, cash dividend, property dividend, combination or exchange of shares, repurchase of shares or any other change in corporate structure which in the judgment of the Committee materially affects the value of shares, then the Committee may determine the substitutions or adjustments to the maximum number of shares available for the grant or issuance of Awards under the Plan pursuant to Section 4(a) hereof, the maximum Award payable under Section 4(b) hereof, the number and class of shares and the exercise price per share set forth in any Award theretofore granted, or any other affected terms of an Award or the Plan as the Committee, in its sole discretion and without liability to any person, deems equitable or appropriate; provided, however, that no such
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adjustments shall be made to any ISO without the Grantee’s consent, if such adjustment would cause such ISO to fail to qualify as such.
Section 5.Administration of the Plan.
(a) In General.The Committee shall have total and exclusive responsibility to control, operate, manage and administer the Plan in accordance with its terms. The Committee may act only by a majority of its members. Any determination of the Committee may be made, without a meeting, by a writing or writings signed by all of the members of the Committee. The decisions of the Committee and its actions with respect to the Plan shall be final, binding and conclusive upon all persons having or claiming to have any right or interest in or under the Plan.
(b) Authority.The Committee shall have all the authority that may be necessary or helpful to enable it to discharge its responsibilities with respect to the Plan. Without limiting the generality of the preceding sentence, the Committee shall have the exclusive right to:
(i) determine eligibility for participation in the Plan;
(ii) select the Grantees and determine the type of Awards to be made to Grantees, the number of shares of Stock subject to Awards and the terms, conditions, restrictions and limitations of the Awards, including, but not by way of limitation, restrictions on the transferability of Awards and conditions with respect to continued employment or performance criteria;
(iii) interpret the Plan or any Award Agreement;
(iv) construe any ambiguous provision, correct any default, supply any omission, and reconcile any inconsistency of the Plan or an Award Agreement;
(v) issue administrative guidelines as an aid to administer the Plan and make changes in such guidelines as it from time to time deems proper;
(vi) promulgate regulations for carrying out the Plan and make changes in such regulations as it from time to time deems proper;
(vii) to the extent permitted under the Plan, grant waivers of Plan terms, conditions, restrictions, and limitations;
(viii) promulgate rules and regulations regarding treatment of Awards of a Grantee under the Plan in the event of such Grantee’s death, disability, retirement, termination from the Corporation or breach of agreement by the Grantee, or in the event of a Change in Control of the Corporation;
(ix) to the extent permitted under the Plan, accelerate the vesting, exercise, or payment of an Award when such action or actions would be in the best interest of the Corporation;
(x) subject to Section 5(d) hereof, grant Awards in replacement of Awards previously granted under the Plan or any other executive compensation plan of the Corporation;
(xi) determine the terms and provisions of any Award Agreements entered into hereunder, including, a provision in an Award Agreement that requires, upon the occurrence of a Change in Control specified in Section 3(e)(iii) hereof, the cancellation for cash of outstanding Awards or the issuance of comparable replacement Awards granted by the successor entity in such event;
(xii) take any and all other action it deems necessary or advisable for the proper operation or administration of the Plan; and
(xiii) make all other determinations it deems necessary or advisable for the administration of the Plan, including factual determinations.
(c) Delegation.The Committee may allocate all or any portion of its responsibilities and powers under the Plan to any one or more of its members, the CEO or other senior members of management as the Committee deems appropriate and may delegate all or any part of its responsibilities and powers to any such person or persons, provided that any such allocation or delegation be in writing; provided, however, that only the Committee, or other
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committee consisting of two or more Non-Employee Directors may select and grant Awards to Grantees who are subject to Section 16 of the Exchange Act. The Committee may revoke any such allocation or delegation at any time for any reason with or without prior notice.
(d) Repricing.Except for adjustments pursuant to Section 4(c) hereof, the Committee shall not reprice any Options or SARs unless such action is approved by the stockholders of the Corporation. For purposes of the Plan, the term “reprice” shall mean: (i) the reduction, directly or indirectly, in the per-share exercise price of an outstanding Option or SAR by amendment, cancellation or substitution; (ii) any action that is treated as a repricing under United States generally accepted accounting principles; (iii) canceling an Option or SAR when its exercise price exceeds the fair market value of the underlying Stock in exchange for another Option, SAR or other equity security (unless the cancellation and exchange occurs in connection with a merger, acquisition, or similar transaction); and (iv) any other action that is treated as a repricing by the rules or regulations of any stock exchange on which the securities of the Corporation are traded. Any amendment or repeal of this provision shall require the affirmative vote of a
majority of shares of voting capital stock present at a stockholders meeting in person or by proxy and entitled to vote thereon.
Section 6.Awards. Awards.
(a) Eligibility.Subject to Section 5 hereof, all Employees, Directors and Consultants are eligible to participate in the Plan; provided, however, only Employees are eligible to receive ISOs. The Committee shall determine and designate from time to time those Employees, Directors and Consultants who are to be granted Awards, the nature of each Award granted and the number of shares of Stock subject to each such Award.
(b) In General.Awards may, at the Committee’s sole discretion, be paid in the form of Options pursuant to Section 7 hereof, SARs pursuant to Section 8 hereof, Stock Awards or Restricted Stock Units pursuant to Section 9 hereof, or a combination thereof. Each Award shall be subject to the terms, conditions, restrictions and limitations of the Plan and the Award Agreement for such Award. Awards under a particular Section of the Plan need not be uniform and Awards under two or more Sections may be combined into a single Award Agreement. Any combination of Awards may be granted at one time and on more than one occasion to the same Grantee.
(c) Foreign Jurisdictions.With respect to Grantees who reside or work outside of the United States, the Committee may, in its sole and absolute discretion, amend the terms of the Plan or Awards with respect to such Grantees in order to conform such terms with the provisions of local law and practice or otherwise as deemed necessary or desirable by the Committee.
Section 7.Stock Options.
(a) In General.Awards may be granted in the form of Options. Options granted under the Plan may be of two types: ISOs and NQSOs. The Committee shall have the authority and discretion to grant to an eligible Employee either ISOs, NQSOs, or both, but shall clearly designate the nature of each Option at the time of grant. Consultants and Directors shall only receive NQSOs.
(b) Terms of Options.An Option shall be exercisable in accordance with such terms and conditions and at such times and during such periods as may be determined by the Committee. In addition to any such terms and conditions, the following terms and conditions shall apply to all Options granted under the Plan:
(i) The exercise price per share of Stock subject to an Option shall be not less than 100% of the Fair Market Value of a share of the Stock on the date such Option is granted, except for Options granted in assumption of or substitution for outstanding awards previously granted by the Corporation or its affiliates or an entity that the Corporation acquires or with which the Corporation combines, in any case in a transaction contemplated by Section 4(c); provided, however, that the exercise price for any ISO granted to a Control Person shall not be less than 110% of such Fair Market Value.
(ii) The term of each Option shall be determined by the Committee, provided that no Option shall be exercisable more than ten years from the date such Option is granted, and provided further that no ISO granted to a Control Person shall be exercisable more than five years from the date of Option grant.
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(iii) Notwithstanding any other provisions hereof, the aggregate Fair Market Value (determined at the time the ISO is granted) of the Stock with respect to which ISOs are exercisable for the first time by any Employee during any calendar year under all plans of the Corporation and any Parent or Subsidiary corporation shall not exceed $100,000.
(c) Exercise of Options.Except as provided in Section 11 hereof, no Option granted to an Employee or Consultant shall be exercised unless at the time of such exercise the Grantee is then an Employee or Consultant. Upon exercise, the exercise price of an Option may be paid in cash, or, to the extent permitted by the Committee, by tendering, by either actual delivery of shares or by attestation, shares of Stock, a combination of the foregoing, or such other consideration as the Committee may deem appropriate. The Committee shall establish appropriate methods for accepting Stock, whether restricted or unrestricted, and may impose such conditions as it deems appropriate on the use of such Stock to exercise an Option. Options awarded under the Plan may also be exercised by way of a broker-assisted stock option exercise program, if any, provided such program is available at the time of the Grantee’s exercise. Notwithstanding the foregoing or the provision of any Award Agreement, a Grantee may not pay the exercise price of an Option using shares of Stock if, in the opinion of counsel to the Corporation, (i) the Grantee is, or within the six months preceding such exercise was, subject to reporting under Section 16(a) of the Exchange Act, (ii) there is a substantial likelihood that the use of such form of payment or the timing of such form of payment would subject the Grantee to a substantial risk of liability under Section 16 of the Exchange Act, or (iii) there is a substantial likelihood that the use of such form of payment would result in accounting treatment to the Corporation under generally accepted accounting principles that the Committee reasonably determines is adverse to the Corporation.
Section 8.Stock Appreciation Rights.
(a) In General.Awards may be granted in the form of SARs. SARs granted under the Plan may be of two types: an SAR granted in tandem with all or a portion of a related Option under the Plan (“Tandem SARs”) or granted separately (“Freestanding SARs”). A Tandem SAR may be granted either at the time of the grant of the related Option or at any time thereafter during the term of the Option.
(b) Tandem SARs.A Tandem SAR shall be exercisable to the extent, and only to the extent, that the related Option is exercisable, and the “exercise price” of such a SAR (the base from which the value of the SAR is measured at its exercise) shall be the exercise price under the related Option. However, at no time shall a Tandem SAR be issued if the exercise price of its related Option is less than the Fair Market Value of the Stock, as determined by the Committee, on the date that the Tandem SAR is granted. If a related Option is exercised as to some or all of the shares covered by the Award, the related Tandem SAR, if any, shall be canceled automatically to the extent of the number of shares covered by the Option exercise. Upon
exercise of a Tandem SAR as to some or all of the shares covered by the Award, the related Option shall be canceled automatically to the extent of the number of shares covered by such exercise. All Tandem SARs shall expire not later than ten years from the date of the grant of the SAR.
(c) Freestanding SARs.Freestanding SARs shall be exercisable or automatically mature in accordance with such terms and conditions and at such times and during such periods as may be determined by the Committee. The exercise price of a Freestanding SAR shall be defined in the Award Agreement for that SAR and shall be not less than 100% of the Fair Market Value of a share of Stock on the date of the grant of the Freestanding SAR. All Freestanding SARs shall expire not later than ten years from the date of grant of the SAR.
(d) Exercise of SARs.Except as provided in Section 11 hereof, no SAR granted to an Employee or Consultant shall be exercised unless at the time of such exercise the Grantee is then an Employee or Consultant. The Committee may provide that an SAR shall be deemed to be exercised at the close of business on the scheduled expiration date of such SAR if at such time the SAR by its terms remains exercisable and, if so exercised, would result in a payment to the holder of such SAR. Unless otherwise provided in an Award Agreement, an SAR may be paid in cash, shares of Stock or any combination thereof, as determined by the Committee, in its sole and absolute discretion, at the time that the SAR is exercised.
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Section 9. Stock Awards
Section 9. Stock Awards and Restricted Stock Units
(a) In General.Awards may be granted in the form of Stock Awards.Awards or Restricted Stock Units. Stock Awards and Restricted Stock Units shall be awarded in such numbers and at such times during the term of the Plan as the Committee shall determine. “Restricted Stock Unit” means an Award that is valued by reference to Stock, which value may be paid to the Grantee by delivery of such property as the Committee shall determine, including, without limitation, cash or Stock, or any combination thereof, and that has such restrictions as the Committee, in its sole discretion, may impose.
(b) Restrictions.The Committee may condition, restrict or limit the grant of a Stock Award or Restricted Stock Units on the achievement of enumerated performance objectives or, with respect to Stock Awards or Restricted Stock Units issued to an Employee or a Consultant, on such Employee’s or Consultant’s continued employment or service to the Corporation through a specified period of time. The restricted period specified in respect of any Stock Award or Restricted Stock Unit shall not be less than three years, except that the Committee may (i) provide for the restricted period to terminate at any time after one year upon the attainment of performance-based objectives, and (ii) grant Stock Awards or Restricted Stock Units of up to 30,000 shares of Stock without regard to this limitation. Furthermore, the Committee may not terminate the restrictions applicable to outstanding Stock Awards or Restricted Stock Units except in connection with a Change in Control. The Committee may grant an unrestricted Stock Award or Restricted Stock Units only if the Committee determines that such Stock Award is made in lieu of all or a portion of salary or cash bonus of comparable value.
(c) Rights as Stockholders.of Holders of Restricted Stock. During the period in which any shares of Stock received pursuant to a Stock Award are subject to any restrictions, the Committee may, in
its sole and absolute discretion, deny the Grantee to whom such shares have been awarded all or any of the rights of a stockholder with respect to such shares, including, but not by way of limitation, limiting the right to vote such shares or the right to receive dividends on such shares.
(d) Rights of Holders of Restricted Stock Units. A Grantee receiving an Award of Restricted Stock Units shall not possess voting rights, nor the right to receive cash dividends with respect to such Award, unless a right to Dividend Equivalents is included in the Award Agreement for such Award of Restricted Stock Units. If a right to Dividend Equivalents is included in the Award Agreement for an Award of Restricted Stock Units, then any Stock or any other property distributed as a dividend or otherwise with respect to the Stock underlying such Award as to which the restrictions have not yet lapsed shall be subject to the same restrictions as such Award of Restricted Stock Units, and may either be automatically deemed invested in additional Restricted Stock Units or held by the Company in escrow for the Grantee, and shall be paid to the Grantee at the same time as the Restricted Stock Units. “Dividend Equivalents” means an amount credited under a Grantee’s Restricted Stock Unit, which amount is equal to the dividends paid on the Stock, if any, determined as if the Restricted Stock Unit was shares of Stock on the record date of any such dividend.”
Section 10.Payment of Awards.
(a) In General.Absent a Plan or Award Agreement provision to the contrary, payment of Awards may, at the discretion of the Committee, be made in cash, Stock, a combination of cash and Stock, or any other form of property as the Committee shall determine. In addition, payment of Awards may include such terms, conditions, restrictionsand/or limitations, if any, as the Committee deems appropriate, including, in the case of Awards paid in the form of Stock, restrictions on transfer and forfeiture provisions; provided, however, such terms, conditions, restrictionsand/or limitations are not inconsistent with the Plan.
(b) Withholding.The Corporation shall be entitled to deduct from any payment under the Plan, regardless of the form of such payment, the amount of all applicable income and employment taxes required by law to be withheld with respect to such payment or may require the Grantee to pay to the Corporation such tax prior to and as a condition of the making of such payment. In accordance with any applicable administrative guidelines it establishes, the Committee may allow a Grantee to pay the amount of taxes required by law to be withheld from an Award by withholding from any payment of shares of Stock due as a result of such Award, or by permitting the Grantee to deliver to the Corporation, shares of Stock having a Fair Market Value equal to the minimum amount of such required withholding taxes. Notwithstanding the foregoing or the provision of any Award Agreement, a Grantee may not pay the amount of taxes required by law to be withheld using shares of Stock if, in the opinion of counsel to the Corporation, (i) the Grantee is, or within the six months preceding such exercise was, subject to reporting under Section 16(a) of the Exchange Act, (ii) there is a substantial likelihood that the use of such form of payment or the timing of such form of payment would subject the Grantee to a substantial risk of liability under Section 16 of the Exchange Act, or (iii) there is a substantial likelihood that the use of such form of payment would result in accounting treatment to the Corporation under generally accepted accounting principles that the Committee reasonably determines is adverse to the Corporation.
Section 11.Effect of Termination of Relationship with the Corporation.
(a) Committee Rules.The Committee shall have the authority to promulgate rules and regulations to determine the treatment of a Grantee’s Awards under the Plan in the event of such Grantee’s death, Disability, and termination. In addition, notwithstanding the provisions of this Section 11, the terms of an Award Agreement or the rules and regulations promulgated by the Committee and in effect from time to time, the Committee shall have the right to extend the period for exercise of any Option or SAR, provided such extension does not exceed the term of such Option or SAR.
(b) Death.Unless otherwise decided by the Committee and provided in an Award Agreement, upon a Grantee’s death prior to the complete exercise of the Options or SARs granted to him or her under the Plan, any
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remaining Options or SARs may be exercised in whole or in part within one year after the date of the Grantee’s death and then only:
(i) by the beneficiary designated by the Grantee in a writing submitted to the Corporation prior to the Grantee’s death, or in the absence of same, by the Grantee’s estate or by or on behalf of such person or persons to whom the Grantee’s rights pass under his or her will or the laws of descent and distribution,
(ii) to the extent that the Grantee would have been entitled to exercise the Option or SAR at the date of his or her death and subject to all of the conditions on exercise imposed by the Plan and the Award Agreement, and
(iii) prior to the expiration of the term of the Option or SAR.
(c) Disability.Unless otherwise decided by the Committee and provided in an Award Agreement, upon a Grantee’s Disability prior to the complete exercise of the Options or SARs granted to him or her under the Plan, any remaining Options or SARs may be exercised in whole or in part within one year after the date of the Grantee’s Disability and then only:
(i) by the Grantee or his or her legal representative,
(ii) to the extent that the Grantee would have been entitled to exercise the Option or SAR on the date of his or her Disability, subject to all of the conditions on exercise imposed by the Plan and the Award Agreement, and
(iii) prior to the expiration of the term of the Option or SAR.
(d) Other Termination.Unless otherwise decided by the Committee and provided in an Award Agreement, the termination of a Grantee’s employment, consulting relationship or term of directorship with the Corporation for a reason other than the Grantee’s death or Disability and prior to the complete exercise of the Options or SARs granted to him or her under the Plan, any remaining Options or SARs may be exercised in whole or in part within three months after the date of the Grantee’s termination and then only:
(i) by the Grantee or his or her legal representative,
(ii) to the extent that the Grantee would have been entitled to exercise the Option or SAR on the date of his or her termination, subject to all of the conditions on exercise imposed by the Plan and the Award Agreement, and
(iii) prior to the expiration of the term of the Option or SAR.
(e) Treatment of Intra-Corporation Transfers.In the case of an Employee or Consultant, the transfer between the Corporation and any Subsidiary shall not be deemed to be a termination of employment or consulting relationship, and a change from the status of an Employee to a Consultant or from a Consultant to an Employee shall not be deemed to be a termination of employment or consulting relationship.
Section 12.General Provisions.
(a) Award Agreement.Each Award grant shall be evidenced by a written Award Agreement containing such terms and conditions, not inconsistent with the Plan, as the Committee shall approve. The terms and provisions of Award Agreements may vary among Grantees and among different Awards granted to the same Grantee. Any Stock Award granted under the Plan may be evidenced in such manner as the Committee deems appropriate, including, without limitation, book-entry registration or issuance of a stock certificate or certificates, with such restrictive legendsand/or stop transfer instructions as the Committee deems appropriate.
(b) No Right to Further Awards or Continued Service.The grant of an Award in any year shall not give the Grantee any right to similar grants in future years or any right to continue such Grantee’s employment or consultant relationship with the Corporation or its Subsidiaries. All Grantees shall remain subject to discharge to the same extent as if the Plan were not in effect.
(c) No Right, Title, or Interest in Corporation Assets.No Grantee shall have any rights as a stockholder as a result of participation in the Plan until the date of issuance of a stock certificate in his or her name, and, in the case of restricted shares of Stock, such rights are granted to the Grantee under the Plan. To the extent any person acquires a
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right to receive payments from the Corporation under the Plan, such rights shall be no greater than the rights of an unsecured creditor of the Corporation and the Grantee shall not have any rights in or against any specific assets of the Corporation. All of the Awards granted under the Plan shall be unfunded and the Corporation shall not be required to establish any fund or make any other segregation of assets to assure the payment of any Award.
(d) Nonassignability.
(i) Except as otherwise determined by the Committee or as otherwise provided in Section 12(d)(ii) hereof, no Award or other right under the Plan shall be subject to anticipation, sale, assignment, pledge, encumbrance, or charge except by will or the laws of descent and distribution, and an Award shall be exercisable during the Grantee’s lifetime only by the Grantee.
(ii) The Committee shall have the discretionary authority to grant NQSOs or amend outstanding NQSOs to provide that they be transferable, subject to such terms and
conditions as the Committee shall establish. In addition to any such terms and conditions, the following terms and conditions shall apply to all transfers of NQSOs:
(A) Except as otherwise permitted by the Committee, in its sole and absolute discretion, only Directors and corporate officers of the Corporation shall be permitted to transfer their NQSOs, and such individuals must be a Director or a corporate officer on the date of transfer.
(B) Transfers shall only be permitted to: (1) the transferor’s Immediate Family Members; (2) a trust or trusts for the exclusive benefit of the transferor’s Immediate Family Members; or (3) a family partnership or family limited partnership in which each partner is, at the time of transfer and all time subsequent thereto, either an Immediate Family Member or a trust for the exclusive benefit of one or more Immediate Family Members.
(C) All transfers shall be made for no consideration.
(D) Once a NQSO is transferred, any subsequent transfer of such transferred NQSO shall, notwithstanding Section 12(d)(i) hereof to the contrary, be permitted; provided, however, such subsequent transfer complies with all of the terms and conditions of this Section 12(d)(ii), with the exception of Section 12(d)(ii)(A) hereof.
(E) In order for a transfer to be effective, the Committee’s designated transfer agent must be used to effectuate the transfer. The costs of such transfer agent shall be borne solely by the transferor.
(F) In order for a transfer in accordance with Section 12(d)(ii) to be effective, the transferor must agree in writing prior to the transfer on a form provided by the Corporation to pay any and all payroll and withholding taxes due upon exercise of the transferred NQSO. In addition, prior to the exercise of the transferred NQSO by the transferee, arrangements must be made by the Grantee with the Corporation for the payment of any and all payroll and withholding taxes.
(G) Upon transfer, a NQSO continues to be governed by and subject to the terms and conditions of the Plan. A transferee of a NQSO is entitled to the same rights as the Grantee to whom such NQSO was originally granted, as if no transfer had taken place. Accordingly, the rights of the transferee are subject to the terms and conditions of the original grant of the NQSO, including provisions relating to expiration date, exercisability, exercise price and forfeiture.
(H) The Corporation shall be under no obligation to provide a transferee with any notice regarding the transferred NQSO held by the transferee upon forfeiture or any other circumstance.
(e) �� Regulatory Approvals and Listings.Notwithstanding any other provision of the Plan or Award Agreements made pursuant thereto, the Corporation shall not be required to issue
or deliver any certificate or certificates for shares of Stock under the Plan prior to fulfillment of all of the following conditions:
(i) The listing, or approval for listing upon notice of issuance, of such shares on any securities exchange on which the Stock may then be traded;
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(ii) Any registration or other qualification of such shares under any state or federal law or regulation, or other qualification which the Board shall, in its absolute discretion and upon the advice of counsel, deem necessary or advisable;
(iii) The obtaining of any other consent approval or permit from any state or federal government agency which the Board shall, in its absolute discretion and upon the advice of counsel, determine to be necessary or advisable; and
(iv) The execution by the Grantee (or the Grantee’s legal representative) of such written representation that the Committee may in its sole discretion deem necessary or advisable to the effect that the shares then being purchased are being purchased for investment with no present intention of reselling or otherwise disposing of such shares in any manner which may result in a violation of the Securities Act and the placement upon certificates for such shares of an appropriate legend in connection therewith.
(f) In the case of a grant of an Option to any Employee or Consultant of a Subsidiary, the Corporation may, if the Committee so directs, issue or transfer the shares covered by the Option to the Subsidiary, for such lawful consideration as the Committee may specify, upon the condition or understanding that the Subsidiary will transfer the shares to the Employee or Consultant in accordance with the terms of the Plan and the Award Agreement relating to such Option.
(g) Governing Law.The Plan shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law, without giving effect to its conflicts of law provisions.
(h) No Guarantee of Tax Consequences.No person connected with the Plan in any capacity, including, but not limited to, the Corporation and its directors, officers, agents and employees, makes any representation, commitment, or guarantee that any tax treatment, including, but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to the tax treatment of any Award, or that such tax treatment will apply to or be available to a Grantee on account of participation in the Plan.
(i) Amendment or Termination.The Board may, at any time and for any reason, with or without prior notice, suspend, discontinue or terminate the Plan; provided, however, that no such action shall adversely affect the rights of Grantees to Awards previously granted hereunder. In addition, the Board may, at any time and for any reason, with or without prior notice, amend the Plan in any manner, but may not without stockholder approval, adopt any amendment which would: (i) increase the number of shares available under the Plan; (ii) expand the types of Awards available under the Plan; (iii) expand the class of persons eligible to participate in the Plan; (iv) extend the term of the Plan; (v) be a material amendment to the Plan, including, but not limited to, a change in the method of determining the exercise price of Options issued under the
Plan; (vi) allow for repricing of Options or SARs issued under the Plan; (vii) terminate restrictions applicable to Awards (except in connection with a Grantee’s death, Disability or termination of employment or in connection with a Change in Control); or (viii) require the vote of the stockholders if such approval is necessary or desirable in order to comply with tax, securities, or other applicable laws or regulations, including, but not limited to, the listing requirements of the stock exchanges on which the securities of Corporation are listed.
(j) Duration of Plan.The Plan was approved by the Board on April 27, 2004, and became effective on June 10, 2004, upon the approval by the stockholders of the Corporation at the 2004 Annual Meeting of the Stockholders. Awards may not be granted under the Plan after June 9, 2014, but Awards theretofore granted may extend beyond that date.
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ULTRALIFE CORPORATION
2000 Technology Parkway
Newark, NY 14513
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time the day before the meeting date. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: | | | | |
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| | | | DETACH AND RETURN THIS PORTION ONLY |
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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The Board of Directors recommends you vote FOR the following:
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All | | Withhold
All | | For All
Except | | To withhold authority to vote for any individual
nominee(s), mark “For All Except” and write the
number(s) of the nominee(s) on the line below. | | | | |
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151.
| | Election of Directors
Nominees
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01 | | Steven M. Anderson | | 02 | | Patricia C. Barron | | 03 | | James A. Croce | | 04 | | Michael D. Popielec | | 05 | | Thomas L. Saeli |
06 | | Robert W. Shaw II | | 07 | | Ranjit C. Singh | | 08 | | Bradford T. Whitmore |
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The Board of Directors recommends you vote FOR the following proposal: | | For | | Against | | Abstain | | | | | | For | | Against | | Abstain |
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2. | | To approve an advisory resolution on executive compensation. | | o | | o | | o | | 5. | | To ratify the selection of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2011. | | o | | o | | o |
The Board of Directors recommends you vote 3 YEARS on the following proposal: | | 1 year | | 2 years | | 3 years | | Abstain | | | | | | | | | |
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3. | | To conduct an advisory vote on the frequency of future advisory votes on executive compensation. | | o | | o | | o | | o | | NOTE: The proxies are authorized to vote in their discretion upon such other business as may properly come before the meeting and any adjournments thereof. | | | | | | |
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The Board of Directors recommends you vote FOR proposals 4. and 5. | | For | | Against | | Abstain |
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4. | | To approve an amendment to our Amended and Restated 2004 Long-Term Incentive Plan, including an increase in the number of authorized shares under the plan and an amendment to the annual limitation set forth in the plan. | | | | o | | o | | o | |
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Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer. | | | | | |
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Signature [PLEASE SIGN WITHIN BOX] | | Date | | Signature (Joint Owners) | | Date | | |
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Annual Report, Notice & Proxy Statement is/are available at www.proxyvote.com.
ULTRALIFE CORPORATION
2011 Annual Meeting of Shareholders
June 7, 2011
This proxy is solicited on behalf of the Board of Directors.
The undersigned hereby appoints Philip A. Fain and Peter F. Comerford, and each of them, as proxy for the undersigned, with full power of substitution, to vote all shares of the Common Stock of Ultralife Corporation owned by the undersigned at the Annual Meeting of Shareholders to be held on June 7, 2011 at 10:30 A.M., local time, at our corporate offices, which are located at 2000 Technology Parkway, Newark, New York 14513, and at any adjournments of such meeting, on the matters listed in this proxy and described in the notice of annual meeting and proxy statement and upon such other business as may properly come before such meeting and any adjournments thereof.
This proxy is solicited on behalf of the Board of Directors of the Company and each matter to be voted on at the Annual Meeting has been proposed by the Board of Directors of the Company. This proxy will be voted as specified by the undersigned. This proxy revokes any prior proxy given by the undersigned. Unless authority to vote for one or more of the nominees is specifically withheld according to the instructions, a signed proxy will be voted FOR the election of the eight named nominees for director, FOR the advisory resolution on executive compensation, for the proposal to conduct an advisory vote on the frequency of future advisory votes on executive compensation every 3 years, FOR the amendment to our Amended and Restated 2004 Long-Term Incentive Plan, and FOR the ratification of the selection of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2011. The undersigned acknowledges receipt with this proxy of a copy of the notice of annual meeting and proxy statement dated April 28, 2011, describing more fully the proposals set forth in this proxy.
(continued and to be signed on the reverse side)