EXHIBIT 10.3(m)
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OGDEN CORPORATION
EXECUTIVE PERFORMANCE INCENTIVE PLAN
1. PURPOSE
The purpose of this Plan is to attract, retain and motivate key employees
by providing cash performance awards to designated key employees of the Company,
its Parent and its Subsidiaries. This Plan is effective for the fiscal year of
the Company commencing on January 1, 2000 and for fiscal years thereafter,
subject to approval by the stockholders of the Company in accordance with the
laws of the State of Delaware.
2. DEFINITIONS
Unless the context otherwise requires, the words which follow shall have
the following meaning:
(a) "Award" - shall mean the total annual Performance Award as
determined under the Plan.
(b) "Board" - shall mean the Board of Directors of the Company.
(c) "Change in Control of the Company" - shall have the meaning set
forth in Exhibit A hereto.
(d) "Code" - shall mean the Internal Revenue Code of 1986, as amended
and any successor thereto.
(e) "Code Section 162(m)" - shall mean the exception for
performance-based compensation under Section 162(m) of the Code or any successor
section and the Treasury regulations promulgated thereunder.
(f) "Company" - shall mean Ogden Corporation and any successor by
merger, consolidation or otherwise.
(g) "Committee" - shall mean the Compensation Committee of the Board
or such other Committee of the Board that is appointed by the Board all of whose
members shall satisfy the requirements to be "outside directors," as defined
under Code Section 162(m).
(h) "Individual Target Award" - shall mean the targeted performance
award for a Plan Year specified by the Committee as provided in Section 5
hereof.
(i) "Parent" - shall mean, other than the Company, (i) any corporation
in an unbroken chain of corporations ending with the Company which owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain or (ii) any
corporation or trade or business (including, without limitation, a partnership
or limited liability company) which controls fifty percent (50%) or more
(whether by ownership of stock, assets or an equivalent ownership interest) of
the Company.
(j) "Participant" - shall mean an employee of the Company, the Parent
or a Subsidiary selected, in accordance with Section 4 hereof, to be eligible to
receive an Award in accordance with this Plan.
(k) "Performance Award" - shall mean the amount paid or payable under
Section 6 hereof.
(l) "Plan" - shall mean this Ogden Corporation Executive Performance
Incentive Plan.
(m) "Plan Year" - shall mean the fiscal year of the Company, or, if
applicable and determined by the Committee, in its sole discretion, the fiscal
year of the applicable Subsidiary.
(n) "Subsidiary" - shall mean, other than the Company, (i) any
corporation in an unbroken chain of corporations beginning with the Company
which owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain; (ii) any corporation or trade or business (including, without limitation,
a partnership or limited liability company) which is controlled fifty percent
(50%) or more (whether by ownership of stock, assets or an equivalent ownership
interest or voting interest) by the Company or one of its Subsidiaries; or (iii)
any other entity in which the Company or any of its Subsidiaries has a material
equity interest and which is designated as a "Subsidiary" by resolution of the
Committee.
3. ADMINISTRATION AND INTERPRETATION OF THE PLAN
The Plan shall be administered by the Committee. The Committee shall have
the exclusive authority and responsibility to: (i) interpret the Plan; (ii)
approve the designation of eligible Participants; (iii) set the performance
criteria for Awards within the Plan guidelines; (iv) certify attainment of
performance goals and other material terms; (v) reduce Awards as provided
herein; (vi) authorize the payment of all benefits and expenses of the Plan as
they become payable under the Plan; (vii) adopt, amend and rescind rules and
regulations relating to the Plan; and (viii) make all other determinations and
take all other actions necessary or desirable for the Plan's administration
including, without limitation, correcting any defect, supplying any omission or
reconciling any inconsistency in this Plan in the manner and to the extent it
shall deem necessary to carry
this Plan into effect, but only to the extent any such action would be permitted
under Code Section 162(m).
Decisions of the Committee shall be made by a majority of its members. All
decisions of the Committee on any question concerning the selection of
Participants and the interpretation and administration of the Plan shall be
final, conclusive and binding upon all parties. The Committee may rely on
information, and consider recommenda tions, provided by the Board or the
executive officers of the Company. The Plan is intended to comply with Code
Section 162(m), and all provisions contained herein shall be limited, construed
and interpreted in a manner to so comply.
4. ELIGIBILITY AND PARTICIPATION
(a) For each Plan Year, the Committee shall select the employees of the
Company, its Parent and Subsidiaries who are to participate in the Plan from
among the executive key employees of the Company, its Parent and Subsidiaries.
(b) No person shall be entitled to any Award under this Plan for any Plan
Year unless he or she is so designated as a Participant for that Plan Year. The
Committee may add to or delete individuals from the list of designated
Participants at any time and from time to time, in its sole discretion, subject
to any limitations required to comply with Code Section 162(m).
5. INDIVIDUAL TARGET AWARD
For each Participant for each Plan Year, the Committee may specify a
targeted performance award. The Individual Target Award may be expressed, at the
Committee's discretion, as a fixed dollar amount, a percentage of base pay or
total pay (excluding payments made under this Plan), or an amount determined
pursuant to an objective formula or standard. Establishment of an Individual
Target Award for an employee for a Plan Year shall not imply or require that the
same level Individual Target Award (if any such award is established by the
Committee for the relevant employee) be set for any subsequent Plan Year. At the
time the Performance Goals are established (as provided in subsection 6.2
below), the Committee shall prescribe a formula to determine the percentages
(which may be greater than one-hundred percent (100%)) of the Individual Target
Award which may be payable based upon the degree of attainment of the
Performance Goals during the Plan Year. Notwithstanding anything else herein,
the Committee may, in its sole discretion, elect to pay a Participant an amount
that is less than the Participant's Individual Target Award (or attained
percentage thereof) regardless of the degree of attainment of the Performance
Goals; provided that no such discretion to reduce an Award earned based on
achievement of the applicable Performance Goals shall be permitted for the Plan
Year in which a Change in Control of the Company occurs, or during such Plan
Year with regard to the prior Plan Year if the Awards for the prior Plan Year
have not been made by the time of the Change in Control of the Company, with
regard to individuals who were Participants at the time of the Change in Control
of the Company.
6. PERFORMANCE AWARD PROGRAM
6.1 Performance Awards. Subject to Section 7 herein, each Participant is
eligible to receive up to the achieved percentage of their Individual Target
Award for such Plan Year (or, subject to the last sentence of Section 5, such
lesser amount as determined by the Committee in its sole discretion) based upon
the attainment of the objective Performance Goals established pursuant to
subsection 6.2 and the formula established pursuant to Section 5. Except as
specifically provided in Section 7, no Performance Award shall be made to a
Participant for a Plan Year unless the minimum Performance Goals for such Plan
Year are attained.
6.2 Objective Performance Goals, Formulae or Standards (the "Performance
Goals"). The Committee shall establish the objective performance goals, formulae
or standards and the Individual Target Award (if any) applicable to each
Participant or class of Participants for a Plan Year in writing prior to the
beginning of such Plan Year or at such later date as permitted under Code
Section 162(m) and while the outcome of the Performance Goals are substantially
uncertain. Such Performance Goals may incorporate, if and only to the extent
permitted under Code Section 162(m), provisions for disregarding (or adjusting
for) changes in accounting methods, corporate transactions (including, without
limitation, dispositions and acquisitions) and other similar type events or
circumstances. To the extent any such provision would create impermissible
discretion under Code Section 162(m) or otherwise violate Code Section 162(m),
such provision shall be of no force or effect. These Performance Goals shall be
based on one or more of the following criteria with regard to the Company (or a
subsidiary, division, or other operational unit of the Company): (i) the
attainment of certain target levels of, or a specified percentage increase in,
profits, market share, revenues, income before income taxes and extraordinary
items, net income, earnings before income tax, earnings before interest, taxes,
depreciation and amortization or a combination of any or all of the foregoing;
(ii) the attainment of certain target levels of (including, without limitation,
a break-even), or a percentage increase in, after-tax or pre-tax profits
including, without limitation, that are attributable to continuing and/or other
operations; (iii) the attainment of certain target levels of, or a specified
increase in, operational cash flow or cash generation targets; (iv) the
achievement of a certain level of, reduction of, or other specified objectives
with regard to limiting the level of increase in, all or a portion of, the
Company's bank debt or other long-term or short- term public or private debt or
other similar financial obligations of the Company, which may be calculated net
of such cash balances and/or other offsets and adjustments as may be established
by the Committee; (v) the attainment of a specified percentage increase in
earnings per share or earnings per share from continuing operations; (vi) the
attainment of certain target levels of, or a specified increase in return on
capital employed or return on invested capital; (vii) the attainment of certain
target levels of, or a percentage increase in, after-tax or pre-tax return on
stockholders' equity or profitability targets as measured by return ratio and
shareholder return; (viii) the attainment of certain target levels of, or a
specified increase in, economic value added targets based on a cash flow return
on investment formula; (ix) the attainment of certain target levels in the fair
market value of the shares of the
Company's common stock; and (x) the growth in the value of an investment in the
Company's common stock assuming the reinvestment of dividends. For purposes of
item (i) above, "extraordinary items" shall mean all items of gain, loss or
expense for the Plan Year determined to be extraordinary or unusual in nature or
infrequent in occurrence or related to a corporate transaction (including,
without limitation, a disposition or acquisition) or related to a change in
accounting principle, all as determined in accordance with standards established
by opinion No. 30 of the Accounting Principles Board.
In addition, such Performance Goals may be based upon the attainment of
specified levels of Company (or subsidiary, division or other operational unit
of the Company) performance under one or more of the measures described above
relative to the performance of other corporations. To the extent permitted under
Code Section 162(m), but only to the extent permitted under Code Section 162(m)
(including, without limitation, compliance with any requirements for stockholder
approval), the Committee may: (i) designate additional business criteria on
which the Performance Goals may be based or (ii) adjust, modify or amend the
aforementioned business criteria.
6.3 Maximum Nondiscretionary Award. The maximum Performance Award,
including any interest thereon due to deferral (as provided under Section 6.4
hereof), payable to a Participant for any Plan Year is $4,000,000.
6.4 Payment Date; Committee Certification. The Performance Awards will be
paid as soon as administratively feasible after the Plan Year in which they are
earned, but not before the Committee certifies in writing that the Performance
Goals specified (except to the extent permitted under Code Section 162(m) and
provided in Section 7 with regard to death, disability or Change in Control of
the Company or certain other termination situations) pursuant to subsection 6.2
were, in fact, satisfied, except as may otherwise be agreed by a Participant and
the Company in a written agreement executed prior to the beginning of the Plan
Year to which the Performance Award relates in accordance with any deferred
compensation program in effect applicable to such Participant. Performance
Awards hereunder shall be payable in cash or, in the sole discretion of the
Committee, in restricted stock pursuant to the Ogden Corporation 1999 Stock
Incentive Plan, amended and restated as of January 1, 2000. The Committee shall
use its best efforts to make a determination with regard to satisfaction of the
Performance Goals within two and one-half (2 1/2) months after the end of each
Plan Year. Any Performance Award deferred by a Participant shall increase or
decrease (between the date on which the Performance Award is credited to any
deferred compensation program applicable to such Participant and the payment
date) based on an earnings factor elected by the Participant from such options
offered by the Committee and set forth in writing prior to such deferral which
shall be based either on a reasonable rate of interest or on one or more
predetermined actual investments such that the amount payable at the end of the
deferral period shall be based on the actual rate of return of a specific
investment. The Participant shall have no right to receive payment of any
deferred amount until he or she has a right to receive such amount under the
terms of the applicable deferred compensation program.
7. EMPLOYMENT AT YEAR END GENERALLY REQUIRED FOR AWARD
No Award shall be made to any Participant who is not an active employee of
the Company, its Parent or one of its Subsidiaries or affiliates at the end of
the Plan Year; provided, however, that the Committee, in its sole and absolute
discretion, may make Awards to Participants for a Plan Year in circumstances
that the Committee deems appropriate including, but not limited to, a
Participant's death, disability, retirement or other termination of employment
during such Plan Year and the Committee shall be required to make at least a
pro-rata Award through the date of a Change in Control of the Company to each
Participant who is a Participant at the time of such Change in Control of the
Company. All such Awards shall be based on achievement of the Performance Goals
for the Plan Year, except that, to the extent permitted under Code Section
162(m), in the case of death, disability or Change in Control of the Company
during the Plan Year (or such other termination situations as permitted under
Code Section 162(m)) an amount equal to or less than the Individual Target
Awards may be made by the Committee either during or after the Plan Year without
regard to actual achievement of the Performance Goals. Furthermore, upon a
Change in Control of the Company the Committee may, in its sole discretion but
only to the extent permitted under Code Section 162(m), make an award (payable
immediately) equal to a pro-rata portion (through the date of the Change in
Control of the Company) of the Individual Target Award payable upon achieving,
but not surpassing, the Performance Goals for the relevant Plan Year. Any such
immediate pro-rata payment shall reduce any other Award made for such Plan Year
under this Plan by the amount of the pro-rata payment.
8. NON-ASSIGNABILITY
No Award under this Plan nor any right or benefit under this Plan shall be
subject to anticipation, alienation, sale, assignment, pledge, encumbrance,
garnishment, execution or levy of any kind or charge, and any attempt to
anticipate, alienate, sell, assign, pledge, encumber and to the extent permitted
by applicable law, charge, garnish, execute upon or levy upon the same shall be
void and shall not be recognized or given effect by the Company.
9. NO RIGHT TO EMPLOYMENT
Nothing in the Plan or in any notice of award pursuant to the Plan
shall confer upon any person the right to continue in the employment of the
Company, its Parent, or one of its Subsidiaries or affiliates nor affect the
right of the Company, its Parent or any of its Subsidiaries or affiliates to
terminate the employment of any Participant.
10. AMENDMENT OR TERMINATION
The Board (or a duly authorized committee thereof) may, in its sole and
absolute discretion, amend, suspend or terminate the Plan or to adopt a new plan
in place of this Plan at any time; provided, that no such amendment shall,
without the prior approval of
the stockholders of the Company in accordance with the laws of the State of
Delaware to the extent required under Code Section 162(m): (i) materially alter
the Performance Goals as set forth in subsection 6.2; (ii) increase the maximum
amount set forth in subsection 6.3; (iii) change the class of eligible employees
set forth in Section 4(a); or (iv) implement any change to a provision of the
Plan requiring stockholder approval in order for the Plan to continue to comply
with the requirements of Code Section 162(m). Furthermore, no amendment,
suspension or termination shall, without the consent of the Participant, alter
or impair a Participant's right to receive payment of an Award for a Plan Year
otherwise payable hereunder.
11. SEVERABILITY
In the event that any one or more of the provisions contained in the Plan
shall, for any reason, be held to be invalid, illegal or unenforceable, in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of the Plan and the Plan shall be construed as if such invalid,
illegal or unenforceable provisions had never been contained therein.
12. WITHHOLDING
The Company shall have the right to make such provisions as it deems
necessary or appropriate to satisfy any obligations it may have to withhold
federal, state or local income or other taxes incurred by reason of payments
pursuant to the Plan.
13. GOVERNING LAW
This Plan and any amendments thereto shall be construed, administered, and
governed in all respects in accordance with the laws of the State of Delaware
(regardless of the law that might otherwise govern under applicable principles
of conflict of laws).
EXHIBIT A
A "Change in Control of the Company" shall be deemed to have occurred upon:
(a) the acquisition by any person or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of twenty-five percent (25%) or more of
either (i) the then outstanding shares of common stock of the Company or
(ii) the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors,
provided that the following acquisitions shall not constitute a Change in
Control of the Company: (i) any acquisition directly from the Company
(excluding any acquisition by virtue of the exercise of a conversion
privilege), (ii) any acquisition by the Company; (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company, or any corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if following such reorganization, merger or consolidation
the conditions described in clause (iii) of paragraph (c) below are met.
(b) individuals who, as of the effective date of the Plan, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the effective date of the Plan, whose election, or
nomination for election by the Company stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Board; or
(c) the stockholders of the Company approve: (i) a plan of complete liquidation
of the Company; or (ii) an agreement for the sale or disposition of all or
substantially all the Company's assets; or (iii) a merger, consolidation,
or reorganization of the Company with or involving any other corporation,
limited liability entity or similar person, other than a merger,
consolidation, or reorganization that would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least seventy-five percent
(75%) of the combined voting power of the voting securities of the Company
(or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.