Executives are also subject to an annual individual performance evaluation. The evaluations are designed to rate each executive on various criteria, both objective and subjective, including the areas of leadership, technical expertise, initiative, judgment and personal development. An overall rating is assessed to each individual from these evaluations and is an important element in determining annual adjustments to base salaries. The rating levels include: DistinguishedSurpassed (highest rating), Commendable, Competent, AdequateAchieved, and ProvisionalProgressed/Missed (lowest rating). The Compensation Committee conducts an evaluation of the CEO’s performance and the CEO conducts an evaluation of each executive officer’s performance. Each of the NEOs was rated at either the CommendableSurpassed or Distinguished levels.Achieved level.
The Company’s 2015 Incentive Compensation Plan (the “2015 Incentive Plan”) covers the annual incentive compensation to be paid to key managers of the Company, including the NEOs. The 2015 Incentive Plan provides an incentive arrangement based on the establishment and achievement of annual goals reflective of the Company’s business plan. The objective of the program is to promote the Company’s goal of increasing shareholder value. The Company believes that twothree of the key elements in the creation of shareholder value are:
Designated managers within each of the Company’s business segments participate in the incentive program for their respective business unit. IncentiveFor fiscal 2022, incentive compensation for these participants (except the SGK Brand Solutions segment) iswas calculated based on the achievement of operating profit andadjusted EBITDA, economic value added, and adjusted operating cash flow targets established for their individual business unit. Economic value added for business units is defined as the unit’s operating profitadjusted EBITDA less its cost of capital (cost of capital is determined based on a pre-tax rate of 12% timesmultiplied by net controllable assets, which is estimated to beexceed the Company’sCompany's weighted average pre-tax cost of capital). Adjusted operating cash flow for business units for the purposes of incentive compensation is defined as adjusted EBITDA less capital expenditures plus/minus changes in working capital. Incentive compensation for SGK Brand Solutions participants iswas calculated based on the achievement of adjusted EBITDA and operating cash flow targets established for this business unit.
The target incentive amount is expressed as a percentage of the participant’s base salary and based upon the executive’s position and the industry recommended percentage target for the position as provided to the Company by Pay Governance, LLC. Target, minimum and maximum incentive award opportunities for the CEO and other NEOs are included in the table below.
calculated awards based on the participant’s performance relative to the quantifiable individual goals. No such adjustments were made in fiscal 2017.2022.
Grant recommendations are developed using a valuation model consistent with accounting policies for stock-based compensation and is based on the fair market value of the Company’s common stock on the dates of grant. Grants to executive officers are generally made only once a year in the Company’s first fiscal quarter (usually at the November meeting of the Compensation Committee), except for new hires and promotions. The Company does not time the release of material non-public information around the granting of equity compensation awards.
The minimum holding periods for vested restricted share awards are governed by the Company’s stock ownership guidelines, which provides that at least 50% of the after-tax shares realized upon vesting of restricted stock must be retained until the ownership guideline is met.
Dividends are not paid on unvested restricted shares. Dividends associated with unvested restricted shares only become payable if and upon the vesting of the restricted shares. Accordingly, dividends will not be paid if the restricted shares do not become vested and are instead forfeited.
The Sarbanes-Oxley Act of 2002 requires the CEO and Chief Financial Officer to reimburse the Company for any awards received following the release of financial results that subsequently require an accounting restatement due to noncompliance with a material financial reporting requirement as a result of misconduct.
The Company has established stock ownership guidelines for executive officers and business unit management in order to support a culture of ownership among the management team. The Compensation Committee believes significant ownership levels will provide additional motivation to executives to perform in accordance with the interests of the Company’s shareholders. The ownership guidelines are expressed as a multiple of base salary and are as follows:
For purposes of these guidelines, stock ownership includes all shares directly owned (including shares held under the Company's Employee Stock Purchase Plan and time-vesting restricted share units or shares), but does not include outstanding stock options or unvested performance-based restricted share units or shares. Immediate compliance with these guidelines is not mandatory; however, individuals are expected to undertake a program to achieve compliance within five years of their hire date or promotion to their respective position. The ownership policy mandates that at least 50% of the after-tax shares realized upon an option exercise or vesting of restricted stock or restricted share units must be retained until the ownership guideline is met. Compliance with these ownership guidelines is one of the factors considered by the Compensation Committee in determining eligibility for participation in the Company’s equity compensation programs.
These benefits are designed to be competitive with overall market practices. Educational assistance for dependent children is also provided to any employee of the Company whose child meets the scholastic eligibility criteria and is attending an eligible college or university. Educational assistance is limited to $1,200 for each semester and $2,400 annually.
The Company provides executives with other benefits, reflected in the “All Other Compensation” column in the Summary Compensation Table, which the Committee considers reasonable, competitive and consistent with the Company’s compensation philosophy. These benefits includeincluded supplemental life insurance coverage, costs associated with personal use of a vehicle and, in certain circumstances, club dues. Effective October 1, 2022, the Committee eliminated personal use of a vehicle and club dues and financial counseling and tax preparation services.benefits for executives.
The following table provides information on grants of plan-based awards held by the named executive officers during fiscal 2017.2022.
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(1) | All grants were effective as of the date on which the Compensation Committee of the Board of Directors met to approve them. |
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(2) | Amounts represent target payouts under the Company’s 2015 Plan. The target represents the named executive officer’s annual salary multiplied by his respective target incentive award percentage. The target incentive award percentages, expressed as a percentage of annual base salary are 100% for Mr. Bartolacci, 50% for Mr. Babe, 55% for Mr. Gackenbach, 70% for Mr. Nicola, and 45% for Mr. Walters. For a full explanation refer to the Annual Incentive Compensation section of the Compensation Discussion and Analysis beginning on page 39 of this Proxy Statement. |
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(3) | Amounts represent the number of shares of restricted stock granted pursuant to the 2012 Equity Plan that vest upon certain performance criteria. Performance-based restricted shares granted in November 2016 were granted such that for 50% of such shares vesting occurs in one-third increments upon the attainment of annual adjusted earnings per share of $3.65, $3.94 and $4.26, respectively; and for 50% of such shares vesting occurs upon the attainment of 5%, 15% and 25% appreciation, respectively, in the market value of the Company’s Common Stock, but in no event prior to the expiration of one year from the date of the grant. Restricted shares may also vest under certain change in control circumstances. The restricted shares are forfeited if the adjusted earnings per share and stock price appreciation performance vesting criteria have not been met on the earlier of three and five years from the date of grant, respectively, upon employment termination, or within specified time limits following voluntary employment termination (with consent of the Company), retirement or death. For a full explanation of the operation of the 2012 Equity Plan, refer to the Long-Term Incentive Compensation section of the Compensation Discussion and Analysis beginning on page 42 of this Proxy Statement. |
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(4) | Amounts represent the number of shares of restricted stock granted pursuant to the 2012 Equity Plan that fully vest on the third anniversary of the grant date. Restricted shares may also vest under certain change in control circumstances. The restricted shares are forfeited upon employment termination, or within specified time limits following voluntary employment termination (with consent of the Company), retirement or death. For a full explanation of the operation of the 2012 Equity Plan, refer to the Long-Term Incentive Compensation section of the Compensation Discussion and Analysis beginning on page 42 of this Proxy Statement. |
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(5) | Values are calculated based on the grant date fair value of the Company’s common stock and the expected probability that the shares will ultimately vest. |
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(6) | Grant date fair values are developed using a Binomial pricing model based on the fair market value of the Company’s common stock on the dates of grant. The assumptions on which this valuation is based are set forth in Note 10 to the audited financial statements included in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on November 21, 2017. |
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(7) | Values are calculated based on the grant date fair value of the Company’s common stock. |
The following table sets forth information concerning the fiscal 20172022 year-end value of unearned restricted sharesshares/share units for each of the named executive officers.
Outstanding Equity Awards at Fiscal Year-End Table
| | | | | | | | | | | | | | | | | | | | |
| Stock Awards |
| No. of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($) (4) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) (4) |
J.C. Bartolacci | — | | | $ | — | | 11,250 | | (5) | $ | 252,113 | |
| 28,245 | | (1) | 632,970 | | 52,455 | | (6) | 1,175,517 | |
| 67,750 | | (2) | 1,518,278 | | 67,750 | | (7) | 1,518,278 | |
| 40,000 | | (3) | 896,400 | | 60,000 | | (8) | 1,344,600 | |
G.S. Babe | — | | | — | | 1,850 | | (5) | 41,459 | |
| 4,550 | | (1) | 101,966 | | 8,450 | | (6) | 189,365 | |
| 10,750 | | (2) | 240,908 | | 10,750 | | (7) | 240,908 | |
| 35,000 | | (3) | 784,350 | | 65,000 | | (8) | 1,456,650 | |
S.D. Gackenbach | — | | | — | | 1,700 | | (5) | 38,097 | |
| 4,550 | | (1) | 101,966 | | 8,450 | | (6) | 189,365 | |
| 10,750 | | (2) | 240,908 | | 10,750 | | (7) | 240,908 | |
| 18,900 | | (3) | 423,549 | | 10,200 | | (8) | 228,582 | |
S.F. Nicola | — | | | — | | 3,100 | | (5) | 69,471 | |
| 8,610 | | (1) | 192,950 | | 15,990 | | (6) | 358,336 | |
| 18,950 | | (2) | 424,670 | | 18,950 | | (7) | 424,670 | |
| 26,900 | | (3) | 602,829 | | 17,100 | | (8) | 383,211 | |
B.D. Walters | — | | | — | | 1,600 | | (5) | 35,856 | |
| 4,550 | | (1) | 101,966 | | 8,450 | | (6) | 189,365 | |
| 10,750 | | (2) | 240,908 | | 10,750 | | (7) | 240,908 | |
| 17,900 | | (3) | 401,139 | | 10,200 | | (8) | 228,582 | |
| | | | | | |
(1)Represents restricted share units that were fully vested on November 12, 2022 and converted to an equal number of shares of the Company's common stock.
(2)Represents restricted share units that will be earned and fully vested on November 16, 2023. Upon vesting, these restricted share units will be converted to an equal number of shares of the Company's common stock.
(3)Represents restricted share units that will be earned and fully vested on November 17, 2024. Upon vesting, these restricted share units will be converted to an equal number of shares of the Company's common stock.
(4)Represents the value of all unvested restricted shares/share units as of September 30, 2022. The value is computed by multiplying all unvested restricted shares/share units by $22.41, the closing price of the Company’s common stock on September 30, 2022. The value calculated for restricted share units is based on vesting at target for performance related shares (see footnotes 6 and 7 below).
(5)Represents restricted shares that will be earned and vested as follows: one-half upon the stock price of the Company’s common stock reaching 115% of the grant date fair value of the Company’s common stock for ten consecutive trading days, one-half upon the price of the Company’s common stock reaching 125% of the grant date fair value of the Company’s common stock for ten consecutive trading days. These shares were cancelled on November 15, 2022.
(6)Represents restricted share units that will be earned and vested as follows: one-half upon achieving certain metrics based on Return on Invested Capital ("ROIC") and one-half upon achieving certain metrics based on adjusted earnings per share. Upon vesting, these performance based units will be converted to the Company's common stock using a factor ranging from 50% to 200% based upon the level of achievement of the performance thresholds related to the above targets. On November 17, 2022, the ROIC portion vested and converted into shares of the Company's common stock at a rate of approximately 172.15%; the adjusted earnings per share portion cancelled.
(7)Represents restricted share units that will be earned and vested as follows: one-half upon achieving certain metrics based on stock price appreciation and one-half upon achieving certain metrics based on ROIC. Upon vesting, these performance based units will be converted to the Company's common stock using a factor ranging from 50% to 200% based upon the level of achievement of the performance thresholds related to the above targets.
(8)Represents restricted share units that will be earned and vested as follows: one-half upon achieving certain metrics based on adjusted earnings per share and one-half upon achieving certain metrics based on ROIC. Upon vesting, these performance based units will be converted to the Company's common stock using a factor ranging from 50% to 200% based upon the level of achievement of the performance thresholds related to the above targets.
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| | | | | | | | | | | | |
| Stock Awards |
| No. of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($) (4) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) (4) |
J.C. Bartolacci | 32,500 |
| (1) | $ | 2,023,125 |
| — |
| (5) | $ | — |
|
| 35,500 |
| (2) | 2,209,875 |
| 11,834 |
| (6) | 736,667 |
|
| 35,500 |
| (3) | 2,209,875 |
| 35,500 |
| (7) | 2,209,875 |
|
G.S. Babe | 3,000 |
| (8) | 186,750 |
| — |
| (9) | — |
|
| 3,660 |
| (2) | 227,835 |
| 1,220 |
| (6) | 75,945 |
|
| 4,350 |
| (3) | 270,788 |
| 4,350 |
| (7) | 270,788 |
|
S.D. Gackenbach | 5,000 |
| (1) | 311,250 |
| — |
| (5) | — |
|
| 6,250 |
| (2) | 389,063 |
| 2,083 |
| (6) | 129,667 |
|
| 5,550 |
| (3) | 345,488 |
| 5,550 |
| (7) | 345,488 |
|
S.F. Nicola | 11,280 |
| (1) | 702,180 |
| — |
| (5) | — |
|
| 8,660 |
| (2) | 539,085 |
| 2,887 |
| (6) | 179,716 |
|
| 9,300 |
| (3) | 578,925 |
| 9,300 |
| (7) | 578,925 |
|
B.D. Walters | 6,050 |
| (1) | 376,613 |
| — |
| (5) | — |
|
| 4,560 |
| (2) | 283,860 |
| 1,520 |
| (6) | 94,620 |
|
| 4,500 |
| (3) | 280,125 |
| 4,500 |
| (7) | 280,125 |
|
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(1) | Represents restricted shares that were fully vested on November 12, 2017. |
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(2) | Represents restricted shares that will be earned and fully vested on November 11, 2018. |
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(3) | Represents restricted shares that will be earned and fully vested on November 16, 2019. |
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(4) | Represents the value of all unvested restricted shares as of September 30, 2017. The value is computed by multiplying all unvested restricted shares by the $62.25, the closing price of the Company’s common stock on September 30, 2017. |
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(5) | All Equity Incentive Plan Awards issued on November 12, 2014 have been earned and vested. |
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(6) | Represents restricted shares that will be earned and vested as follows; one-half upon the adjusted earnings per share of the Company reaching $3.51 and one-half upon the adjusted earnings per share of the Company reaching $3.79. One-half of these shares vested on November 16, 2017. |
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(7) | Represents restricted shares that will be earned and vested as follows: one-sixth upon the stock price of the Company’s common stock reaching 105% of the grant date fair value of the Company’s common stock ($66.61) for ten consecutive trading days, one-sixth upon the stock price of the Company’s common stock reaching 115% of the grant date fair value of the Company’s common stock for ten consecutive trading days, one-sixth upon the price of the Company’s common stock reaching 125% of the grant date fair value of the Company’s common stock for ten consecutive trading days, one-sixth upon the adjusted earnings per share of the Company reaching $3.65, one-sixth upon the adjusted earnings per share of the Company reaching $3.94, and one-sixth upon the adjusted earnings per share of the Company reaching $4.26. One-third of these shares vested on November 16, 2017. |
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(8) | Represents restricted shares that will be earned and fully vested on January 21, 2018. |
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(9) | All Equity Incentive Plan Awards issued on January 21, 2015 have been earned and vested. |
The following table provides information on the vesting of restricted shares for each of the named executive officers during fiscal 2017.2022.
Stock Vested
| | | | | | | | |
| Stock Awards |
Name | Number of Shares Acquired on Vesting | Value Realized on Vesting |
J.C. Bartolacci | 50,677 | $ | 1,966,420 | |
G.S. Babe | 7,813 | 303,168 |
S.D. Gackenbach | 7,813 | 303,168 |
S.F. Nicola | 13,841 | 537,073 |
B.D. Walters | 7,813 | 303,168 |
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| Stock Awards |
Name | Number of Shares Acquired on Vesting | Value Realized on Vesting |
J.C. Bartolacci | 65,833 | $ | 3,107,617 |
|
G.S. Babe | 2,940 | 162,815 |
|
S.D. Gackenbach | 11,651 | 548,954 |
|
S.F. Nicola | 19,378 | 896,254 |
|
B.D. Walters | 7,899 | 378,144 |
|
Retirement Benefits
The Company's domesticRetirement benefits were generally provided under the Company’s DB Plan, with additional retirement plan is noncontributory and provides benefits based upon length of service and final average earnings. Generally, employees age 21 with one year of continuous service are eligible to participate in the retirement plan. The benefit formula is 3/4 of 1% of the first $550 of final average monthly earnings plus 1‑1/4% of the excess times years of credited service (maximum 35 years). The plan is a defined benefit plan and covered compensation is limited generally to base salary or wages. Benefits are not subject to any deduction or offset for Social Security.
In addition to benefits provided byunder the Company's retirementSERP or ORRP for certain executives. The DB Plan was terminated on October 1, 2021, and plan participants subsequently received lump sum payments or annuity contracts in fiscal 2022 to fully settle the Company has a Supplemental RetirementDB Plan (“SERP”),obligations. The SERP, which providesprovided for supplemental pension benefits to certain executive officers of the Company designated by the Board of Directors. Upon normal retirement under thisDirectors, was terminated on August 2, 2021, and plan such individuals who meet stipulated age and service requirements are entitledparticipants subsequently received lump sum payments in October 2022 to receive monthly supplemental retirement payments which, when added to their pension under the Company's retirement plan and their maximum anticipated Social Security primary insurance amount, equal, in total, 1.85% of final average monthly earnings (including incentive compensation) times the individual's years of continuous service (subject to a maximum of 35 years). Upon early retirement underfully settle the SERP reducedobligations. The ORRP was created in 2009 to provide limited benefits will be provided, depending upon age and years of service. Benefits under the SERP vest based upon the attainment ofto certain levels of qualified and total continuous service. The Company has established a non-revocable trust to fund the SERP, and a provision has been made on the Company's books for the actuarially computed obligation.
In 2009, the Committee closed the SERP to new participants and created a separate plan, Officers Retirement Restoration Plan ("ORRP"), for any new designated executive going forward, limiting its benefit toexecutives by restoring amounts lost to tax-related limitations under the Company’s regular retirement and 401(k) plans. The defined benefit portion of the ORRP was frozen as of April 30, 2021, and plan participants subsequently received lump sum payments in October 2022 to fully settle the ORRP obligations. Of the NEOs, Mr. Bartolacci and Mr. Nicola participated in the Company's DB Plan and SERP. Mr. Babe, Mr. Gackenbach, and Mr. Walters were participants in the Company's DB Plan and ORRP.
The table below sets forth the number of years of credited service and the present value at September 30, 20172022 of the accumulated benefits under the each of the retirement plans for each of the participating named executive officers.
Pension Benefits Table
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Name | Plan Name | Number of Years Credited Service (#) (1) | Present Value of Accumulated Benefit ($) (2) | Payments During Last Fiscal Year ($) |
| | | | |
J.C. Bartolacci | SERP | 24 | 9,958,015 | | — | |
| | | | |
| | | | |
| | | | |
S.D. Gackenbach | ORRP | 10 | 111,314 | | — | |
S.F. Nicola | SERP | 28 | 4,470,129 | | — | |
B.D. Walters | ORRP | 16 | 178,184 | | — | |
(1)As of September 30, 2022. Years of credited service for the Company’s SERP and ORRP begin on the initial date of service. Benefit accruals for the SERP and ORRP were initially frozen as of April 30, 2021. |
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Name | Plan Name | Number of Years Credited Service (#) (1) | Present Value of Accumulated Benefit ($) (2) | Payments During Last Fiscal Year ($) |
J.C. Bartolacci | Matthews International Corporation Employees Retirement Plan | 19 | $ | 648,577 |
| $ | — |
|
| Matthews International Corporation SERP | 20 | 5,499,603 |
| — |
|
S.D. Gackenbach | Matthews International Corporation Employees Retirement Plan | 5 | 169,213 |
| — |
|
| Matthews International Corporation ORRP | 6 | 217,589 |
| — |
|
S.F. Nicola | Matthews International Corporation Employees Retirement Plan | 23 | 792,725 |
| — |
|
| Matthews International Corporation SERP | 24 | 2,818,840 |
| — |
|
B.D. Walters | Matthews International Corporation Employees Retirement Plan | 11 | 282,111 |
| — |
|
| Matthews International Corporation ORRP | 12 | 230,300 |
| — |
|
(2)The assumptions on which this valuation is based are set forth in Note 15 to the audited financial statements included in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on November 18, 2022.
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(1) | As of September 30, 2017. Years of credited service for the Matthews International Corporation Employees Retirement Plan begin on the first of the month following the completion of one year of service. Years of credited service for the Company’s SERP and ORRP begin on the initial date of service. |
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(2) | The assumptions on which this valuation is based are set forth in Note 12 to the audited financial statements included in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on November 21, 2017. |
The Company provides a 401(k) Plan covering substantially all domestic employees of the Company. Participants may make pre-tax contributions to their account of 1% up to 75% of their annual compensation. For employees covered under the Matthews International Corporation Employees Retirement Plan, which includes the named executive officers, theThe Company makeswill make matching contributions to each participant at a rate of 100% for the first 3% deferred and 50% of participants’ deferralsfor the next 2% deferred up to 1%4% of their annual compensation. Participants are fully vested immediately in the value of their contributions and fully vested in the value of Company matching contributions after three years of service, provided they are a participant of the plan.
CEO Pay Ratio
Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 requires most companies with publicly traded stock in the United States to identify the median total compensation of their worldwide employee population (other than the chief executive officer) and to compare that amount with the total compensation of their chief executive officer. Total compensation amounts are required to be calculated using the SEC’s compensation disclosure rules applicable to reporting compensation in the Summary Compensation Table of the proxy statement. Median employee compensation used to calculate the pay ratio is required to be the total compensation paid to an actual employee of the company.
To identify our median employee, we reviewed the annual base salary of all our employees other than the CEO as of September 30, 2022. As permitted by SEC rules, we excluded from our review employees based in Brazil, China, Costa Rica, Hong Kong, Hungary, Ireland, Mexico and Thailand because those individuals, in the aggregate, make up less than 5% of our total employee base, representing approximately 506 employees. Contingent workers who provide services to Matthews International but whose compensation is determined by an unaffiliated third party were also excluded from our determination of the median employee. We used an annual base salary as our consistently applied compensation measure as it represents the primary compensation component paid to all of our employees. As a result, annual base salary provides an accurate depiction of total earnings for the purpose of identifying our median employee. We then calculated the median employee’s total annual compensation in accordance with the requirements of the Summary Compensation Table. We did not use any material estimates, assumptions, adjustments or statistical sampling to determine the worldwide median employee.
Our median employee’s 2022 compensation was $65,160. Our Chief Executive Officer’s total 2022 compensation was $6,183,365 as reported in the Summary Compensation Table on page 53. Accordingly, our 2022 CEO to Median Employee Pay Ratio was 95:1.
Potential Payments upon Termination or Change in Control
The following discussion describes and quantifies the payments that would be made to each of the NEOs under a variety of circumstances, assuming that each had taken place on September 30, 2017:2022: (1) the executive resigns voluntarily without the consent of the Company; (2) the executive resigns voluntarily with the consent of the Company; (3) the executive is involuntarily terminated without cause; (4) the executive is involuntarily terminated with cause; (5) the executive dies or becomes permanently disabled while employed; (6) the executive retires; or (7) a change in control of the Company takes place.
The Company’s executive management, including the NEOs, are subject to change-in-control agreements. These agreements provide certain benefits upon a change-in-control of the Company provided that, upon a change-in-control, the executive’s employment is terminated involuntarily or for good reason (“double-trigger”). Upon such double-trigger, the executive (including the CEO) is generally entitled to two times his or her base salary and target bonus, and accelerated vesting of awards under the long-term incentive plan.
Restricted Stock. Under the terms of the existing restricted stock grants,and restricted share unit awards, in the event of voluntary termination of employment without the Company’s consent or any involuntary terminations, any unvested restricted sharesshares/share units are forfeited at the time of termination. In the event of death or termination due to permanent disability, retirement or voluntary termination with the Company’s consent, unvested performance-based restricted shares continue to performance vest for a period of two years following termination.termination and unvested performance-based restricted share units continue to performance vest over the term of the award. In the event of death or termination due to permanent disability, retirement or voluntary termination with the Company’s consent, unvested time-based restricted sharesshares/share units become immediately vested. In the event of a change in control of the Company, as definedall unvested time-based restricted shares/share units immediately vest in full. In addition, in the Company’s 2007, 2012 and 2017 Equity Incentive Plans, all unvested restricted shares immediately vest.
Supplemental Retirement Plan. Uponevent of a change in control of the Company, as definedall unvested performance-based restricted shares/share units immediately vest to the greater of (i) the amount that would have vested at target-level performance and (ii) the amount that would have vested assuming that applicable performance levels were extrapolated to the end of the applicable performance period. Notwithstanding the foregoing, time-based and performance-based restricted shares/share units held by the Company's executive management that are subject to change in control agreements will accelerate upon satisfaction of the double-trigger conditions.
SERP/ORRP. The SERP and the defined-benefit portion of ORRP were frozen in fiscal 2021 and therefore, upon a change in control the Company participants accrue five additional yearsreceive the payout of credited service under the SERP.accumulated benefits.
The following table provides information on the potential incremental value of executive benefits upon termination of employment prior to and after a change ofin control, assuming termination would have occurred as of September 30, 2017.2022.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
Named Executive | Executive Benefit and Payment upon Separation | Voluntary Termination Without Consent | Voluntary Termination With Consent(1) (2) | Involuntary Termination Without Cause | Involuntary Termination With Cause | Death or Disability (1) (2) | Retirement (1) (2) | Change in Control (3) (4) |
J.C. Bartolacci | Performance-based Restricted Shares/Share Units | $ | — | | $ | — | | $ | — | | $ | — | | $ | — | | $ | — | | $ | — | |
| Time-based Restricted Shares/Share Units | — | | 3,047,648 | | — | | — | | 3,047,648 | | 3,047,648 | | — | |
| SERP | — | | — | | — | | — | | — | | — | | 9,958,015 | |
| Total | — | | 3,047,648 | | — | | — | | 3,047,648 | | 3,047,648 | | 9,958,015 | |
G.S. Babe | Performance-based Restricted Shares/Share Units | — | | — | | — | | — | | — | | — | | — | |
| Time-based Restricted Shares/Share Units | — | | 1,127,223 | | — | | — | | 1,127,223 | | 1,127,223 | | — | |
| | | | | | | | |
| Total | — | | 1,127,223 | | — | | — | | 1,127,223 | | 1,127,223 | | — | |
S.D. Gackenbach | Performance-based Restricted Shares/Share Units | — | | — | | — | | — | | — | | — | | — | |
| Time-based Restricted Shares/Share Units | — | | 766,422 | | — | | — | | 766,422 | | 766,422 | | — | |
| ORRP | — | | — | | — | | — | | — | | — | | 111,314 | |
| Total | — | | 766,422 | | — | | — | | 766,422 | | 766,422 | | 111,314 | |
S.F. Nicola | Performance-based Restricted Shares/Share Units | — | | — | | — | | — | | — | | — | | — | |
| Time-based Restricted Shares/Share Units | — | | 1,220,449 | | — | | — | | 1,220,449 | | 1,220,449 | | — | |
| SERP | — | | — | | — | | — | | — | | — | | 4,470,129 | |
| Total | — | | 1,220,449 | | — | | — | | 1,220,449 | | 1,220,449 | | 4,470,129 | |
B.D. Walters | Performance-based Restricted Shares/Share Units | — | | — | | — | | — | | — | | — | | — | |
| Time-based Restricted Shares/Share Units | — | | 744,012 | | — | | — | | 744,012 | | 744,012 | | — | |
| ORRP | — | | — | | — | | — | | — | | — | | 178,184 | |
| Total | — | | 744,012 | | — | | — | | 744,012 | | 744,012 | | 178,184 | |
(1)The performance-based restricted share value represents the value of unvested restricted shares as of September 30, 2022 that had not met performance vesting criteria as of that date, but for which the performance vesting threshold was less than $22.41, the closing price of the Company’s common stock on the last trading day of fiscal 2022 (the “assumed performance vested shares”). The value of the restricted shares is computed by multiplying the number of assumed performance vested shares by $22.41. As of September 30, 2022 there were no assumed performance vested shares.
(2)The time-based restricted share unit value represents the value of unvested restricted share units as of September 30, 2022 that would vest upon termination as of September 30, 2022 (the “assumed time vested shares”). The value of the restricted share units is computed by multiplying the number of assumed time vested share units by $22.41, the closing price of the Company’s common stock on the last trading day of fiscal 2022.
(3)Time and performance restricted share units may vest under certain change-in-control circumstances, subject to double-trigger change-in-control provisions which require a change in control and involuntary or good reason employment termination. See "Potential Payments upon Termination or Change in Control - Restricted Stock" above.
(4)The value of the SERP and ORRP represents the present value of the accumulated benefits as of September 30, 2022. Such amounts were distributed to participants in October 2022 to fully settle the plan obligations.
|
| | | | | | | | | | | | | | | |
Named Executive | Executive Benefit and Payment upon Separation | Voluntary Termination Without Consent | Voluntary Termination With Consent (1) (2) | Involuntary Termination Without Cause | Involuntary Termination With Cause | Death or Disability (1) (2) | Retirement (1) (2) | Change in Control (3) (4) |
J.C. Bartolacci | Performance-based Restricted Shares | — |
| — |
| — |
| — |
| — |
| — |
| 2,946,479 |
|
| Time-based Restricted Shares | — |
| 6,442,875 |
| — |
| — |
| 6,442,875 |
| 6,442,875 |
| 6,442,875 |
|
| SERP | — |
| — |
| — |
| — |
| — |
| — |
| 10,870,364 |
|
| Total | — |
| 6,442,875 |
| — |
| — |
| 6,442,875 |
| 6,442,875 |
| 20,259,718 |
|
G.S. Babe | Performance-based Restricted Shares | — |
| — |
| — |
| — |
| — |
| — |
| 346,733 |
|
| Time-based Restricted Shares | — |
| 685,373 |
| — |
| — |
| 685,373 |
| 685,373 |
| 685,373 |
|
| Total | — |
| 685,373 |
| — |
| — |
| 685,373 |
| 685,373 |
| 1,032,106 |
|
S.D .Gackenbach | Performance-based Restricted Shares | — |
| — |
| — |
| — |
| — |
| — |
| 475,154 |
|
| Time-based Restricted Shares | — |
| 1,045,800 |
| — |
| — |
| 1,045,800 |
| 1,045,800 |
| 1,045,800 |
|
| Total | — |
| 1,045,800 |
| — |
| — |
| 1,045,800 |
| 1,045,800 |
| 1,520,954 |
|
S.F. Nicola | Performance-based Restricted Shares | — |
| — |
| — |
| — |
| — |
| — |
| 758,641 |
|
| Time-based Restricted Shares | — |
| 1,820,190 |
| — |
| — |
| 1,820,190 |
| 1,820,190 |
| 1,820,190 |
|
| SERP | — |
| — |
| — |
| — |
| — |
| — |
| 5,866,217 |
|
| Total | — |
| 1,820,190 |
| — |
| — |
| 1,820,190 |
| 1,820,190 |
| 8,445,048 |
|
B.D. Walters | Performance-based Restricted Shares | — |
| — |
| — |
| — |
| — |
| — |
| 374,745 |
|
| Time-based Restricted Shares | — |
| 940,598 |
| — |
| — |
| 940,598 |
| 940,598 |
| 940,598 |
|
| Total | — |
| 940,598 |
| — |
| — |
| 940,598 |
| 940,598 |
| 1,315,343 |
|
| |
(1) | The performance-based restricted share value represents the value of unvested restricted shares as of September 30, 2017 that had not met performance vesting criteria as of that date, but for which the performance vesting threshold was less than $62.25, the closing price of the Company’s common stock on the last trading day of fiscal 2017 (the “assumed performance vested shares”). The value of the restricted shares is computed by multiplying the number of assumed performance vested shares by $62.25. As of September 30, 2017 there were no assumed performance vested shares. |
| |
(2) | The time-based restricted share value represents the value of unvested restricted shares as of September 30, 2017 that would vest upon termination as of September 30, 2017 (the “assumed time vested shares”). The value of the restricted shares is computed by multiplying the number of assumed time vested shares by $62.25, the closing price of the Company’s common stock on the last trading day of fiscal 2017. |
| |
(3) | The performance-based and time-based restricted share value represents the value of all unvested restricted shares as of September 30, 2017. The value is computed by multiplying all unvested restricted shares by $62.25, the closing price of the Company’s common stock on the last trading day of fiscal 2017. |
| |
(4) | The incremental value of the SERP represents the increase in the accumulated benefit obligation resulting from an additional five years of vested service for eligible participants. |
AUDIT COMMITTEE MATTERS
Report of the Audit Committee
The Audit Committee of Matthews International Corporation (the "Company") is composed of three directors who the Board has determined to be independent under the U.S. Securities and Exchange Commission (“SEC”) regulations related to audit committee independence, the NASDAQNasdaq listing requirements and the Company’s Corporate Governance Guidelines. The Audit Committee operates under a written charter adopted by the Company’s Board of Directors.
Management of the Company has the primary responsibility for preparing the financial statements, establishing the system of internal controls, and assessing the effectiveness of the Company’s internal control over financial reporting. The Audit Committee is responsible for reviewing the Company’s financial reporting process on behalf of the Board of Directors.
In this context, the Audit Committee has met and held discussions with management, internal audit and the independent registered public accounting firm. Management represented to the Audit Committee that the Company’s consolidated financial statements were prepared in accordance with generally accepted accounting principles, and the Audit Committee has discussed the consolidated financial statements with management, internal audit and the independent registered public accounting firm. The Audit Committee discussed with the independent registered public accounting firm matters required to be discussed by Auditing Standard No. 1301, "Communications with Audit Committees", and such other matters as are required to be discussed under the standards applicable requirements of the Public Company Accounting Oversight Board (“PCAOB”) and the SEC.
The Company’s independent registered public accounting firm also provided to the Audit Committee the written disclosures required by Public Company Accounting Oversight Board Rule 3526, “Communicationapplicable requirements of the PCAOB regarding the independent registered public accounting firm’s communications with Audit Committees Concerning Independence”,the audit committee concerning independence, and the Audit Committee discussed with the independent registered public accounting firm that firm’s independence.
The Committee discussed with the Company's independent registered public accounting firm and internal auditors the overall scope and plan for their respective audits. The Audit Committee meets with the independent registered public accounting firm and internal auditors to discuss the results of their examinations, their evaluations of the Company's internal controls, and the overall quality of the Company's financial reporting.
Based on the Audit Committee’s discussions referred to above and the Audit Committee’s review of the report of the independent registered public accounting firm on the consolidated financial statements of the Company for the year ended September 30, 2017,2022, the Audit Committee recommended to the Board of Directors that the audited consolidated financial statements be included in the Company’s Annual Report on Form 10-K for the year ended September 30, 20172022 for filing with the SEC.
Audit Committee:
A. Garcia-Tunon, Chairman
T.L. Dunlap
M.K. O’Brien
December 12, 2017 | | | | | |
| Audit Committee: |
| |
| L.D. Etzkorn, Chairperson |
| M.K. O’Brien |
| J.R. Whitaker |
December 7, 2022
Relationship with Independent Registered Public Accounting Firm
Ernst & Young LLP (“EY”) has been the independent registered public accounting firm performing the audits of the consolidated financial statementstatements of the Company since December 28, 2015. In addition to performing the audit of the Company's consolidated financial statements, EY provided fees for services related to the Company’s compliance with Section 404 of the Sarbanes-Oxley Act and various other services during fiscal 20172022 and 2016,2021, respectively. The aggregate fees (including out-of-pocket expenses) billed for fiscal 20172022 and 20162021 for each of the following categories of services are set forth below.
| | | | | | | | 2022 | 2021 |
| 2017 | 2016 | |
Audit fees (includes audits and reviews of the Company’s fiscal 2017 and 2016 financial statements) | $ | 1,396,324 |
| $ | 1,363,735 |
| |
Audit-related fees (primarily due diligence and regulatory compliance work) | 358,477 |
| 167,886 |
| |
Audit fees (includes audits and reviews of the Company’s fiscal 2022 and 2021 financial statements) | | Audit fees (includes audits and reviews of the Company’s fiscal 2022 and 2021 financial statements) | $ | 1,867,398 | | $ | 1,490,000 | |
Audit-related fees (primarily regulatory compliance work) | | Audit-related fees (primarily regulatory compliance work) | 107,000 | | 216,660 | |
Tax fees (primarily tax compliance and advisory work) | 570,550 |
| 176,285 |
| Tax fees (primarily tax compliance and advisory work) | 251,000 | | 414,303 | |
All other fees | - |
| - |
| All other fees | - |
Fiscal 20172022 and 20162021 tax fees include tax compliance and planning fees. All services provided by EY for significant audit, audit-related, tax and other services are approved in advance by the Audit Committee. Fees for the annual audit, including quarterly reviews, are approved by the Audit Committee upon appointment of the Company’s independent registered public accounting firm. Other services are approved in advance on a specific project basis during the year. Examples of such projects include acquisition due diligence and tax assistance engagements. Where approval in advance by the Audit Committee is not practical due to time constraints, management provides a written description of the engagement to the ChairmanChairperson of the Audit Committee and obtains the Chairman’sChairperson’s approval prior to proceeding with the engagement. Ratification of such services by the full Audit Committee is obtained at the next scheduled Audit Committee meeting. The Company’s independent registered public accounting firm provides a summary of audit and other services and related fees to the Audit Committee at each of its regularly scheduled Committee meetings. The summary includes total estimated fees for each individual project. The Audit Committee also considered whether the provision of non-audit services by EY is compatible with maintaining the independence of EY.
EY’s reports on the Company’s consolidated financial statements as of and for the fiscal years ended September 30, 20172022 and 20162021 did not contain an adverse opinion or a disclaimer of opinion, and were not qualified or modified as to uncertainty, audit scope, or accounting principle. The report of EY on internal control over financial reporting as of September 30, 2022 did not contain an adverse opinion, nor was it qualified or modified, except that it excluded Olbrich GmbH and R+S Automotive GmbH from the assessment as of September 30, 2022, because they were acquired by the Company in a purchase business combination in August 2022 and were excluded from management's report on internal control over financial reporting.
During the fiscal years ended September 30, 20172022 and 2016,2021, the Company had not consulted with EY regarding either (i) the application of accounting principles to a specific transaction, either completed or proposed; or the type of audit opinion that might be rendered on the Company's financial statements, or (ii) any matter that was the subject of a disagreement within the meaning of Item 304(a)(1)(iv) of Regulation S-K, or (iii) any reportable event within the meaning of Item 304(a)(1)(v) of Regulation S-K.
During the two most recent fiscal years ended September 30, 20172022 and 2016,2021, there were no disagreements between Matthews and EY on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which disagreement, if not resolved to the satisfaction of EY, would have caused EY to make reference to the subject matter of the disagreement in connection with its reports on the consolidated financial statements for such years.
CERTAIN TRANSACTIONS WITH RELATED PERSONS
Transactions with related persons are subject to review and approval by the NominatingGovernance and Corporate GovernanceSustainability Committee of the Board of Directors. Written policies and procedures relative to the identification of related party transactions are contained in the Company’s Code of Conduct and the Committee reviews and evaluates each such transaction based on the specific facts and circumstances involved.
During fiscal 2017, Schawk, through a subsidiary, leasedBrandon Babe, an approximately 55,000 square foot facility located in Des Plaines, Illinois from Graphics IV, Ltd., a limited partnership (“Graphics IV”). David A. Schawk, a director and executive officeremployee of the Company, is a partner with a 20% interest in Graphics IV. The Graphics IV lease was in place at the timeson of the Schawk acquisitionGreg Babe, one of our Executive Officers and member of our Board of Directors. Compensation paid to Brandon Babe on July 29, 2014, has an initial term ending March 31, 2019, after which time it automatically renews for successive periods of one year (unless terminated by notice), and has an annual base rent amountbasis, consisting of $520,134.50, subject to annual adjustments to reflect increasessalary, bonus and equity awards, exceeds the $120,000 related person transaction threshold and as a result was reviewed by the Audit and Governance and Sustainability Committees. His total compensation is consistent with other Company employees in the Consumer Price Index (as definedsimilar positions.
The Company made additional investments of $69,993 during fiscal 2022 in the Graphics IV lease). The base rent was established based uponLiquid X Printed Metals Inc. (“LiquidX”), a market-rent appraisal performed byprivate company, in which Matthews participates as a third-party appraisal firm. The total amount paidstrategic investor. Greg Babe, one of our Executive Officers and member of our Board of Directors, serves as President and CEO of LiquidX. Mr. Babe received no direct benefit in fiscal 2017 under the Graphics IV lease was approximately $522,030.connection with these transactions.
COMPLIANCE WITHDELINQUENT SECTION 16(a) OF THE EXCHANGE ACT
REPORTS
The Company’s directors and executive officers are required under Section 16(a) of the Exchange Act to file reports of ownership and changes in ownership of the company’sCompany’s common stock with the SEC. Based solely upon a review of Forms 3 and 4 and amendments thereto, if any, furnished to the Company during its most recent year and filed with the SEC, and representations from reporting persons that no Forms 5 were required; we believe that all of our directors and executive officers complied during fiscal 20172022 with the reporting requirements of Section 16(a) of the Exchange Act, with the exception of Brian D. Walters, ViceLee Lane, Group President, Matthews International Automation and General Counsel,Matthews Environmental Solutions, who filed a FormForms 3 and 4 on August 4, 2017July 27, 2022 reporting his appointment as an executive officer and initial grant, respectively.
SHAREHOLDERS SHARING THE SAME ADDRESS
The SEC has adopted rules that permit companies and intermediaries (such as brokers) to implement a delivery procedure called “householding.” Under this procedure, multiple shareholders who reside at the salesame address may receive a single copy of sharesour annual report and proxy materials, unless the affected shareholder has provided contrary instructions. This procedure reduces printing costs and postage fees.
A number of brokers with account holders who beneficially own our common stock will be “householding” our annual report and proxy materials. A single set of annual report and other proxy materials will be delivered to multiple shareholders sharing an address unless contrary instructions have been received from the affected shareholders. Once you have received notice from your broker that it will be “householding” communications to your address, “householding” will continue until you are notified otherwise or until you revoke your consent. Shareholders may revoke their consent at any time by contacting the Company at Matthews International Corporation, Two NorthShore Center, Pittsburgh, Pennsylvania 15212-5851, Attention: Investor Relations, telephone (412) 442-8200.
Upon written or oral request, the Company will promptly deliver a separate copy of the annual report and other proxy materials to any beneficial owner at a shared address to which a single copy of any of those documents was delivered. To receive a separate copy of the annual report and other proxy materials, you may write or call the Company’s Common Stock to the Company that occurred on July 31, 2017Investor Relations Department at Matthews International Corporation, Two NorthShore Center, Pittsburgh, Pennsylvania 15212-5851, Attention: Investor Relations,
telephone (412) 442-8200. The annual report and proxy materials are also available on the Company's website at www.matw.com/investors/sec-filings.
Shareholders who share the same address and currently receive multiple copies of our annual report and other proxy materials, who wish to receive only one set in the future, can contact their bank, broker or other holder of record to request information about householding.
SHAREHOLDER PROPOSALS FOR 20192024 ANNUAL MEETING
Shareholders may make proposals for inclusion in the proxy statement and proxy form for the 20192024 Annual Meeting of the Shareholders. To be considered for inclusion, any such proposal should be written and mailed to the Secretary of the Company at the corporate office for receipt by September 18, 2018 (12019, 2023(120 days prior to the anniversary date of the Company's fiscal 20172023 Proxy Statement).
Section 2.09 of the By-lawsBylaws of the Company requires that any shareholder intending to present a proposal for action at an Annual Meeting must give written notice of the proposal, containing the information specified in such Section 2.09, so that it is received by the Company notneither later nor earlier than the notice deadline determined under such Section 2.09. This notice deadlineperiod will generally be 75 to 120 days prior to the anniversary of the Company's Annual Meeting for the previous year, or October 19, 2023 to December 2, 20183, 2023 for the Company's Annual Meeting in 2019.2024. Any shareholder proposal received by the Secretary of the Company before October 19, 2023 and after December 2, 20183, 2023 will be considered untimely under Rule 14a-8(c)14a-8(e)(2) promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934.
In addition to satisfying the foregoing requirements under our Bylaws, to comply with the “universal proxy rules,” shareholders who intend to solicit proxies in support of director nominees other than the Company’s nominees at the 2024 Annual Meeting must comply with Rule 14a-19 promulgated under the Exchange Act, and must provide written notice containing the information required by Rule 14a-19(b) under the Exchange Act to our Corporate Secretary at Two NorthShore Center, Pittsburgh, PA 15212-5851, Attention: Steven F. Nicola, Chief Financial Officer and Secretary. Such notice must be submitted to the Company by the deadline described above for the nomination of directors.
OTHER MATTERS
The cost of soliciting proxies in the accompanying form will be paid by the Company. Shareholder votes at the Annual Meeting will be tabulated by the Company's transfer agent, Computershare Trust Company, N.A. A copy of the Company's Annual Report for 20172022 has previously been mailed to each shareholder of record, or will be mailed with this Proxy Statement.
By Order of The Board of Directors
/s/ /s/ Steven F. Nicola
Steven F. Nicola
�� Chief Financial Officer and Secretary
Exhibit A
MATTHEWS INTERNATIONAL CORPORATION
2017 EQUITY INCENTIVEAMENDED AND RESTATED 2019 DIRECTOR FEE PLAN
SECTION 1
Purpose; Definitions
Purposes; Reservation of Shares
1.1 (a)PurposePurposes. The purposes of the 2017 Equity IncentiveAmended and Restated 2019 Director Fee Plan, as amended (the "Plan""Plan") are are:
(1)to encourage eligible employeesprovide each Director of Matthews International Corporation (the "Corporation""Corporation") and its Subsidiaries to increase their efforts to make the Corporation and each Subsidiary more successful, to provide, who is not also an additional inducement for such employees to remain with the Corporation or a Subsidiary, to reward such employees by providing an opportunity to acquire shares of Common Stockon favorable terms and to provide a means through which the Corporation may attract able persons to enter the employemployee of the Corporation or oneany of its Subsidiaries.Subsidiaries ("Director"), with the payment of (i) an annual retainer fee, (ii) in the case of a Director who serves as Chairman of the Board (the "NE Chairperson") or serves as the lead director of the Board (the "Lead Director"), an additional annual retainer fee, (iii) an annual retainer fee for each Committee chairperson and to any Lead Director, in each case, for future services to be performed by such Director (collectively, "Director Fees") as a member of the Board of Directors of the Corporation (the "Board");
1.2 (2)Certain Definitions. I n addition to terms defined herein inprovide payment to each Director (except the first place where they are used,NE Chairperson shall only be entitled to Meeting Fees for attending Board meetings and the Annual Meeting) for the following terms are defined as set forth below:(collectively, the “Meeting Fees”): (i) fees if any, paid for attendance at meetings of the Board or committees of the Board; and (ii) fees, if any, paid to a Director for attendance at the Annual Meeting;
(a) “Award” means(3)to increase the identification of interests between the Directors and the shareholders of the Corporation by permitting (i) the Governance and Sustainability Committee of the Board or a stock option, a stock appreciation right,Stock Compensation Subcommittee of the Committee (the "Subcommittee") to award restricted stock awards (“RSA”), restricted stock units performance units (“RSU”), nonstatutory stock options and/or other stock-based award granted understock appreciation rights to each Director on the Plan.fifteenth (15th) business day after the Annual Meeting, and
(b) “Base Price” shall have the meaning set forth(4)to allow Directors to elect to (i) receive payment of certain fees in Section 5.3.
(c) "Common Stock" shall mean theshares of Class A Common Stock, par value $1.00 per share of the Corporation.
(d) “Fair Market Value” with respect toCorporation (the “Common Stock”), (ii) defer receipt of certain fees and awards into a share of the Common Stock shall mean the mean between the following prices,deferred stock account as applicable, for the date as of which Fair Market Value is to be determined as quoted in such reliable publication as the Committee, in its sole discretion, may determine to rely upon: (i) if the Common Stock is listeddeferred stock units (“DSU”), and (iii) reinvest dividends payable on the New York Stock Exchange, the highest and lowest sales prices per share of the Common Stock as quoted in the NYSE-Composite Transactions listing for such date, (ii) if the Common Stock is not listed on such exchange, the highest and lowest sales prices per share of Common Stock for such date on (or on any composite index including) the NASDAQ Exchangeawards or the principal United Statesstock issued under this Plan instead of America securities exchange registered under the Securities Exchange Act of 1934, as amended (the “1934 Act”) on which the Common Stock is listed. If there are no such sale price quotations for the date as of which Fair Market Value is to be determined but there are such sale price quotations within a reasonable period both before and after such date, then Fair Market Value shall be determined by taking a weighted averagereceiving cash.
For purposes of the means betweenPlan, the highest and lowest sales prices per share of the Common Stock as so quoted on the nearest date before and the nearest date after the date as of which Fair Market Value is to be determined. The average should be weighted inversely by the respective numbers of trading days between the selling dates and the date as of which Fair Market Value is to be determined. If there are no such sale price quotations on or within a reasonable period both before and after the date as of which Fair Market Value is to be determined, then Fair Market Value of the Common Stock shall be the weighted average of the means between such bona fide bid and asked prices on the nearest trading date before and the nearest trading date after the date as of which Fair Market Value is to be determined, if both such dates are within a reasonable period. The average is to be determined in the manner described above in this definition. If the Fair Market Value of the Common Stock cannot be determined on the basis previously set forth in this definition on the date as of which Fair Market Value is to be determined, the Committee shall in good faith and in conformance with the requirements
of Section 409A of the Code, to the extent applicable to an Award, determine the Fair Market Value of the Common Stock on such date. Fair Market Value shall be determined without regard to any restriction other than a restriction which, by its terms, will never lapse.
(e) “Free-Standing SARs” shall have the meaning set forth in Section 5.2.
(f) “Participant” means an eligible employee selected by the Committee who has received an Award under the Plan and any transferee or transferees of such employee to the extent the transfer is permitted under the Plan.
(g) “Performance Goals” means the performance goals, if any, established by the Committee in connection with the grant of restricted stock, restricted stock units, performance units or other Awards. In the case of Qualified Performance-Based Awards, the “Performance Goals” means such performance goals based on one or more of the following:
| |
(i) | The following criteria for the Corporation on a consolidated basis, one or more of its direct or indirect Subsidiaries, and/or one or more divisions of the foregoing, either in absolute terms or relative to the performance of (x) the Corporation, its Subsidiaries or divisions (for a different period), (y) one or more other companies or (z) an index covering multiple companies: |
|
| |
1. | net income |
2. | net income growth |
3. | economic value added (earnings less a capital charge) |
4. | EBITDA (earnings before interest, taxes, depreciation and amortization) or adjusted EBITDA |
5. | sales |
6. | revenue growth |
7. | costs |
8. | expenses |
9. | gross margin |
10. | operating margin |
11. | pre-tax profit or income |
12. | market share |
13. | return on net assets |
14. | return on assets |
15. | return on capital |
16. | return on invested capital |
17. | cash flow |
18. | free cash flow |
19. | operating cash flow |
20. | operating income |
21. | EBIT (earnings before interest and taxes) |
22. | debt to earnings (including EBITDA and EBIT) |
23. | working capital |
24. | working capital as a percent of sales |
25. | performance versus budgeted amounts |
26. | innovation as measured by a percentage of sales from new products |
27. | environmental emissions improvement |
28. | workforce diversity |
29. | safety performance |
| |
(ii) | The following criteria for the Corporation, either in absolute terms or relative to the performance of the Corporation (for a different period), one or more other companies or an index covering multiple companies: |
|
| |
1. | stock price |
2. | return on shareholders’ equity |
3. | earnings per share (basic, diluted, GAAP or non-GAAP) |
4. | cash flow per share |
5. | total shareholder return (stock price appreciation plus dividends) |
(h) “Qualified Performance-Based Award” means an Award intended to qualify for the Section 162(m) Exemption, as provided in Section 12.
(i) "Subsidiary"term "Subsidiary" means any corporation, partnership, joint venture, limited liability company, joint venture, trust or other entityestate in an unbroken chain of entities beginning with the Corporation, if each of the entities other than the last entity in the unbroken chain owns an equity interest possessing at least fifty percent (50%) or more of the total combined voting power of all classes of stockequity in one of the other entities in the chain.
(j) “Tandem SARs” shall have As used hereinafter, the meaning set forth in Section 5.2.
SECTION 2
Administration
2.1. term "Committee. The Plan" shall be administered by amean either the Governance and Sustainability Committee (the "Committee") appointedor the Subcommittee, if the Subcommittee is authorized by the Board of Directors ofto act under this Plan; provided, however, that the Corporation (the "Board") and consisting of not less than two members of the Board, who, at the time of their appointment to the Committee and at all times during their service as members of the Committee are (a) "Non-Employee Directors" as then defined undermust be composed solely of two or more "non-employee directors" in accordance with Rule 16b-316b-3(d) under the 1934 Act, or any successor rule, (b) "outside directors" under Section 162(m)(4)(C)Act. The term
"Annual Meeting" shall refer to the annual shareholders’ meeting of the Internal Revenue CodeCorporation. The term "business day" means a day other than a Saturday, Sunday or other day on which commercial banks in the City of 1986 as amended (the “Code”)Pittsburgh, Pennsylvania are authorized or any successor provision, and (c) independent directors under the applicable rules of any applicable stock exchange, if the Common Stock is subjectrequired to such rules. The Committee shall have plenary authority to interpret the Plan and prescribe such rules, regulations and procedures in connection with the operations of the Plan as it shall deem to be necessary and advisable for the administration of the Plan consistent with the purposes of the Plan. Without limitation of the foregoing, the Committee shall have the authority, subject to the terms and conditions of the Plan:
(a)to select the employees to whom Awards may be made;close.
(b)to determine whether and to what extent incentive stock options, nonstatutory stock options, stock appreciation rights, restricted stock, restricted stock units, performance units, other AwardsReservation of or based upon Common Stock, or any combination thereof, are to be granted hereunder;
(c)Sharesto determine. Except as otherwise provided in this Section 1(b), the aggregate number of shares of Common Stock towhich may be covered by each Award made hereunder;
(d)to determine the terms and conditions of each Award made hereunder, based on such factors as the Committee shall determine;
(e)subject to Section 2.5, to modify, amend or adjust the terms and conditions of any Award;
(f)to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable;
(g)to interpret the terms and provisions of the Plan and any Awardissued under the Plan (and any agreement under Section 2.5 relating thereto);
(h)subjector credited (in DSUs) to Section 2.5, to accelerate the vesting or lapse of restrictions on any outstanding Award, other than a Qualified Performance-Based Award, based in each case on such considerations as the Committee in its sole discretion determines;
(i)to decide all other matters that must be determined in connection with an Award;
(j)to determine whether, to what extent and under what circumstances cash, shares of Common Stock and other property and other amounts payable with respect to an Award under this Plan shall be deferred either automatically or at the election of the employee;
(k)to establish any “blackout” period that the Committee in its sole discretion deems necessary or advisable; and
(l)to otherwise administer the Plan.
In determining any Award to be made to any eligible employee, the Committee shall consider the position and the responsibilities of the employee being considered, the nature and value to the Corporation or a Subsidiary of his or her services, his or her present and/or potential contribution to the success of the Corporation or a Subsidiary and such other factors as the Committee may deem relevant. The Committee may, except to the extent prohibited by applicable law or the listing standards of the stock exchange which is the principal marketcompensation accounts for the Common Stock, allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any officers of the Corporation or committee of officers of the Corporation selected by it, except with respect to Awards (including Qualified Performance-Based Awards) to any covered employees as defined in Section 162(m)(3) of the Code (“Covered Employees”) or persons subject to Section 16 of the 1934 Act.
2.2. Committee Action. The Committee shall keep records of action taken at its meetings. A majority of the Committee shall constitute a quorum at any meeting and the acts of a majority of the members present at any meeting at which a quorum is present, or acts approved in writing by all members of the Committee, shall be the acts of the Committee.
2.3 Committee Discretion. Any determination made by the Committee or by an appropriately delegated officer pursuant to delegated authoritysubsequent issuance under the provisions of the Plan with respect to any Award shall be made in the sole discretion of the Committee or such officer at the time of the Award or, unless in contravention of any express term of the Plan, at any time thereafter. All decisions made by the Committee or any appropriately delegated officer pursuant to the provisions of the Plan shall be final and binding on all persons, including the Corporation and the employees eligible under the Plan.
2.4 Cancellation; Suspension; Clawback. Any or all outstanding Awards to a Participant may, at any time betweenfrom the date of grant and the third anniversary of any exercise, payment or vesting of such Awards, in the Committee’s sole discretion and subject to such terms and conditions established by the Committee, be cancelled, suspended, or required to be repaid to the Corporation if the Participant (whether during or after termination of employment with the Corporation and its Subsidiaries) (i) engages in the operation or management of a business (whether as owner, partner, officer, director, employee or otherwise) whichfirst adoption is in competition with the Corporation or any of its Subsidiaries, (ii) induces or attempts to induce any customer, supplier, licensee or other individual, corporation or other business organization having a business relationship with the Corporation or any of its Subsidiaries to cease doing business with the Corporation or any of its Subsidiaries or in any way interferes with the relationship between any such customer, supplier, licensee or other person and the Corporation or any of its Subsidiaries, (iii) solicits any employee of the Corporation or any of its Subsidiaries to leave the employment thereof or in any way interferes with the relationship of such employee with the Corporation or any of its Subsidiaries, or (iv) makes any statements or comments, orally or in writing, of a defamatory or disparaging nature regarding the Corporation or any of its Subsidiaries (including but not limited to regarding any of their respective businesses, officers, directors, personnel, products or policies), provided, however, that this sentence shall not apply following the occurrence of a Section 11 Event (as defined in Section 11) unless the agreement under Section 2.5 specifically so provides. Whether a Participant has engaged in any such activities shall also be determined, in its sole discretion, by the Committee, and any such determination by the Committee shall be final and binding.
2.5 Agreements. The terms and conditions of each Award shall be set forth in a written (or electronic) agreement, which shall be delivered to the Participant receiving such Award upon, or as promptly as is reasonably practicable following, the making of such Award. The effectiveness of an Award shall be subject to the agreement being signed by the Corporation and the Participant receiving the Award unless otherwise provided in the agreement. Unless otherwise provided in the agreement, each agreement or amendment thereto shall be executed on behalf of the Corporation by the Chief Executive Officer (if other than the President), the President or any Vice President and by the Participant. The agreement confirming a stock option shall specify whether the stock option is an incentive stock option or a nonstatutory stock option. The provisions of such agreements need not be identical. Without the consent of the Participant, upon notice to the Participant thereof, the Committee may amend any Award to the Participant and the corresponding agreement in any respect not materially adverse to the Participant. All other amendments to the agreement shall be in writing (including electronic amendments) and executed on behalf of the Corporation and by the Participant. Any reference in the Plan to the agreement under Section 2.5 shall include any amendment to such agreement.
SECTION 3
Eligibility
Those employees of the Corporation or any Subsidiary (including, but not limited to, Covered Employees) who share responsibility for the management, growth or protection of the business of the Corporation or any Subsidiary shall be eligible to receive Awards as described herein, provided however, that incentive stock options may be granted only to employees of the Corporation and Subsidiaries which are its subsidiaries within the meaning of Section 424(f) of the Code.
SECTION 4
Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in Section 4.5, the maximum aggregate number of shares of the Common Stock for which Awards may be made under the Plan shall be 1,700,000 shares. The maximum number of shares of Common Stock that may be granted pursuant to options intended to be incentive stock options shall be 1,000,000 shares.
4.2 Individual Limit. The maximum number of shares of Common Stock as to which Awards other than performance units under Section 8 or Awards under Section 9 may be made under the Plan to any one Participant in any one calendar year is 250,000three hundred thousand (300,000) shares, subject to adjustment and substitution as set forth in Section 4.5. For the purposes of this limitation, any adjustment or substitution made pursuant to Section 4.5 in a calendar year with respect to the maximum number of shares set forth in the preceding sentence shall also be made with respect to any shares subject to Awards previously granted under the Plan to such Participant in the same calendar year.
4.3 Share Counting.
(a) For purposes of the limit set forth in the first sentence of Section 4.1 (but not for purposes of Section 4.2), each share14 hereof. Shares of Common Stock which is subject to an Award shall be counted as one (1) share, provided, however, that in case of performance units, shares of Common Stock shall be counted as one (1) share for each actual share issued only at the time, if any, of the actual issuance of shares pursuant to the performance unit Award.
(b) Except in the case of performance unit Awards (where shares of Common Stock are counted only upon actual issuance of the shares pursuant to Section 4.3(a)) to the extent that any Award is forfeited, or any option and the Tandem SAR (if any) or any Free-Standing SAR terminates, expires or lapses without being exercised, or any Award is settled for cash, the shares of Common Stock subject to such Awards shall again be available for Awards under the Plan under Section 4.1. However, shares of Common Stock subject to such Awards shall continue to be counted for purposes of Section 4.2 or Section 9, as applicable.
(c) If the exercise price of any option and/or the tax withholding obligations relating to any Awards are satisfied by delivering shares (either actually or through attestation) or withholding shares relating to such Award, the gross number of shares subject to the Award shall nonetheless be deemed to have been granted for purposes of Sections 4.1 and 4.2 and any shares which are delivered will not be added to the aggregate number of shares under Section 4.1 for which Awards may be made under the Plan.
(d) If a Tandem SAR is granted, each share of Common Stock subject to both the Tandem SAR and related stock option shall be counted as only one share of Common Stock for purposes of Sections 4.1 and 4.2.
(e) Each share of Common Stock subject to a stock option (with or without a Tandem SAR) or a Free-Standing SAR shall be counted as one share of Common Stock for purposes of Sections 4.1 and 4.2.
(f) All shares of Common Stock covered by a stock appreciation right, to the extent it is exercised and shares of Common Stock are actually issued upon exercise of the right, shall be counted for purposes of Sections 4.1 and 4.2, regardless of the number of shares used to settle the stock appreciation right upon exercise.
(g) Each share of Common Stock repurchased on the open market with the proceeds of a stock option exercise shall be deemed to have been granted for purposes of Sections 4.1 and 4.2 and any shares of Common Stock so repurchased will not be added to the aggregate number of shares under Section 4.1 for which Awards may be made under the Plan.
4.4 Common Stock. To the extent that the Corporation has such shares of Common Stock available to it and can issue such shares without violating any law or regulation, the Corporation will reserve Common Stock for issuance with respect to an Award payable in Common Stock. The shares of Common Stock which may be issued under the Plan may be either authorized but unissued shares or shares previously issued and thereafter acquired by the Corporation or partly each, as shall be determined from time to time by the Board.Board (or a committee thereof). If any stock option, RSU or stock appreciation right granted under the Plan is cancelled by mutual consent, forfeited, or terminates or expires for any reason without having been exercised in full, or if any RSAs under the Plan are forfeited, the number of shares subject thereto, in the case of stock options, RSUs or stock appreciation rights, or the number of shares forfeited, in the case of RSAs, shall again be available for all purposes of the Plan. All shares of Common Stock covered by a stock appreciation right or RSU, to the extent it is exercised or vests, as applicable, and shares of Common Stock are actually issued upon exercise or vesting of the right, shall be counted, regardless of the number of shares used to settle the stock appreciation right upon exercise.
4.5(c) AdjustmentIndividual Limits. During any calendar year:
(i) the maximum aggregate Fair Market Value of Equity Awards (as determined on the date of issuance of each such Equity Award) issued under this Plan to a Director in a calendar year shall not exceed $400,000 during such calendar year; and Substitution
(ii) the maximum aggregate (x) Director Fees or Meeting Fees payable under this Plan to a Director in a calendar year and (y) Fair Market Value of Equity Awards issued under this Plan (as determined pursuant to clause (i) above) shall not exceed $600,000 during such calendar year.
SECTION 2
Eligibility
Any Director of the Corporation who is separately compensated in the form of Director Fees or Meeting Fees for services on the Board shall be eligible to participate in the Plan.
SECTION 3
Payment of Director Fees
(a)Director Fee Payment. Subject to the provisions of Section 3(b) hereof, on the fifteenth (15th) business day following the Annual Meeting (or the election or re-election to a committee chair or lead director position if such election is not made at the time of the Annual Meeting) (each such date of payment referred to as a "RegularPayment Date"), each Director as of that date shall receive payment of Director Fees by:
(1)the payment to the Director of such amounts determined by the Board or by any committee of the Board which the Board authorizes to determine such amounts (collectively, the "Director Fee Amount"); or
(2)the issuance to the Director of a number of whole shares of Common Stock equal to the Director Fee Amount divided by the Fair Market Value of one share of the Common Stock, as defined in Section 17 hereof, on such Payment Date (rounded upward to the next whole share).
Subject to the provisions of Section 3(b) hereof, each Director who first becomes a Director after a Regular Payment Date and before the next Annual Meeting shall, on the fifteenth (15th) business day following his or her election as a Director (the "Interim Payment Date", and collectively with any Regular Payment Date, a “Payment Date”), receive payment of a pro-rata portion of the Director Fee Amount (in cash or in shares of Common Stock, as the case may be), equal to the applicable Director Fee Amount multiplied by a fraction, the numerator of which shall be the number of Board meetings scheduled between the date of such Director's election and the date of the next Annual Meeting (excluding any Board meeting on the date of such Annual Meeting), and the denominator of which shall be the total number of Board meetings (actual and scheduled) between the date of the last Annual Meeting (including any Board meeting on the date of such Annual Meeting) and the date of the next Annual Meeting (excluding any Board meeting on the date of such Annual Meeting).
(b)Stock Election. The Committee shall determine by November 30 of each year whether Director Fees in the following calendar year will be paid in cash or in shares of Common Stock, with the default election being the payment of Directors Fees in shares of Common Stock. Notwithstanding the foregoing, if the Director Fees are to be paid in cash, a Director may elect to receive payment of the Director Fees in shares (a "Stock Election"). A Stock Election shall be made by filing a notice of election with the Secretary of the Corporation in the form prescribed by the Corporation (each, a "Notice of Election"). Once made, a Stock Election shall be effective on January 1 of the year following the date on which the Notice of Election is filed; provided, however, that Stock Elections shall be effective on the date on which the Notice of Election is filed with respect to Director Fees payable after the time of a person's initial election to the office of Director, or any subsequent re-election if immediately prior thereto such person was not serving as a Director, provided the Director files such Notice of Election within ten (10) business days subsequent to being elected or re-elected as a Director. A Stock Election shall apply to all Director Fees otherwise payable while such election is effective. A Director may terminate a current Stock Election and receive current payment of Director Fees in cash (where the Committee has elected to pay Director Fees in cash) by filing a notice of termination with the Secretary of the Corporation in the form prescribed by the Corporation (each, a "Notice of Termination"), which shall be effective on January 1 of the year following the date on which a Notice of Termination is filed.
(c) Evidence of Shares. In the event of a merger, consolidation, acquisition of shares, stock rights offering, liquidation, separation, spinoff, disaffiliation of a Subsidiary from the Corporation, extraordinary dividend of cash or other property, or similar event affecting the Corporation or any of its Subsidiaries (each, a “Corporate Transaction”), the Committee or the Board shall make such substitutions or adjustments as it deems appropriate and equitable to prevent the dilution or enlargementAs of the rights of Participants to (A)date on which the aggregate number and kind ofDirector Fees are payable in shares of Common Stock reservedpursuant to Section 3(a) or 3(b) hereof, (i) the Corporation, at its sole discretion, shall either issue share certificates to the Director for issuance and delivery under the Plan, (B) the various maximum limitations set forth in Sections 4.1 and 4.2 upon certain types of Awards and upon the Awards to individuals, (C) the number and kind ofany shares of Common Stock subjectreceived under the Plan or cause such shares to outstanding Awards;be registered in the name of the Director on any book-entry registration maintained by the Corporation or its transfer agent, and (D)(ii) the exercise price of outstanding Awards. In the event ofDirector shall be a stock dividend, stock split, reverse stock split, reorganization, share combination, or recapitalization or similar event affecting the capital structureshareholder of the Corporation (each, a “Share Change”), the Committee or
the Board shall makewith respect to any such substitutions or adjustments as it deems appropriate and equitable to prevent the dilution or enlargement of the rights of Participants to (A) the aggregate number and kind of shares of Common Stock reserved for issuance and delivery underso issued.
(d) Deferral Election. Notwithstanding the Plan, (B)foregoing provisions of this Section, each Director may elect to defer the various maximum limitationsreceipt of Director Fees in accordance with the procedures set forth in Sections 4.1 and 4.2 upon certain typesSection 5.
SECTION 4
Payment of Awards and upon the Awards to individuals, (C) the number and kind of shares of Common Stock subject to outstanding Awards; and (D) the exercise price of outstanding Awards. In the case of Corporate Transactions, such adjustments may include, without limitation, (1) the cancellation of outstanding Awards in exchange for payments of cash, property or a combination thereof having an aggregate value equalMeeting Fees
(a) Current Cash Payment. Subject to the valueprovisions of Section 5 hereof, each Director shall receive payment of Meeting Fees in cash in such Awards, asamounts determined by the CommitteeBoard or by any committee of the Board which the Board authorizes to determine such amounts, except that the NE Chairperson shall only be entitled to fees for attending Board meetings and the Annual Meeting, if any.
Except as set forth in Section 5 hereof, payment of Meeting Fees, if any, shall be paid within ten (10) business days following the meeting with respect to which such fees are payable. The amount and time of payment of Meeting Fees may be changed from time to time by the Board in its sole discretion (it being understood thatthrough a duly adopted Board resolution.
(b) Deferral Election. Notwithstanding the foregoing provisions of this Section, each Director may elect to defer the receipt of Meeting Fees in accordance with the procedures set forth in Section 5.
SECTION 5
Deferral Elections
(a) Deferred Payment of Director Fees and Meeting Fees. Regardless of whether Director Fees or Meeting Fees are scheduled to be paid in cash or shares of Common Stock, each Director may elect to defer the receipt of Director Fees, Meeting Fees and/or RSAs granted pursuant to Section 12, as provided under this Section 5 (a “Deferral Election”).
(b) Deferral Election Procedures. A Deferral Election may be made by timely filing a Notice of Election with the Secretary of the Corporation in the caseform prescribed by the Corporation, subject to the following terms and conditions:
(1) A Deferral Election shall be effective only if made on or prior to December 31st of the calendar year immediately preceding the beginning of the calendar year to which the Deferral Election relates (or such other date as may be established by the Committee to the extent consistent with Section 409A);
(2) Deferral Elections are entirely voluntary and shall be irrevocable once made; provided, however, the Committee, in its sole discretion, may permit a Corporate TransactionDeferral Election to be changed at any time prior to the last permissible date for making a Deferral Election;
(3) A Deferral Election shall apply to all Director Fees and/or RSAs earned and payable in each calendar year while such Deferral Election remains effective, and to all Meeting Fees paid or payable for meetings held in each calendar year while such Deferral Election remains effective;
(4) A Deferral Election shall, to the extent permitted by the Committee, allow a Director to select whether any dividends or distributions payable with respect to the Director’s DSUs shall be paid currently in cash (or other property, as applicable) or otherwise credited in additional DSUs to the Director’s Account (the “Dividend Election”).
(c) Elections for New Plan Participants. A Director who first becomes eligible to participate in the Plan may, to the extent permitted by the Committee, file a Deferral Election (the “Initial Election”) at any time on or before the 10th business day following the date on which shareholdersthe Director initially becomes eligible to participate in the Plan. Any such Initial Election shall only apply to fees and awards earned and payable for services rendered after the date on which the Initial Election is delivered to the Corporation. Accordingly, an Initial Election shall apply to all Director Fees or RSAs earned and payable subsequent to the date the Initial Election is delivered to the Corporation, and to all Meeting Fees earned and payable for meetings held following the date the Initial Election is delivered to the Corporation.
(d) Termination/Modification of Deferral Elections. Unless otherwise specifically provided in a Notice of Election, a Deferral Election shall remain in effect for future calendar years unless and until such election is timely revoked. A Director may increase, decrease, terminate or recommence a Deferral Election (including an Initial Election) by filing a new Deferral Election on or prior to the last date for filing a Deferral Election for the next calendar year. A new Deferral Election shall be effective January 1st of the calendar year following the date on which the election is filed with the Corporation.
SECTION 6
Deferred Stock Compensation Account
(a) General. The amount of any Director Fees, RSAs or Meeting Fees elected to be deferred in accordance with a Deferral Election for a calendar year shall be credited, in the form of shares of DSUs, to a deferred stock compensation account maintained by the Corporation in the name of the Director (an "Account"). On each Payment Date that a Deferral Election is effective for a Director, or on which DSUs are to be credited pursuant to a Deferral Election, the Director's Account(s) shall be credited on the Payment Date with the number of DSUs (including fractional shares to at least two decimal places) (i) equal to that number of shares of Common Stock receive consideration other than publicly-traded equity securitiesthat otherwise would have been payable to the Director on such Payment Date where the Director Fees had been payable to the Director in shares of Common Stock, (ii) equal to the aggregate amount of all Director Fees and/or Meeting Fees subject to such Deferral Election otherwise payable during such calendar year to such Director in cash divided by the Fair Market Value of one share of the ultimate surviving entity, any such determination by the Committee that the value of an option or stock appreciation right shall for this purpose be deemed to equal the excess, if any, of the value of the consideration being paid for each share pursuant to such Corporate Transaction over the exercise price of such option or stock appreciation right shall conclusively be deemed valid); (2) the substitution of other property (including, without limitation, cash or other securities of the Corporation and securities of entities other than the Corporation) for the shares subject to outstanding Awards; and (3) in connection with any disaffiliation of a Subsidiary, arranging for the assumption of Awards, or replacement of Awards with new Awards based on other property or other securities (including, without limitation, other securities of the Corporation and securities of entities other than the Corporation), by the affected Subsidiary, or by the entity that controls such Subsidiary following such disaffiliation (as well as any corresponding adjustments to Awards that remain based upon Corporation securities). The Committee shall adjust the Performance Goals applicable to any Awards to reflect any unusual or non-recurring events and other extraordinary items, impact of charges for restructurings, discontinued operations, and the cumulative effects of accounting or tax changes, each as defined by generally accepted accounting principles or as identified in the Corporation’s financial statements, notes to the financial statements, management’s discussion and analysis or other of the Corporation’s SEC filings, provided that in the case of Performance Goals applicable to any Qualified Performance-Based Awards, such adjustment does not violate Section 162(m) of the Code or cause such Awards not to qualify for the Section 162(m) Exemption,Common Stock, as defined in Section 12.1. No adjustment 17 hereof, on such Payment Date, and/or substitution provided(iii) equivalent to the number of shares of restricted stock granted. DSUs shall represent the right to receive an equivalent number of shares of Common Stock upon the terms and conditions outlined in this Section 4.5Section. No interest or other amount shall requirebe paid or credited to a Director notwithstanding that Director Fees and/or Meeting Fees which otherwise would have been payable under the CorporationPlan are not reflected as DSUs until the Payment Date. A separate Account shall be maintained for each amount of deferred Director Fees, Meeting Fees or RSAs for which a Director has elected a different payment option or as otherwise determined by the Committee. Separate Accounts shall be maintained for deferred Director Fees, Meeting Fees and/or RSAs under the Plan as opposed to those deferred, if any, other entity to issueunder the 1994 Director Fee Plan, as amended or sell a fractionthe 2014 Director Fee Plan, as amended.
The Account of a share or other security. Except as providedDirector shall be charged on the date of distribution with any distribution of DSUs made to the Director from such Account pursuant to Section 6(b) hereof.
(b) Dividend Equivalent Rights. If DSUs are outstanding in this Section 4.5, a Participant shall not have any rightsan Account on the record date with respect to a dividend was declared on the Corporation’s Common Stock in cash or property other than Common Stock, then on the date of such payment of the dividend the Corporation shall, based on each Director’s Dividend Election in effect at the time, either (i) pay directly to the Director an amount in cash or property other than Common Stock, as the case may be, or (ii) increase the number of DSUs
credited to the Director’s Account by an amount, determined in accordance with the following formula, rounded down to the nearest hundredth of a whole share: X =((A x B)/C)-D, where
X = the additional number of DSUs to be credited to the Account, or paid in cash, based on the Director’s Dividend Election then in effect;
A = the number of DSUs in the Director’s Account;
B = the per share amount of the dividend;
C = the average of the high and low per share selling prices of the Corporation’s Common Stock on the payment date of such dividend;
D = the taxes, if any, Corporate Transactionrequired to be withheld on such amount, including but not limited to any taxes required to be withheld due to the characterization of such amounts as wages or Share Change.compensation.
(c) Manner of Payment of Account. The DSUs held in a Director's Account will be paid in shares of Common Stock to the Director or, in the event of the Director's death, to the Director's Beneficiary as defined in Section 6(d) hereof.
4.6 (1)Section 409A; Section 162(m); Incentive Stock OptionsElections. NotwithstandingFor Deferral Elections, a Director may elect at the foregoing: time of filing the Notice of Election to receive payment of the DSUs credited to the Director's Account, in whole or in part, as follows (except as otherwise provided in Sections 6(d) and 7(b) hereof, if applicable):
(i)In a lump sum on April 1 (or if April 1 is not a business day, on the immediately preceding business day) of the calendar year following the calendar year in which the Director first separates from service with the Corporation under Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), or any adjustments made pursuantsuccessor Section, upon or after ceasing to be a member of the Board for any reason, including by reason of death or disability (the "Separation from Service Payment Commencement Date");
(ii)In two to five annual installments commencing on the Separation From Service Payment Commencement Date and continuing on the same date (or if such date is not a business day, on the immediately preceding business day) in the calendar year(s) thereafter;
(iii)In a lump sum on April 1 (or if April 1 is not a business day, on the immediately preceding business day) of the calendar year specified by the Director at the time of filing of such Notice of Election (the "Designated Payment Commencement Date");
(iv)In two to five annual installments commencing on the Designated Payment Commencement Date and continuing on the same date (or if such date is not a business day, on the immediately preceding business day) in the calendar year(s) thereafter; or
(v)If earlier than the date on which payment would be received under (i)-(iv) of this Section 4.56(c)(1), in a lump sum or in two to Awards that are considered “deferred compensation” within five annual installments, with payment commencing on the sixtieth (60th) day (or if such date is not a business day, on the immediately preceding business day) following the death of the Director or following the date on which the Director becomes disabled (within
the meaning of Section 409A of the CodeCode) and continuing on the same date (or if such date is not a business day, on the immediately preceding business day) in the calendar year(s) thereafter.
(2)Installment Payments. In any case where payments are made in installments, the number of shares of Common Stock distributed in each installment shall be determined by multiplying (A) the number of DSUs in the Account on the date of payment of such installment, by (B) a fraction, the numerator of which is one and the denominator of which is the number of remaining unpaid installments, and by rounding such result down to the nearest whole number of shares. The balance of the number of DSUs in the Account shall be appropriately reduced in accordance with Section 6(a) hereof to reflect the installment payments made hereunder. DSUs remaining in compliancean Account pending distribution pursuant to this Section 6(c) shall be subject to adjustment pursuant to Section 14 hereof.
(3)General. If a lump sum payment or the final installment payment hereunder would result in the issuance of a fractional share of Common Stock, such fractional share shall not be issued and cash in lieu of such fractional share shall be paid to the Director based on the Fair Market Value of a share of Common Stock, as defined in Section 17 hereof, on the date immediately preceding the date of such payment. The Corporation, at its sole discretion, shall either issue share certificates to the Director, or the Director's Beneficiary, for the shares of Common Stock distributed hereunder or cause such shares to be registered in the name of the Director, or the Director's Beneficiary, on any book-entry registration maintained by the Corporation or its transfer agent. As of the date on which the Director is entitled to receive payment of shares of Common Stock pursuant to this Section 6(c) hereof, a Director or the Director's Beneficiary shall be a shareholder of the Corporation with the requirementsrespect to such shares. For purposes of Section 409A and the Plan, a payment shall be treated as made on a scheduled Payment Date if such payment is made at such date or a later date in the same calendar year or, if later, by the 15th day of the Code; (ii)third calendar month following the scheduled Payment Date.
(d) Director's Beneficiary. The "Director's Beneficiary" means any adjustmentsbeneficiary or beneficiaries (who may be named contingently or successively) named by a Director under the Plan to whom any benefit under the Plan is to be paid in the case of his or her death before he or she receives any or all of such benefit. Each such designation shall revoke all prior designations by the same Director, shall be in a form prescribed by the Committee, and will be effective only when filed by the Director in writing with the Secretary of the Corporation during the Director's lifetime. In the absence of such a designation, Director's Beneficiary means the person designated by the Director in the Director's Will, or, if the Director fails to make a testamentary disposition of the shares or dies intestate, to the person entitled to receive the shares pursuant to the laws of descent and distribution of the state of domicile of the Director at the time of death.
SECTION 7
Other Payment Commencement Dates
(a) General. If, in the case of a Deferral Election, the first DSUs credited to a particular Account with respect to such Director is credited after the relevant payment commencement date specified in Section 6(c) hereof or any DSUs are credited to an Account after a lump sum payment has been made pursuant to Section 4.56(c) hereof from such Account, payment of shares credited to Awards thatsuch Account shall be made or commence on the April 1 (or if April 1 is not a business day, on the immediately preceding business day) following the date on which the shares are so credited.
(b) Delay in Payment. Notwithstanding Section 6(c) hereof and except as otherwise provided in Section 7(c) hereof, a Director may irrevocably elect, by filing a Notice of Election with the Secretary of the Corporation in the form prescribed by the Corporation, to commence payment on a date later than the date specified under Section 6(c) hereof provided that:
(i) Such election must be made at least twelve (12) months prior to the date on which payments (or the initial scheduled Payment Date in the case of installment payments) otherwise would have commenced pursuant to the election under Section 6(c) hereof; and
(ii) The payment commencement date specified in such election under this Section 7(b) must be not considered “deferred compensation” subjectless than five (5) years from the date on which payments (or the initial scheduled Payment Date in the case of installment payments) otherwise would have commenced pursuant to the election under Section 409A6(c) hereof.
The provisions of this Section 7(b) are intended to comply with Section 409A(4)(C) of the Code, or any successor Section, and shall be interpreted consistently therewith.
(c) Change in Control Event. Notwithstanding Sections 6(c) and 7(b) hereof, effective for Director Fees, Meeting Fees and/or RSAs payable (but for any Deferral Elections) on and after January 1 of the year following the date on which the Notice of Election is filed, a Director may irrevocably elect, by filing a Notice of Election with the Secretary of the Corporation in a form prescribed by the Corporation, to receive payment of all DSUs credited to the Director's Account with respect to such Director Fees, Meeting Fees and/or RSAs, upon the earlier of when payment would be made pursuant to the election under Section 6(c) or 7(b) hereof or in a lump sum immediately following the occurrence of any Change in Control Event, as defined below (a "Change in Control Event Election").
A Change in Control Event Election shall be effective on the date on which it is filed with respect to Director Fees, Meeting Fees and RSAs payable (but for any Deferral Elections) after the time of a person's initial election to the office of Director, or any subsequent re-election if immediately prior thereto such person was not serving as a mannerDirector, provided (i) the Director files such Change in Control Event Election within ten (10) business days subsequent to being elected or re-elected as a Director and (ii) a Change in Control Event Election shall only be effective for Director Fees, Meeting Fees and RSAs payable for services performed after the Change in Control Event Election is filed. A Director may terminate a Change in Control Event Election only by filing a Notice of Termination of Change in Control Event Election with the Secretary of the Corporation in the form prescribed by the Corporation, which shall be effective for Director Fees, Meeting Fees and/or RSAs payable (but for any Deferral Elections) on and after January 1 of the year following the date on which such Notice of Termination of Change in Control Event Election is filed. If payments from a Director's Account have previously commenced at the time of a Change in Control Event which results in a permissible lump sum payment
pursuant to ensure that after such adjustment,this Section 7(c), for purposes of applying this Section 7(c) shares previously paid from the Awards either (A) continue notDirector's Account shall be deemed to be from Director Fees, Meeting Fees and RSAs not subject to a Change in Control Event Election, to the extent thereof. A “Change in Control Event” shall mean the date upon which any event occurs which constitutes a change in the ownership or effective control of the Corporation or in the ownership of a substantial portion of the assets of the Corporation under Section 409A of the Code or (B) comply withany successor Section and Treasury Regulation §1.409A-3(i)(5)(v)-(vii) thereunder or any successor Section, provided that:
(i)The percentage specified in Treasury Regulation §1.409A-3(i)(5)(v) (addressing the requirements of Section 409Apercentage change in the ownership of the Code;total fair market value or voting power of the Corporation's stock) shall be 50 percent and (iii)not a higher percentage;
(ii)The percentage specified in any event,Treasury Regulation §1.409-3(i)(5)(vi)(A)(1) (addressing the percentage change in the ownership of the voting power of the Corporation's stock) shall be 30 percent and not a higher percentage;
(iii)For purposes of Treasury Regulation §1.409A-3(i)(5)(vi)(A)(2) (addressing a change in the effective control of the Corporation by virtue of a change in the composition of the Board), the words "a majority of the members of the corporation's board of directors" shall not be replaced by a higher portion; and
(iv)The percentage specified in Treasury Regulation §1.409A-3(i)(5)(vii)(A) (addressing the percentage change in the ownership of the Corporation's assets) shall be 40 percent and not a higher percentage.
SECTION 8
Non-Alienability of Benefits
Except as may be required by law, neither the CommitteeDirector nor the BoardDirector's Beneficiary shall have the authorityright to, makedirectly or indirectly, alienate, assign, transfer, pledge, anticipate or encumber (except by reason of death) any adjustments pursuantamounts or shares of Common Stock or DSUs that are or may be payable hereunder, including but not limited to Section 4.5in respect of any liability of a Director or the Director's Beneficiary for alimony or other payments for the support of a spouse, former spouse, child or other dependent, prior to such amount actually being received by the Director or the Director's Beneficiary hereunder, nor shall any such amounts or shares be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment by creditors of the Director or the Director's Beneficiary or to the extentdebts, contracts, liabilities, engagements, or torts of any Director or Director's Beneficiary, or transfer by operation of law in the existenceevent of such authority would cause an Award that is not intended to be subject to Section 409Abankruptcy or insolvency of the Code atDirector or the grant dateDirector's Beneficiary, or any legal process.
SECTION 9
Nature of Deferred Stock Compensation Accounts
Any Account, and any DSUs reflected in such Account, shall be established and maintained only on the books and records of the Award toCorporation. No assets or funds of the Corporation, a Subsidiary or the Plan shall be subject thereto. If any such adjustmentremoved from the claims of the Corporation's or substitution provided for in Section 4.5 requires the approvala Subsidiary's general or judgment creditors or otherwise made available, and no shares of shareholders in order to enableCommon Stock of the Corporation to grant incentive stock optionsbe issued pursuant to an Account shall be issued or outstanding, until such amounts and shares are actually payable to comply with Section 162(m)a Director or a Director's Beneficiary as provided herein. DSUs credited to an Account constitute a mere
promise by the Corporation to make payments in the future. Each Director and Director's Beneficiary shall have the status of, and their rights to receive a payment of shares of Common Stock under the Plan shall be no greater than the rights of, general unsecured creditors of the Code, then no such adjustment or substitutionCorporation. No person shall be made without the required shareholder approval. Notwithstanding the foregoing, in the case of incentive stock options, if the effect ofentitled to any such adjustment or substitution would bevoting rights with respect to cause the optionDSUs credited to fail to continue to qualify as an incentive stock option or to cause a modification, extension or renewal of such option within the meaning of Section 424 of the Code, the Committee may determine that such adjustment or substitutionAccount. The Corporation shall not be made but rather shall use reasonable effortsobligated under any circumstances to effect such other adjustment of each then outstanding incentive stock option asfund any financial obligations under the Committee,Plan and the Plan is intended to constitute an unfunded plan for tax purposes. However, the Corporation may, in its sole discretion, shall deem equitable and whichset aside funds in a trust or other vehicle, subject to the claims of its creditors, in order to assist it in meeting its obligations under the Plan, if:
(a)such arrangement will not resultcause the Plan to be considered a funded deferred compensation plan under the Code;
(b)any trust created by the Corporation, and any assets held by such trust to assist the Corporation in any disqualification, modification, extension or renewal (withinmeeting its obligations under the meaning of Section 424Plan, will conform to the terms of the Code)model trust, as described in Rev. Proc. 92-64, 1992-2 C.B. 422 or any successor; and
(c)such set aside of such incentive stock option.funds is not described in Section 409A(b) of the Code, or any successor provision.
SECTION 5
10
Grant of Stock Options and Stock Appreciation Rights
Equity Awards
5.1 Types of Options; Limit on Incentive Stock Options. The Committee shall have authority, in its sole discretion, (a) to grant "incentive"nonstatutory stock options" pursuant to Section 422 of the Code, to grant "nonstatutory stock options"options" (i.e., stock options which do not qualify under Sections 422 orand 423 of the Code), (b) to grant stock appreciation rights, (c) to award RSAs, and (d) to award RSUs (collectively “Equity Awards”). All grants and awards pursuant to this Section 10 shall be made on or to be effective on a Payment Date. On or as of each Payment Date, the Committee shall grant both types of stock options (but not in tandem). Notwithstandingor award to each Director on such Payment Date Equity Awards with such amount determined by the Board or by any other provision contained in the Plan or in any agreement under Section 2.5, but subject to the possible exercisecommittee of the Committee's discretion contemplated inBoard which the last sentence of this Section 5.1, the aggregate Fair Market Value on the date of grant of the shares with respectBoard authorizes to whichdetermine such incentive stock options are exercisable for the first time by a Participant during any calendar year under all plans of the corporation employingamount (subject to such Participant, any parent or subsidiary corporation of such corporation and any predecessor corporation of any such corporation shall not exceed $100,000. If the date on which one or more incentive stock options could first be exercised would be accelerated pursuant to any provision of the Plan or any agreement under Section 2.5 and the acceleration of such exercise date would result in a violation of the $100,000 restrictionlimitations set forth in the preceding sentence, then, notwithstanding any such provision, but subject to the provisions of the next succeeding sentence, the exercise dates of such incentive stock options shall be accelerated only to the extent, if any, that does not result in a violation of such restriction and, in such event, the exercise dates of the incentive stock options with the lowest option prices shall be accelerated to the earliest such dates.under this Plan). The Committee may,shall determine in its sole discretion authorize the accelerationportion of the exercise dateeach grant and/or award to be comprised of one or more incentivenonstatutory stock options, even if such acceleration would violate the $100,000 restriction set forth in the second sentence of this Section 5.1 and even if one or more such incentive stock options are thereby converted in whole or in part to nonstatutory stock options.
5.2 Types and Nature of Stock Appreciation Rights. Stock appreciation rights may be tandem stock appreciation rights, which are granted in conjunction with incentive stockRSAs and RSUs and the value of each.
SECTION 11
Terms and Conditions of
Stock Options and Stock Appreciation Rights
Stock options or nonstatutory stock options (“Tandem SARs”), orand stock appreciation rights which are not granted in conjunction with options (“Free-Standing SARs”). Uponunder the exercise of a stock appreciation right, the ParticipantPlan shall be entitled to receive an amount in cash, shares of Common Stock, or both, in value equalsubject to the product of (i)following terms and conditions:
(A)The purchase price at which each stock option may be exercised (the "option price") and the excess of the Fair Market Value of one share of Common Stock on the date of exercise of the stock appreciation right over, in the case of a Tandem SAR, the exercisebase price of the related option, or in the case of a Free-Standing SAR, the Base Price per share (the “Spread”), multiplied by (ii) the number of shares of Common Stock in respect ofat which the stock appreciation right has been exercised. Notwithstanding the foregoing, the Committee at the time it grants aeach stock appreciation right may provide that the Spread covered bybe granted (the "Base Price") shall be such stock appreciation right may not exceed a lower specified amount. The applicable agreement under Section 2.5 governing the stock appreciation rights shall specify whether such payment is to be made in cash or Common Stock or both, or shall reserve toprice as the Committee, or the Participant the right to make that determination prior to or upon the exercise of the stock appreciation right. Tandem SARs may be granted at the grant date of the related stock options or, in the case of a related nonstatutory stock option, also at a later date. At the time a Tandem SAR is granted, the Committee may limit the exercise period for such Tandem SAR, before and after which period no Tandem SARits sole discretion, shall attach to the underlying stock option. In no event shall the exercise period for a Tandem SAR exceed the exercise period for the related stock option. A Tandem SAR shall be exercisable only at such time or times and to the extent that the related option is exercisable in accordance with the provisions of this Section 5. A Tandem SAR shall terminate or be forfeited upon the exercise or forfeiture of the related stock option, and the related stock option shall terminate or be forfeited upon the exercise or forfeiture of the Tandem SAR. Any Tandem SAR granted with a related incentive stock option shall be exercisable only when the Fair Market Value of a share of Common Stock exceeds the exercise price for a share of Common Stock under the related incentive stock option.
5.3 Exercise Price and Base Price. The exercise price per share of Common Stock subject to an option and any Tandem SAR, and the base price per share for any Free-Standing SAR (the “Base Price”), shall be determined by the Committee and set forth in the applicable agreement under Section 2.5, and shall not be less than the Fair Market Value of a share of the Common Stock on the applicable grant date, except that in the case of an incentive stock option granted to a Participant who, immediately prior to such grant, owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Corporation or any Subsidiary which is a corporation (a "Ten Percent Employee"), the exercise pricedetermine but shall not be less than one hundred ten percent (110%(100%) of the Fair Market Value per share of the Common Stock covered by the stock option or stock appreciation right on the date of grant. For purposes of this Section 5.3, an individual (i)11, the Fair Market Value of the Common Stock shall be considereddetermined as owning not only shares of stock owned individually but also all shares of stock that are at the time owned, directly or indirectly, by or for the spouse, ancestors, lineal descendants and brothers and sisters (whether by the whole or half blood) of such individual and (ii) shall be considered as owning proportionately any shares owned, directly or indirectly, by or for any corporation, partnership, estate or trustprovided in which such individual is a shareholder, partner or beneficiary.Section 17 hereof. In no event may any stock option or stock appreciation right granted
under this Plan, other than pursuant to Section 4.5,Section14, be amended to decrease the exercise price or Base Price thereof, be cancelled in conjunction with the grant of any new stock option or stock appreciation right with a lower exercise price or Base Price, be cancelled or repurchased for cash, property, or another Awardaward at a time when the exercise price or Base Price is greater than the Fair Market Value of the underlying Common Stock, or otherwise be subject to any action that would be treated, for accounting purposes, as a “repricing”"repricing" of such stock option or stock appreciation right, unless such amendment, cancellation, or action is approved by the Corporation’sCorporation's shareholders.
5.4 (B)Term; Vesting and Exercisability. The term of each option andprice for each stock appreciation rightoption shall be fixedpaid in full upon exercise and shall be payable in cash in United States dollars (including check, bank draft or money order), which may include cash forwarded through a broker or other agent-sponsored exercise or financing program; provided, however, that in lieu of such cash the person exercising the stock option may if authorized by the Committee but shall not exceed ten years frompay the date of grant (five years in the case of an incentive stock option granted to a Ten Percent Employee). Except as otherwise provided herein, options and stock appreciation rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee and may be exercisable commencing with the grant date.
5.5 Method of Exercise. Subject to the provisions of this Section 5, options and stock appreciation rights may be exercised,price in whole or in part (unless otherwise specified by the Committee in its sole discretion), at any time during the applicable term by giving written notice of exercisedelivering to the Corporation specifying the number of shares of Common Stock as to which the option or stock appreciation rights is being exercised. In the case of the exercise of an option, such notice shall be accompanied by payment in full of the exercise price in United States of America dollars by certified or bank check or wire of immediately available funds. If approved by the Committee (at the time of grant in the case of an incentive stock option or at any time in the case of a nonstatutory stock option), payment, in full or in part, may also be made as follows:
(a) Payment may be made in the form of unrestricted shares of Common Stock (by delivery of such shares or by attestation) not restricted under Section 12 and having a Fair Market Value on the date of exercise of the same classstock option, determined as the Common Stock subjectprovided in Section 17 hereof, equal to the option already owned byprice for the Participant (based on the Fair Market Value of the Common Stock on the date the option is exercised) provided however,shares being purchased, except that any portion of the exerciseoption price representing a fraction of a share shall in any event be paid in cash;
(b) Tocash. If the extent permitted by applicable law, payment may be made by deliveringperson exercising a properly executedstock option participates in a broker or other agent-sponsored exercise notice toor financing program, the Corporation togetherwill cooperate with a copyall reasonable procedures of irrevocable instructionsthe broker or other agent to apermit participation by the person exercising the stock option in the exercise or financing program. Notwithstanding any procedure of the broker or other agent-sponsored exercise or financing program, if the option price is paid in cash, the exercise of the stock option shall not be deemed to deliver promptly tooccur and no shares of the Common Stock will be issued until the Corporation has received full payment in cash (including check, bank draft or money order) for the amount of saleoption price from the broker or loan proceeds necessary to pay the exercise price, and, if requested, the amount of any federal, state, local or foreign withholding taxes.other agent. To facilitate the foregoing, the Corporation may, to the extent permitted by applicable law, enter into agreements for coordinated procedures with one or more brokerage firms. In the event the broker sells any shares on behalf of a Participant,Director, the broker shall be acting solely as the agent of the Participant,Director, and the Corporation disclaims any responsibility for the actions of the broker in making any such sales; and/or
(c) With such other instrument as approvedsales. The date of exercise of a stock option shall be determined under procedures established by the Committee, includingand as of the date of exercise the person exercising the stock option shall be considered for all purposes to be the owner of the shares with respect to which the stock option has been exercised.
(C)Upon the exercise of stock appreciation rights the Corporation loans,shall pay to the person exercising the stock appreciation rights a number of shares of the Common Stock with a Fair Market Value, as defined in Section 17 hereof, equal to the difference between the aggregate Fair Market Value, as defined in Section 17 hereof, of the Common Stock on the date of exercise of the stock appreciation rights and the aggregate Base Prices for the stock appreciation rights which are exercised (the "Spread") (rounded down to the next whole number of shares). No fractional shares of the Common Stock shall be issued nor shall cash in lieu of a fraction of a share of Common Stock be paid. Notwithstanding the foregoing, at the sole discretion of the Committee, the Corporation may pay to the person exercising the stock appreciation rights an amount of cash, rather than shares of the Common Stock, equal to the Spread if and only if the payment of cash upon exercise of the stock appreciation rights would not cause the stock appreciation rights to provide for a deferral of compensation within
the meaning of Section 409A of the Code. The date of exercise of a stock appreciation right shall be determined under procedures established by the Committee.
(D)Unless the Committee, in its sole discretion, shall otherwise determine and subject to the terms of Sections 11(G) and 11(H) hereof, stock options and stock appreciation rights shall be exercisable by a Director commencing on the second anniversary of the date of grant. Subject to the terms of Sections 11(G) and 11(H) hereof providing for earlier termination of a stock option or stock appreciation right, no stock option or stock appreciation right shall be exercisable after the expiration of ten years from the date of grant. Unless the Committee, in its sole discretion, shall otherwise determine, a stock option or stock appreciation right to the extent exercisable at any time may be exercised in whole or in part.
(E)Unless the Committee, in its sole discretion, shall otherwise determine:
(i)no stock option or stock appreciation right shall be transferable or assignable by the grantee otherwise than:
(a)by Will; or
(b)if the grantee dies intestate, by the laws of descent and distribution of the state of domicile of the grantee at the time of death; or
(c)to the trustee of a trust that is revocable by the grantee alone, both at the time of the transfer or assignment and at all times thereafter prior to such grantee's death; and
(ii)all stock options and stock appreciation rights shall be exercisable during the lifetime of the grantee only by the grantee (or the grantee's guardian or legal representative) or by the trustee of a trust described in Section 11(E)(i)(c) hereof.
A transfer or assignment of a stock option or a stock appreciation right by a trustee of a trust described in Section 11(E)(i)(c) to any person other than the grantee shall be permitted only to the extent approved in advance by the Committee in writing, in its sole discretion and subject to applicable law.
5.6 Delivery; Rights of Shareholders. No shares Stock options or stock appreciation rights held by such trustee also shall be delivered pursuantsubject to all of the conditions and restrictions set forth in the Plan and in the applicable agreement with the grantee as if such trustee were a party to such agreement as the grantee. In the event the grantee ceases to be a Director of the Corporation, the provisions set forth in the Plan and in the applicable agreement with the grantee shall continue to be applicable to the stock option or stock appreciation right and shall limit the ability of such trustee to exercise any such transferred stock options or stock appreciation rights to the same extent they would have limited the grantee. The Corporation shall not have any obligation to notify such trustee of anany termination of a stock option untilor stock appreciation right due to the exercise price fortermination of service of the option has been fully paid and applicable taxes have been withheld. grantee as a Director of the Corporation.
(F)Unless otherwise specified by the Committee, the applicable ParticipantDirector shall have all of the rights of a shareholder of the Corporation holding Common Stock with respect to the shares of Common Stock to be issued upon the exercise of thea stock option or stock appreciation right (including the right to vote the applicable shares and the right to receive dividends), when the ParticipantDirector (i) has given written notice of exercise in accordance with the procedures established
by the Committee, (ii) if requested, has given the representation described in Section 10,18, and (iii) in the case of ana stock option, has paid in full the exerciseoption price for such shares.
5.7 (G)Nontransferability of Options and Stock AppreciationRights. Unless the Committee shall otherwise determine in the case of nonstatutory stock options and stock appreciation rights and limited to a transfer without the payment of value or consideration to the Participant, (i) no option or stock appreciation right shall be transferable by a Participant other than by will, or if the Participant dies intestate, by the laws of descent and distribution of the state of domicile of the Participant at the time of death, and (ii) all stock options and stock appreciation rights shall be exercisable during the lifetime of the Participant only by the Participant (or the Participant’s guardian or legal representative). Any Tandem SAR shall be transferable only when the related stock option is transferable and with the related stock option.
5.8 Termination of Employment. Unless the Committee, in its sole discretion, shall otherwise determine, at the time of grant of the Award or, other than in the case of incentive stock options, thereafter, but subjectif a grantee ceases to the provisions of Section 5.1 in the case of incentive stock options:
(a) If the employment ofbe a Participant who is not disabled within the meaning of Section 422(c)(6) of the Code (a "Disabled Participant") is voluntarily terminated with the consentDirector of the Corporation, orany outstanding stock options and stock appreciation rights held by the grantee shall vest and be exercisable and shall terminate, according to the following provisions:
(i)Notwithstanding Section 11(D) hereof, if a Subsidiary orgrantee ceases to be a Participant retires under any retirement planDirector of the Corporation for any reason other than those set forth in Section 11(G)(ii) or a Subsidiary,(iii) hereof, any then outstanding incentive stock option held by such Participant shall be exercisable by the Participant (but only to the extent exercisable by the Participant immediately prior to the termination of employment) at any time prior to the expiration date of such incentive stock option or within three months after the date of termination of employment, whichever is the shorter period;
(b) If the employment of a Participant who is not a Disabled Participant is voluntarily terminated with the consent of the Corporation or a Subsidiary or a Participant retires under any retirement plan of the Corporation or a Subsidiary, any then outstanding nonstatutory stock option orand stock appreciation right held by such Participantgrantee (whether or not vested and exercisable by the grantee immediately prior to such time) shall vest and be exercisable by the Participant (but only tograntee (or, in the extent exercisable by the Participant immediately prior to the termination of employment) at any time prior to the expiration date of such nonstatutory stock option or stock appreciation right or within one year after the date of termination of employment, whichever is the shorter period;
(c) If the employment of a Participant who is a Disabled Participant is voluntarily terminated with the consentevent of the Corporation or a Subsidiary, any then outstanding stock option or stock appreciation right held by such Participant shall be exercisable in full (whether or not so exercisable by the Participant immediately prior to the termination of employment) by the Participant at any time prior to the expiration date of such stock option or stock appreciation right or within one year after the date of termination of employment, whichever is the shorter period;
(d) Following thegrantee's death, of a Participant during employment, any outstanding stock option or stock appreciation right held by the Participant at the time of death shall be exercisable in full (whether or not so exercisable by the Participant immediately prior to the death of the Participant) by the person entitled to do so under the willWill of the Participant,grantee, or, if the Participantgrantee shall fail to make testamentary disposition of the stock option or stock appreciation right or shall die intestate, by the legal representative of the Participantgrantee (the "Grantee's Heir or Representative")), at any time prior to the second anniversary of the date on which the grantee ceases to be a Director of the Corporation or the expiration date of such stock option or stock appreciation right or within one year after the date of death, whichever is the shorter period;
(e) Following the death of a Participant after termination of employment during a period when a stock option or stock appreciation right is exercisable, any outstanding stock option or stock appreciation right held by the Participant at the time of death shall be exercisable by such person entitled to do so under the will of the Participant or by such legal representative (but only to the extent the stock option or stock appreciation right, was exercisable by the Participant immediately prior to the death of the Participant) at any time prior to the expiration date of such stock option or stock appreciation right or within one year after the date of death, whichever is the shorter period; and
(f) (ii)Unless the exercise period of a stock option or stock appreciation right following termination of employmentservice as Director has been extended as provided in Section 11.3,15(c) hereof, if the employmentduring his or her term of office as a Participant terminatesnon-employee Director a grantee is removed from office for any reason other than voluntary termination withcause or resigns without the consent of the Corporation orBoard, any then outstanding stock option and stock appreciation right held by such grantee shall terminate as of the close of business on the last day on which the grantee is a Subsidiary, retirement under any retirement planDirector of the Corporation; and
(iii)Notwithstanding Section 11(D) hereof, following the death of a grantee during service as a Director of the Corporation, or upon the disability of a SubsidiaryDirector which requires his or death, allher termination as a Director of the Corporation, any outstanding stock optionsoption and stock appreciation rightsright held by the Participantgrantee at the time of death or termination as a Director due to disability (whether or not vested and exercisable by the grantee immediately prior to such terminationtime) shall vest and be exercisable, in the case of employment shall automatically terminate.death of the grantee, by the Grantee's Heir or Representative, or, in the case of disability of the grantee, by the grantee at any time prior to the second anniversary of the date on which the grantee ceases to be a Director of the Corporation or the expiration date of the stock option or stock appreciation right, whichever is the shorter period.
Whether terminationa resignation of employmenta Director is a voluntary termination with or without the consent of the Corporation or a SubsidiaryBoard and whether a Participantgrantee is a Disabled Participantdisabled shall be determined in each case, in its sole discretion, by the Committee (or,and such determination by the Committee shall be final and binding.
(H)If a grantee of a stock option or stock appreciation right engages in the caseoperation or management of Participants who are not (i) Covered Employeesa business (whether as owner, partner, officer, director, employee or otherwise and whether during or after service as a Director of the endCorporation) which is in competition with the Corporation or any of its Subsidiaries, or solicits any of the Corporation’s immediately preceding fiscal yearCorporation's customers or (ii)employees other than for the Chief Executive Officerbenefit of the Corporation, the Committee may immediately terminate all outstanding stock options and stock appreciation
rights held by such Chief Executive Officer,the grantee; provided, however, that this sentence shall not apply if the exercise period of a stock option or stock appreciation right following termination of service as a Director of the Corporation has been extended as provided in hisSection 15(c) hereof. Whether a grantee has engaged in the operation or management of a business which is in competition with the Corporation or any of its Subsidiaries, or solicits any of the Corporation's customers or employees other than for the benefit of the Corporation, shall be determined, in its sole discretion)discretion, by the Committee, and any such determination by the Committee or such Chief Executive Officer shall be final and binding. Without limitation of the foregoing,
(I)All stock options and stock appreciation rights shall be confirmed by a termination of employmentwritten agreement or an amendment thereto in a form prescribed by the ParticipantCommittee, in its sole discretion. Each agreement or amendment thereto shall not be a voluntary termination with the consentexecuted on behalf of the Corporation unlessby the Committee or, if applicable, such Chief Executive Officer in its(if other than the President), the President or his sole discretion, specifically consents to the termination of employment in writing. Termination of employment under the Plan shall occur only if the Participant is no longer employedany Vice President and by the Corporation or any Subsidiary. An approved leavegrantee. The provisions of absence by the Participant from the Corporation or any Subsidiary shallsuch agreements need not constitute a termination of employment under the Plan.be identical.
5.9
Other Terms and Conditions.
Subject to the foregoing provisions of this Section 511 and the other provisions of the Plan, any stock option or stock appreciation right granted under the Plan may be exercised at such times and in such amounts and be subject to such restrictions and other terms and conditions, if any, as shall be determined, in its sole discretion, by the Committee and set forth in the agreement underreferred to in Section 2.5.
11(I) hereof or an amendment thereto.
SECTION 612
Terms and Conditions of Restricted Stock
Share Awards
6.1(a) Restricted Stock Awards; CertificatesShare Awards. Shares of restricted stock are actual shares of Common Stock issued to a Participant, andRSAs shall be evidenced by a written agreement in a form prescribed by the Committee, in its sole discretion, which shall set forth the number of shares of the Common Stock awarded, the restrictions imposed thereon (including, without limitation, restrictions on the right of the awardee to sell, assign, transfer, pledge or otherwise encumber such mannershares while such shares are subject to the other restrictions imposed under this Section 12), the duration of such restrictions, events (which may, in the sole discretion of the Committee, include performance-based events) the occurrence of which would cause a forfeiture of the RSAs and such other terms and conditions as the Committee in its sole discretion deems appropriate. Restricted share awards shall be effective only upon execution of the applicable RSA agreement on behalf of the Corporation by the Chief Executive Officer (if other than the President), the President or any Vice President, and by the awardee. The provisions of such agreements need not be identical. Notwithstanding the foregoing provisions of this Section, each Director may deem appropriate, including book-entry registration or issuanceelect to defer the receipt of one or more stock certificates. Any certificate issuedany such RSAs in respectaccordance with the procedures set forth in Section 5; provided, that the receipt of sharesany DSUs in lieu of restricted stockshare awards shall remain subject to the same vesting and forfeiture restrictions as the original equity award.
(b) Transfers to Trusts. Neither this Section 12 nor any other provision of the Plan shall preclude an awardee from transferring or assigning RSAs to (i) the trustee of a trust that is revocable by such awardee alone, both at the time of the transfer or assignment and at all times thereafter prior to such awardee's death or (ii) the trustee of any other trust to the extent approved in advance by the Committee in writing. A transfer or assignment of RSAs from such trustee to any person other than such awardee shall be registeredpermitted only to the extent approved in advance by the Committee in writing, and RSAs held by such trustee shall be subject to all of the conditions and restrictions set forth in the Plan and in the applicable agreement as if such trustee were a party to such agreement.
(c) Default Vesting Restrictions. Unless otherwise determined by the Committee, RSAs awarded to a Director shall be forfeited if the awardee terminates as a Director of the Corporation within two (2) years following the grant of such RSAs due to the voluntary resignation of the Director without the consent of the Board or the removal of the Director with cause. Any RSAs which have not previously vested shall vest and the restrictions related to service as a Director shall lapse upon the death of a Director or the disability of a Director which requires his or her termination as a Director of the Corporation.
(d) Evidence of Shares. Following a grant of RSA and prior to the lapse or termination of the applicable restrictions, the Corporation, at its sole discretion, shall (i) issue share certificates in the name of the applicable Participantawardee and unless held by or on behalf of the Corporationhold them in escrow or custody untiltogether with related stock powers in blank signed by the restrictions lapse orawardee, (ii) issue such share certificates and deliver them to the shares are forfeited, shall bearawardee with an appropriate conspicuous legend referring to the terms, conditions, and restrictions applicable to such Award,award, substantially in the following form:
“"The transferability of this certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture) of the Matthews International Corporation 2017 Equity IncentiveAmended and Restated 2019 Director Fee Plan and a corresponding agreement. Copies of such Plan and agreement are on file at the offices of Matthews International Corporation, Two NorthShore Center, Pittsburgh, PA 15212-5851.”";
The Committee may require thator (iii) issue the certificates evidencing such shares be held in escrow or custody by or on behalfbook-entry form in the name of the Corporation untilawardee. If share certificates are issued in the restrictions thereonname of the awardee, the awardee shall have lapsed or the shares are forfeitedexecute and that, as a condition of any Award of restricted stock, the applicable Participant deliver to the Corporation a blank stock power endorsed in form acceptable to the Corporation with respect to each of the certificates subject to the RSAs. In the case of forfeiture of the shares, the Corporation shall use the stock power(s) to transfer ownership of the shares to the Corporation. Upon the lapse or termination of the applicable restrictions, certificate(s) without the legend referenced in (ii) above and the blank relatingstock power(s) shall be delivered to the awardee (or the awardee's personal representative) upon the surrender by such person of the legended certificates if they were previously provided to such person. If shares are issued in book-entry form, the Corporation shall instruct its transfer agent that the shares are to be designated as restricted on the transfer agent's book-entry records of the owners of the Common Stock, coveredand may not be transferred from the name of the awardee until the earlier of (i) in the case of forfeiture of the shares, when the Corporation instructs its transfer agent in writing to record the shares as owned by the Corporation (rather than by the awardee), or (ii) when requested in writing by the awardee (or the awardee's personal representative) after the Corporation has instructed its transfer agent in writing that such Award.
6.2 Terms and Conditions. Shares ofshares are no longer to be designated as restricted stock shall be subjecton the transfer agent's book-entry records due to the restrictions set forth in Section 15.11 and the following terms and conditions:
(a) The Committee shall, prior tolapse or at the time of grant, condition the vesting of an Award of restricted stock upon (i) the continued servicetermination of the applicable Participant, (ii)restrictions.
(e) Dividends; Dividend Reinvestment. From the attainment of Performance Goals, or (iii)date a RSA is effective, the attainment of Performance Goals and the continued serviceawardee shall be a shareholder with respect to all of the applicable Participant. The Committeerestricted shares and shall establish athave all the time the restricted stock is granted the performance periods during which any Performance Goals specified by the Committeerights of a shareholder with respect to the restricted stock Award are to be measured. In the event that the Committee conditions the vesting of an Award of restricted stock upon the attainment of Performance Goals or the attainment of Performance Goals and the continued service of the applicable Participant, the Committee may, prior to or at the time of grant, designate an Award of restricted stock as a Qualified Performance-Based Award. The conditions for vesting and the other provisions of restricted stock Awards (including without limitation any applicable Performance Goals) need not be the same with respect to each recipient, and shall be established by the Committee in its sole discretion. Except in the case of a Qualified Performance-Based Award and subject to the restrictions set forth in Section 15.11, the Committee at any time after the date of grant, in its sole discretion, may modify or waive any of the conditions applicable to an Award of restricted stock.
(b) Subject to the provisions of the Plan (including Section 6.3) and the applicable agreement under Section 2.5, during the period, if any, set by the Committee, commencing with the date of such restricted stock Award for which such vesting restrictions apply (the “Restriction Period”), and until the expiration of the Restriction Period, the Participant shall not be permitted to sell, assign, transfer, pledge or otherwise encumber shares, of such restricted stock. A restricted stock Award may vest in part on a pro rata basis prior to the expiration of any Restriction Period.
(c) Except as provided in this Section 6 and in the applicable agreement under Section 2.5, the applicable Participant shall have, with respect to the shares of restricted stock, all of the rights of a shareholder of the Corporation holding the Common Stock that is the subject of the restricted stock, including if applicable, the right to vote the restricted shares and the right to receive any cash dividends. If so determined by the Committeeall dividends, and set forth in the applicable agreement under Section 2.5 and subject to Section 15.4, cash dividends on the Common Stock that is the subject of the restricted stock Award may be (i) automatically deferred and reinvested in additional restricted stock, and held subject to the same vesting and forfeiture conditions of the underlying restricted stock, or (ii) held by the Corporation in cash (without any payment of interest thereon) subject to the same vesting and forfeiture conditions of the restricted stockother distributions paid with respect to which the dividends are payable. Unless otherwise determinedrestricted shares, subject only to the preceding provisions of this Section 12(e) and the other restrictions imposed by the Committee and set forthCommittee. Except as provided in the applicable agreement under Section 2.5, any Common Stock or other securities payable with respect to any restricted stock as a result of or pursuant to Section 4.5, shall be held subject to the same vesting and forfeiture conditions of the underlying restricted stock.
(d) As soon as practicable after the applicable Restriction Period has ended, the Committee shall determine and certify (in writing in the case of Qualified Performance-Based Awards) whether and the extent to which the service period and/or the Performance Goals were met for the applicable restricted stock. If the vesting condition or conditions applicable to the restricted stock are not satisfied by the time the Restriction Period has expired, such restricted stock shall be forfeited. If and when the Restriction Period expires without a prior forfeiture of the shares of restricted stock (i) if legended certificates have been issued, unlegended certificates for such shares shall be delivered to the Participant upon surrender of the legended certificates, (ii) if legended certificates have not yet been issued, unlegended certificates (and any related blank stock powers previously executed by the Participant) shall be delivered to the Participant, and (iii) any cash dividends held by the Corporation pursuant to Section 6.2(c) shall be delivered to the Participant.
6.3 Permitted Transfers. Neither this Section 6 nor any other provision of the Plan shall preclude a Participant from transferring or assigning restricted stock, without the payment of value or consideration to the Participant, to (i) the trustee of a trust that is revocable by such Participant alone, both at the time of the transfer or assignment and at all times thereafter prior to such Participant's death or (ii) the trustee of any other trust to the extent approved in advance by14 hereof, the Committee, in its sole discretion, in writing. A transfer or assignment of restricted stock from such trustee to any personmay determine that dividends and other than such Participantdistributions on the shares shall not be permitted onlypaid to the extent approved in advance byawardee until the Committee,lapse or termination of the applicable restrictions. Unless otherwise provided, in its sole discretion, by the Committee, any such dividends or other distributions shall not bear interest. Upon the lapse or termination of the applicable restrictions (and not before such time), the unpaid dividends, if any, shall be delivered to the awardee. Further, the
Committee shall have the ability, in writing, andits sole discretion following a written request of a Director, to authorize the automaticreinvestment of such dividends in additional shares of restricted stock heldat the time of any dividend payment (such shares referred to herein as “Reinvested Shares”), provided that sufficient shares of Common Stock are available under Section 1(B) for the issuance of such Reinvested Shares (taking into account then outstanding awards). In the event that sufficient shares of Common Stock are not available for such Reinvestment Shares to be issued, such reinvestment of dividends shall be made in the form of a grant of RSUs equal in number to the shares of Common Stock that would have been obtained by such trusteereinvestment, the terms of which RSUs shall provide for settlement in cash and for dividend equivalent reinvestment in further RSUs on the terms contemplated by Section 13. Any Reinvestment Shares issued in connection with a Director’s election hereunder shall be subject to allthe same terms and conditions, including vesting schedule, as the shares of restricted stock upon which the dividend was issued.
(f) Competition. If an awardee of restricted shares engages in the operation of management of a business (whether as owner, partner, officer, director, employee or otherwise) which is in competition with the Corporation or any of its Subsidiaries or solicits any of the conditions andCorporation's customers or employees other than for the benefit of the Corporation, the Committee may immediately declare forfeited all restricted shares, including any Reinvested Shares, held by the awardee as to which the restrictions set forthhave not yet lapsed. Whether an awardee has engaged in the Planoperation or management of a business which is in competition with the Corporation or any of its Subsidiaries or has solicited any of the Corporation's customers or employees other than for the benefit of Corporation, shall also be determined, in its sole discretion, by the Committee, and inany such determination by the applicable agreement under Section 2.5 as if such trustee were a party to such agreement.Committee shall be final and binding.
SECTION 713
Restricted Stock Units
7.1 (a)Restricted Stock Unit Awards. Restricted stock units are Awards denominatedAn RSU award represents the unsecured right to receive in shares of Common Stock that will be settled, subject to the terms and conditions of the restricted stock units and at the sole discretion of the Committee, in an amount infuture payment (in cash, shares of Common Stock or a combination of both, based uponas contemplated in the award) equal to the Fair Market Value of a specified number of shares of Common Stock.Stock, which is subject to a risk of forfeiture or a restriction period or both. RSUs shall be evidenced by a written agreement in a form prescribed by the Committee, in its sole discretion. RSU awards shall be effective only upon execution of the applicable RSU agreement on behalf of the Corporation by the Chief Executive Officer (if other than the President), the President or any Vice President, and by the awardee. The provisions of such agreements need not be identical.
7.2 (b)Terms and Conditions. Restricted stock units shall be subject to the restrictions set forthimposed thereon, the duration of such restrictions, events (which may, in Section 15.11the sole discretion of the Committee, include performance-based events) the occurrence of which would cause a forfeiture of the RSUs and the followingsuch other terms and conditions:
(a) Theconditions as the Committee in its sole discretion deems appropriate. Unless otherwise determined by the Committee, RSUs awarded to a Director shall prior to or atbe forfeited if the time of grant, condition the vesting of restricted stock units upon (i) the continued serviceawardee terminates as a Director of the applicable Participant, (ii)Corporation within two (2) years following the attainmentgrant of Performance Goals or (iii)such RSU due to the attainment of Performance Goals and the continued servicevoluntary resignation of the applicable Participant. InDirector without the event thatconsent of the Committee conditions the vesting of restricted stock units upon the attainment of Performance GoalsBoard or the attainment of Performance Goals and the continued serviceremoval of the applicable Participant, the Committee may, prior to or at the timeDirector with cause. An award of grant, designate the restricted stock units as a Qualified Performance-Based Award. The Committee shall determine the performance period(s) during which any Performance Goals are to be achieved. The conditions for grant or vesting and the other provisions of restricted stock units (including without limitation any applicable Performance Goals) need not be the same with respect to each recipient. An Award of restricted stock unitsRSUs shall be settled as and when the restricted stock unitsRSUs vest, as determined and certified (in writing in the case of Qualified Performance-Based Awards) by the Committee, or at a later time specified by the Committee or in accordance with an election of the Participant,Director, if the Committee so permits. Except in the case of a Qualified Performance-Based Award and subjectSubject to the restrictions set forth in Section 15.11,this Plan, the Committee at any time after the date of grant, in its sole discretion, may modify or waive any of the conditions applicable to an Awardaward of restricted stock units.
(b) Subject to the provisions of the Plan and the applicable agreement under Section 2.5, duringRSUs. During the period, if any, set by the Committee, commencing with the
date of grant of such restricted stock unitsRSUs for which such vesting restrictions apply, (the “Units Restriction Period”), and until the expiration ofthereof, the Units Restriction Period, the ParticipantDirector shall not be permitted to sell, assign, transfer, pledge or otherwise encumber restricted stock units. A restricted stock unit may vest in part prior to the expiration of any Units Restriction Period.RSUs.
(c) Participants granted restricted stock units shall not be entitled to any dividends payable on the Common Stock unless the agreement under Section 2.5 for restricted stock units specifies to what extent and on what terms and conditions the applicable Participant shall be entitled to receive current or deferred payments of cash, Common Stock or other property corresponding to the dividends payable on the Common Stock (subject to Section 15.4 below)Dividends. Restricted stock unitsRSUs shall not have any voting rights, and holders of restricted stock unitsRSUs shall not be shareholders of the Corporation unless and until shares of Common Stock are issued by the Corporation (in book-entry form or otherwise). An award of RSUs shall not entitle the Director to receive dividends during the Restriction Period, nor vote the Common Stock subject to such award, or to otherwise enjoy any other stockholder rights; provided, however that the Administrator may, in its sole discretion, prescribe additional terms, conditions or restrictions relating to RSU awards, including but not limited to the issuance of any dividend equivalent units in tandem with a Restricted Stock Unit Award.
SECTION 8
Performance(d)Dividend Equivalent Units
Performance. Subject to the terms of this Plan, the Administrator will determine all terms and conditions of each award of dividend equivalent units, including but not limited to whether: (i) such award will be granted in tandem with another award; (ii) payment of the award shall be made currently or credited to an account for the Director that provides for the deferral of such amounts until a stated time; and (iii) the award will be settled in cash or shares; provided that dividend equivalent units may be granted hereunderonly in connection with a “full-value award.” For this purpose, a “full-value award” includes Restricted Stock, RSUs and any other similar award under which the value of the award is measured as the full value of a share, rather than the increase in the value of a share.
SECTION 14
Adjustment and Substitution of Shares
In the event of a (i) merger, consolidation, acquisition of shares, stock rights offering, liquidation, separation, spinoff, disaffiliation of a Subsidiary from the Corporation, extraordinary dividend of cash or other property, or similar event affecting the Corporation or any of its Subsidiaries, including but not limited to eligible employees,a Section 15 Event (each, a "Corporate Transaction") or (ii) a stock dividend, stock split, reverse stock split, reorganization, share combination, or recapitalization or similar event affecting the capital structure of the Corporation (each, a "Share Change") the Committee or the Board shall make such substitutions or adjustments as it deems appropriate and equitable, to prevent the dilution or enlargement of the rights of Directors, to (A) the aggregate number and kind of shares of Common Stock reserved for no cash consideration or for such minimum consideration as may be required by applicable law, either alone or in addition to other Awards grantedissuance and delivery under the Plan. The Committee shall establishPlan, (B) the number of DSUs credited to any Account, (C) the number and kind of shares of Common Stock subject to outstanding grants and awards; (D) the option price and Base Price of outstanding stock options and stock appreciation rights, respectively, carried to at least three decimal places with the time the performance unit is granted the performance period(s) during which any Performance Goals specified by the Committee with respectlast decimal place being rounded up to the Award are to be measured, provided, however, that performance units shall be subjectnearest whole number.
In the case of Corporate Transactions, such adjustments may include, without limitation, (1) the cancellation of outstanding stock options, stock appreciation rights or RSUs in exchange for payments of cash, property or a combination thereof having an aggregate value equal to the restrictions set forth in Section 15.11. The Performance Goals to be achieved during any performance period(s)value of such grants and the length of the performance period(s) shall beawards, as determined by the Committee uponor the grantBoard in its sole discretion (it being understood that in the case of a Corporate Transaction with respect to which shareholders of Common Stock receive consideration other than publicly-traded equity securities of the ultimate surviving entity, any such determination by the Committee that the value of an option stock appreciation right shall for this purpose be deemed to equal the excess, if any, of the value of the consideration being paid for each performance unit. The Committee may,share pursuant to such Corporate Transaction over the option price of such option or the Base Price of such stock appreciation right shall conclusively be deemed valid); (2) the substitution of other property (including, without limitation, cash or other securities of the Corporation and securities of entities other than the
Corporation) for the shares subject to outstanding grants and awards; and (3) in connection with any disaffiliation of a Subsidiary, arranging for the grantassumption of performance units, designate them as Qualified Performance-Based Awards. The conditions for grantgrants and awards, or vestingreplacement of grants and theawards with new grants and awards based on other provisions of performance
unitsproperty or other securities (including, without limitation, other securities of the Corporation and securities of entities other than the Corporation), by the affected Subsidiary, or by the entity that controls such Subsidiary following such disaffiliation (as well as any applicable Performance Goals) need not becorresponding adjustments to grants and awards that remain based upon Corporation securities). No adjustment or substitution provided in this Section 14 shall require the same with respect to each Participant. Performance units may be paid in cash, shares of Common Stock, other propertyCorporation or any combination thereof,other entity to issue or sell a fraction of a share or other security. Except as provided in the sole discretion of the Committee as set forth in the applicable agreement underthis Section 2.5. Performance units14, a Director shall not have any voting rights and holderswith respect to any Corporate Transaction or Share Change. Notwithstanding the foregoing: (i) any adjustments made pursuant to this Section 14 to Accounts shall be made in compliance with the requirements of performance units shall not be shareholdersSection 409A of the Corporation unlessCode; (ii) any adjustments made pursuant to this Section 14 to grants and until sharesawards that are not considered "deferred compensation" subject to Section 409A of Common Stock are issued by the Corporation (in book-entry form or otherwise). The Performance GoalsCode shall be made in such a manner as to ensure that after such adjustment, the grants and awards either (A) continue not to be achieved for each performance period, whethersubject to Section 409A of the Performance GoalsCode or (B) comply with the requirements of Section 409A of the Code; and (iii) in any event, neither the Committee nor the Board shall have been achieved, and the amountauthority to make any adjustments pursuant to this Section 14 to the extent the existence of such authority would cause a grant or award that is not intended to be subject to Section 409A of the Code at the grant or award date of the Award to be distributed shall be conclusively determined and certified (in writing in the case of Qualified Performance-Based Awards) by the Committee. Performance units may be paid in a lump sum or in installments following the close of the performance period(s). The Participant shall not be permitted to sell, assign, transfer, pledge or otherwise encumber performance units. The maximum value of the property, including cash, that may be paid or distributed to any Participant pursuant to a grant of performance units made in any one calendar year shall be five million United States of America dollars ($5,000,000). Except in the case of a Qualified Performance-Based Award and subject to the restrictions set forth in Section 15.11, the Committee at any time after the grant of performance units, in its sole discretion, may modify or waive any of the conditions applicable to an Award of performance units.
thereto.
SECTION 9
Other Stock-Based Awards
The Committee may award Common Stock and other Awards that are valued in whole or in part by reference to, or are otherwise based upon, Common Stock, including but not limited to, unrestricted stock or dividend equivalents. Any such Award shall be subject to the restrictions set forth in Section 15.11 and such other terms and conditions as established by the Committee, and may include Qualified Performance-Based Awards. The maximum value of Common Stock and other property, including cash, that may be paid or distributed to any Participant pursuant to this Section 9 (and not pursuant to other sections of the Plan) in any one calendar year shall be five million United States of America dollars ($5,000,000).
SECTION 10
Issuance of Shares
The Committee may require each person purchasing or receiving shares of Common Stock pursuant to an Award to represent to and agree with the Corporation in writing that such person is acquiring the shares only for investment and without a present view to the sale or distribution thereof. The certificates for such shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer. The obligation of the Corporation to issue shares of Common Stock under the Plan shall be subject to (i) the effectiveness of a registration statement under the Securities Act of 1933, as amended, with respect to such shares, if deemed necessary or appropriate by counsel for the Corporation, (ii) the condition that the shares shall have been listed (or authorized for listing upon official notice of issuance) upon each stock exchange, if any, on which the shares of Common Stock may then be listed, (iii) all other applicable laws, regulations, rules and orders which may then be in effect and (iv) obtaining any other consent, approval, or permit from any state or federal governmental agency which the Committee shall, in its sole discretion, determine to be necessary or advisable. The inability or impracticability of the Corporation to obtain or maintain authority from any regulatory body having jurisdiction, which authority is deemed by the Corporation’s counsel to be necessary to the lawful issuance, sale or delivery of any shares of Common Stock hereunder, shall relieve the Corporation of any liability in respect of the failure to issue, sell or deliver such shares of Common Stock as to which such requisite authority shall not have been obtained.
SECTION 11
15
Additional Rights in Certain Events
11.1 (a)Definitions.
For purposes of this Section 11,15, the following terms shall have the following meanings:
(1)The term "Person""Person" shall be used as that term is used in Sections 13(d) and 14(d) of the 1934 Act as in effect on the effective date of the Plan.
(2) "Beneficial Ownership""Beneficial Ownership" shall be determined as provided in Rule 13d-3 under the 1934 Act as in effect on the effective date of the Plan.
(3) "Voting Shares"“Voting Shares" shall mean all securities of a corporation entitling the holders thereof to vote in an annual election of Directorsdirectors (without consideration of the rights of any class of stock other than the common stock of the corporationCommon Stock to elect directors by a separate class vote); and a specified percentage of "Voting Power""Voting Power" of a corporation shall mean such number of the Voting Shares as shall enable the holders thereof to cast such percentage of all the votes which could be cast in an annual election of directors (without consideration of the rights of any class of stock other than the common stock of a corporationCommon Stock to elect directorsDirectors by a separate class vote).
(4) "Section 11 Event""Section 15 Event" shall mean the date upon which any of the following events occurs:
(a) (i)The Corporation acquires actual knowledge that any Person other than the Corporation, a Subsidiary or any employee benefit plan(s) sponsored by the Corporation has acquired the Beneficial Ownership, directly or indirectly, of securities of the Corporation entitling such Person to 20% or more of the Voting Power of the Corporation;
(b) (ii)During any period of two consecutive years, less than a majority of the total number of authorized members of the Board of Directors (excluding vacant seats) are filled by individuals who were (i) Directors at the beginning of such period
and (ii) individuals whose election by the Corporation’s security holders, or nomination for election, was approved by a vote (including a vote approving a merger or other agreement providing the membership of such individuals on the Board of Directors)Board) of at least a majority of the members of the NominatingGovernance and Corporate GovernanceSustainability Committee (consisting of directors then still in office who were directors at the beginning of such period or who were approved for election or nomination hereunder) or at least two-thirds of the Directors then still in office who were Directors on the effective date of the original Plan on November 15, 2018 or who were so approved (other than an individual whose initial assumption of office is in connection with an actual or threatened election contest or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors relating to the election of Directors which would be subject to Rule 14a-11 under the 1934 Act, or any successor rule, including by reason of any agreement intended to avoid or settle any such election contest or proxy contest), provided that for purposes of this Section 11.1(4)(b)15(a)(4)(ii), each Board then-authorized seat shall count once for determining whether a Section 1115 Event has occurred;
(c) (iii)The consummation of a merger, consolidation, share exchange, division or sale or other disposition of assets of the Corporation as a result of which the shareholders of the Corporation immediately prior to such transaction shall not hold, directly or indirectly, immediately following such transaction, a majority of the Voting Power of (i) in the case of a merger or consolidation, the surviving or resulting corporation, (ii) in the case of a share exchange, the acquiring corporation or (iii) in the case of a division or a sale or other
disposition of assets, each surviving, resulting or acquiring corporation which, immediately following the transaction, holds more than 30% of the consolidated assets of the Corporation immediately prior to the transaction; or
(d) (iv)The commencement of any liquidation or dissolution of the Corporation (other than pursuant to any transfer of 70% or more of the consolidated assets of the Corporation to an entity or entities controlled by the Corporation and/or its shareholders following such liquidation or dissolution);
provided, however, that if securities beneficially owned by a ParticipantDirector are included in determining the Beneficial Ownership of a Person referred to in paragraph 4(a) above, then no Section 1115 Event with respect to such ParticipantDirector shall be deemed to have occurred by reason of such event.
11.2(b) Acceleration of the Exercise Date of Stock Options and Stock Appreciation Rights. Subject to the provisions of Section 5 in the case of incentive stock options and Section 11.6,15(e), unless the agreement underreferred to in Section 2.511(I) hereof, or an amendment thereto, shall otherwise provide, notwithstanding any other provision contained in the Plan, in case any Section 1115 Event occurs all outstanding stock options and stock appreciation rights (other than those held by a ParticipantDirector referred to in the proviso to Section 11.1(4)15 (a)) shall become immediately and fully exercisable whether or not otherwise exercisable by their terms.
11.3(c) Extension of the Expiration Date of Stock Options and Stock Appreciation Rights. Subject to the provisions of Section 5 in the case of incentive stock options and Section 11.6,15 (e), unless the agreement underreferred to in Section 2.511(I) hereof, or an amendment thereto, shall otherwise provide, notwithstanding any other provision contained in the Plan, all outstanding stock options and stock appreciation rights held by a Participantgrantee whose service with the
Corporation as a Director terminates within one year of any Section 15 Event (other than those held by a ParticipantDirector referred to in the proviso to Section 11.1(4)15 (a)) whose employment with the Corporation or a Subsidiary terminates within one year of any Section 11 Event for any reason other than voluntary termination with the consent of the Corporation or a Subsidiary, retirement under any retirement plan of the Corporation or a Subsidiary or death shall be exercisable for the longer of (i) a period of three months from the date of such termination of employment,service or (ii) the period specified in Section 11(G) hereof, but in no event after the expiration date of the stock option or stock appreciation right.
11.4(d) Lapse of Restrictions on Restricted StockShare Awards and RSUs. Unless the agreement underreferred to in Section 2.512 hereof, or an amendment thereto, shall otherwise provide, notwithstanding any other provision contained in the Plan, other than Section 11.6, if any Section 1115 Event occurs prior to the scheduled lapse of all restrictions applicable to restricted stock Awardsshare awards or RSUs under the Plan, (including but not limited to Qualified Performance-Based Awards), all such restrictions (other than those applicable to a ParticipantDirector referred to in the proviso to Section 11.1(4)15 (a)) shall lapse upon the occurrence of any such Section 1115 Event regardless of the scheduled lapse of such restrictions.
11.5 Vesting of Restricted Stock Units and Performance Units. Unless the agreement under Section 2.5 shall otherwise provide, notwithstanding any other provision contained in the Plan other than Section 11.6, if any Section 11 Event occurs, all restricted stock units and performance units (including but not limited to Qualified Performance-Based Awards) (other than those held by a Participant referred to in the proviso to Section 11.1(4)) shall be considered to be earned and payable in full, any vesting conditions shall be considered to have been satisfied, and such restricted stock units and performance units shall be settled in cash as promptly as is practicable after the Section 11 Event.
11.6(e) Code Section 409A. Notwithstanding the foregoing, if any Awardgrant or award is subject to Section 409A of the Code, this Section 1115 shall be applicable only to the extent specifically provided in the agreement under Section 2.5Sections 11(I) or 12 applicable to the Awardgrant or award and permitted pursuant to Section 12.2.409A.
SECTION 1216
Administration of Plan; Hardship Withdrawal
Qualified Performance-Based Awards;(a) Administration of Plan. Except where the terms of the Plan specifically grant authority to the Committee of the Board or where the Board delegates authority to the Committee, full power and authority to construe, interpret, and administer the Plan shall be vested in the Board and it and the Committee shall have plenary authority to interpret the Plan and prescribe such rules, regulations and procedures in connection with the operations of the Plan as it shall deem to be necessary and advisable for the administration of the Plan consistent with the purposes of the Plan. Decisions of the Committee and the Board shall be final, conclusive, and binding upon all parties. Without limitation of the foregoing, the Committee shall have the authority, subject to the terms and conditions of the Plan:
(i)To determine the grants or awards to be made to the Directors pursuant to Sections 10-13 and all of the relevant terms thereof;
(ii)Subject to Sections 11(I) and 12(a), to modify, amend or adjust the terms and conditions of any such grant or award;
(iii)To adopt, alter and repeal such administrative rules, regulations, procedures, guidelines and practices governing the Plan as it shall from time to time deem advisable;
(iv)To interpret the terms, provisions and conditions of the Plan and any such grant or award (and any agreement under Sections 11(I) and 12(a) relating thereto);
(v)Subject to Sections 11(I) and 12(a), to accelerate the vesting or lapse of restrictions on any outstanding award, based in each case on such considerations as the Committee in its sole discretion determines;
(vi)To decide all other matters that must be determined in connection with such grants and awards;
(vii)To establish any "blackout" period that the Committee in its sole discretion deems necessary or advisable; and
(viii)To otherwise administer the Plan in connection with such grants and awards.
The Committee may, except to the extent prohibited by applicable law or the listing standards of the stock exchange which is the principal market for the Common Stock, allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any officers of the Corporation or committee of officers of the Corporation selected by it. The Committee shall keep records of action taken at its meetings. A majority of the Committee shall constitute a quorum at any meeting and the acts of a majority of the members present at any meeting at which a quorum is present, or acts approved in writing by all members of the Committee, shall be the acts of the Committee. Any determination made by the Committee or by an appropriately delegated officer pursuant to delegated authority under the provisions of the Plan with respect to any grant or award pursuant to Section 10 shall be made in the sole discretion of the Committee or such officer at the time of such grant or award or, unless in contravention of any express term of the Plan, at any time thereafter. All decisions made by the Committee or any appropriately delegated officer pursuant to the provisions of the Plan and shall be final and binding on all persons, including the Corporation, its Subsidiaries, and the Directors eligible under the Plan.
(b) Hardship Withdrawal. Notwithstanding the terms of Deferral Election made by a Director hereunder, the Committee may, in its sole discretion, permit the issuance of shares in accordance with the number of DSUs held in an Account with respect to Director Fees or Meeting Fees previously payable upon the request of a Director or the Director's representative, or following the death of a Director upon the request of a Director's Beneficiary or such beneficiary's representative, if the Board determines that the Director or the Director's Beneficiary, as the case may be, is confronted with an unforeseeable emergency.
For this purpose, an unforeseeable emergency means a severe financial hardship to the Director or the Director's Beneficiary resulting from an illness or accident of the Director or the Director's Beneficiary, the spouse, or a dependent (as defined in Section 152(a) of the Code) of the Director or the Director's Beneficiary, loss of the Director or the Director's Beneficiary's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Director or the Director's Beneficiary. The Director or the Director's Beneficiary shall provide to the Committee evidence as the Committee, in its sole discretion, may require to demonstrate that such emergency exists and financial hardship would occur if the withdrawal were not permitted. The withdrawal shall be limited to the amount reasonably necessary to satisfy such emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise, by liquidation of the Director or the Director's Beneficiary's assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by the cessation of deferrals under the Plan. Cash needs arising from foreseeable events, such as the purchase or building of a house or education expenses, will not be considered to be the result of an unforeseeable financial emergency. Payment shall be made, as soon as practicable after the Committee approves the payment and determines the number of shares which shall be issued under and pursuant to the Account(s) providing for the latest
payments or series of payments. No Director shall participate in any decision of the Committee regarding such Director's request for a withdrawal under this Section 16.
(c) Cancellation; Suspension; Clawback. Any or all outstanding grants and awards to a Director may, at any time between the date of grant or award and the third anniversary of any exercise, payment or vesting of such grant and award, in the Board's or the Committee's sole discretion and subject to such terms and conditions established by the Board or the Committee, be cancelled, suspended, or required to be repaid to the Corporation if the Director (whether during or after service as a Director of the Corporation) (i) engages in the operation or management of a business (whether as owner, partner, officer, director, employee or otherwise) which is in competition with the Corporation or any of its Subsidiaries, (ii) induces or attempts to induce any customer, supplier, licensee or other individual, corporation or other business organization having a business relationship with the Corporation or any of its Subsidiaries to cease doing business with the Corporation or any of its Subsidiaries or in any way interferes with the relationship between any such customer, supplier, licensee or other person and the Corporation or any of its Subsidiaries, (iii) solicits any employee of the Corporation or any of its Subsidiaries to leave the employment thereof or in any way interferes with the relationship of such employee with the Corporation or any of its Subsidiaries, or (iv) makes any statements or comments, orally or in writing, of a defamatory or disparaging nature regarding the Corporation or any of its Subsidiaries (including but not limited to regarding any of their respective businesses, officers, directors, personnel, products or policies), provided, however, that this sentence shall not apply following the occurrence of a Section 15 Event unless the agreement under Sections 11(I) or 12(a) specifically so provides. Whether a Director has engaged in any such activities shall also be determined, in its sole discretion, by the Board or the Committee, and any such determination by the Board or the Committee shall be final and binding.
SECTION 17
Fair Market Value
"Fair Market Value" of the Common Stock shall be the mean between the following prices, as applicable, for the date as of which Fair Market Value is to be determined as quoted in The Wall Street Journal (or in any other reliable publication (electronic or otherwise) as the Board of the Corporation or its delegate, in its sole discretion, may determine to rely upon):
(a)if the Common Stock is listed on the New York Stock Exchange, the highest and lowest sales prices per share of the Common Stock as quoted in the NYSE-Composite Transactions listing for such date; or
(b)if the Common Stock is not listed on such exchange, the highest and lowest sales prices per share of Common Stock for such date on (or on any composite index including) the NASDAQ Exchange or the principal United States securities exchange registered under the Securities Exchange Act of 1934, as amended (the "1934 Act") on which the Common Stock is listed.
If there are no such sale price quotations for the date as of which Fair Market Value is to be determined but there are such sale price quotations within a reasonable period both before and after such date, then Fair Market Value shall be determined by taking a weighted average of the means between the highest and lowest sales prices per share of the Common Stock as so quoted on the nearest date before and the nearest date after the date as of which Fair Market Value is to be determined. The average should be
weighted inversely by the respective numbers of trading days between the selling dates and the date as of which Fair Market Value is to be determined. If there are no such sale price quotations on or within a reasonable period both before and after the date as of which Fair Market Value is to be determined, then Fair Market Value of the Common Stock shall be the weighted average of the means between such bona fide bid and asked prices on the nearest trading date before and the nearest trading date after the date as of which Fair Market Value is to be determined, if both such dates are within a reasonable period. The average is to be determined in the manner described above in this Section 17. If the Fair Market Value of the Common Stock cannot be determined on the basis previously set forth in this Section 17 on the date as of which Fair Market Value is to be determined, the Board or its delegate shall in good faith and in conformance with the requirements of Section 409A of the Code, to the extent applicable, determine the Fair Market Value of the Common Stock on such date. Fair Market Value shall be determined without regard to any restriction other than a restriction which, by its terms, will never lapse.
SECTION 18
Securities Laws; Issuance of Shares
The obligation of the Corporation to issue Common Stock or credit DSUs under the Plan shall be subject to:
12.1 (i)Qualified Performance-Basedthe effectiveness of a registration statement under the Securities Act of 1933, as amended, with respect to such shares, if deemed necessary or appropriate by counsel for the Corporation;
(ii)the condition that the shares shall have been listed (or authorized for listing upon official notice of issuance) upon each stock exchange, if any, on which the Common Stock shares may then be listed;
(iii)if required by the Committee, the representation and agreement of the Director that the Director is acquiring the shares only for investment and without a present view of the sale or distribution of such shares, with a corresponding legend on any stock certificates;
(iv)all other applicable laws, regulations, rules and orders which may then be in effect; and
(v)obtaining any other consent, approval, or permit from any state or federal governmental agency which the Committee shall, in its sole discretion, determine to be necessary or advisable.
The inability or impracticability of the Corporation to obtain or maintain authority from any regulatory body having jurisdiction, which authority is deemed by the Corporation's counsel to be necessary to the lawful issuance, sale or delivery of any shares of Common Stock or credit DSUs in an Account hereunder, shall relieve the Corporation of any liability in respect of the failure to issue, sell or deliver such shares of Common Stock or credit DSUs in an Account as to which such requisite authority shall not have been obtained. If, on the date on which any shares of Common Stock would be issued pursuant to a current stock payment under Section 3(a) hereof any DSUs or credited to an Account and after consideration of any shares of Common Stock subject to outstanding Equity Awards, sufficient shares of Common Stock are not available under the Plan or the Corporation is not obligated to issue shares pursuant to this Section 18, then no shares of Common Stock shall be issued or DSUs credited but rather, in the case of a current stock payment under Section 3(a) hereof, cash shall be paid in payment of the
Director Fees payable, and in the case of DSUs, Director Fees and Meeting Fees shall instead be credited in cash to a deferred cash compensation account in the name of the Director. The Board shall adopt appropriate rules and regulations to carry out the intent of the immediately preceding sentence if the need for such rules and regulations arises.
SECTION 19
Governing Law; Integration
(a) Governing Law.
(a) The provisions of this Plan shall be construed, administered and governed by the laws of the Commonwealth of Pennsylvania including its statute of limitations provisions, but without reference to conflicts of law principals. Titles of Sections of the Plan are intended to ensure that all optionsfor convenience of reference only and stock appreciation rights granted hereunder to any Participant who is or may be a Covered Employee in the tax year in which any amount attributable to such option or stock appreciation right is expectedare not to be deductible totaken into account when construing and interpreting the Corporation qualify for the exemption from the limitation on deductions imposed by Section 162(m)Plan. In case any provision of the Code (the “Section 162(m) Exemption”), and all such Awards shall therefore be considered Qualified Performance-Based Awards and this Plan shall be interpreted and operated consistent with that intention. When grantingheld illegal or invalid for any Award other than an optionreason, such illegal or stock appreciation right,invalid provision shall not affect the Committee may designate such Award as a Qualified Performance-Based Award, based upon a determination that (i) the recipient is or may be a Covered Employee with respect to such Award, and (ii) the Committee wishes such Award to qualify for the Section 162(m) Exemption, and the terms of any such Award (andremaining parts of the grant thereof)Plan, but the Plan shall be consistent with such designation. With respectconstrued and enforced without regard to Qualified Performance-Based Awards, within 90 days after the commencement of a performance period or, if earlier, by the expiration of 25% of a performance period, the Committee will designate one or more performance periods, determine the Participants for the performance periods and establish the Performance Goals for the performance periods.such.
(b) Each Qualified Performance-Based Award (other than an option or stock appreciation right) shall be earned, vested and/or payable (as applicable) upon certification in writing by the CommitteeIntegration. The Plan contains all of the achievementunderstandings and representations between the Corporation, its Subsidiaries and any of onethe Directors and supersedes any prior understandings and agreements entered into between them regarding the subject matter of the Plan. There are no representations, agreements, arrangements or more Performance Goals, together withunderstandings, oral or written, between the satisfactionCorporation, its Subsidiaries and any of any other conditions, such as continued employment, as previously established by the Committee with respectDirectors relating to such Award.
(c) Notwithstanding any provisionthe subject matter of the Plan which are not fully expressed in the Plan or in any agreement under Section 2.5, to the extent that any such provision or action of the Committee would cause any Qualified Performance-Based Award not to qualify for the Section 162(m) Exemption, such provision or action shall be null and void as it relates to Covered Employees, to the extent permitted by law and deemed advisable by the Committee.
12.2 Plan.Code Section 409A. It is the intention of the Corporation that no Award shall be “deferred compensation” subject to Section 409A of the Code, unless and to the extent that the Committee specifically determines otherwise as provided in the immediately following sentence, and the Plan and the terms and conditions of all Awards shall be interpreted accordingly. The terms and conditions governing any Awards that the Committee determines will be subject to Section 409A of the Code, including any rules for elective or mandatory deferral of the delivery of cash or shares of Common Stock pursuant thereto and any rules regarding treatment of such Awards in the event of a Section 11 Event, shall be set forth in the applicable agreement under Section 2.5, and shall comply in all respects with Section 409A of the Code.
SECTION 13
20
Effect of the Plan on the Rights of EmployeesCorporation and EmployerShareholders
Neither the adoption of the Plan nor any action of the Board or the Committee pursuant to the Plan shall be deemed to give any employee any right to be granted any Award under the Plan. Nothing in the Plan or in any Awardstock option, stock appreciation right or restricted share award under the Plan or in any agreement under Section 2.5 providing for any Award underof the Planforegoing or any amendment thereto shall confer any right to any employeeperson to continue in the employas a Director of the Corporation or any Subsidiary or interfere in any way with the rights of the shareholders of the Corporation or any Subsidiarythe Board to terminate the employment of any employee at any time or adjust the compensation of any employee at any time.elect and remove Directors.
SECTION 14
21
Amendment orand Termination
(a)General. The right to amend the Plan at any time and from time to time and the right to terminate the Plan at any time are hereby specifically reserved to the Board; provided that no such amendment of the Plan shall,shall:
(i)be made without shareholder approval (a) increase the maximum aggregate number of shares of Common Stock for which Awards may be made under Section 4.1 of the Plan, (b) increase the maximum aggregate number of shares of Common Stock as to which incentive stock options may be granted under Section 4.1 of the Plan, (c) make any changes in the class of employees eligible to receive Awards under the Plan, (d) change the maximum number of shares of Common Stock as to which Awards may be made to any Participant under Section 4.2 of the Plan, or the maximum amount that may be paid or distributed to any Participant pursuant to a grant of performance units or other stock-based Awards made in any one calendar year under Section 8 or 9 of the Plan, respectively, (e) change the exercise price or Base Price permitted under Section 5.3 of the Plan or the restrictions regarding repricing under Section 5.3 of the Plan,(f) be made if shareholder approval of the amendment is at the time required for Awardsby the rules of any stock exchange on which the Common Stock may then be listed; or
(ii)otherwise amend the Plan in any manner that would cause the shares of Common Stock issued or DSUs credited under the Plan not to qualify for the exemption from Section 16(b) of the 1934 Act provided by Rule 16b-3 or by the rules of any stock exchange on which the Common Stock may then be listed or (g) be made to the extent such approval is needed for Qualified Performance-Based Awards to qualify for the Section 162(m) Exemption. 16b-3.
No amendment or termination of the Plan shall, without the written consent of the holder of shares of Common Stock issued or credited under the Plan or the holder of an Equity Award theretofore granted or awarded under the Plan, adversely affect the rights of such holder with respect thereto.
SECTION 15
General Provisions
15.1 (b)Additional Compensation ArrangementsRule 16b-3. NothingNotwithstanding anything contained in the Plan shall prevent the Corporationpreceding paragraph or any Subsidiaryother provision of the Plan, the Board shall have the power to amend the Plan in any manner deemed necessary or advisable for shares of Common Stock issued or DSUs credited under the Plan to qualify for the exemption provided by Rule 16b-3 (or any successor rule relating to exemption from adopting otherSection 16(b) of the 1934 Act), and any such amendment shall, to the extent deemed necessary or additional compensation arrangements for its employees.advisable by the Board, be applicable to any outstanding shares of Common Stock theretofore issued or credited under the Plan.
15.2 (c)Tax WithholdingTermination Date. No later thanNotwithstanding any other provision of the date asPlan:
(i)no shares of which an amount first becomes includible inCommon Stock shall be issued or DSUs credited on a Payment Date under the gross incomePlan after March 31, 2028;
(ii)no shares of a Participant for federal, state, local or foreign income or employment or other tax purposesCommon Stock shall be credited with respect to any AwardMeeting Fees payable under the Plan such Participantafter March 31, 2028;
(iii)no stock option or stock appreciation right shall pay tobe granted under the Plan after March 31, 2028; and
(iv)no RSAs or vesting after March 31, 2024 of RSAs or RSUs shall be awarded under the Plan after March 31, 2028;
provided, however, that the preceding provisions of this Section 21(c) shall not preclude the issuance of shares of Common Stock under the Plan in payment of the balance of a Director's Account or upon the exercise after March 31, 2028 of a stock option or stock appreciation right or vesting after March 31, 2028 of RSAs or RSUs.
SECTION 22
Unsecured Creditor
The Plan constitutes a mere promise by the Corporation (or, if applicable, a Subsidiary), orto make arrangements satisfactory tobenefit payments in the Corporation (or, if applicable, a Subsidiary) regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. Unless otherwise determined by the Committee, withholdingfuture. The Corporation's obligations may be settled with Common Stock, including Common Stock that is part of the Award that gives rise to the withholding requirement, having a Fair Market Value on the date of withholding equal to the minimum amount (and not
any greater amount unless otherwise determined by the Committee) required to be withheld for tax purposes, all in accordance with such procedures as the Committee establishes, and provided that any fractional share amount must be paid in cash or withheld from compensation otherwise due to the Participant. The obligations of the Corporation under the Plan shall be conditionalunfunded and unsecured promises to pay. Any amount payable under the Plan shall be established and maintained only on such payment or arrangements,the books and records of the Corporation. The Corporation and its Subsidiaries shall not be obligated under any circumstance to fund the Corporation's financial obligations under the Plan and no assets or funds of the Corporation, any Subsidiary, or the Plan shall be removed from the claims of the Corporation's general or judgment creditors or otherwise made available until such amounts are actually paid to a Director as provided herein. Any of them may, in its sole discretion, set aside funds in a trust or other vehicle, subject to the claims of its creditors, in order to assist it in meeting its obligations under the Plan, if such arrangement will not cause the Plan to be considered a funded deferred compensation plan. To the extent permitted by law,that any Director or Director's Beneficiary or other person acquires a right to receive payments under the Plan,
such right shall be no greater than the right, and each Director and Director's Beneficiary shall at all times have the right to deduct any such taxes from any payment otherwise due to such Participant. The Committee may establish such procedures as it deems appropriate, including making irrevocable elections, forstatus, of a general unsecured creditor of the settlement of withholding obligations with Common Stock.Corporation.
15.3 SECTION 23
Limitation of Liability. The
Any grant of any Awardor award under the Plan shall not:
(a)not give a ParticipantDirector or Director's Beneficiary any rights except as expressly set forth in the Plan and in any such grant or in the agreement under Section 2.5;
(b)award or create (i) any fiduciary or other obligation of the Corporation or any Subsidiary to take any action or provide to the ParticipantDirector or Director's Beneficiary any assistance or dedicate or permit the use of any assets of the Corporation or any Subsidiary that would permit the Participant to be able to attainin any Performance Goals associated with any Award;
(c) createmanner; (ii) any trust, fiduciary or other duty or obligation of the Corporation or any Subsidiary to engage in any particular business, continue to engage in any particular business, engage in any particular business practices or sell any particular product or products; or
(d) create (iii) any obligation of the Corporation or any Subsidiary that shall be greater than the obligation of the Corporation or that Subsidiary to any of theirits general unsecured creditors.
SECTION 24
Dispute Resolution
15.4 Limitation on Dividend ReinvestmentSince fees are paid and Dividend Equivalents. Reinvestment of dividends in additional restricted stock atgrants or awards are made under the time of any dividend payment, and the payment of shares with respect to dividends to Participants holding Awards of restricted stock units, shall only be permissible if authorized by the Committee and if sufficient shares of Common Stock are available under Section 4 for such reinvestment or payment (taking into account then outstanding Awards). In the event that sufficient shares of Common Stock are not available for such reinvestment or payment, such reinvestment or payment shall be made in the form of a grant of restricted stock units equal in number to the shares of Common Stock that would have been obtained by such payment or reinvestment, the terms of which restricted stock units shall provide for settlement in cash and for dividend equivalent reinvestment in further restricted stock units on the terms contemplated by this Section 15.4.
15.5 Governing Law and Interpretation. To the extent not preempted by federal law, the Plan and all Awards made and actions taken thereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to principles of conflict of laws. The captions of this Plan are not part of the provisions hereof and shall have no force or effect.
15.6 Dispute Resolution. Since Awards are granted in Western Pennsylvania, records relating to the Plan and Awardsfees, grants or awards thereunder are located in Western Pennsylvania, and the Plan and Awardsfees, grants or awards are administered in Western Pennsylvania, the Corporation and the Participant to whom an Award is granted,Director participating in the Plan, for themselves and their heirs, representatives, successors and assigns (collectively, the “Parties”"Parties") irrevocably submit to the exclusive and sole jurisdiction and venue of the state courts of Allegheny County, Pennsylvania and the federal courts of the Western District of Pennsylvania with respect to any and all disputes arising out of or relating to the Plan, the subject matter of the Plan or any Awardsfees, grants or awards under the Plan, including but not limited to any disputes arising out of or relating to the interpretation and enforceability of any Awardsfees, grants or awards or the terms and conditions of the Plan. To achieve certainty regarding the appropriate forum in which to prosecute and defend actions arising out of or relating to the Plan, and to ensure consistency in application and interpretation of the governing law under Section 15.519 of the Plan, the Parties agree that (a) sole and exclusive appropriate venue for any
such action shall be the Pennsylvania courts described in the immediately preceding sentence, and no other, (b) all claims with respect to any such action shall be heard and determined exclusively in such Pennsylvania courts, and no other, (c) such Pennsylvania courts shall have sole and exclusive jurisdiction over the Parties and over the subject matter of any dispute relating hereto and (d) the Parties waive any and all objections and defenses to bringing any such action before such Pennsylvania courts, including but not limited to those relating to lack of personal jurisdiction, improper venue or forum non conveniens.
15.7 Non-Transferability. Except as otherwise specifically provided in the Plan or by the Committee and limited to a transfer without the payment of value or consideration to the Participant, AwardsSECTION 25
Non-Uniform Determinations
The Committee's determinations under the Plan are not transferable except by will or by laws of descent and distribution of the state of domicile of the Participant at the time of death.
15.8 Deferrals. The Committee shall be authorized to establish procedures pursuant to which the payment of any Award may be deferred, provided that any such deferral is consistent with all aspects of Section 409A of the Code. Subject to the provisions of this Plan and any agreement under Section 2.5, the recipient of an Award (including without limitation any deferred Award) may, if so determined byits determinations of the Committee, be entitled to receive, currently or on a deferred basis, interest or dividends, or interest or dividend equivalents, with respect togrants and awards under Section 10, the numberform, amount and timing of shares covered by the Award, as determined by the Committee, in its sole discretion,such grants and awards and the Committee may provide that such amounts (if any) shall be deemed to have been reinvested in additional shares or otherwise reinvested; provided, however, that in no event shall interest, dividends or dividend equivalents be paid on any unearned Awards until such Awards have vested.
15.9 Integration. The Planterms and any written agreements executed by Participants and the Corporation under Section 2.5 contain all of the understandings and representations between the parties and supersede any prior understandings and agreements entered into between them regarding the subject matter within. There are no representations, agreements, arrangements or understandings, oral or written, between the parties relating to the subject matter of the Plan which are not fully expressed in the Plan and the written agreements.
15.10 Foreign Employees and Foreign Law Considerations. The Committee may grant Awards to eligible employees who are foreign nationals, who are located outside the United States of America or who are not compensated from a payroll maintained in the United States of America, or who are otherwise subject to (or could cause the Corporation to be subject to) legal or regulatory provisions of countries or jurisdictions outside the United States of America, on such termsgrants and conditions different from those specified in the Plan as may, in the judgment of the Committee, be necessary or desirable to foster and promote achievement of the purposes of the Plan, and, in furtherance of such purposes, the Committee may make such modifications, amendments, procedures, or subplans as may be necessary or advisable to comply with such legal or regulatory provisions.
15.11 Certain Restrictions on Certain Awards. Subject to the terms of the Plan and more restrictive terms, if any, of the applicable agreement under Section 2.5, any Award of restricted stock, restricted stock units, performance units, or other stock-based Awards under Section 9 shall be subject to vesting during a restriction period of at least three (3) years following the date of grant, provided, however, that:
(i) A restriction period of only at least one (1) year following the date of grant is permissible if vesting is conditional, in whole or in part, upon the achievement of Performance Goals, except that thereawards) need not be any minimum restriction period for a Performance Goal based upon stock price if there is also a service-based restriction of at least one (1) year following the date of grant;
(ii) To the extent permitted by the Committee, in its sole discretion,uniform and specified in the applicable agreement under Section 2.5, an Award with a restriction period of at least three (3) years may first vest in part upon completion of one year of service measured from the vesting commencement date of the Award and thereafter on a pro rata basis over the remainder of any such restriction period;
(iii) To the extent permitted by the Committee, in its sole discretion, and specified in the applicable agreement under Section 2.5, an Award may vest prior to the expiration of any restriction period required under this Section 15.11 in the event of a Participant’s death or retirement, the Participant becoming a Disabled Participant, or an involuntary termination of the Participant’s employment by the Corporation or a Subsidiary;
(iv) In the event of the occurrence of a Section 11 Event, an Award may vest prior to the expiration of any restriction period required under this Section 15.11 pursuant to Section 11.4 or 11.5 or as otherwise permitted by the Committee, in its sole discretion, and specified in the applicable agreement under Section 2.5; and
(v) The Committee may grant Awards of restricted stock, restricted stock units, performance units and other stock-based Awards under Section 9 without regard to the foregoing requirements, and the Committee may accelerate the vesting of and lapse any restrictions with respect to, any such Awards (in addition to the potential acceleration under (ii)-(iv) of the foregoing), for up to, collectively for all such Awards, five percent (5%) of the shares of Common Stock for which Awards may be made by it
selectively among Directors who receive, or are eligible to receive, grants and awards under Section 4.1 of the Plan, as adjusted under the terms of the Plan.whether or not such persons are similarly situated.
15.12 Other Benefit Plans. All Awards shall constitute a special incentive payment to the Participant and shall not be taken into account in computing the amount of salary or compensation of the Participant for the purpose of determining any benefit under any pension, retirement, profit sharing, bonus, life insurance or other benefit plan of the Corporation or any Subsidiary or under any agreement between the Corporation or any Subsidiary and the Participant, unless such plan or agreement specifically provides otherwise.SECTION 26
15.13 Indemnification.
Subject to the requirements of Pennsylvania state law, each individual who is or shall have been a member of the Board or athe Committee, appointed by the Board, or an officer of the Corporation to whom authority was delegated in accordance with Section 2.1,16, shall be indemnified and held harmless by the Corporation against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under this Plan and against and from any and all amounts paid by him or her in settlement thereof, with the Corporation’sCorporation's approval, or paid by him or her in satisfaction of any judgment in any such action, suit, or proceeding against him or her, provided he or she shall give the Corporation an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his/her own behalf, unless such loss, cost, liability, or expense is a result of his/her own willful misconduct or except as expressly provided by statute. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such individuals may be entitled under the Corporation’sCorporation's Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Corporation may have to indemnify them or hold them harmless.
15.14 SECTION 27
No Representations or Covenants With Respect to Tax Qualification
. Although the Corporation may endeavor to (i) qualify an Awardthe payment of fees or a grant or award for favorable United States or foreign tax treatment (e.g., incentive stock options under Section 422 of the Code) or (ii) avoid adverse tax treatment (e.g., under Section 409A of the Code), the Corporation makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment. The Corporation shall be unconstrained in its corporate activities without regard to theany potential negative tax impact on holders of Awardsto Directors under the Plan.
SECTION 28
15.15 Compliance With Laws.
Without limitation, payment of Section 10,fees or a grant or award under the granting of AwardsPlan and theany issuance of shares of Common Stock under the Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or stock exchanges on which the Corporation is listed as may be required.
SECTION 16
29
Effective Date and Duration of Plan
The effective date and date of adoption of the original Plan shall bewas November 15, 2018, the date of adoption of the Plan by the Board, (the “Adoption Date”),and this Plan was amended and restated on November 16, 2022, provided that on or prior to November 16, 2023 such adoption of the Plan isby the Board was approved by the affirmative vote of holders of record of a majority of the votes cast at a meetingshares of shareholders duly called, convened and held prior to the anniversary of the Adoption Date (the day prior to such anniversary, the “Forfeiture Date”), at which a quorum representing a majority of the outstanding Voting Sharesvoting stock of the Corporation is, eitherrepresented in person or by proxy present and voting on the Plan. No stock option or stock appreciation right granted under the Plan on or after the Adoption Date may be exercised until after such approval and any restricted stock, restricted stock units, performance units or other Award awarded under the Plan shall be forfeited to the Corporation on the Forfeiture Date if such approval has not been obtained on or prior to that date. No Award under the Plan may be made subsequent to the day prior to the ten-year anniversary of the Adoption Date, but Awards granted prior to such date may extend beyond such date.
Exhibit B
This proxy is solicited from you by the Board of Directors for use at the Annual Meeting of the Shareholders of Matthews International Corporation on February 15, 2018
PROXY - MATTHEWS INTERNATIONAL CORPORATION
Notice of
2018 ANNUAL MEETING OF SHAREHOLDERS
To be held February 15, 2018
The Heathman Hotel
1001 Southwest Broadway
Portland, OR 97205
The Annual Meeting of the Shareholders of Matthews International Corporation (the “2018 Annual Meeting”) will be held at 9:00 AM (PST), Thursday, February 15, 2018 at The Heathman Hotel, located at 1001 Southwest Broadway, Portland, Oregon, for the purpose of considering and acting upon the proposals set forth on the reverse side of this form.
Shareholders of record at the close of business on December 29, 2017 will be entitled to vote at the 2018 Annual Meeting or any adjournments thereof.
The undersigned hereby appoints Joseph C. Bartolaccia duly called and Steven F. Nicola and eachconvened meeting of them, with full power of substitution and revocation, as proxies to vote all shares of Common Stock of Matthews International Corporation (the “Company”)such holders at which the undersigneda quorum is entitled to vote at the 2018 Annual Meeting of Shareholders or any adjournment thereof, with the authority to vote as designated on the reverse side.
present.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS INSTRUCTED BY YOU ON THE REVERSE SIDE OF THIS CARD WITH RESPECT TO THE PROPOSALS SET FORTH IN THE PROXY STATEMENT, AND IN THE DISCRETION OF THE PROXIES ON ALL OTHER MATTERS WHICH MAY PROPERLY COME BEFORE THE 2018 ANNUAL MEETING AND ANY ADJOURNMENT THEREOF. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR ALL THE NOMINEES, FOR PROPOSALS 2, 3 AND 4 IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE BOARD OF DIRECTORS.
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY
USING THE ENCLOSED PREPAID ENVELOPE.
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Continued and to be signed on reverse side
Exhibit B
ANNUAL MEETING PROXY CARD
A. Proposals – The Board of Directors recommends a vote FOR all the nominees, FOR Proposals 2, 3 and 4.
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1. | Election of Directors | | | | | | | | |
| | | | FOR | | WITHHOLD | | |
| 01 - | Joseph C. Bartolacci (three year term) | | [ ] | | [ ] | | |
| 02 - | Katherine E. Dietze (three year term) | | [ ] | | [ ] | | |
| 03 - | Morgan K. O’Brien (three year term) | | [ ] | | [ ] | | |
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| | | | FOR | | AGAINST | | ABSTAIN |
2. | Approve the adoption of the 2017 Equity Incentive Plan | | [ ] | | [ ] | | [ ] |
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| | | | FOR | | AGAINST | | ABSTAIN |
3. | Ratify the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending September 30, 2018. | | [ ] | | [ ] | | [ ] |
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| | | | FOR | | AGAINST | | ABSTAIN |
4. | Provide an advisory (non-binding) vote on the executive compensation of the Company’s named executive officers. | | [ ] | | [ ] | | [ ] |
B. Non-Voting Items |
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Change of Address - Please print new address below | Meeting Attendance | |
| Mark box to the right if you plan to attend the Annual Meeting | [ ] |
C. Authorized Signatures – This section must be completed for your instructions to be executed. – Date and Sign Below
Please sign exactly as name appears hereon. When shares are held by joint tenants, both should sign. When signing as an attorney, executor, administrator, trustee, or guardian, please give full title as such. If a corporation, please sign in full corporate name by President or other authorized officer. If a partnership, please sign in partnership name by authorized person.
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Signature 1 - Please keep signature within the box | | Signature 2 - Please keep signature within the box |
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Date (mm/dd/yyyy): ______________