DEF 14A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
(Rule
14a-101)
SCHEDULE 14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the
Securities Exchange
Act of 1934
Filed by the
Registrant
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Filed by a
Party other than the Registrant
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appropriate box:
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o Confidential, for Use of the Commission Only (as permitted
by Rule 14a-6(e)(2)).
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þ Definitive
Proxy Statement.
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o Definitive
Additional Materials.
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o Soliciting
Material Pursuant to § 240.14a-12.
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The Ultimate Software Group, Inc.
(Name
of Registrant as Specified In Its Charter)
(Name
of Person(s) Filing Proxy Statement, if Other Than the
Registrant)
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(set forth the amount on which the filing fee is calculated and
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Form,
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THE
ULTIMATE SOFTWARE GROUP, INC.
2000 ULTIMATE WAY
WESTON, FLORIDA 33326
April 2,
2009
Dear Stockholder:
You are cordially invited to attend the 2009 Annual Meeting of
Stockholders of The Ultimate Software Group, Inc.
(Ultimate or the Company), which will be
held on Tuesday, May 12, 2009, at 10:00 a.m. (EDT), at
the Companys principal corporate office at 2000 Ultimate
Way, Weston, Florida 33326 (the Annual Meeting).
The principal business of the meeting will be (i) to elect
three directors to serve until the 2012 Annual Meeting of
Stockholders or until their successors are duly elected and
qualified; (ii) to approve the Amended and Restated 2005
Equity and Incentive Plan, as proposed to be amended;
(iii) to ratify the appointment of KPMG LLP as the
Companys independent registered public accounting firm for
the fiscal year ending December 31, 2009; and (iv) to
transact such other business as may properly come before the
meeting or any postponement or adjournment thereof. During the
Annual Meeting, we will also review the results of the past
fiscal year and report on significant aspects of our operations
during the first quarter of fiscal 2009.
In accordance with the Securities and Exchange Commission
(SEC) rule (Notice and Access Rule) that
allows companies to furnish their proxy materials (including
this proxy statement and our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008, filed with the
SEC on March 2, 2009) over the Internet, we sent a
Notice of Internet Availability of Proxy Materials
(Notice) on or about April 2, 2009 to our
stockholders of record as of March 16, 2009. We also
provided access to our proxy materials over the Internet
beginning on that date. As a result of the Notice and Access
Rule, all stockholders receiving the Notice have the ability to
access the proxy materials over the Internet and request to
receive a paper copy of the proxy materials by mail.
Instructions on how to access the proxy materials over the
Internet or to request a paper copy may be found on the Notice.
In addition, the Notice contains instructions on how
stockholders may request to receive proxy materials
electronically by
e-mail.
Whether you plan to attend the Annual Meeting or not, to have
your vote recorded, you should vote over the Internet or by
telephone, or, if you requested paper copies of the proxy
materials by mail, you can also vote by mail by following the
instructions on the proxy card. Voting by any of these methods
will ensure your representation at the Annual Meeting regardless
of whether you attend in person. If you decide to attend the
meeting, you may, of course, revoke your proxy and personally
cast your votes.
We thank you for your continued interest in Ultimate.
Sincerely yours,
Scott Scherr
Chairman, President and Chief Executive Officer
TABLE OF CONTENTS
THE
ULTIMATE SOFTWARE GROUP, INC.
2000 ULTIMATE WAY
WESTON, FLORIDA 33326
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 12, 2009
TO THE STOCKHOLDERS OF THE ULTIMATE SOFTWARE GROUP, INC.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders
of The Ultimate Software Group, Inc. (Ultimate or
the Company) will be held on Tuesday, May 12,
2009, at 10:00 a.m. (EDT), at the Companys principal
corporate office at 2000 Ultimate Way, Weston, Florida 33326 for
the following purposes:
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1.
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To elect three directors to serve until the 2012 Annual Meeting
of Stockholders or until their successors are duly elected and
qualified;
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2.
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To approve the Amended and Restated 2005 Equity and Incentive
Plan, as proposed to be amended;
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3.
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To ratify the appointment of KPMG LLP as the Companys
independent registered public accounting firm for the fiscal
year ending December 31, 2009; and
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4.
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To transact such other business as may properly come before the
meeting or any postponement or adjournment thereof.
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Stockholders of record of the voting stock of the Company at the
close of business on March 16, 2009 are entitled to notice
of and to vote at the Annual Meeting or any postponement or
adjournment thereof.
By Order of the Board of Directors:
Vivian Maza
Secretary
Weston, Florida
April 2, 2009
IMPORTANT
NOTICE REGARDING AVAILABILITY OF PROXY MATERIALS FOR THE
STOCKHOLDERS MEETING TO BE HELD ON MAY 12, 2009:
This proxy statement, the form of proxy and the Companys
annual report on
Form 10-K
for the year ended December 31, 2008 (2008 Annual
Report) are being mailed to stockholders who have
requested hard copies on or after April 2, 2009.
Registered stockholders may view and print Ultimates proxy
statement and the 2008 Annual Report at
www.Envisionreports.com/ULTI.
Beneficial stockholders may view and print Ultimates proxy
statement and the 2008 Annual Report at www.proxyvote.com.
All stockholders may view and print Ultimates proxy
statement and the 2008 Annual Report, which are located on the
Investors link of Ultimates website at
http://ultimatesoftware.com/investors.asp.
THE
ULTIMATE SOFTWARE GROUP, INC.
2000 ULTIMATE WAY
WESTON, FLORIDA 33326
PROXY STATEMENT
FOR
ANNUAL MEETING
OF STOCKHOLDERS
MAY 12, 2009
This proxy statement (the Proxy Statement) is being
furnished to holders of The Ultimate Software Group, Inc.
(Ultimate or the Company) common stock,
par value $0.01 per share (the Common Stock).
Proxies are being solicited on behalf of the Board of Directors
of the Company (the Board) to be used at the Annual
Meeting of Stockholders (the Annual Meeting) to be
held on Tuesday, May 12, 2009, at 10:00 a.m. (EDT), at
the Companys principal corporate office at 2000 Ultimate
Way, Weston, Florida 33326 and at any postponement or
adjournment thereof, for the purposes set forth in the Notice of
Annual Meeting of Stockholders.
This year, Ultimate is using the SEC rule that allows companies
to furnish their proxy materials over the Internet. As a result,
we mailed to our stockholders a Notice of Internet Availability
of Proxy Materials (Notice) instead of a paper copy
of the proxy materials (including this Proxy Statement and our
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008, filed with the
SEC on March 2, 2009 (2008 Annual Report),
collectively, the Proxy Materials) on or about
April 2, 2009. We also provided access to our Proxy
Materials over the Internet beginning on that date. This Notice
contained instructions on how to access our 2009 Proxy Statement
and 2008 Annual Report and how to vote online or by toll-free
number. Subsequent to receiving the Notice, all stockholders
have the ability to access the Proxy Materials over the Internet
and request to receive a paper copy of the Proxy Materials by
mail. Instructions on how to access the Proxy Materials over the
Internet or to request a paper copy may be found on the Notice.
In addition, the Notice contains instructions on how
stockholders may request to receive Proxy Materials
electronically by
e-mail.
Registered stockholders may view and print Ultimates proxy
statement and the 2008 Annual Report at
www.Envisionreports.com/ULTI.
Beneficial stockholders may view and print Ultimates proxy
statement and the 2008 Annual Report at www.proxyvote.com.
All stockholders may view and print Ultimates Proxy
Statement and the 2008 Annual Report, which are located on the
Investors link of Ultimates website at
http://ultimatesoftware.com/investors.asp.
Proxies are being solicited from holders of the Companys
Common Stock. If a proxy is properly executed and returned, the
shares represented by it will be voted and, where specification
is made by the stockholder as provided in such proxy will be
voted in accordance with such specification. Unless a
stockholder specifies otherwise, all shares represented by valid
proxies will be voted (i) FOR the election of the persons
named in this Proxy Statement as nominees of the Company under
the heading Election of Directors; (ii) FOR the
approval of the amendment to the Amended and Restated 2005
Equity and Incentive Plan; (iii) FOR the ratification of
the appointment of KPMG LLP as the Companys independent
registered public accounting firm for the fiscal year ending
December 31, 2009; and (iv) at the discretion of the
proxy holders on any other matter that may properly come before
the Annual Meeting or any adjournment thereof.
1
SOLICITATION
OF PROXIES
The Company is paying all of the costs of soliciting proxies,
including preparation costs, assembly, posting on the Internet,
printing and mailing of the Proxy Materials, the Notice and any
additional information furnished to stockholders. Proxies are
being solicited primarily by mail and the Internet, but in
addition, the solicitation by these means may be followed by
solicitation in person, or by telephone or facsimile, by
directors, officers and other employees of the Company without
additional compensation. Brokers, dealers, banks, voting trusts,
custodians and other institutions, and their nominees, who are
holders of shares of the Companys Common Stock on the
Record Date, referred to below, will be requested to forward the
soliciting material to the beneficial owners of such shares of
Common Stock and to obtain authorization for the execution of
proxies. The Company will, upon request, reimburse such
institutions for their reasonable expenses in forwarding proxy
material to their beneficial owners.
VOTING
RIGHTS AND PROCEDURES
Only stockholders of record of the Common Stock of the Company
at the close of business on March 16, 2009 (the
Record Date), will be entitled to vote at the Annual
Meeting. As of that date, a total of 25,673,843 shares of
Common Stock were outstanding, each share being entitled to one
vote. There is no cumulative voting.
A majority of the issued and outstanding shares of Common Stock
entitled to vote at the Annual Meeting, represented in person or
by proxy, constitutes a quorum for the transaction of business
at the Annual Meeting. If a stockholder abstains from voting as
to any matter, then the shares held by such stockholder shall be
deemed present at the Annual Meeting for purposes of determining
a quorum. If a broker returns a non-vote proxy,
indicating a lack of authority to vote on such matter, then the
shares covered by such non-vote shall be deemed present at the
Annual Meeting for purposes of determining a quorum but shall
not be deemed to have been voted in favor of or against such
matter.
Assuming the presence of a quorum, the affirmative vote of a
plurality of the votes cast is required for the election of
directors. If a stockholder returns a proxy withholding
authority to vote the proxy with respect to a nominee for
director, then the shares of the Common Stock covered by such
proxy shall be deemed present at the Annual Meeting for purposes
of determining a quorum and for purposes of calculating the vote
with respect to such nominee, but shall not be deemed to have
been voted for such nominee. In the election of directors,
abstentions will have no effect on the outcome of the vote.
The affirmative vote of the holders of a majority of the shares
represented in person or by proxy and entitled to vote is
required for the approval of the Amended and Restated 2005
Equity and Incentive Plan, as proposed to be amended.
Abstentions will have the effect of votes against
the approval of the Companys Amended and Restated 2005
Equity and Incentive Plan, as proposed to be amended. If a
broker returns a non-vote proxy, indicating a lack
of authority to vote on such matter, then the shares covered by
such non-vote shall be deemed present at the Annual Meeting for
purposes of determining a quorum but shall not be deemed to have
been voted in favor of or against such matter.
The affirmative vote of the holders of a majority of the shares
represented in person or by proxy and entitled to vote at the
Annual Meeting is required for the ratification of the
appointment of KPMG LLP as the Companys independent
registered public accounting firm for the fiscal year ending
December 31, 2009. Abstentions will not be counted either
for or against the proposal for the ratification of the
appointment of KPMG LLP as the Companys independent
registered public accounting firm for 2009.
A stockholder may revoke a proxy at any time prior to its
exercise by giving to the Secretary of the Company a written
notice of revocation of the proxys authority prior to the
voting thereof or by submitting a later dated proxy by
telephone, on the Internet or by mail, or by voting in person at
the Annual Meeting.
2
PROPOSAL IELECTION
OF DIRECTORS
The Board of the Company is currently composed of seven members
divided into three classes. The members of each class are
elected to serve three-year terms with the term of office of
each class ending in successive years. Messrs. Rick A.
Wilber, Marc D. Scherr and James A. FitzPatrick, Jr. serve
in the class whose term expires at the Annual Meeting.
The Board has nominated Messrs. Rick A. Wilber, Marc D.
Scherr and James A. FitzPatrick, Jr. for election to the
Board at the Annual Meeting for a term of three years, expiring
at the 2012 Annual Meeting, and each has indicated a willingness
to serve. Messrs. Scott Scherr and Alois T. Leiter serve in
the class whose term expires at the Annual Meeting in 2010.
Messrs. LeRoy A. Vander Putten and Robert A. Yanover serve
in the class whose term expires at the Annual Meeting in 2011.
The affirmative vote of a plurality of the votes cast at the
Annual Meeting is necessary to elect the nominees as directors.
The persons named as proxies in the enclosed form of proxy will
vote the proxies received by them FOR the election of
Messrs. Rick A. Wilber, Marc D. Scherr and James A.
FitzPatrick, Jr., unless authority is withheld by the
stockholder in the proxy. In the event that any of
Messrs. Rick A. Wilber, Marc D. Scherr and James A.
FitzPatrick, Jr. becomes unavailable for election at the
Annual Meeting, the persons named as proxies in this Proxy
Statement may vote for a substitute nominee in their discretion
as recommended by the Board.
The following table sets forth certain information concerning
the nominees, based on data furnished by them. Information
regarding incumbent directors whose terms are not expiring is
included in the section labeled Directors and Executive
Officers below.
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Name of Nominee
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Age
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Principal Occupation
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Director Since
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Marc D. Scherr
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Vice Chairman and Chief Operating Officer, The Ultimate Software
Group, Inc.
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April 1996
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James A. FitzPatrick, Jr.
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59
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Partner, Dewey & LeBoeuf LLP
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July 2000
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Rick A. Wilber
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President, Lynns Hallmark Cards
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October 2002
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Marc D. Scherr has been a director of the Company since its
inception in April 1996 and has served as Vice Chairman since
July 1998 and as Chief Operating Officer since October 2003.
Mr. Scherr is also a member of the Executive Committee of
the Board. Mr. Scherr became an executive officer of the
Company effective March 1, 2000. Mr. Scherr served as
a director of Gerschel & Co., Inc., a private
investment firm from January 1992 until March 2000. In December
1995, Mr. Scherr co-founded Residential Company of America,
Ltd. (RCA), a real estate firm, and served as
President of its general partner until March 2000.
Mr. Scherr also served as Vice President of RCAs
general partner from its inception in August 1993 until December
1995. From 1990 to 1992, Mr. Scherr was a real estate
pension fund advisor at Aldrich, Eastman & Waltch.
Previously, he was a partner in the Boston law firm of
Fine & Ambrogne. Mr. Scherr is the brother of
Scott Scherr, Chairman of the Board, President and Chief
Executive Officer of the Company.
James A. FitzPatrick, Jr. has served as a director of the
Company since July 2000. Mr. FitzPatrick is a partner in
the law firm Dewey & LeBoeuf LLP (formed in October
2007 by merger of Dewey Ballantine LLP and LeBoeuf, Lamb,
Greene & MacRae LLP), which provides legal services to
the Company. Before joining Dewey Ballantine LLP as a partner in
February 1989, Mr. FitzPatrick was a partner in the law
firm LeBoeuf, Lamb, Leiby & MacRae.
Rick A. Wilber has served as a director of the Company since
October 2002 and is a member of the Audit Committee and a member
of the Compensation Committee of the Board. Mr. Wilber
formerly served on the Companys Board of Directors from
October 1997 through May 2000. Since 1995, Mr. Wilber has
been the President of Lynns Hallmark Cards, which owns and
operates a number of Hallmark Card stores. Mr. Wilber was a
co-founder of Champs Sports Shops and served as its President
from 1974 to 1984. He served on the Board of Royce Laboratories,
a pharmaceutical concern, from 1990 until April 1997, when the
company was sold to Watson Pharmaceuticals, Inc., a
pharmaceutical concern.
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THE BOARD RECOMMENDS A VOTE FOR THE ELECTION OF MESSRS.
MARC D. SCHERR, JAMES A. FITZPATRICK, JR., AND RICK A. WILBER AS
DIRECTORS OF THE COMPANY TO HOLD OFFICE UNTIL THE 2012 ANNUAL
MEETING AND UNTIL THEIR RESPECTIVE SUCCESSORS ARE ELECTED AND
QUALIFIED.
PROPOSAL II
APPROVAL OF THE AMENDED AND RESTATED 2005 EQUITY AND
INCENTIVE PLAN AS PROPOSED TO BE AMENDED
The Companys Amended and Restated 2005 Equity and
Incentive Plan (the Plan) authorizes the grant of
options to non-employee directors, officers and employees of the
Company to purchase shares of the Companys Common Stock.
The Plan also authorizes the grant to such persons of restricted
and non-restricted shares of Common Stock, stock appreciation
rights, stock units and cash performance awards (collectively,
and together with stock options, the Awards). The
Plan was last amended as approved by the Companys
stockholders, at the Annual Meeting of stockholders on
May 15, 2007.
Sole
Purpose of Proposal to Amend the Plan
The sole purpose of the proposal to amend the Plan is to
increase the number of shares of the Companys Common Stock
authorized for issuance pursuant to Awards granted under the
Plan by 500,000 shares. No other changes to the Plan are
proposed. The Company is also hereby requesting reapproval of
the performance criteria, contained in the Plan, upon which the
Company may award performance-based compensation that satisfies
the requirements of Section 162(m) of the Internal Revenue
Code.
The aggregate number of shares of Common Stock authorized for
issuance under all Awards granted under the Companys
Nonqualified Stock Option Plan, as amended and restated as of
December 20, 2002 (referred to in this Proxy Statement as
the Prior Plan), and the Plan is
12,000,000 shares. As of the Record Date, the aggregate
number of shares of Common Stock that remain available for new
Awards under the Plan is 807,193 shares. In the twelve
months ended December 31, 2008, Awards with respect to
1,516,776 shares of Common Stock were granted under the
Plan. Without an amendment to the Plan to increase the number of
shares of Common Stock authorized to be issued pursuant to
Awards granted under the Plan, the Compensation Committee of the
Board (the Compensation Committee) would be severely
restricted in its ability to grant Awards, other than cash
awards, under the Plan. The Board believes it is essential that
its Compensation Committee be able to continue to grant Awards
of equity based compensation under the Plan in order to attract
and maintain qualified employees, officers and directors and to
tie their compensation, in part, to the performance of the
Companys Common Stock.
On February 4, 2009, the Board approved, subject to
stockholder approval at the 2009 Annual Meeting, an amendment of
the Plan, the sole purpose of which is to increase the number of
shares of Common Stock authorized for issuance pursuant to
Awards granted under the Plan by an additional
500,000 shares. The Plan, as so amended and restated in its
entirety, is hereinafter referred to as the Amended and
Restated Plan.
The following is a summary of the material terms of the Amended
and Restated Plan. This summary is qualified by reference to the
full text of the Amended and Restated Plan, which is attached
hereto as Appendix A.
Description
of the Plan
Purpose. The objectives of the Amended and Restated
Plan are (i) to provide a vehicle for compensating the
Companys key personnel by giving them the opportunity to
acquire a proprietary interest in the Companys Common
Stock by receiving equity-based incentive compensation;
(ii) to provide management with an equity ownership in the
Company commensurate with Company performance, as reflected in
increased stockholder value; (iii) to attract, motivate and
retain key employees, non-employee directors and other service
4
providers by maintaining competitive compensation levels; and
(iv) to provide an incentive to management for continuous
employment with or service to the Company.
Reservation of Shares. Subject to stockholder
approval at the 2009 Annual Meeting, and subject to adjustments
as described below, the maximum aggregate number of shares of
the Companys Common Stock that may be issued under all
Awards granted under the Prior Plan and the Amended and Restated
Plan shall be 12,500,000 shares. As of the Record Date, an
aggregate of 11,192,807 shares of Common Stock have either
(i) already been issued as a result of the exercise of
stock options under both the Prior Plan and the Plan, or
(ii) are subject to outstanding Awards granted under the
Plan and Prior Plan. Accordingly, as of the Record Date, only
807,193 shares remain available for new Awards under the
Plan.
Shares of Common Stock issued and sold under the Amended and
Restated Plan may be either authorized but unissued shares or
shares held in the Companys treasury. To the extent that
any Award under the Prior Plan or the Amended and Restated Plan
payable in shares of Common Stock is forfeited, cancelled,
returned to the Company for failure to satisfy vesting
requirements or upon the occurrence of other forfeiture events,
or otherwise terminates without payment being made thereunder,
the shares of Common Stock covered thereby will no longer be
charged against the foregoing maximum share limitation and may
again be made subject to Awards under the Amended and Restated
Plan. In addition, any shares of Common Stock exchanged by a
participant or withheld from a participant as full or partial
payment to the Company of the exercise price or the tax
withholding upon exercise or payment of an Award under the Prior
Plan or the Amended and Restated Plan will be returned to the
number of shares of Common Stock available for issuance under
the Amended and Restated Plan. Any Awards settled in cash will
not be counted against the share limitations under the Amended
and Restated Plan. The maximum number of shares of Common Stock
that may be returned or added to the aggregate share reserve
under the Amended and Restated Plan upon the termination,
forfeiture, cancellation or other disposition of an Award
granted under the Prior Plan and the Plan is currently limited
to 12,000,000 shares.
Adjustments. In the event of a recapitalization,
reclassification or other specified event affecting the Company
or the shares of Common Stock, appropriate and equitable
adjustments shall be made to the number and kind of shares of
Common Stock available for grant, as well as to other maximum
limitations under the Amended and Restated Plan, and the number
and kind of shares of Common Stock or other rights and prices
under outstanding Awards to prevent dilution or enlargement of a
participants rights under an Award.
Administration. The Amended and Restated Plan is
administered by the Compensation Committee. The Compensation
Committee shall, to the extent deemed necessary or advisable by
the Board, be constituted so each committee member will satisfy
the requirements for (i) an independent
director under rules adopted by the NASDAQ Stock Market,
(ii) a non-employee director for purposes of
Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the
Exchange Act) and (iii) an outside
director under section 162(m) of the Internal Revenue
Code (the Code). Subject to the limitations set
forth in the Amended and Restated Plan, the Compensation
Committee has the authority to determine the persons to whom
Awards are to be granted, the types of Awards to be granted, the
time at which Awards will be granted, the number of shares of
Common Stock, units or other rights subject to each Award, the
exercise, base or purchase price of an Award, the time or times
at which the Award will become vested, exercisable or payable,
the performance criteria, performance goals and other conditions
of an Award, and the duration of the Award. Subject to the terms
of the Amended and Restated Plan, the Compensation Committee
shall have the authority to amend the terms of an Award in any
manner that is permitted by the Amended and Restated Plan for
the grant of an Award, provided that no such action shall
adversely affect the rights of a participant with respect to an
outstanding Award without the participants consent. The
Compensation Committee will have the right, from time to time,
to delegate to one or more of the Companys officers the
authority of the Compensation Committee to grant and determine
the terms and conditions of Awards, subject to certain
limitations. Any Awards under the Amended and Restated Plan made
to non-employee members of the Board must be approved by the
Board.
Eligibility. Awards under the Amended and Restated
Plan may be granted to any current or prospective employee,
officer, director, consultant or advisor of the Company or any
of its subsidiaries. As of
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March 16, 2009, the Company had 930 employees,
(including three named executive officers), and 5 non-employee
directors who are eligible to participate in the Plan. The three
named executive officers are the only executive officers of the
Company.
Stock Options. Stock options granted under the
Amended and Restated Plan may be issued as either incentive
stock options (within the meaning of section 422 of the
Code), or as nonqualified options. Except in the case of options
issued to non-employee Directors in lieu of fees for Board
services as described below, the exercise price of an option
will be 100% of the fair market value of a share of the
Companys Common Stock on the date of the grant of the
option, or such other amount as determined by the Compensation
Committee. The Compensation Committee will determine the vesting
and/or
exercisability requirements and the term of exercise of each
option, including the effect of termination of employment or
service of a participant. The maximum term of a stock option
will be ten years from the date of grant. To exercise an option,
the participant must pay the exercise price, subject to
specified conditions, (i) in cash, (ii) in shares of
Common Stock that have been held for at least six months,
(iii) through an open-market broker-assisted transaction,
(iv) by combination of any of the above methods, or
(v) by such other method approved by the Compensation
Committee, and must pay any required tax withholding amounts.
For purposes of section 422 of the Code, the maximum value
of shares of Common Stock (determined at the time of grant) that
may be subject to incentive stock options that become
exercisable by an employee in any one year is limited to
$100,000. Subject to adjustments as described above, the maximum
number of shares of Common Stock that may be covered under
options granted under the Amended and Restated Plan to any
participant in any calendar year is 500,000 shares of
Common Stock. All options are nontransferable except upon death
by the participants will or the laws of descent and
distribution or, in the case of nonqualified options, to family
members of the participant or to trusts for the benefit of the
participant or such participants family members, as may be
approved by the Compensation Committee and set forth in the
award agreement in accordance with the terms of the Amended and
Restated Plan. The Amended and Restated Plan prohibits the
cancellation, substitution or amendment of an option for the
purpose of reducing the exercise price of a previously granted
option, except for equitable adjustments for changes in the
Companys corporate structure, as described above.
Director Fee Options. The Amended and Restated Plan
provides for the periodic grant of nonqualified stock options to
its non-employee directors in lieu of cash payment of
directors fees that are earned during the calendar quarter
ending immediately prior to the date of grant. Until
July 24, 2007, when the Compensation Committee approved a
modification to the fee schedule for service on the Board
(discussed below), the exercise price per share of each option
granted to its non-employee directors was 30% of the fair market
value of a share of the Companys Common Stock on the date
of grant, or such other amount as determined by the Board. The
total discount from fair market value on all options granted to
non-employee directors for a calendar quarter was equivalent to
the retainer fees and Board committee fees earned by the
non-employee directors for such quarter. Each option was fully
and immediately vested and exercisable as of the date of grant,
however certain options granted to non-employee directors for
board services during the period January 3, 2005 through
July 2, 2007 will become exercisable only upon the earliest
to occur of the following events: (i) the fifth anniversary
of the date of grant, (ii) the date on which the
non-employee director ceases to be a member of the Board, and
(iii) the effective date of a change in control
(as defined in the Amended and Restated Plan) of the Company.
Each option remains exercisable for the period specified in the
award agreement as provided by the Compensation Committee at the
time of grant. In lieu of the foregoing, the Compensation
Committee may, in its discretion, cancel the right of the
non-employee director to exercise the option upon or following
the occurrence of an exercise event as described above in
exchange for a cash settlement payment equal to the product of:
(i) the number of shares of stock subject to the option
being cancelled, multiplied by (ii) the excess of the per
share fair market value of the stock on the date of cancellation
of the option over the exercise price per share of the option.
On July 24, 2007, the Compensation Committee rescinded the
previously approved fee schedule for service on the Board and
Board Committees and replaced it with a program involving fair
market price Options and restricted stock awards under the Plan.
Under resolutions adopted by the Compensation Committee,
commencing with the third fiscal quarter of 2007, (i) each
non-employee director was granted an Option to purchase
3,750 shares of the Companys Common Stock for each
regular quarterly meeting of the
6
Board attended in 2007 and 2008, dated as of the date of such
meeting, at an exercise price equal to the closing price of the
Companys Common Stock on NASDAQ on the date of such
meeting, and (ii) each of the Chairman of the Audit
Committee and the Chairman of the Compensation Committee of the
Board was granted an Option to purchase 2,500 shares of the
Companys Common Stock for each fiscal quarter in 2007 and
2008, dated as of the date of the regularly scheduled meeting of
such Committee during such quarter, at an exercise price equal
to the closing price of the Companys Common Stock on
NASDAQ on the date of such meeting. These Option grants vested
immediately upon grant.
In addition to the Option grants discussed above, commencing
with the third fiscal quarter of 2007, each non-employee
director was granted a restricted stock award under the Plan for
each fiscal quarter in 2007 and 2008, dated as of the date of
the regularly scheduled meeting of the Compensation Committee
during such quarter, of that number of shares of the
Companys Common Stock equal to the quotient of $12,500
divided by the closing price of the Companys Common Stock
on NASDAQ on the date of such meeting, rounded down to the
nearest full number of shares. The restricted stock awards shall
vest on the fourth anniversary of the date of grant, subject to
accelerated vesting in the event of a directors death,
disability, cessation of service at the end of his term or the
occurrence of a change in control of the Company.
On February 4, 2009, the Compensation Committee amended the
previously approved arrangement pursuant to which the
non-employee directors and the Chairman of the Audit and
Compensation Committees of the Board, respectively, were granted
Options for each regular Board and Committee meeting attended.
Under the arrangement as amended, (i) each non-employee
director shall be granted a restricted stock award of
1,000 shares of Common Stock for each regular meeting of
the Board attended in 2009 and (ii) each of the Chairmen of
the Audit Committee and Compensation Committee of the Board
shall be granted a restricted stock award of 625 shares of
Common Stock for attendance at each regular meeting of the
Committee in 2009 that he chairs. In addition, the Compensation
Committee determined that in 2009, each non-employee director
shall be granted, for each fiscal quarter during which he
serves, a restricted stock award of that number of shares of
Common Stock equal to the quotient of $12,500 divided by the
closing price of the Common Stock on NASDAQ on the date of
grant, which is the effective date of the grant determined by
the Committee for each such quarter, rounded down to the closest
full number of shares. The date of grant shall not be a date
prior to the date of the Compensation Committees
determination of the same. Such restricted stock awards shall
vest on the fourth anniversary of the date of grant, subject to
accelerated vesting in the event of a directors death,
disability, cessation of service at the end of his term or the
occurrence of a change of control of the Company.
Stock Appreciation Rights. A stock appreciation
right entitles the participant, upon settlement or exercise, to
receive a payment based on the excess of the fair market value
of a share of Common Stock on the date of settlement or exercise
over the base price of the right, multiplied by the number of
shares of Common Stock as to which the right is being settled or
exercised. The base price may not be less than the fair market
value of a share of Common Stock on the date of grant. The
Compensation Committee will determine the vesting requirements
and the term of exercise of each stock appreciation right,
including the effect of termination of employment or service of
a participant. The maximum term of a stock appreciation right
will be ten years from the date of grant. Subject to adjustments
as described above, the maximum number of shares of Common Stock
that may be subject to stock appreciation rights granted under
the Amended and Restated Plan to any participant during any
calendar year is 500,000 shares of Common Stock. Stock
appreciation rights may be payable in cash or in shares of
Common Stock or in a combination of both. The Amended and
Restated Plan prohibits the repricing of stock
appreciation rights, as described above for stock options.
Restricted Stock Awards. A restricted stock award
represents shares of Common Stock that are issued subject to
restrictions on transfer and vesting requirements as determined
by the Compensation Committee. Vesting requirements may be based
on the continued employment or service of the participant for
specified time periods and on the attainment of specified
business performance goals established by the Compensation
Committee. Subject to the transfer restrictions and vesting
requirements of the Award, the participant will have the rights
of a stockholder of the Company, including all voting and
dividend rights, during the restriction period, unless the
Compensation Committee determines otherwise at the time of the
7
grant. Subject to adjustments as described above, the maximum
number of shares of Common Stock that may be subject to
restricted stock awards granted under the Amended and Restated
Plan to any participant during any calendar year is
250,000 shares of Common Stock.
Stock Units. An award of stock units provides the
participant the right to receive a payment based on the value of
a share of Common Stock. Stock units may be subject to vesting
requirements, restrictions and conditions to payment as the
Compensation Committee determines are appropriate. Such vesting
requirements may be based on the continued employment or service
of the participant for a specified time period or on the
attainment of specified business performance goals established
by the Compensation Committee. A stock unit award may also be
granted on a fully vested basis, with a deferred payment date.
Stock unit awards are payable in cash or in shares of Common
Stock or in a combination of both. Stock units may also be
granted together with related dividend equivalent rights.
Subject to adjustments as described above, the maximum number of
shares of Common Stock that may be subject to stock units
granted under the Amended and Restated Plan to any participant
during any calendar year is 250,000 shares of Common Stock.
Stock Awards. A stock award represents shares of
Common Stock that are issued free of restrictions on transfer
and free of forfeiture conditions and to which the participant
is entitled all incidents of ownership. A stock award may be
granted for past services, in lieu of bonus or other cash
compensation, directors fees or for any other valid
purpose as determined by the Compensation Committee. Subject to
adjustments as described above, the maximum number of shares of
Common Stock that may be subject to stock awards granted under
the Amended and Restated Plan to any participant during any
calendar year is 250,000 shares of Common Stock.
Performance Awards. The Compensation Committee may
grant performance awards under the Amended and Restated Plan,
which shall represent the right to receive a payment in cash if
performance goals established by the Compensation Committee for
a performance period are satisfied. The Compensation Committee
may grant performance awards that are intended to qualify as
performance-based compensation under section 162(m) of the
Code, as well as performance awards that are not intended to so
qualify. At the time a performance award is granted, the
Compensation Committee will determine, in its sole discretion,
the applicable performance period and performance goals to be
achieved during the performance period, as well as such other
conditions as the Compensation Committee deems appropriate. The
Compensation Committee may also determine a target payment
amount or a range of payment amounts for each Award. The maximum
amount of compensation that may be payable to a participant
during any one calendar year with respect to performance awards
is $2 million. In the case of performance awards that are
intended to qualify as performance-based compensation under
section 162(m) of the Code, the Compensation Committee will
designate performance criteria from among the criteria set forth
below.
Section 162(m) Awards. Awards of options and
stock appreciation rights granted under the Amended and Restated
Plan are intended by their terms to qualify for the
performance-based compensation exception under
section 162(m) of the Code. In addition, the Compensation
Committee may grant awards of restricted stock, stock units,
stock awards or performance awards that are intended to qualify
for the performance-based compensation exception under
section 162(m) of the Code. Under section 162(m), the
terms of such award must state, in terms of an objective formula
or standard, the method of computing the amount of compensation
payable under the award, and must preclude discretion to
increase the amount of compensation payable under the terms of
the award (but may give the Compensation Committee discretion to
decrease the amount of compensation payable). For each such
award, the performance criteria upon which the payment or
vesting may be based shall be limited to one or more of the
following performance measures, which may be applied with
respect to the Company, any subsidiary or any business unit:
annual recurring revenues; recurring revenues; services
revenues; license revenues; net or gross revenue; operating
expenses; cash flow; total earnings; earnings per share, diluted
or basic; earnings before interest and taxes; earnings before
interest, taxes, depreciation and amortization; gross or
operating margin; return on equity; return on capital; return on
investment; market share; economic value added; stock price; and
total stockholder return. The foregoing performance criteria
shall have any reasonable definitions that the Compensation
Committee may specify, which may include or exclude any items
specified by the Compensation Committee, including but not
limited to any or all of the following items: discontinued
operations, extraordinary, unusual or non-
8
recurring items, effects of accounting changes, effects of
currency or interest rate fluctuations, effects of financing
activities (e.g., effect on earnings per share of issuing
convertible debt securities), changes in tax rates, expenses for
restructuring or productivity initiatives, litigation losses,
non-operating items, effects of acquisitions or divestitures and
changes of law or regulation affecting the Companys
business. The foregoing performance measures may be determined
on an absolute basis or relative to internal goals or relative
to levels attained in prior years, or related to other companies
or indices, or as ratios expressing relationships between two or
more performance measures.
Effect of Change in Control. The Compensation
Committee may, in an award agreement, provide for the effect of
a change in control (as defined in the Amended and
Restated Plan) on an Award. These provisions may include the
acceleration of vesting of an Award, the elimination or
modification of performance or other conditions, the extension
of the time for exercise or realizing gain from an Award, the
acceleration of payment, cash settlement of an Award or other
adjustments that the Compensation Committee considers
appropriate. Unless otherwise provided by the Compensation
Committee and set forth in the applicable award agreement, upon
a change in control, (i) each outstanding option and stock
appreciation right, to the extent that it has not otherwise
become vested and exercisable, will automatically become fully
and immediately vested and exercisable, without regard to any
otherwise applicable vesting requirement, (ii) each
restricted stock award will become fully and immediately vested
and all forfeiture and transfer restrictions thereon will lapse,
and (iii) each outstanding stock unit award, stock award
and performance award will become immediately and fully vested
and payable.
Term; Amendment and Termination. The Amended and
Restated Plan will terminate on December 15, 2014, unless
earlier terminated by the Board. The Board may terminate or
amend the Amended and Restated Plan at any time, subject to
stockholder approval under certain circumstances provided in the
Amended and Restated Plan. However, no termination or amendment
of the Amended and Restated Plan will adversely affect the
rights of a participant under any previously granted Award.
New Plan
Benefits
The terms and number of Awards to be granted in the future under
the Amended and Restated Plan are to be determined in the
discretion of the Compensation Committee. Since no such
determinations have yet been made, the benefits or amounts that
will be received by or allocated to the Companys executive
officers or other eligible employees cannot be determined at
this time.
Grants
under the Plan in 2008
In 2008, no stock options were granted under the Plan to the
Companys executive officers. In 2008, stock options were
granted (i) to other employees of the Company to purchase
an aggregate of 975,250 shares of Common Stock at an
average exercise price of $28.33 per share, and (ii) to the
non-employee directors of the Company for Board services as a
group to purchase an aggregate of 91,250 shares of Common
Stock at an average exercise price of $28.33 per share.
Also in 2008, each of the executive officers received grants of
restricted stock as disclosed in the Grants of Plan Based
Awards in 2008 table on page 30. The executive
officers as a group received Awards under the Plan for an
aggregate of 376,991 restricted shares of Common Stock. In 2008,
Awards were also granted under the Plan to other employees of
the Company for an aggregate of 63,000 restricted shares of
Common Stock. In 2008, Awards were also granted under the Plan
to non-employee directors for an aggregate of 10,285 shares
of Common Stock.
As of the Record Date, the closing price on the NASDAQ National
Market of the Companys Common Stock was $15.73 per share.
9
U.S.
Federal Income Tax Consequences
The following summarizes the United States federal income tax
consequences of Awards under the Amended and Restated Plan to
participants who are subject to United States tax. The tax
consequences of the Amended and Restated Plan to the Company and
participants in other jurisdictions are not summarized below.
Stock Options. An optionee will not generally
recognize taxable income upon the grant of a nonqualified stock
option to purchase shares of Common Stock. Upon exercise of the
option, the optionee will generally recognize ordinary income
for federal income tax purposes equal to the excess of the fair
market value of the shares of Common Stock over the exercise
price. The tax basis of the shares of Common Stock in the hands
of the optionee will equal the exercise price paid for the
shares of Common Stock plus the amount of ordinary compensation
income the optionee recognizes upon exercise of the option, and
the holding period for the shares of Common Stock for capital
gains purposes will commence on the day the option is exercised.
An optionee who sells any of the shares of Common Stock will
recognize short-term or long-term capital gain or loss measured
by the difference between the tax basis of the shares of Common
Stock and the amount realized on the sale. The Company will be
entitled to a federal income tax deduction equal to the amount
of ordinary compensation income recognized by the optionee. The
deduction will be allowed at the same time the optionee
recognizes the income.
An optionee will not generally recognize income upon the grant
of an incentive stock option to purchase shares of Common Stock
and will not generally recognize income upon exercise of the
option, provided that the optionee is an employee of the Company
or a subsidiary at all times from the date of grant until three
months prior to exercise. If an optionee who has exercised an
incentive stock option sells the shares of Common Stock acquired
upon exercise more than two years after the grant date and more
than one year after exercise, capital gain or loss will be
recognized equal to the difference between the sales price and
the exercise price. An optionee who sells the shares of Common
Stock before the expiration of the foregoing holding periods
will generally recognize ordinary income upon the sale, and the
Company will be entitled to a corresponding federal income tax
deduction at the same time the participant recognizes ordinary
income.
Other Awards. The current United States federal
income tax consequences of other Awards authorized under the
Amended and Restated Plan are generally in accordance with the
following: (i) stock appreciation rights are generally
subject to ordinary income tax at the time of settlement;
(ii) restricted stock is generally subject to ordinary
income tax at the time the restrictions lapse, unless the
recipient elects to accelerate recognition as of the date of
grant; (iii) stock units and performance awards are
generally subject to ordinary income tax at the time of payment,
and (iv) unrestricted stock awards are generally subject to
ordinary income tax at the time of grant. In each of the
foregoing cases, the Company will generally be entitled to a
corresponding federal income tax deduction at the same time the
participant recognizes ordinary income.
Section 162(m). Section 162(m) of the Code
generally disallows the corporate tax deduction for certain
compensation paid in excess of $1,000,000 annually to each of
the chief executive officer and the four other most highly paid
executive officers of publicly held companies. Awards that
qualify as performance-based compensation are exempt
from section 162(m), thus allowing the Company the full
federal tax deduction otherwise permitted for such compensation.
If approved by the Companys stockholders, the Amended and
Restated Plan will enable the Compensation Committee to grant
Awards that will be exempt from the deduction limits of
section 162(m).
10
Equity
Compensation Plan Information
The following table summarizes the securities authorized for
issuance under the Companys equity compensation plans as
of December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c) Number of
|
|
|
|
|
|
|
|
|
|
Securities
|
|
|
|
|
|
|
|
|
|
Remaining
|
|
|
|
|
|
|
|
|
|
Available for
|
|
|
|
|
|
|
|
|
|
Future
|
|
|
|
(a) Number
|
|
|
|
|
|
Issuance under
|
|
|
|
of Securities
|
|
|
(b) Weighted-
|
|
|
Equity
|
|
|
|
to be Isssued
|
|
|
Average
|
|
|
Compensation
|
|
|
|
Upon
|
|
|
Exercise Price
|
|
|
Plans
|
|
|
|
Exercise of
|
|
|
of
|
|
|
(Excluding
|
|
|
|
Outstanding
|
|
|
Outstanding
|
|
|
Securities
|
|
|
|
Options and
|
|
|
Options and
|
|
|
Reflected in
|
|
Plan Category
|
|
Awards
|
|
|
Awards
|
|
|
Column (a))
|
|
|
Equity compensation plans approved by security holders
|
|
|
5,009,935
|
|
|
$
|
16.86
|
|
|
|
934,921
|
|
Equity compensation plans not approved by security holders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
5,009,935
|
|
|
$
|
16.86
|
|
|
|
934,921
|
|
|
|
|
|
|
|
THE BOARD RECOMMENDS A VOTE FOR THE APPROVAL OF THE
AMENDED AND RESTATED 2005 EQUITY AND INCENTIVE PLAN AS PROPOSED
TO BE AMENDED.
PROPOSAL III RATIFICATION
OF THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
The audit committee of the Board (the Audit
Committee) has appointed KPMG LLP as the independent
registered public accounting firm for the Company for the fiscal
year ending December 31, 2009. KPMG LLP has served as the
independent registered public accounting firm for the Company
since 2002. A representative of KPMG LLP will be present at the
Annual Meeting and will be given an opportunity to make a
statement. The representative will also be available to respond
to appropriate questions from stockholders.
Stockholder ratification of the appointment of KPMG LLP as the
Companys independent registered public accounting firm is
not required by the Companys bylaws or otherwise. However,
the Board is submitting the selection of KPMG LLP to the
stockholders for ratification as a matter of corporate practice.
The affirmative vote of the holders of a majority of the shares
represented in person or by proxy and entitled to vote is
required for the ratification of the appointment of KPMG LLP as
the Companys independent registered public accounting firm
for the fiscal year ending December 31, 2009. Abstentions
will not be counted either for or against the proposal for the
ratification of the appointment of KPMG LLP as the
Companys independent registered public accounting firm for
2009. If the stockholders fail to ratify the selection, the
Audit Committee will reconsider whether or not to retain the
firm. Even if the selection is ratified, the Audit Committee, in
its discretion, may direct the appointment of a different
independent registered public accounting firm at any time during
the year if the Audit Committee determines that such a change
would be in the best interests of the Company and its
stockholders.
THE BOARD RECOMMENDS A VOTE FOR THE RATIFICATION OF THE
APPOINTMENT OF KPMG LLP AS THE COMPANYS INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING
DECEMBER 31, 2009.
11
Corporate
Governance, Board Meetings and Committees of the Board
During fiscal 2008, the Board held five meetings. During
fiscal 2008, each director holding office during the year
attended all of the meetings of the Board and all of the
meetings of the committees of the Board on which he served
except that Mr. Yanover was unable to attend one meeting of
the Board and Committees of the Board on which he serves. The
Board has an Executive Committee, an Audit Committee and a
Compensation Committee, which are described below.
Interested parties may communicate with the Board, anonymously
if they wish, by sending a written note or memo to the
Secretary, The Ultimate Software Group, Inc., 2000 Ultimate Way,
Weston, Florida 33326. Communications that are intended
specifically for non-management or independent directors should
be sent to the above address to the attention of the Chairman of
the Audit Committee. All such communications will be delivered
unopened by the Secretary to the Chairman of the Board or the
Chairman of the Audit Committee, as applicable.
Following consultation with counsel and based upon the facts
described below, the Board has determined that the following
individuals are independent directors within the meaning of the
Marketplace Rules of the NASDAQ Stock Market LLC
(NASDAQ): James A. FitzPatrick, Jr., LeRoy A.
Vander Putten, Rick A. Wilber, Robert A. Yanover and Alois T.
Leiter. In the course of the Boards determination
regarding the independence of each non-employee director, it
considered any transactions, relationships and arrangements as
required by the NASDAQ rules governing independence standards
for directors. In particular, with respect to each of the three
most recently completed fiscal years, the Board evaluated for
(i) Mr. FitzPatrick, the annual amount of fees the
Company paid for legal services to Dewey & LeBoeuf LLP
(formerly Dewey Ballantine LLP), the law firm in which
Mr. FitzPatrick is a partner, and
(ii) Mr. Leiter, the annual amount of charitable
contributions the Company made, in connection with his acting as
a spokesperson for the Company, to Leiters Landing, the
non-profit charitable organization benefiting children that was
formed by Mr. Leiter. These relationships and transactions
are described in further detail below under CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS. The Board
determined that the annual payment or contribution, as the case
may be, to either of these organizations constituted an amount
less than the greater of $200,000 or five percent of such
organizations annual consolidated gross revenues during
each of such organizations three most recently completed
fiscal years, as such threshold is set forth in NASDAQ
Rule 4200(a)(15)(D). The Board determined that these
relationships would not interfere with the ability of either
Mr. FitzPatrick or Mr. Leiter in exercising
independent judgment in carrying out the responsibilities of a
director.
The independent directors met regularly in executive session and
outside the presence of the Companys management throughout
the 2008 fiscal year, and will do so throughout fiscal 2009 in
compliance with the NASDAQ rules.
Nominating Committee. The Board does not have
a standing nominating committee or committee performing similar
functions. The Board has determined that it is appropriate not
to have a nominating committee because of the relatively small
size of the Board and because the entire Board, the majority of
whom are independent directors, functions in the capacity of a
nominating committee. The Board has adopted processes with
respect to the nomination of directors that require that a
majority of the independent directors shall recommend to the
Board the nominees to stand for election at the Annual Meeting.
When considering potential director candidates, the Board
considers the candidates independence (as mandated by the
NASDAQ rules), character, judgment, age, skills, financial
literacy, and experience in the context of the needs of the
Company and the Board. In 2008, the Company did not pay any fees
to a third party to assist in identifying or evaluating
potential nominees.
The Board will consider director candidates recommended by the
Companys stockholders in a similar manner as those
recommended by members of management or other directors. The
name and qualifications of, and other information specified in
the Companys By-Laws with respect to, any recommended
candidate for director should be sent to the attention of the
Secretary of the Company in accordance with the procedures set
forth under the caption Stockholder Proposals for the 2010
Annual Meeting.
12
The Company does not have a policy with respect to attendance by
the directors at the Annual Meeting of Stockholders. Three of
the seven members of the Board attended the 2008 Annual Meeting
of Stockholders.
Executive Committee. The Executive Committee
of the Board is composed of Messrs. Scott Scherr
(Chairman), Marc D. Scherr and Robert A. Yanover. The Executive
Committee has the authority to exercise (except as provided by
law or as may have been specifically reserved by or for the
Board) all the powers and authority of the Board in the
management of the business and affairs of the Company between
regular meetings of the Board and while the Board is not in
session. The Executive Committee held no meetings during fiscal
2008.
Audit Committee. Messrs. Robert A.
Yanover (Chairman), Rick A. Wilber and LeRoy A. Vander Putten
are members of the Audit Committee of the Board. The Audit
Committee oversees the Companys financial reporting
process on behalf of the Board and reviews the independence of
the Companys auditors. The Audit Committee held four
meetings during fiscal 2008.
The Board has determined that the Audit Committees current
member composition satisfies the NASDAQ rules that govern audit
committee composition, including the requirement that audit
committee members all be independent directors as
that term is defined by NASDAQ Rule 4200(a)(15). The Board
has determined that Mr. LeRoy A. Vander Putten is an
audit committee financial expert as defined in the
rules of the Securities and Exchange Commission (the
SEC).
Compensation Committee. Messrs. LeRoy A.
Vander Putten (Chairman), Robert A. Yanover, Rick A. Wilber and
Alois T. Leiter are members of the Compensation Committee of the
Board. The Compensation Committee is responsible for determining
the compensation and benefits for the executive officers of the
Company and administers the Companys stock-based plans and
oversees such other benefit plans as the Company may from time
to time maintain. The Compensation Committee held four meetings
during fiscal 2008. The Compensation Committee does not have a
charter.
Director
Compensation
Each non-employee director of the Company receives compensation
for serving on the Board, payable exclusively in the form of
options to purchase Common Stock and restricted stock awards
granted under the Companys Amended and Restated 2005
Equity and Incentive Plan (the Plan).
During 2008, the Board received options to purchase the
Companys Common Stock at fair market value on the date of
grant and restricted stock awards under the Plan. Under
resolutions adopted by the Compensation Committee, (i) each
non-employee director has been granted an option to purchase
3,750 shares of the Companys Common Stock for each
regular quarterly meeting of the Board attended, dated as of the
date of such meeting, at an exercise price equal to the closing
price of the Companys Common Stock on NASDAQ on the date
of such meeting, and (ii) each of the Chairman of the Audit
Committee of the Board and the Chairman of the Compensation
Committee of the Board has been granted an option to purchase
2,500 shares of the Companys Common Stock for each
calendar quarter in 2008, dated as of the date of the regularly
scheduled meeting of such Committee during such quarter, at an
exercise price equal to the closing price of the Companys
Common Stock on NASDAQ on the date of such meeting. These option
grants have vested and became exercisable immediately upon grant.
In addition to the option grants discussed above, each
non-employee director has been granted a restricted stock award
under the Plan for each calendar quarter in 2008, dated as of
the date of the regularly scheduled meeting of the Compensation
Committee during such quarter, of that number of shares of the
Companys Common Stock equal to the quotient of $12,500
divided by the closing price of the Companys Common Stock
on NASDAQ on the date of such meeting, rounded down to the
nearest full number of shares. The restricted stock awards shall
vest on the fourth anniversary of the date of grant, subject to
accelerated vesting in the event of a directors death,
disability, cessation of service at the end of his term or the
occurrence of a change in control of the Company.
13
On February 4, 2009, the Compensation Committee amended the
previously approved arrangement pursuant to which the
non-employee directors and the Chairman of the Audit and
Compensation Committees of the Board, respectively, were granted
Options for each regular Board and Committee meeting attended.
Under the arrangement as amended, (i) each non-employee
director shall be granted a restricted stock award of
1,000 shares of Common Stock for each regular meeting of
the Board attended in 2009 and (ii) each of the Chairmen of
the Audit Committee and Compensation Committee of the Board
shall be granted a restricted stock award of 625 shares of
Common Stock for attendance at each regular meeting of the
Committee in 2009 that he chairs. In addition, the Compensation
Committee determined that in 2009, each non-employee director
shall be granted, for each fiscal quarter during which he
serves, a restricted stock award of that number of shares of
Common Stock equal to the quotient of $12,500 divided by the
closing price of the Common Stock on NASDAQ on the date of
grant, which is the effective date of the grant determined by
the Committee for each such quarter, rounded down to the closest
full number of shares. The date of grant shall not be a date
prior to the date of the Compensation Committees
determination of the same. Such restricted stock awards shall
vest on the fourth anniversary of the date of grant, subject to
accelerated vesting in the event of a directors death,
disability, cessation of service at the end of his term or the
occurrence of a change of control of the Company.
All directors are reimbursed (in cash) for expenses incurred in
connection with their attendance at Board and Committee
meetings. In addition, in connection with their having joined
the Board, each non-employee Director has received a single
option grant to purchase 25,000 shares of the
Companys Common Stock. All such options were fully vested
upon the date of grant and have an exercise price equal to 100%
of the fair market value of the Companys Common Stock on
the date of grant.
2008
DIRECTOR COMPENSATION
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in
|
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|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension
|
|
|
|
|
|
|
|
|
|
|
|
|
($)
|
|
|
|
|
|
|
|
|
|
|
|
($)
|
|
|
|
Value and
|
|
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|
|
|
|
|
|
|
|
|
|
Fees
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
|
Nonqualified
|
|
|
|
($)
|
|
|
|
|
|
|
|
|
Earned
|
|
|
|
($)
|
|
|
|
($)
|
|
|
|
Incentive
|
|
|
|
Deferred
|
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|
|
All
|
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|
|
|
|
|
|
|
or Paid
|
|
|
|
Stock
|
|
|
|
Option
|
|
|
|
Plan
|
|
|
|
Compensation
|
|
|
|
Other
|
|
|
|
($)
|
|
Name (1)
|
|
|
in Cash
|
|
|
|
Awards (2)
|
|
|
|
Awards (3)
|
|
|
|
Compensation
|
|
|
|
Earnings
|
|
|
|
Compensation
|
|
|
|
Total
|
|
James A. FitzPatrick, Jr.
|
|
|
$
|
|
|
|
|
$
|
13,084
|
|
|
|
$
|
162,254
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
$
|
|
|
|
|
$
|
175,337
|
|
LeRoy A. Vander Putten
|
|
|
|
|
|
|
|
|
13,084
|
|
|
|
|
270,423
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
283,506
|
|
Rick A. Wilber
|
|
|
|
|
|
|
|
|
13,084
|
|
|
|
|
162,254
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
175,337
|
|
Robert A. Yanover
|
|
|
|
|
|
|
|
|
13,084
|
|
|
|
|
229,420
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
242,503
|
|
Alois T. Leiter
|
|
|
|
|
|
|
|
|
13,084
|
|
|
|
|
162,254
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
175,337
|
|
The amounts reported in the Director Compensation table above
represent the dollar amount of stock option awards and
restricted stock awards recognized for each director as
compensation costs for Board services (excluding forfeiture
assumptions) in accordance with Statement of Financial
Accounting Standards No. 123 (revised 2004),
Share-Based Payment
(SFAS No. 123R) for fiscal 2008.
(1) Messrs. Scott Scherr and Marc D. Scherr are not
included in this table as they are employees of the Company and
receive no compensation for their services as directors. The
compensation for Messrs. Scott Scherr and Marc D. Scherr as
employees is shown in the Summary Compensation Table.
(2) The amounts included in the Stock Awards
column represent the compensation cost recognized by the Company
in 2008 related to restricted stock awards to non-employee
directors, computed in accordance with SFAS No. 123R.
For a discussion of valuation assumptions for stock award grants
made as compensation for Board and Committee service, see the
table below.
(3) The amounts included in the Options Awards
column represent the compensation cost recognized by the Company
in 2008 related to stock option awards to non-employee
directors, computed in
14
accordance with SFAS No. 123R. For a discussion of
valuation assumptions for stock option award grants made as
compensation for Board and Committee service, see the table
below.
BLACK-SCHOLES ASSUMPTIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Option Grant Date (1)
|
|
|
|
Feb. 5, 2008
|
|
|
Apr. 28, 2008
|
|
|
Jul. 28, 2008
|
|
|
Oct. 27, 2008
|
|
|
|
|
|
Risk Free Rate
|
|
|
2.875%
|
|
|
|
3.125%
|
|
|
|
3.375%
|
|
|
|
3.125%
|
|
|
|
|
|
Expected Volatility
|
|
|
39.00%
|
|
|
|
39.00%
|
|
|
|
39.00%
|
|
|
|
41.00%
|
|
|
|
|
|
Expected Life
|
|
|
5.00
|
|
|
|
5.40
|
|
|
|
5.30
|
|
|
|
5.20
|
|
|
|
|
|
Dividend Yield
|
|
|
0%
|
|
|
|
0%
|
|
|
|
0%
|
|
|
|
0%
|
|
|
|
|
|
Grant Date Fair Value per share
|
|
|
$ 10.93
|
|
|
|
$ 13.16
|
|
|
|
$ 13.11
|
|
|
|
$ 6.06
|
|
|
|
|
|
(1) Each non-employee director was granted stock options
with the grant date fair value input factors above. The grant
date fair value of options granted to non-employee directors
were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Grant Date Fair Value
|
|
|
|
Feb. 5, 2008
|
|
|
Apr. 28, 2008
|
|
|
Jul. 28, 2008
|
|
|
Oct. 27, 2008
|
|
|
|
|
|
James A. FitzPatrick, Jr.
|
|
$
|
41,003
|
|
|
$
|
49,345
|
|
|
$
|
49,181
|
|
|
$
|
22,725
|
|
|
|
|
|
LeRoy A. Vander Putten
|
|
$
|
68,338
|
|
|
$
|
82,241
|
|
|
$
|
81,968
|
|
|
$
|
37,875
|
|
|
|
|
|
Rick A. Wilber
|
|
$
|
41,003
|
|
|
$
|
49,345
|
|
|
$
|
49,181
|
|
|
$
|
22,725
|
|
|
|
|
|
Robert A. Yanover
|
|
$
|
27,335
|
|
|
$
|
82,241
|
|
|
$
|
81,968
|
|
|
$
|
37,875
|
|
|
|
|
|
Alois T. Leiter
|
|
$
|
41,003
|
|
|
$
|
49,345
|
|
|
$
|
49,181
|
|
|
$
|
22,725
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Award Grant Date (2)
|
|
|
|
Feb. 5, 2008
|
|
|
Apr. 28, 2008
|
|
|
Jul. 28, 2008
|
|
|
Oct. 27, 2008
|
|
|
|
|
|
Vesting Period (Cliff)
|
|
|
4 years
|
|
|
|
4 years
|
|
|
|
4 years
|
|
|
|
4 years
|
|
|
|
|
|
Awards Granted
|
|
|
439
|
|
|
|
384
|
|
|
|
385
|
|
|
|
849
|
|
|
|
|
|
Grant Date Market Value per share
|
|
|
$ 28.41
|
|
|
|
$ 32.54
|
|
|
|
$ 32.39
|
|
|
|
$ 14.72
|
|
|
|
|
|
(2) Each non-employee director was awarded restricted stock
awards with the grant date fair value input factors above. The
grant date fair values of awards granted to non-employee
directors were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Grant Date Fair Value
|
|
|
|
Feb. 5, 2008
|
|
|
Apr. 28, 2008
|
|
|
Jul. 28, 2008
|
|
|
Oct. 27, 2008
|
|
|
|
|
|
James A. FitzPatrick, Jr.
|
|
$
|
12,472
|
|
|
$
|
12,495
|
|
|
$
|
12,470
|
|
|
$
|
12,497
|
|
|
|
|
|
LeRoy A. Vander Putten
|
|
$
|
12,472
|
|
|
$
|
12,495
|
|
|
$
|
12,470
|
|
|
$
|
12,497
|
|
|
|
|
|
Rick A. Wilber
|
|
$
|
12,472
|
|
|
$
|
12,495
|
|
|
$
|
12,470
|
|
|
$
|
12,497
|
|
|
|
|
|
Robert A. Yanover
|
|
$
|
12,472
|
|
|
$
|
12,495
|
|
|
$
|
12,470
|
|
|
$
|
12,497
|
|
|
|
|
|
Alois T. Leiter
|
|
$
|
12,472
|
|
|
$
|
12,495
|
|
|
$
|
12,470
|
|
|
$
|
12,497
|
|
|
|
|
|
Under SFAS No. 123R, the fair value of each stock
option award is estimated on the grant date using the
Black-Scholes option valuation model based on the assumptions
noted in the table above. The Companys computation of the
expected volatility for each grant date above during the year
ended December 31, 2008 is based primarily upon historical
volatility and the expected term of the option. The expected
term is based on the historical exercise experience under the
share-based plans of the underlying award (including
post-vesting employment termination behavior) and represents the
period of time the share-based awards are expected to be
outstanding. The interest rate is based on the
U.S. Treasury yield in effect at the time of grant for a
period commensurate with the estimated expected life.
Under SFAS No. 123R, the fair value of each restricted
stock award is measured based on the closing market price of the
Companys Common Stock at the date of grant and is
recognized on a straight-line basis over the vesting period.
Holders of Restricted Stock Awards have all rights of a
stockholder including the right to vote the shares and receive
all dividends and other distributions paid or made with respect
thereto. Each Award becomes vested on the fourth anniversary of
the respective date of grant, subject to the grantees
continued Board service or employment with the Company or any of
its subsidiaries on each such vesting date
15
and subject further to accelerated vesting in the event of a
change in control of the Company, death or disability, the
termination of employment by the Company without cause or, in
the case of a non-employee director, at cessation of his Board
Service at the end of his term.
The number of outstanding Option Awards and Restricted Stock
Awards for each non-employee director as of December 31,
2008 was as follows:
|
|
|
|
|
|
|
|
|
OUTSTANDING OPTION & RESTRICTED STOCK AWARDS
NON-EMPLOYEE DIRECTORS
|
|
|
|
|
|
|
Outstanding Restricted
|
|
Name
|
|
Outstanding Option
Awards
|
|
|
Stock Awards
|
|
|
|
|
James A. FitzPatrick, Jr.
|
|
|
85,179
|
|
|
|
2,826
|
|
LeRoy A. Vander Putten
|
|
|
70,427
|
|
|
|
2,826
|
|
Rick A. Wilber
|
|
|
70,811
|
|
|
|
2,826
|
|
Robert A. Yanover
|
|
|
80,782
|
|
|
|
2,826
|
|
Alois T. Leiter
|
|
|
48,437
|
|
|
|
2,826
|
|
16
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information regarding
beneficial ownership of the Companys Common Stock as of
February 28, 2009 (unless otherwise noted) by (i) each
person who is known by the Company to own beneficially more than
5% of the Common Stock; and (ii) each of the Companys
directors and executive officers and all directors and executive
officers of the Company as a group.
|
|
|
|
|
|
|
|
|
|
|
AMOUNT AND
|
|
|
|
|
|
|
NATURE OF
|
|
|
PERCENT
|
|
|
|
BENEFICIAL
|
|
|
OF
|
|
NAME AND ADDRESS OF BENEFICIAL
OWNER
|
|
OWNERSHIP (1)
|
|
|
CLASS (2)
|
|
|
|
|
|
|
|
|
|
|
|
William Blair & Company, L.L.C. (3)
222 W. Adams
Chicago, IL 60606
|
|
|
2,874,348
|
|
|
|
11.2
|
%
|
|
|
|
|
|
|
|
|
|
SMALLCAP World Fund, Inc. (4)
333 South Hope Street
Los Angeles, CA 90071
|
|
|
1,730,000
|
|
|
|
6.7
|
%
|
|
|
|
|
|
|
|
|
|
Capital Research Global Investors (5)
333 South Hope Street
Los Angeles, CA 90071
|
|
|
1,570,000
|
|
|
|
6.1
|
%
|
|
|
|
|
|
|
|
|
|
Janus Capital Management, LLC (6)
151 Detroit Street
Denver, CO 80206
|
|
|
1,559,136
|
|
|
|
6.1
|
%
|
|
|
|
|
|
|
|
|
|
TimesSquare Capital Management, L.L.C. (7)
1177 Avenue of the Americas,
39th
Floor
New York, NY 10036
|
|
|
1,357,900
|
|
|
|
5.3
|
%
|
|
|
|
|
|
|
|
|
|
Ruane, Cunniff & Goldfarb Inc. (8)
767 Fifth Avenue
New York, NY 10153
|
|
|
1,284,560
|
|
|
|
5.0
|
%
|
|
|
|
|
|
|
|
|
|
Scott Scherr (9)
|
|
|
833,887
|
|
|
|
2.4
|
%
|
|
|
|
|
|
|
|
|
|
Marc D. Scherr (10)
|
|
|
861,079
|
|
|
|
2.8
|
%
|
|
|
|
|
|
|
|
|
|
Mitchell K. Dauerman (11)
|
|
|
200,751
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
James A. FitzPatrick, Jr. (12)
|
|
|
87,482
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
LeRoy A. Vander Putten (13)
|
|
|
114,181
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
Rick A. Wilber (14)
|
|
|
392,827
|
|
|
|
1.5
|
%
|
|
|
|
|
|
|
|
|
|
Robert A. Yanover (15)
|
|
|
291,463
|
|
|
|
1.1
|
%
|
|
|
|
|
|
|
|
|
|
Alois T. Leiter (16)
|
|
|
192,190
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
All directors and executive officers as a group
(8 persons) (17)
|
|
|
2,973,860
|
|
|
|
11.6
|
%
|
|
|
|
* |
|
Indicates beneficial ownership of less than 1.0% of the
outstanding Common Stock. |
|
|
|
(1) |
|
Beneficial ownership is determined in accordance with the rules
of the SEC and includes voting or investment power with respect
to securities. Shares of Common Stock issuable upon the exercise
of stock options exercisable within 60 days of the date
hereof are deemed outstanding and to be beneficially owned by
the person holding such option for purposes of computing such
persons percentage ownership, but are not deemed
outstanding for the purpose of computing the percentage
ownership of any other person. The Company has made restricted
stock awards to executive officers |
17
|
|
|
|
|
and non-employee directors under the Plan (Restricted
Stock Awards). The shares of Common Stock issued under the
Restricted Stock Awards are subject to certain vesting
requirements and restrictions on transfers. The holders of such
shares have all the rights of a stockholder with respect to such
shares, including the right to vote the shares and receive all
dividends and other distributions paid or made with respect
thereto, unless the Compensation Committee determines otherwise
at the time the Restricted Stock Award is granted. Each
Restricted Stock Award becomes vested on the fourth
(4th)
anniversary of the respective date of grant, subject to the
grantees continued employment with the Company or any
subsidiary, or service on the Board by a non-employee director
on each such vesting date and further subject to accelerated
vesting in the event of a Change in Control or the
grantees death, disability or termination of the
grantees employment with the Company without cause or
termination of a non-employee directors service on the
Board at the end of his term. All shares of Common Stock issued
under the Restricted Stock Awards are considered to be
beneficially owned for purposes of computing the holders
respective percentages of ownership in this table. Except for
shares held jointly with a persons spouse or subject to
applicable community property laws, or as indicated in the
footnotes to this table, each stockholder identified in the
table possesses the sole voting and investment power with
respect to all shares of Common Stock shown as beneficially
owned by such stockholder. The Company has also made awards of
stock units under the Plan (Stock Unit Awards). A
Stock Unit Award is a grant of a number of hypothetical share
units with respect to shares of Common Stock that are subject to
vesting and transfer restrictions and conditions under a stock
unit award agreement. The value of each unit is equal to the
fair market value of one share of Common Stock on any applicable
date of determination. The payment with respect to each unit
under a Stock Unit Award may be made, at the discretion of the
Compensation Committee, in cash or shares of Common Stock or in
a combination of both. Stock Unit Awards are not included in
this table since the grantee does not have any rights as a
stockholder with respect to the shares subject to a Stock Unit
Award until such time as shares of Common Stock are delivered to
the grantee pursuant to the terms of the related stock unit
award agreement. |
|
(2) |
|
Applicable percentage of ownership is based on
25,667,190 shares of Common Stock outstanding. |
|
(3) |
|
Represents shares held as of December 31, 2008 as reported
on Schedule 13G/A filed by William Blair &
Company, L.L.C. (William Blair). As reported on
Schedule 13G/A, William Blair is a broker dealer registered
under Section 15 of the Exchange Act and an investment
adviser in accordance with
Rule 13d-1
(b)(1)(ii)(E). William Blair has sole voting power and sole
dispositive power of 2,874,348 shares of Common Stock of
the Company. |
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(4) |
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Represents shares held as of December 31, 2008 as reported
on Schedule 13G filed by SMALLCAP World Fund, Inc.
(SMALLCAP World Fund). As reported on
Schedule 13G, SMALLCAP World Fund is an investment company
registered under the Investment Company Act of 1940, which is
advised by Capital Research and Management Company
(CRMC). CRMC manages equity assets for various
investment companies through two divisions, Capital Research
Global Investors and Capital World Investors. These divisions
generally function separately from each other with respect to
investment research activities and they make investment
decisions and proxy voting decisions for the investment
companies on a separate basis. Under certain circumstances,
SMALLCAP World Fund, Inc. may exercise voting power with respect
to the shares held by it. SMALLCAP World Fund has sole voting
power of 1,730,000 shares of Common Stock of the Company of
which a portion of those shares are managed by Capital Research
Global Investors. |
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(5) |
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Represents shares held as of December 31, 2008 as reported
on Schedule 13G filed by Capital Research Global Investors.
As reported on Schedule 13G, Capital Research Global
Investors has sole voting power and sole dispositive power of
1,570,000 shares of Common Stock of the Company as a result
of CRMC acting as investment adviser to various investment
companies registered under Section 8 of the Investment
Company Act of 1940. A portion of these shares are included in
the sole voting power of SMALLCAP World Fund reported above in
(4). |
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(6) |
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Represents shares held as of December 31, 2008 as reported
on Schedule 13G/A filed by the respective stockholders. As
reported on Schedule 13G/A, Janus Capital Management LLC
(Janus Capital) has a direct 89.9% ownership stake
in INTECH Investment Management (INTECH) and a |
18
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direct 78.4% ownership stake in Perkins Investment Management,
LLC (Perkins). Due to this ownership structure,
holdings for Janus Capital, Perkins and INTECH are aggregated
for purposes of the shares reported on the December 31,
2008 Schedule 13G/A. Janus Capital, Perkins and INTECH are
registered investment advisers, each furnishing investment
advice to various investment companies registered under
Section 8 of the Investment Company Act of 1940 and to
individual and institutional clients (collectively referred to
as Managed Portfolios). As a result of its role as
investment advisor or
sub-adviser
to the Managed Portfolios, Janus Capital may be deemed to be the
beneficial owner of 1,559,136 shares of Common Stock of the
Company held by such Managed Portfolios. However, Janus Capital
does not have the right to receive any dividends from, or the
proceeds from the sale of, the securities held in the Managed
Portfolios and disclaims any ownership associated with such
rights. Janus Venture Fund is an investment company registered
under the Investment Company Act and is one of the Managed
Portfolios to which Janus Capital provides investment advice. |
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(7) |
|
Represents shares held as of December 31, 2008 as reported
on Schedule 13G/A filed by the respective stockholders. As
reported on Schedule 13G/A, TimesSquare Capital Management
L.L.C. (TimesSquare) has sole voting power of
1,266,700 shares of Common Stock and sole dispositive power
of 1,357,900 shares of Common Stock of the Company which
shares are also beneficially owned by investment advisory
clients of TimesSquare. In its role as investment adviser,
TimesSquare has voting and dispositive power with respect to
these shares. As reported on Schedule 13G, TimesSquare is
an investment company registered under Section 8 of the
Investment Company Act of 1940. |
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(8) |
|
Represents shares held as of December 31, 2008 as reported
on Schedule 13G filed by Ruane, Cunniff &
Goldfarb Inc. As reported on Schedule 13G, Ruane,
Cunniff & Goldfarb Inc. has sole voting power of
1,277,500 and sole dispositive power of 1,284,560 shares of
Common Stock of the Company. As reported on Schedule 13G,
Ruane, Cunniff & Goldfarb Inc. is an investment
company registered under Section 8 of the Investment
Company Act of 1940. |
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(9) |
|
Represents 35,900 shares of Common Stock held by
Mr. Scott Scherr, exercisable options to purchase
180,000 shares of Common Stock held by Mr. Scott
Scherr, and 617,987 shares of Common Stock subject to
Restricted Stock Awards. Excludes 24,929 shares of Common
Stock subject to Stock Unit Awards. |
|
(10) |
|
Represents 10,000 shares of Common Stock held by
Mr. Marc D. Scherr, 29,066 shares of Common Stock held
by certain trusts established for the benefit of Mr. Marc
D. Scherrs children, exercisable options to purchase
383,417 shares of Common Stock and 438,596 shares of
Common Stock subject to Restricted Stock Awards. Excludes
20,192 shares of Common Stock subject to Stock Unit Awards.
Mr. Marc D. Scherr disclaims beneficial ownership of the
shares owned by the trusts established for the benefit of his
children. |
|
(11) |
|
Represents 8,750 shares of Common Stock held by
Mr. Mitchell K. Dauerman, 250 shares of Common Stock
held by certain trusts established for the benefit of
Mr. Mitchell K. Dauermans child, exercisable options
to purchase 136,751 shares of Common Stock held by
Mr. Dauerman and 55,000 shares of Common Stock subject
to Restricted Stock Awards. Mr. Mitchell K. Dauerman
disclaims beneficial ownership of the shares owned by the trusts
established for the benefit of his child. |
|
(12) |
|
Represents 2,000 shares of Common Stock held by
Mr. FitzPatrick, exercisable options to purchase
80,790 shares of Common Stock and 4,692 shares of
Common Stock subject to Restricted Stock Awards. |
|
(13) |
|
Represents 46,364 shares of Common Stock held by
Mr. Vander Putten, exercisable options to purchase
62,500 shares of Common Stock and 5,317 shares of
Common Stock subject to Restricted Stock Awards. |
|
(14) |
|
Represents 325,738 shares of Common Stock held by
Mr. Wilber, exercisable options to purchase
62,397 shares of Common Stock and 4,692 shares of
Common Stock subject to Restricted Stock Awards. These shares
shown include 319,639 shares of Common Stock pledged by
Mr. Wilber. |
19
|
|
|
(15) |
|
Represents 72,242 shares of Common Stock held by
Mr. Yanover, 6,700 shares of Common Stock held by
Mr. Yanovers spouse, 44,743 shares of Common
Stock held by Yanover Family Limited Partnership
(YFLP), 86,099 shares of Common Stock held by
Grantor Retained Annuity Trust (GRAT) of which
Mr. Yanover is the trustee, exercisable options held by
Mr. Yanover to purchase 76,362 shares of Common Stock
and 5,317 shares of Common Stock subject to Restricted
Stock Awards. Mr. Yanover is the President of the general
partner of Yanover Associates and an officer of the general
partner of YFLP. Mr. Yanover disclaims beneficial ownership
of the shares held by his spouse, shares held by the YFLP and
shares held by GRAT. |
|
(16) |
|
Represents 138,683 shares of Common Stock held by
Mr. Leiter, exercisable options to purchase
47,500 shares of Common Stock, 1,315 shares of Common
Stock held by certain trusts for the benefit of
Mr. Leiters children and 4,692 shares of Common
Stock subject to Restricted Stock Awards. Mr. Leiter
disclaims beneficial ownership of the shares owned by the trusts
established for the benefit of his children. |
|
(17) |
|
Represents an aggregate of 807,850 (both directly and indirectly
owned) shares of Common Stock, 1,136,293 shares of Common
Stock subject to Restricted Stock Awards and exercisable options
to purchase an aggregate of 1,029,717 shares of Common
Stock. Excludes 45,121 shares of Common Stock subject to
Stock Unit Awards. |
DIRECTORS
AND EXECUTIVE OFFICERS
The directors and executive officers (Messrs. Scott Scherr,
Marc D. Scherr and Mitchell K. Dauerman), and their ages as of
February 18, 2009, are as follows:
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NAME
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AGE
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POSTION(S)
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Scott Scherr
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56
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Chairman of the Board, President and Chief Executive Officer
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Marc D. Scherr
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51
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Vice Chairman of the Board and Chief Operating Officer
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Mitchell K. Dauerman
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51
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Executive Vice President, Chief Financial Officer and Treasurer
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James A. FitzPatrick, Jr.
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59
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Director
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Alois T. Leiter
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43
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Director
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LeRoy A. Vander Putten
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74
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Director
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Rick A. Wilber
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62
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Director
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Robert A. Yanover
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72
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Director
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Scott Scherr has served as President and a director of the
Company since its inception in April 1996 and has been Chairman
of the Board and Chief Executive Officer of the Company since
September 1996. Mr. Scherr is also a member of the
Executive Committee of the Board. In 1990, Mr. Scherr
founded The Ultimate Software Group, Ltd. (the
Partnership), the business and operations of which
were assumed by the Company in 1998. Mr. Scherr served as
President of the Partnerships general partner from the
inception of the Partnership until its dissolution in March
1998. From 1979 until 1990, he held various positions at
Automatic Data Processing, Inc. (ADP), a payroll
services company, where his titles included Vice President of
Operations and Sales Executive. Prior to joining ADP,
Mr. Scherr operated Management Statistics, Inc., a data
processing service bureau founded by his father, Reuben Scherr,
in 1959. He is the brother of Marc Scherr, the Vice Chairman of
the Board and Chief Operating Officer of the Company, and the
father-in-law
of Adam Rogers, Senior Vice President and Chief Technology
Officer.
Mitchell K. Dauerman has served as Executive Vice President of
the Company since April 1998 and as Chief Financial Officer and
Treasurer of the Company since September 1996. From 1979 to
1996, Mr. Dauerman held various positions with KPMG LLP,
serving as a Partner in the firm from 1988 to 1996.
Mr. Dauerman is a Certified Public Accountant.
LeRoy A. Vander Putten has served as a director of the Company
since October 1997, is Chairman of the Compensation Committee of
the Board and is a member of the Audit Committee of the Board.
Mr. Vander Putten is a retired insurance company executive.
He served as the Executive Chairman of The Insurance Center,
Inc., a holding company for 14 insurance agencies, from October
2001 to January 27, 2006.
20
Previously, he served as the Chairman of CORE Insurance
Holdings, Inc., a member of the GE Global Insurance Group,
engaged in the underwriting of casualty reinsurance, from August
2000 to August 2001. From April 1998 to August 2000, he served
as Chairman of Trade Resources International Holdings, Ltd., a
corporation engaged in trade finance for exporters from
developing countries. From January 1988 until May 1997,
Mr. Vander Putten was Chairman and Chief Executive Officer
of Executive Risk Inc., a specialty insurance holding company.
Robert A. Yanover has served as a director of the Company since
January 1997 and is Chairman of the Audit Committee and a member
of the Compensation Committee of the Board. Mr. Yanover
founded Computer Leasing Corporation of Michigan, a private
leasing company, in 1975 and served as its President from its
founding until 2007 at which time Mr. Yanover retired.
Mr. Yanover also founded Lason, Inc., a corporation
specializing in the imaging business, and served as Chairman of
the Board from its inception in 1987 until 1998 and as a
director through February 2001.
Alois T. Leiter has served as director of the Company since
October 2006 and is a member of the Compensation Committee of
the Board. Mr. Leiter was a three-time Major League
Baseball World Champion and two-time All-Star pitcher formerly
with the New York Yankees, New York Mets, Toronto Blue Jays, and
Florida Marlins, and has been an official spokesperson for the
Company since 2002. Mr. Leiter has served as a television
commentator for the Yankees Entertainment and Sports Network
since 2006 and as an analyst with MLB Network since January
2009. Mr. Leiter is president and founder of Leiters
Landing, a charitable organization formed in 1996.
Mr. Leiter has served on the Executive Committee of New
York Citys official tourism marketing organization,
NYC & Company, since 2000 and is a member of the Board
of Directors of Americas Camp, a legacy organization of
the Twin Towers Fund, on which he also served as a board member.
Information regarding Messrs. Marc D. Scherr, James A.
FitzPatrick Jr., and Rick A. Wilber is included under the
heading PROPOSAL I ELECTION OF
DIRECTORS.
COMPENSATION
DISCUSSION AND ANALYSIS
Executive
Compensation Policy
As a provider of Web-based payroll and talent management
solutions, our long-term success depends on our ability to
develop, enhance and market our products and services to keep
pace with our competitors; adapt to technological advancements
and changing industry standards; and expand the functionality of
our products and services to address the increasingly
sophisticated requirements of our customers. To achieve these
goals, it is critical that we be able to attract, motivate and
retain highly talented individuals at all levels of the
organization who are committed to the Companys core values
of excellence, integrity and teamwork.
It is our belief that compensation should be based on the level
of job responsibility, individual performance and Company
performance. As employees progress to higher levels in the
organization, an increasing proportion of their pay should be
linked to Company performance, since they are more able to
affect the Companys results. Additionally, compensation
should reflect the value of the job in the marketplace. In order
to attract and retain a highly skilled work force, we must
remain competitive with the pay of other employers who compete
with us for talent. Although the programs and individual pay
levels will always reflect differences in job responsibilities,
geographies and marketplace considerations, the overall
structure of compensation and benefit programs should be broadly
similar across the Company.
Our Compensation Committee is responsible for developing and
approving the Companys compensation program for the
executive officers and other officers of the Company. In
addition, our Compensation Committee administers the
Companys equity based plan and oversees such other benefit
plans as the Company may from time to time maintain.
Our Compensation Committee is composed of four non-employee
directors, Messrs. LeRoy A. Vander Putten (Chairman), Rick
A. Wilber, Robert A. Yanover and Alois T. Leiter.
21
The executive compensation program was designed to reward
executive officers for achieving the Companys strategic
goals and to align the interests of the executive officers with
those of the Companys stockholders. In particular, the
Companys Amended and Restated 2005 Equity and Incentive
Plan (the Plan) is intended to (i) provide a
vehicle for compensating the Companys key personnel by
giving them the opportunity to acquire a proprietary interest in
the Companys Common Stock by receiving equity-based
incentive compensation; (ii) provide management with equity
ownership in the Company commensurate with Company performance,
as reflected in increased stockholder value; (iii) attract,
motivate and retain key employees and non-employee directors by
maintaining competitive compensation levels; and
(iv) provide an incentive to management for continuous
employment with or service to the Company.
This philosophy is reflected in an executive compensation
package that is generally comprised of three elements
(collectively, Total Compensation): (i) base
salary, which is determined on the basis of the
individuals position and responsibilities with the
Company; (ii) incentive performance awards payable in cash
and tied to the achievement of the Companys achievement of
specified financial targets; and (iii) long-term
stock-based incentive compensation, which is related to the
Companys achievement of specified financial and other
performance targets and which includes the issuance of
restricted stock awards
and/or stock
unit awards that create a link between executive compensation
and the interests of the Companys stockholders. The
Committee also has granted stock options to executive officers
in prior years.
The
Compensation Committees Processes
The Compensation Committee utilizes different processes to
assist it in ensuring that the Companys executive
compensation program is achieving its objectives. Among those
are:
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§
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Industry Comparison. The Compensation Committee
establishes Total Compensation levels for executives that it
believes are competitive with industry compensation practices of
other software and technology companies of comparable size. In
order to enhance its objectivity and independence, the
Compensation Committee has, from time to time in the past,
obtained advice
and/or
recommendations of an outside compensation consulting firm,
Watson Wyatt and Company (Watson Wyatt). In
addition, the Compensation Committee reviews available
information, including information published in secondary
sources, regarding prevailing salaries and compensation programs
offered to chief executive officers by businesses that are
comparable to the Company in terms of size and industry group.
Included in this group were the following companies: Sonicwall,
Inc., Vignette Corporation, Liquidity Services, Inc., Ariba,
Inc., Openwave Systems, Inc., Internap Network Services
Corporation, Opsware Inc., United Online Inc., CMGI, Inc., and
Websense, Inc. Generally, the Chief Executive Officer provides
recommendations for compensation changes to the Compensation
Committee for its review. The Companys objective is
generally to set the Total Compensation of the executive
officers of the Company in the broad middle range of comparable
sized companies. The Compensation Committee believes Total
Compensation for each of the executive officers is competitive
with other software and technology companies of comparable size.
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§
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Assessment of Company Performance. The Compensation
Committee uses Company performance measures in establishing
total compensation ranges. The Compensation Committee may
consider various measures of Company performance, including
sales, earnings per share and growth in recurring revenue. The
Compensation Committee makes a subjective determination after
considering such measures collectively. In addition, as
described in more detail below, the Compensation Committee may
grant performance awards under a formula provided for under the
Plan. Such awards shall represent the right to receive a payment
in cash or equity if performance goals established by the
Compensation Committee for a certain performance period are
satisfied.
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§
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Assessment of Individual Performance. Individual
performance has a strong impact on the compensation of all
employees, including the executive officers. The members of the
Compensation Committee meet with the Chief Executive Officer,
and then meet in executive session, when compensation is being
considered in order to evaluate the Chief Executive
Officers
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performance for the year. This evaluation is considered by the
Compensation Committee in setting the Chief Executive
Officers compensation. For the other executive officers,
the Compensation Committee receives a compensation
recommendation from the Chief Executive Officer and may also
exercise its judgment based on the Compensation Committees
assessment of the performance of such executive officers.
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Components
of Executive Compensation for 2008
The Companys compensation program balances both the mix of
cash and equity compensation and the mix of currently-paid and
longer-term compensation in a way that furthers the compensation
objectives discussed above. Following is a discussion of the
Compensation Committees considerations in establishing
each of the components for the executive officers.
Base
Salary
Base salary is the fixed element of employees annual cash
compensation. Our executive compensation program is designed to
align executive performance with the financial and strategic
objectives of the Company, to reward executive management for
the successful performance of these objectives and to encourage
the executives to be focused on building long-term success.
Therefore, a portion of these employees total compensation
is performance-based.
The Compensation Committee annually reviews and determines the
base salary of the Chief Executive Officer and the base salaries
of the other executive officers based on the recommendations of
the Chief Executive Officer. Base salaries are generally
adjusted to reflect promotions, increases in responsibilities
and competitive considerations. In order to attract and retain
qualified executives, the Company provides base salaries it
considers to be competitive.
While determining the base salary for the Companys
President and Chief Executive Officer, Mr. Scott Scherr,
for 2008, the Compensation Committee reviewed the current and
long term incentive compensation of the chief executive officers
of certain software and technology companies that have market
capitalizations comparable to that of the Company. This
information provided the basis of a competitive review of
Mr. Scherrs compensation; however, the Compensation
Committee did not attempt to benchmark
Mr. Scherrs base salary against the base salary of
these or other chief executive officers. Instead, the
Compensation Committee exercised its own judgment based upon
Mr. Scherrs personal performance, in particular his
successful leadership of the Company with a business strategy
focused on maximizing recurring revenue streams by selling the
Companys UltiPro software offerings primarily on a
recurring revenue basis, while still offering perpetual software
licenses of UltiPro to its customers (although, as a
continuation of the recurring revenue focused business strategy,
the Company recently disclosed that it will cease selling such
perpetual software licenses of UltiPro, effective April 1,
2009, but will continue to offer
on-site
UltiPro solutions, priced on a subscription basis). As a result
of the Compensation Committees evaluation of
Mr. Scherrs performance, the Committee determined
that, as of January 1, 2008, Mr. Scherrs base
salary should be increased from $600,000 to $630,000.
The Compensation Committee reviewed with Mr. Scott Scherr
the performance of Mr. Marc D. Scherr as the Companys
Vice Chairman and Chief Operating Officer in overseeing the
Companys strategic and operational activities. The
Compensation Committee also reviewed with Mr. Scott Scherr
the performance of Mr. Dauerman as the Companys Chief
Financial Officer, including his oversight of financial and
accounting functions and the Companys relationships with
the investment community. Based upon Mr. Scott
Scherrs recommendation and its review with him, the
Compensation Committee determined that as of January 1,
2008, Mr. Marc D. Scherrs base salary should be
increased from $550,000 to $575,000 and Mr. Mitchell K.
Dauermans base salary should be increased from $412,500 to
$450,000.
Incentive
Compensation
From time to time, on a discretionary basis, the Compensation
Committee approves (i) incentive performance awards payable
in cash and tied to the achievement of performance goals
(Cash Bonuses); and
23
(ii) long-term stock-based incentive compensation. In order
to provide incentives to new employees and in recognition of
superior performance, promotions and increased responsibilities
of executive officers and employees, the Company provides
long-term stock-based incentive compensation payable through the
issuance of (i) options to purchase shares of the
Companys Common Stock (Stock Options);
(ii) Restricted Stock Awards;
and/or
(iii) Stock Unit Awards (collectively, Stock-Based
Compensation). All employees of the Company are eligible
for discretionary Cash Bonuses and Stock-Based Compensation,
based on their individual achievement of performance goals and
as approved by the Compensation Committee.
Incentive
Performance Awards
The Compensation Committee may grant performance awards under
the Plan, which shall represent the right to receive a payment
in cash or equity if the performance goals established by the
Compensation Committee for a performance period are satisfied.
At the time a performance award is granted, the Compensation
Committee shall determine, in its sole discretion, the
applicable performance period and performance goals to be
achieved during the performance period, as well as such other
conditions as the Compensation Committee deems appropriate. The
Compensation Committee may also determine a target payment
amount or a range of payment amounts for each award. The
performance goals applicable to a performance award grant may be
subject to adjustments as the Compensation Committee shall deem
appropriate to reflect significant unforeseen events, such as
changes in law, accounting practices or unusual or nonrecurring
items or occurrences. At the end of the performance period, the
Compensation Committee shall determine the extent to which
performance goals have been attained, or a degree of achievement
between minimum and maximum levels, in order to establish the
level of payment to be made, if any.
Upon the recommendation of Mr. Scott Scherr, the
Compensation Committee did not grant to Mr. Scherr, Marc D.
Scherr or Mr. Dauerman a Cash Bonus opportunity for
performance in 2008 to assist the Company in achieving its
financial targets for 2008.
Long-Term
Stock-Based Incentive Compensation
The Company grants long-term equity incentives in the form of
Stock-Based Compensation that converts into shares of Common
Stock. The Compensation Committee has sole discretion in
awarding stock options and does not delegate such authority to
our management nor does our management have the ability to
select or influence stock option grant dates. The exercise price
of the stock options granted to employees who are participants
under the Plan was equal to 100 percent of the per share
fair market value of the Common Stock at the closing price of
the Common Stock on NASDAQ on the date of grant. In 2008, all
such grants were made on the respective dates of the regular
quarterly meetings of the Board and the Compensation Committee
which are scheduled by the Board or the Compensation Committee,
as applicable, well in advance and generally occur at the same
times each year. Each of the regular quarterly meetings of the
Board and Board committees is held in advance of the date of the
respective earnings release in order that the Board and the
Audit Committee may review the financial results prior to their
release. Although employees and non-employee directors may have
been in possession of material non-public information at the
time of a stock option grant, we have not timed nor do we plan
to time our release of material non-public information for the
purpose of affecting the value of executive compensation.
On February 4, 2009, the Compensation Committee amended the
previously approved arrangement pursuant to which the
non-employee directors and the Chairman of the Audit and
Compensation Committees of the Board, respectively, were granted
Options for each regular Board and Committee meeting attended.
Under the arrangement as amended, (i) each non-employee
director shall be granted a restricted stock award of
1,000 shares of Common Stock for each regular meeting of
the Board attended in 2009 and (ii) each of the Chairmen of
the Audit Committee and Compensation Committee of the Board
shall be granted a restricted stock award of 625 shares of
Common Stock for attendance at each regular meeting of the
Committee in 2009 that he chairs. In addition, the Compensation
Committee determined that in 2009, each non-employee director
shall be granted, for each fiscal quarter during which he
serves, a restricted stock award of that number of shares of
Common Stock equal to the quotient of $12,500 divided by the
closing price of the Common Stock on NASDAQ on the date of
grant, which is the effective date of the grant determined by
the Committee for
24
each such quarter, rounded down to the closest full number of
shares. The date of grant shall not be a date prior to the date
of the Compensation Committees determination of the same.
Such restricted stock awards shall vest on the fourth
anniversary of the date of grant, subject to accelerated vesting
in the event of a directors death, disability, cessation
of service or the end of his term or the occurrence of a change
of control of the Company.
Stock Options align employee incentives with stockholders
because Stock Options have value only if the stock price
increases over time. The Companys
10-year
Stock Options, granted at the market price on the date of the
grant, help focus employees on long-term growth. In addition,
Stock Options are intended to help retain key employees because
they typically vest over 3 years and, if not exercised, are
forfeited if the employee leaves the Company. The
3-year
vesting also helps keep employees focused on long-term
performance. The Company does not reprice Stock Options;
likewise, if the stock price declines after the grant date, we
do not replace Stock Options.
In 2008, the Company awarded Stock Options to newly hired
employees and to certain employees, other than executive
officers, in recognition of their promotions
and/or
performance. The Compensation Committee did not grant any Stock
Options to the executive officers in 2008. However, consistent
with the objective of increasing the equity based component of
executive compensation as recommended by Watson Wyatt in 2004,
the Compensation Committee determined that additional equity
awards should be made to the executive officers in view of their
performance and the respective levels of their equity ownership
in the Company. In order to reduce dilution to stockholders, the
Compensation Committee determined to issue Restricted Stock
Awards, rather than Stock Options, to the executive officers.
Nevertheless, the Company reserves the right to issue Stock
Options to executive officers in the future.
Beginning in 2009, the Company commenced granting Restricted
Stock Unit Awards to its employees and discontinued new grants
of Options under the Plan. Such Restricted Stock Unit Awards
vest in three equal annual installments of
331/3%
of the number of Restricted Stock Unit Awards on each of the
first three anniversaries of the date of grant thereof, subject
to the participants continued employment with the Company
or any of its subsidiaries on each such vesting date, and shall
be payable in Common Stock or cash, provided, however, that if
any such anniversary is not a date on which the Companys
Common Stock is traded on NASDAQ, then the vesting date shall be
the next such date; and provided further, however, that if the
Chief Financial Officer (CFO) of the Company should
determine that any such anniversary falls within a period during
which the participant is prohibited from trading the
Companys Common Stock under the Companys stock
trading policy, the CFO shall so advise the participant in
writing and the vesting date shall be the date as of which the
CFO has determined that such period has ended.
During 2008, the Compensation Committee provided long-term
stock-based incentive compensation to Mr. Scott Scherr
based on his performance, as discussed above, his level of
equity ownership in the Company and the determination by the
Compensation Committee to increase the equity related component
of executive compensation, consistent with the recommendations
of Watson Wyatt. During 2008, Mr. Scherr received one grant
of a Restricted Stock Award for 209,993 restricted shares of
Common Stock.
During 2008, the Compensation Committee provided long-term
stock-based incentive compensation to Mr. Marc D. Scherr
based on his performance, as discussed above, his level of
equity ownership in the Company and the determination by the
Compensation Committee to increase the equity related component
of executive compensation, consistent with the recommendations
of Watson Wyatt. During 2008, Mr. Scherr received one grant
of a Restricted Stock Award for 151,998 restricted shares of
Common Stock.
In connection with the grants of restricted shares of Common
Stock to Messrs. Scott and Marc Scherr referred to in the
two paragraphs immediately above, the Compensation Committee
considered a non binding guideline established in April, 2007.
The guideline provided for awards of various amounts of
restricted shares, depending upon the Companys non GAAP
operating income for 2007. Under the guideline, Scott Scherr
would be granted 209,993 restricted shares, and Marc Scherr
would be granted 151,998 restricted shares, if the Company
achieved non GAAP operating income of $21,962,500 or more in
2007. The Company achieved approximately $23,600,000 of non GAAP
operating income in 2007.
25
During 2008, the Compensation Committee provided long-term
stock-based incentive compensation to Mr. Mitchell K.
Dauerman based on his performance as discussed above, his level
of equity ownership in the Company and the determination by the
Compensation Committee to increase the equity related component
of executive compensation, consistent with the recommendations
of Watson Wyatt. During 2008, Mr. Dauerman received one
grant of a Restricted Stock Award for 15,000 restricted shares
of Common Stock.
Holders of Restricted Stock Awards have all rights of a
stockholder including the right to vote the shares and receive
all dividends and other distributions paid or made with respect
thereto. Each Restricted Stock Award becomes vested on the
fourth anniversary of the respective date of grant, subject to
the grantees continued employment with the Company or any
subsidiary on each such vesting date.
Holders of Stock Unit Awards do not have any rights as a
stockholder with respect to the shares subject to a Stock Unit
Award until such time as shares of Common Stock are delivered to
the participant pursuant to the terms of the award agreement.
Severance
Benefits
Except as described below, the Company is not obligated to pay
severance or other enhanced benefits to executive officers upon
termination of their employment.
On July 24, 2007, the Board amended and restated two Change
in Control Bonus Plans (previously adopted in March 2004). One
Change in Control Bonus Plan provides for the payment of cash
amounts to the Companys three named executive officers
upon a change in control of the Company. The other
Change in Control Bonus Plan provides for the payment of cash
amounts in the event of a change in control to
employees other than executive officers of the Company as
designated by the Compensation Committee. (The two Amended and
Restated Change in Control Bonus Plans are hereinafter referred
to collectively as the CIC Plan.) A change in
control would occur (i) if the Company were to
complete a consolidation or merger pursuant to which the
stockholders of the Company immediately prior to the merger or
consolidation did not have beneficial ownership of 50% or more
of the combined voting power of the Companys securities
outstanding immediately after the merger or consolidation,
(ii) if the Company were to sell, lease or transfer all or
substantially all of its assets or business or (iii) if
beneficial ownership of more than 50% of the Companys
Common Stock were acquired by a person or entity other than the
Company, a subsidiary or an employee benefit plan of the Company.
The amount of the payments to be made to the executive officers
under the CIC Plan is based upon the gross consideration
received by the Company or its stockholders in the change in
control transaction (the CIC Consideration). The
aggregate amount of payments (including the gross up
payments described below) that may be made to all participants
under the CIC Plan may not exceed 6% of the CIC Consideration.
To the extent this limit would otherwise be exceeded, the
Compensation Committee would reduce one or more payments in its
discretion in the manner that it determines to be equitable. No
payments will be made under the CIC Plan to any participant
whose employment with the Company is terminated prior to the
consummation of the change in control transaction.
In adopting the CIC Plan, the Board determined not to require
that only participants whose employment was terminated in
connection with a change in control would be eligible to receive
the CIC Consideration. The view of the Board upon adoption of
the CIC Plan was that the ownership of equity in the Company by
executives and employees was relatively small and that the CIC
Consideration would provide a fair and reasonable means by which
they could participate with stockholders in connection with a
change in control. In addition, it was the view of the Board
that these payment arrangements would encourage executives and
employees to remain with the Company during a period of
uncertainty in connection with a proposed change of control.
Under the CIC Plan, Messrs. Scott Scherr, Marc D. Scherr
and Mitchell K. Dauerman would be entitled to payments equal to
1.75%, 1.3125% and 0.4375%, respectively, of the CIC
Consideration. To the extent that change in control payments to
these individuals, whether under the CIC Plan or otherwise,
would
26
exceed the limitations of Section 280G of the Internal
Revenue Code, they would be entitled to receive an additional
gross up payment to indemnify them for the effect of
the resulting excise tax imposed on the individuals, subject to
the 6% aggregate limitation referred to above. Assuming that
there was a change in control on December 31, 2008, at the
closing price of the Companys Common Stock on NASDAQ on
the last trading day of the year, Messrs. Scott Scherr,
Marc D. Scherr and Mitchell K. Dauerman would have been entitled
to receive approximately $5.5 million, $4.1 million
and $1.4 million, respectively, inclusive of amounts in
respect of such gross up under the CIC Plan.
The Board may amend or terminate the CIC Plan at any time,
provided that any resulting reduction in a participants
right to payments is compensated for by an arrangement of
comparable or greater value. Unless sooner terminated by the
Board, the CIC Plan will automatically terminate on
July 23, 2012.
Accelerated
Vesting
In addition to the severance provisions described above, the
Companys stock-based compensation for our executive
officers is subject to accelerated vesting under certain
circumstances described below.
Stock Options. The Companys stock options
issued to the executive officers pursuant to the Prior Plan and
the Plan ordinarily vest 25% on the date of grant and 25% on
each of the first three anniversaries of the date of grant,
subject to each executive officers continued employment
with the Company. However, pursuant to the terms of the Prior
Plan and the Nonqualified Stock Option Award Agreements entered
into between the Company and the executive officers under the
Plan, in the event of death, disability or a change in control
of the Company (each, an Accelerated Vesting
Occurrence), each executive officers unvested stock
options under the Prior Plan and the Plan would immediately vest
and become fully exercisable. Stock options held by
Messrs. Scott Scherr, Marc D. Scherr and Mr. Mitchell
K. Dauerman were fully vested as of December 31, 2008.
Restricted Stock Awards. The Companys shares
of restricted stock issued pursuant to the Plan ordinarily vest
on the fourth anniversary of the date of grant, subject to each
executive officers continued employment with the Company.
However, pursuant to the terms of the Restricted Stock Award
Agreements entered into between the Company and the executive
officers under the Plan, in the event of an Accelerated Vesting
Occurrence, each executive officers shares of unvested
restricted stock would immediately vest. Assuming that there was
an Accelerated Vesting Occurrence on December 31, 2008, the
unvested shares of restricted stock held by Messrs. Scott
Scherr, Marc D. Scherr and Mitchell K. Dauerman would have
automatically vested and they would have been entitled to
receive amounts equal to the value of $9,022,610, $6,403,502 and
$803,000, respectively, as a result of such acceleration. These
amounts are derived from the per share Year End Fair Market
Value of the Common Stock multiplied by the number of shares
being accelerated. In addition, pursuant to the terms of the
Restricted Stock Award Agreements entered into between the
Company and the executive officers under the Plan, in the event
an executive officers employment is terminated by the
Company without cause (a Termination Without Cause
Occurrence), 1/48th (one forty-eighth) of the shares
of restricted stock for each complete month of continued
employment by the executive officer with the Company following
the applicable dates of grant would immediately vest. Assuming
that there was a Termination Without Cause Occurrence on
December 31, 2008, a portion of the unvested shares of
restricted stock held by Messrs. Scott Scherr, Marc D.
Scherr and Mitchell K. Dauerman would have automatically vested
on a pro rated basis as described above and they would have been
entitled to receive amounts equal to the value of $3,045,287,
$2,138,708 and $307,208, respectively, as a result of such
acceleration. These amounts are derived from the per share fair
market value of the Common Stock, at the closing price of the
Common Stock on NASDAQ on the last trading day of 2008 (the
Year End Fair Market Value) multiplied by the pro
rated number of shares being accelerated.
Stock Units. The Companys stock units
attributable to the Companys matching contribution of a
portion of cash bonuses voluntarily deferred by an executive
officer under the Plan ordinarily vest on the fourth anniversary
of the date of grant, subject to each executive officers
continued employment with the Company. However, pursuant to the
terms of the Stock Unit Award Agreements entered into between
the Company and the executive officers under the Plan, in the
event of an Accelerated Vesting Occurrence, each
27
executive officers unvested stock units would immediately
vest and become fully exercisable. Assuming that there was an
Accelerated Vesting Occurrence on December 31, 2008, the
unvested stock units held by Messrs. Scott Scherr and Marc
D. Scherr would have automatically vested and they would have
been entitled to receive amounts equal to the value of $121,327
and $98,275, respectively, as a result of such acceleration.
These amounts are derived from the per share Year End Fair
Market Value of the Common Stock multiplied by the number of
shares subject to the stock units being accelerated.
In addition, pursuant to the terms of the Stock Unit Award
Agreements entered into between the Company and the executive
officers under the Plan, in the event of a Termination Without
Cause Occurrence, 1/48th (one forty-eighth) of the stock
units for each complete month of continued employment by the
executive officer with the Company following the applicable
dates of grant would immediately vest and become fully
exercisable. Assuming that there was a Termination Without Cause
Occurrence on December 31, 2008, a portion of the unvested
stock units held by Messrs. Scott Scherr and Marc D. Scherr
would have automatically vested on a pro rated basis as
described above and they would have been entitled to receive
amounts equal to the value of $74,778 and $60,570, respectively,
as a result of such acceleration. These amounts are derived from
the per share Year End Fair Market Value of the Common Stock
multiplied by the pro rated number of shares subject to the
stock units being accelerated.
Tax
Deductibility of Executive Compensation
In general, Section 162(m) of the Code disallows a
deduction for any compensation paid in excess of $1 million
during a calendar year to any of the chief executive officer and
the four most highly paid executive officers of publicly held
companies, subject to an exception for compensation that
qualifies as performance-based compensation. The
Compensation Committee has endeavored, to the extent it deems
consistent with the best interests of the Company and its
stockholders, to obtain maximum deductibility of compensation
paid to executive officers. For example, awards of stock options
under the Plan satisfy the requirements for performance-based
compensation under Section 162(m). However, the
Compensation Committee also recognizes the need to retain
flexibility to make compensation decisions that may not meet
Section 162(m) standards when necessary to enable the
Company to meet its overall objectives, even if the Company may
not deduct all of the compensation. Accordingly, the
Compensation Committee will award non-deductible compensation in
appropriate circumstances. For 2008, all of the compensation
paid by the Company was tax deductible, consistent with the
limitations of Section 162(m).
Employee
Benefits
The Company offers core employee benefits coverage in order to
provide our workforce with a reasonable level of financial
support in the event of illness or injury, and to enhance
productivity and job satisfaction through programs that focus on
work/life balance.
The benefits available are the same for all U.S. employees
and executive officers and include medical and dental coverage,
disability insurance, and life insurance. In addition, our
401(k) Plan provides a reasonable level of retirement income
reflecting employees careers with the Company. All
U.S. employees, including executive officers, participate
in these plans.
The cost of post-employment benefits is partially borne by the
employee, including each executive officer.
Perquisites
The Company does not provide significant perquisites or personal
benefits to executive officers.
28
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EXECUTIVE COMPENSATION
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SUMMARY COMPENSATION TABLE
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($)
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($)
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($)
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Non-Equity
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($)
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Stock
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Option
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Incentive Plan
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All Other
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Name and
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($)
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($)
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Awards
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Awards
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Compensation
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Compensation
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($)
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Principal Position
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Year
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Salary
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Bonus
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(1)
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(2)
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(3)
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(4)
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Total
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Scott Scherr Chairman
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of the Board, President
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and Chief Executive
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2008
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$630,000
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$
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$2,944,427
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$ 45,348
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$
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$4,650
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$3,624,425
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Officer
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2007
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600,000
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1,475,811
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225,314
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3,875
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2,305,000
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2006
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550,000
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829,886
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290,153
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155,834
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3,750
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1,829,623
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Marc D. Scherr Vice
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Chairman and Chief
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2008
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$575,000
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$
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$2,088,838
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$ 34,011
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$
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$4,650
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$2,702,499
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Operating Officer
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2007
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550,000
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1,100,879
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168,986
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3,875
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1,823,740
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2006
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495,000
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577,426
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227,250
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126,225
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3,750
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1,429,651
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Mitchell K. Dauerman
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Executive Vice
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President, Chief
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Financial Officer
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2008
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$450,000
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$
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$274,156
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$
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$
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$4,650
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$728,806
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and Treasurer
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2007
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412,500
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50,000
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158,145
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26,312
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3,875
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650,832
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2006
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412,500
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60,096
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48,249
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116,875
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3,750
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641,470
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(1) |
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Includes shares of Common Stock subject to Restricted Stock
Awards granted to the executive in 2008, 2007, 2006 and 2005
under Restricted Stock Award agreements. The total number of
restricted shares of Common Stock issued to Messrs. Scott
Scherr, Marc D. Scherr and Mitchell K. Dauerman in 2008 was
209,993, 151,998 and 15,000, respectively. In accordance with
SFAS No. 123R, the grant date fair value of such shares was
$3,091,097, $2,237,411 and $220,800, respectively. The aggregate
number of restricted shares of Common Stock issued to
Messrs. Scott Scherr, Marc D. Scherr and Mitchell K.
Dauerman in 2007 was 227,994, 166,598 and 15,000, respectively.
In accordance with SFAS No. 123R, the grant date fair
value of such shares was $7,482,511, $5,336,054 and $523,350,
respectively. The aggregate number of restricted shares of
Common Stock issued to Messrs. Scott Scherr, Marc D. Scherr
and Mitchell K. Dauerman in 2006 was 110,000, 80,000 and 15,000,
respectively. In accordance with SFAS No. 123R, the
grant date fair value of such shares was $2,506,000, $1,819,000
and $363,000, respectively. The aggregate number of restricted
shares of Common Stock issued to Messrs. Scott Scherr, Marc
D. Scherr and Mitchell K. Dauerman in 2005 was 70,000, 40,000
and 10,000, respectively. In accordance with
SFAS No. 123R, the grant date fair value of such
shares was $1,173,500, $666,250 and $171,100, respectively. The
restricted shares granted in 2008, 2007, 2006 and 2005 vest upon
the fourth anniversary of the respective date of grant, subject
to the executives continued employment by the Company, or
a subsidiary, on the vesting date and subject further to
accelerated vesting in the event of a Change in Control, the
executives death or disability or the termination of the
executives employment by the Company without cause. In the
cases of Messrs. Scott Scherr and Marc D. Scherr, for 2006
and 2005, the grants of Stock Unit Awards were made in lieu of
50% of their cash performance bonuses earned for 2006 and 2005
performance that they elected to defer pursuant to the Plan.
Upon their election to defer 50% of their earned cash bonuses,
the Company matched 50% of the amounts deferred by
Messrs. Scott Scherr and Marc D. Scherr, payable in Stock
Unit Awards and included herein. The aggregate number of Stock
Unit Awards issued to Messrs. Scott Scherr and Marc D.
Scherr in 2006 (for performance in 2005) was 15,756 and
12,762, respectively. The aggregate number of Stock Unit Awards
issued to Messrs. Scott Scherr and Marc D. Scherr in 2007
(for performance in 2006) was 9,173 and 7,430,
respectively. The total amount in the Stock Awards
column above represents the expense of both Restricted Stock
Awards and Stock Unit Awards recognized in the statement of
operations for each executive officer as compensation costs
(excluding forfeiture assumptions) in accordance with
SFAS No. 123R during fiscal 2006, 2007 and 2008. A
discussion of the assumptions used in calculating these values
may be found in Note 17 on pages
50-56 of the
Form 10-K
filed with the SEC on March 2, 2009. |
29
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(2) |
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Includes option awards granted in 2005, 2004 and 2003. There
were no option awards granted in 2008, 2007 or 2006. The
aggregate number of option awards issued to Messrs. Scott
Scherr and Marc D. Scherr in 2005 was 80,000 and 60,000,
respectively. The aggregate number of option awards issued to
Messrs. Scott Scherr, Marc D. Scherr and Mitchell K.
Dauerman in 2004 was 100,000, 75,000 and 25,000, respectively.
The aggregate number of option awards issued to
Messrs. Scott Scherr, Marc D. Scherr and Mitchell K.
Dauerman in 2003 was 129,167, 98,417 and 31,751, respectively.
The amounts reported under Option Awards above
represent the expense of those stock option awards vesting in
2008, 2007 and 2006 recognized in the statement of operations
for each executive officer as compensation costs (excluding the
forfeiture assumption) in accordance with
SFAS No. 123R for fiscal 2008, 2007 and 2006. Under
SFAS No. 123R, the fair value of each stock option award is
estimated on the grant date using the Black-Scholes option
valuation model based on the assumptions noted in the following
table. The Companys computation of the expected volatility
for each grant date above during the year ended
December 31, 2008 is based primarily upon historical
volatility and the expected term of the option. The expected
term is based on the historical exercise experience under the
share-based plans of the underlying award (including
post-vesting employment termination behavior) and represents the
period of time the share-based awards are expected to be
outstanding. The interest rate is based on the U.S. Treasury
yield in effect at the time of grant for a period commensurate
with the estimated expected life. The table below details the
assumptions used for the option awards granted in 2005, 2004 and
2003. |
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BLACK-SCHOLES ASSUMPTIONS
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Stock Option Grant Date
|
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May 17, 2005
|
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Oct. 20, 2004
|
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Oct. 31, 2003
|
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Jan. 02, 2003
|
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Risk Free Rate
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3.63%
|
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3.50%
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3.13%
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3.13%
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Expected Volatility
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42.57%
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46.37%
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46.00%
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46.00%
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Expected Life
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4.00
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4.00
|
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4.00
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4.00
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Dividend Yield
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0%
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0%
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0%
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0%
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Grant Date Fair Value
|
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$ 6.01
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$ 5.24
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$ 3.71
|
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$ 1.38
|
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(3) |
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Includes cash performance bonuses earned by the executive
officers in 2006. |
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(4) |
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Consists of contributions by the Company to the Companys
401(k) Plan on behalf of the executive officers indicated. |
GRANTS OF
PLAN-BASED AWARDS IN 2008
The following table provides information concerning the
long-term incentive awards made to the executive officers in
fiscal 2008.
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GRANTS OF PLAN-BASED AWARDS IN 2008
|
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All Other Stock
|
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Awards: Number
|
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of Shares of
|
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Grant Date
|
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Stock or Units
|
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Fair Value
|
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Name
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Grant Date
|
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(#)
|
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($)
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Scott Scherr
|
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10/27/2008
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209,993
|
|
|
$
|
3,091,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marc D. Scherr
|
|
|
10/27/2008
|
|
|
|
151,998
|
|
|
$
|
2,237,411
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell K. Dauerman
|
|
|
10/27/2008
|
|
|
|
15,000
|
|
|
$
|
220,800
|
|
The Company has no employment agreements with its executive
officers.
30
The material factors necessary to understand each of the awards
listed in the Grants of Plan-Based Awards in 2008 table are
discussed in detail above under the heading Compensation
Discussion and Analysis under the subheading
Incentive Compensation.
OUTSTANDING
EQUITY AWARDS AT 2008 FISCAL YEAR-END
The following table sets forth, for the Companys Chief
Executive Officer and all other executive officers of the
Company, certain information concerning unexercised stock
options; stock that has not vested; and equity incentive plan
awards as of the end of the Companys last completed fiscal
year:
OUTSTANDING EQUITY AWARDS AT
FISCAL YEAR-END
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
|
|
|
Stock Awards
|
|
|
|
Number of
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Securities
|
|
|
Securities
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
|
|
|
Shares or
|
|
|
Market Value of
|
|
|
|
|
|
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Option
|
|
|
Option
|
|
|
|
|
|
Units That
|
|
|
Shares or Units
|
|
|
Vest Date of
|
|
|
|
|
|
|
Options
|
|
|
Options
|
|
|
Exercise
|
|
|
Expiration
|
|
|
|
|
|
Have Not
|
|
|
That Have Not
|
|
|
Stock
|
|
|
|
|
Name
|
|
Exercisable (#)
|
|
|
Unexercisable (#)
|
|
|
Price ($)
|
|
|
Date
|
|
|
|
|
|
Vested (#)
|
|
|
Vested ($)(3)
|
|
|
Awards
|
|
|
|
|
|
|
|
Scott Scherr
|
|
|
100,000
|
|
|
|
|
|
|
$
|
13.05
|
|
|
|
10/20/2014
|
|
|
|
(1
|
)
|
|
|
20,000
|
|
|
$
|
292,000
|
|
|
|
5/17/2009
|
|
|
|
(2
|
)
|
|
|
|
80,000
|
|
|
|
|
|
|
|
15.90
|
|
|
|
5/17/2015
|
|
|
|
(1
|
)
|
|
|
50,000
|
|
|
|
730,000
|
|
|
|
10/18/2009
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000
|
|
|
|
876,000
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,252
|
|
|
|
76,681
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
730,000
|
|
|
|
10/23/2010
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,058
|
|
|
|
44,646
|
|
|
|
2/7/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000
|
|
|
|
876,000
|
|
|
|
5/15/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
167,994
|
|
|
|
2,452,712
|
|
|
|
10/23/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
209,993
|
|
|
|
3,065,898
|
|
|
|
10/27/2012
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marc D. Scherr
|
|
|
50,000
|
|
|
|
|
|
|
|
8.03
|
|
|
|
2/2/2010
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
$
|
219,000
|
|
|
|
5/17/2009
|
|
|
|
(2
|
)
|
|
|
|
100,000
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/7/2011
|
|
|
|
(1
|
)
|
|
|
25,000
|
|
|
|
365,000
|
|
|
|
10/18/2009
|
|
|
|
(2
|
)
|
|
|
|
48,417
|
|
|
|
|
|
|
|
3.49
|
|
|
|
1/2/2013
|
|
|
|
(1
|
)
|
|
|
4,254
|
|
|
|
62,111
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
50,000
|
|
|
|
|
|
|
|
9.40
|
|
|
|
10/31/2013
|
|
|
|
(1
|
)
|
|
|
45,000
|
|
|
|
657,000
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
75,000
|
|
|
|
|
|
|
|
13.05
|
|
|
|
10/20/2014
|
|
|
|
(1
|
)
|
|
|
35,000
|
|
|
|
511,000
|
|
|
|
10/23/2010
|
|
|
|
(2
|
)
|
|
|
|
60,000
|
|
|
|
|
|
|
|
15.90
|
|
|
|
5/17/2015
|
|
|
|
(1
|
)
|
|
|
45,000
|
|
|
|
657,000
|
|
|
|
2/6/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,477
|
|
|
|
36,163
|
|
|
|
2/7/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
121,598
|
|
|
|
1,775,171
|
|
|
|
10/23/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
151,998
|
|
|
|
2,219,171
|
|
|
|
10/27/2012
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell K Dauerman
|
|
|
50,000
|
|
|
|
|
|
|
|
7.63
|
|
|
|
10/21/2009
|
|
|
|
(1
|
)
|
|
|
10,000
|
|
|
|
146,000
|
|
|
|
10/18/2009
|
|
|
|
(2
|
)
|
|
|
|
30,000
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/7/2010
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
219,000
|
|
|
|
10/23/2010
|
|
|
|
(2
|
)
|
|
|
|
11,751
|
|
|
|
|
|
|
|
3.49
|
|
|
|
1/2/2013
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
219,000
|
|
|
|
10/23/2011
|
|
|
|
(2
|
)
|
|
|
|
20,000
|
|
|
|
|
|
|
|
9.40
|
|
|
|
10/31/2013
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
219,000
|
|
|
|
10/27/2012
|
|
|
|
(2
|
)
|
|
|
|
25,000
|
|
|
|
|
|
|
|
13.05
|
|
|
|
10/20/2014
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
All such options vest and become exercisable in equal annual
installments, each of which shall relate to 25% of the number of
shares of Common Stock subject to such Option, on the respective
dates of grant and each of the first three anniversaries
thereof, subject to the optionees continued employment
with the Company or any Subsidiary on each such vesting date or
accelerated vesting in the event of a Change in Control, death,
disability or termination of employment by the Company without
cause. All such options expire ten years from the date of grant. |
|
(2) |
|
All such restricted stock grants and the matching portion of the
restricted stock units fully vest on the fourth anniversary of
the date of grant subject to accelerated vesting in the event of
a Change in Control, death, disability or termination of
employment by the Company without cause. |
|
(3) |
|
The market value of the unvested equity incentive plan awards
was calculated based on the closing market price of the
Companys stock at the end of the last completed fiscal
year. The closing price of the Companys stock on NASDAQ on
December 31, 2008 was $14.60. |
31
OPTION
EXERCISES AND STOCK VESTED IN 2008
The following table sets forth, for the Companys Chief
Executive Officer and all other executive officers of the
Company, certain information concerning each exercise of stock
options, and each vesting of stock, including restricted stock,
stock units and similar instruments, during the last completed
fiscal year:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OPTION EXERCISES AND STOCK VESTED
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
(#)
|
|
|
|
|
|
(#)
|
|
|
|
|
|
|
Number of
|
|
|
($)
|
|
|
Number of
|
|
|
($)
|
|
|
|
Shares
|
|
|
Value
|
|
|
Shares
|
|
|
Value
|
|
|
|
Acquired on
|
|
|
Realized
|
|
|
Acquired on
|
|
|
Realized on
|
|
Name
|
|
Exercise
|
|
|
on Exercise (1)
|
|
|
Vesting
|
|
|
Vesting (2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scott Scherr
|
|
|
110,000
|
|
|
$
|
2,708,942
|
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marc D. Scherr
|
|
|
26,285
|
|
|
|
730,222
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell K. Dauerman
|
|
|
28,591
|
|
|
|
809,074
|
|
|
|
|
|
|
|
|
|
(1) Amounts reflect the difference between the exercise
price of the option and the market price of the underlying
shares at the time of the exercise.
(2) No stock awards vested during 2008.
Compensation
Committee Report
The Compensation Committee has reviewed and discussed with the
Companys management the disclosure set forth under the
heading Compensation Discussion and Analysis
appearing on pages 21 to 28 of this Proxy Statement. Based on
such review and discussions, the Compensation Committee has
recommended to the Board that such Compensation Discussion
and Analysis be included in this Proxy Statement.
LeRoy A. Vander Putten, Chairman
Rick A. Wilber
Robert A. Yanover
Alois T. Leiter
Members of the Compensation Committee
Audit
Committee Report
The Audit Committee is composed of three non-employee directors,
Messrs. Robert A. Yanover (Chairman), LeRoy A. Vander
Putten and Rick A. Wilber, and operates under a written charter
adopted by the Board, a copy of which is available on the
Companys website at www.ultimatesoftware.com. The Audit
Committee oversees the Companys financial reporting
process on behalf of the Board, reviews the independence of the
Companys auditors and fulfills the other responsibilities
provided for in its charter. The Audit Committee has sole
authority to appoint the independent auditors and terminate
their engagement.
Management is responsible for the Companys consolidated
financial statements, systems of internal control and the
financial reporting process. The Companys independent
registered public accounting firm, KPMG LLP, is responsible for
performing an independent audit of the Companys
consolidated financial statements and expressing an opinion on
the conformity of those consolidated financial statements with
generally accepted accounting principles. In addition, KPMG was
responsible for expressing an opinion on the Companys
internal control over financial reporting based on their audit
as of December 31, 2008. The Audit Committees
responsibility is to monitor and oversee these processes.
32
The Audit Committee has implemented procedures to ensure that
during the course of each fiscal year it devotes the attention
it deems necessary or appropriate to fulfill its oversight
responsibilities under the Audit Committees charter. To
carry out its responsibilities, the Audit Committee held four
meetings during fiscal 2008.
The Audit Committee hereby reports as follows:
|
|
|
|
1.
|
The Audit Committee reviewed and discussed the audited
consolidated financial statements with management and has met
with the independent registered public accounting firm, KPMG
LLP, with and without management present, to discuss the results
of their fiscal 2008 examination, their evaluation of the
Companys internal controls, and the overall quality of the
Companys financial reporting.
|
|
|
2.
|
The Audit Committee discussed with KPMG LLP the matters required
to be discussed by Statement on Auditing Standards No. 61,
Communication with Audit Committees, as amended.
|
|
|
3.
|
The Audit Committee reviewed the written disclosures and the
letter received from KPMG LLP required by applicable
requirements of the Public Company Accounting Oversight Board
regarding the independent accountants communications with
the Audit Committee concerning independence and discussed with
KPMG LLP that firms independence from the Company and its
management, including whether the independent auditors
provision of non-audit services to the Company are compatible
with maintaining their independence.
|
In reliance on the reviews and discussions referred to above,
the Audit Committee recommended to the Board that the
Companys audited consolidated financial statements as of
and for the year ended December 31, 2008 be included in the
Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 for filing with
the SEC, which occurred on March 2, 2009.
Robert A. Yanover, Chairman
LeRoy A. Vander Putten
Rick A. Wilber
Members of the Audit Committee
KPMG LLP
Fees
The following table presents fees for professional services
rendered by the Companys independent registered public
accounting firm, KPMG LLP, for the audit of the Companys
annual consolidated financial statements and internal control
over financial reporting for the years ended December 31,
2008 and 2007, together with fees billed for other services
rendered by KPMG LLP during those periods.
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
Audit Fees (1)
|
|
$
|
441,893
|
|
|
$
|
424,500
|
|
Audit-Related Fees (2)
|
|
|
147,500
|
|
|
|
134,000
|
|
Tax Fees (3)
|
|
|
|
|
|
|
|
|
All Other Fees (4)
|
|
|
|
|
|
|
3,000
|
|
|
|
|
|
|
|
|
|
|
Total Fees
|
|
$
|
589,393
|
|
|
$
|
561,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Consists of the aggregate fees incurred for the audits of the
Companys consolidated financial statements for fiscal
years 2008 and 2007 and the reviews of the Companys 2008
and 2007 quarterly reports on
Forms 10-Q.
The audit fees for the years ended December 31, 2008 and
2007 also include fees for services rendered in connection with
Section 404 of the Sarbanes-Oxley Act internal controls
audit work and, to a lesser extent, services performed in
connection with review of the Companys
Form S-8
in 2007 and the issuance of a consent resulting from such
reviews. During 2007, the Company filed a registration statement
with the SEC on
Form S-8
covering shares of Common Stock issuable under the Plan. |
33
|
|
|
(2) |
|
Consists of fees incurred for services provided by KPMG LLP in
relation to the issuances of Statement of Auditing Standards
(SAS) 70 service auditors reports during 2008 and 2007. |
|
(3) |
|
There were no fees incurred for tax compliance services during
2008 and 2007. |
|
(4) |
|
Consists of the aggregate fees for products and services
provided by KPMG LLP that were not reported above under
Audit Fees, Audit-Related Fees, or
Tax Fees. During 2007, the Company purchased two
licenses for KPMGs Accounting Research Online software.
The Company did not purchase any licenses for KPMGs
Accounting Research Online software during 2008. |
Audit
Committee Pre-approval of Audit and Permissible Non-Audit
Services of Independent Auditors
Consistent with the SEC requirements regarding auditor
independence, the Audit Committee has adopted a policy to
pre-approve services to be performed by the Companys
principal independent auditor prior to commencement of the
specified service. Under the policy, the Audit Committee must
pre-approve the provision of services by the Companys
principal auditor prior to commencement of the specified
service. The requests for pre-approval are submitted to the
Audit Committee by the Chairman of the Board, President and
Chief Executive Officer, the Chief Financial Officer, or a
designee of either with a statement as to whether, in their
view, the request is consistent with the SEC rules on auditor
independence. All of the services performed by KPMG LLP during
2008 and 2007 were pre-approved by the Audit Committee.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Mr. James A. FitzPatrick, Jr. is a partner in the law
firm Dewey & LeBoeuf LLP (formerly Dewey Ballantine
LLP), which provides legal services to the Company.
Mr. Alois T. Leiter has entered into an agreement with the
Company pursuant to which he agreed to (i) attend and
participate in certain internal meetings of the Company;
(ii) assist the Companys salespeople with prospects;
and (iii) act as an official spokesperson for the Company
in exchange for which the Company agreed to make contributions
to Leiters Landing, a non-profit charitable organization
benefiting children that was formed by Mr. Leiter, in the
amount of one tenth (1/10) of one percent, or 0.1%, of the
Companys total annual revenue as reported on its financial
statements, such payments not to exceed $200,000 in any one year.
SECTION 16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the
Companys executive officers and directors and persons who
beneficially own more than 10% of the Companys Common
Stock to file initial reports of ownership and reports of
changes in ownership with the SEC. Such executive officers,
directors and greater than 10% beneficial owners are required by
the regulations of the SEC to furnish the Company with copies of
all Section 16(a) reports they file. Based solely on a
review of the copies of such reports furnished to the Company
and written representations from the executive officers and
directors, the Company believes that all Section 16(a)
filing requirements applicable to its executive officers and
directors and greater than 10% beneficial owners were met during
2008, except that the Company, acting pursuant to a power of
attorney granted by Mr. Robert A. Yanover, inadvertently
filed late with the SEC a Form 4 reporting an exercise of
an option to purchase 246 shares of the Companys
Common Stock on May 13, 2008. This transaction was
subsequently reported on a Form 4 filed with the SEC on
July 29, 2008.
STOCKHOLDER
PROPOSALS FOR THE 2010 ANNUAL MEETING
Under the rules of the SEC, any proposal by a stockholder to be
presented at the 2010 Annual Meeting of Stockholders and to be
included in the Companys Proxy Statement for such meeting
must be received at the Companys principal corporate
office: 2000 Ultimate Way, Weston, Florida 33326, no later than
the close of business on December 3, 2009. Proposals should
be sent to the attention of the Secretary of the Company. Any
such stockholder proposal must comply with the applicable rules
of the SEC.
34
Under the Companys By-Laws, proposals of stockholders not
included in the proxy materials may be presented at the 2010
Annual Meeting of Stockholders only if the Companys
Secretary has been notified of the nature of the proposal and is
provided certain additional information at least sixty days but
not more than ninety days prior to April 2, 2010, the first
anniversary of the Proxy Statement in connection with the 2009
Annual Meeting of Stockholders (subject to exceptions if the
2010 Annual Meeting is advanced by more than thirty days and the
proposal is a proper one for stockholder action).
OTHER
MATTERS
Financial
Statements
A copy of the Companys Annual Report on
Form 10-K,
for the year ended December 31, 2008, is available on the
Companys website, www.ultimatesoftware.com.
Other
The Company is not aware of any other matters that may come
before the Annual Meeting. If other matters are properly
presented at the Annual Meeting, it is the intention of the
persons named as proxies in the enclosed proxy to vote in
accordance with their best judgment.
By Order of the Board of Directors:
Vivian Maza
Secretary
Weston, Florida
April 2, 2009
35
Appendix
A
THE
ULTIMATE SOFTWARE GROUP, INC.
AMENDED
AND RESTATED 2005 EQUITY AND INCENTIVE PLAN
The Ultimate Software Group, Inc., a Delaware corporation
(together with its affiliates and subsidiaries, the
Company), hereby amends and restates The Ultimate
Software Group, Inc. 2005 Equity and Incentive Plan (as so
amended and restated, the Plan), effective as of
May 15, 2007, the date of the Companys 2007 annual
meeting of stockholders, or the date of any adjournment thereof,
to provide in its entirety as follows:
The objectives of the Plan are (i) to provide a vehicle for
compensating the Companys key personnel by giving them the
opportunity to acquire a proprietary interest in the
Companys Common Stock by receiving equity-based incentive
compensation; (ii) to provide management with an equity
ownership in the Company commensurate with Company performance,
as reflected in increased stockholder value; (iii) to
attract, motivate and retain key employees, non-employee
directors and other service providers by maintaining competitive
compensation levels; and (iv) to provide an incentive to
management for continuous employment with or service to the
Company.
Wherever the following capitalized terms are used in the Plan,
they shall have the meanings specified below:
(a) Award means an award of an Option,
Stock Appreciation Right, Restricted Stock Award, Stock Unit
Award, Stock Award or Performance Award granted under the Plan.
(b) Award Agreement means an agreement
entered into between the Company and a Participant setting forth
the terms and conditions of an Award granted to a Participant.
(c) Board means the Board of Directors
of the Company.
(d) Change in Control shall have the
meaning set forth in Section 14.2 hereof.
(e) Code means the Internal Revenue Code
of 1986, as amended.
(f) Committee means the Compensation
Committee of the Board or a successor thereof, or any other
committee of the Board appointed by the Board to administer the
Plan from time to time.
(g) Common Stock means the
Companys Common Stock, par value $.01 per share.
(h) Company means The Ultimate Software
Group, Inc., a Delaware corporation.
(i) Date of Grant means the date on
which an Award under the Plan is made by the Committee, or such
later date as the Committee may specify to be the effective date
of the Award.
(j) Director Fee Option means an Option
granted in lieu of certain directors fees under
Section 13 of the Plan.
(k) Disability means a condition in
which a Participant is considered disabled within
the meaning of Section 409A(a)(2)(C) of the Code, unless
otherwise provided in an Award Agreement.
(l) Eligible Person means any person who
is an employee, officer, director, consultant or advisor of the
Company or any Subsidiary, as determined by the Committee, or
any person who is determined by the Committee to be a
prospective employee, officer, director, consultant or advisor
of the Company or any Subsidiary.
(m) Exchange Act means the Securities
Exchange Act of 1934, as amended.
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(n) Fair Market Value with respect to
the value of a share of Common Stock as of a particular day,
shall mean the last reported sale price (as reported on the
NASDAQ) of the Common Stock on such day (unless such day is not
a trading day, in which case, on the last trading day
immediately preceding such day on which the Common Stock is
traded on the NASDAQ). If the Common Stock is not listed on the
NASDAQ, the Committee shall determine in good faith the Fair
Market Value in whatever manner it considers appropriate.
(o) Incentive Stock Option means an
Option to purchase shares of Common Stock granted under
Section 6 hereof that is intended to meet the requirements
of Section 422 of the Code and the regulations promulgated
thereunder.
(p) NASDAQ means The Nasdaq Stock
Markets National Market.
(q) Non-Employee Director means any
member of the Board who is not an officer or employee of the
Company.
(r) Nonqualified Stock Option means an
Option to purchase shares of Common Stock granted under
Section 6 hereof that is not an Incentive Stock Option.
(s) Option means an Incentive Stock
Option or a Nonqualified Stock Option granted under the Plan.
(t) Participant means any Eligible
Person who holds an outstanding Award under the Plan.
(u) Performance Awards means an Award
under Section 11 hereof entitling a Participant to a
payment in cash at the end of a performance period, if the
performance and other conditions established by the Committee
are satisfied.
(v) Plan means The Ultimate Software
Group, Inc. 2005 Equity and Incentive Plan as set forth herein,
as amended from time to time.
(w) Prior Plan means The Ultimate
Software Group, Inc. Nonqualified Stock Option Plan, as amended
and restated as of December 20, 2002.
(x) Restricted Stock Award means an
Award under Section 8 hereof entitling a Participant to
shares of Common Stock that are nontransferable and subject to
forfeiture until specific conditions established by the
Committee are satisfied.
(y) Section 162(m) Award means any
Award that is intended to qualify for the performance-based
compensation exception under Section 162(m) of the Code and
the regulations promulgated thereunder.
(z) Stock Appreciation Right means an
Award under Section 7 hereof entitling a Participant to
receive a payment, representing the difference between a base
price per share and the Fair Market Value of a share of Common
Stock on the date of exercise.
(aa) Stock Award means an Award under
Section 10 hereof entitling a Participant to shares of
Common Stock that are free of transfer restrictions and
forfeiture conditions imposed by the Plan.
(bb) Stock Unit Award means an Award
under Section 9 hereof entitling a Participant to a payment
of a unit value based on the Fair Market Value of a share of
Common Stock.
(cc) Subsidiary means an entity (whether
or not a corporation) that is wholly or majority owned or
controlled, directly or indirectly, by the Company, or any other
affiliate of the Company that is so designated, from time to
time, by the Committee; provided, however, that with respect to
Incentive Stock Options, the term Subsidiary shall
include only an entity that qualifies under Section 424(f)
of the Code as a subsidiary corporation with respect
to the Company.
Section 3.1 Committee
Members. The Plan shall be administered by a
Committee comprised of no fewer than two members of the Board.
Solely to the extent deemed necessary or advisable by the Board,
A-2
each Committee member shall satisfy the requirements for
(i) an independent director under rules adopted
by the NASDAQ, (ii) a nonemployee director for
purposes of such
Rule 16b-3
under the Exchange Act and (iii) an outside
director under Section 162(m) of the Code. The
Committee shall have such powers and authority as may be
necessary or appropriate for the Committee to carry out its
functions as described in the Plan. No member of the Committee
shall be liable for any action or determination made in good
faith by the Committee with respect to the Plan or any Award
thereunder.
Section 3.2 Committee
Authority. Subject to the express limitations of
the Plan, the Committee shall have authority in its discretion
to determine the Eligible Persons to whom, and the time or times
at which, Awards may be granted, the number of shares, units or
other rights subject to each Award, the exercise, base or
purchase price of an Award (if any), the time or times at which
an Award will become vested, exercisable or payable, the
performance criteria, performance goals and other conditions of
an Award, the duration of the Award, and all other terms of the
Award. Subject to the terms of the Plan, the Committee shall
have the authority to amend the terms of an Award in any manner
that is permitted by the Plan for the grant of an Award,
provided that no such action shall adversely affect the rights
of a Participant with respect to an outstanding Award without
the Participants consent. The Committee shall also have
discretionary authority to interpret the Plan, to make all
factual determinations under the Plan, and to make all other
determinations necessary or advisable for Plan administration,
including, without limitation, to correct any defect, to supply
any omission or to reconcile any inconsistency in the Plan or
any Award Agreement hereunder. The Committee may prescribe,
amend, and rescind rules and regulations relating to the Plan.
The Committees determinations under the Plan need not be
uniform and may be made by the Committee selectively among
Participants and Eligible Persons, whether or not such persons
are similarly situated. All interpretations, determinations, and
actions by the Committee shall be final, conclusive, and binding
upon all parties.
Section 3.3 Delegation of
Authority. The Committee shall have the right,
from time to time, to delegate to one or more officers of the
Company the authority of the Committee to grant and determine
the terms and conditions of Awards granted under the Plan,
subject to the requirements of Section 157(c) of the
Delaware General Corporation Law and such other limitations as
the Committee shall determine. In no event shall such authority
be delegated with respect to Awards to any members of the Board
or any Participant who the Committee determines may be subject
to
Rule 16b-3
under the Exchange Act or Section 162(m) of the Code. In
the event that authority is delegated to an officer or officers
in accordance with the foregoing, all provisions of the Plan
relating to the Committee shall be interpreted in a manner
consistent with the foregoing by treating any such reference as
a reference to such officer or officers for such purpose.
Section 3.4 Grants to Committee
Members. Any Awards under the Plan made to
Non-Employee Directors shall be approved by the Board. With
respect to awards to such directors, all rights, powers and
authorities vested in the Committee under the Plan shall instead
be exercised by the Board, and all provisions of the Plan
relating to the Committee shall be interpreted in a manner
consistent with the foregoing by treating any such reference as
a reference to the Board for such purpose.
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4.
|
SHARES
SUBJECT TO THE PLAN
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Section 4.1 Share
Limitation. No further grants may be made under
the Prior Plan, but awards made under the Prior Plan shall
remain outstanding in accordance with their terms. Subject to
adjustment pursuant to Section 4.2 hereof, the maximum
aggregate number of shares of Common Stock which may be issued
under all (i) stock options granted under the Prior Plan
and (ii) Awards granted to Participants under the Plan
shall be 12,500,000 shares. Shares of Common Stock issued
under the Plan may be either authorized but unissued shares or
shares held in the Companys treasury. To the extent that
any Award under the Plan or any stock option under the Prior
Plan payable in shares of Common Stock is forfeited, cancelled,
returned to the Company for failure to satisfy vesting
requirements or upon the occurrence of other forfeiture events,
or otherwise terminates without payment being made thereunder,
the shares of Common Stock covered thereby will no longer be
counted against the foregoing maximum share limitation and may
again be made subject to Awards under the Plan pursuant to such
limitation. In addition, any shares of Common Stock exchanged by
a Participant or withheld from a Participant as full or partial
payment to the Company of the exercise price or tax withholding
upon exercise or payment of an Award under the Plan or any stock
option under the Prior
A-3
Plan shall be added to the foregoing maximum share limitation
and may be made subject to Awards under the Plan pursuant to
such limitation. Any Awards under the Plan settled in cash shall
not be counted against the foregoing maximum share limitation.
Notwithstanding the foregoing, the maximum number of shares of
Common Stock that may be returned or added to the aggregate
share reserve under the Plan upon the termination, forfeiture,
cancellation or other disposition of a stock option granted
under the Prior Plan shall be limited to 6,000,000 shares.
Section 4.2 Adjustments. If
there shall occur any recapitalization, reclassification, stock
dividend, extraordinary dividend, stock split, reverse stock
split, or other distribution with respect to the shares of
Common Stock, or any merger, reorganization, consolidation or
other change in corporate structure affecting the Common Stock,
the Committee shall, in the manner and to the extent that it
deems appropriate and equitable to the Participants and
consistent with the terms of the Plan, cause an adjustment to be
made in (i) the maximum number and kind of shares provided
in Section 4.1 hereof, (ii) the maximum number and
kind of shares or units set forth in Sections 6.1, 7.1,
8.1, 9.1 and 10.1 hereof, (iii) the number and kind of
shares of Common Stock, units, or other rights subject to then
outstanding Awards, (iv) the price for each share or unit
or other right subject to then outstanding Awards, (v) the
performance measures or goals relating to an Award and
(v) any other terms of an Award that are affected by the
event to prevent dilution or enlargement of a Participants
rights under an Award. Notwithstanding the foregoing, in the
case of Incentive Stock Options, any such adjustments shall be
made in a manner consistent with the requirements of
Section 424(a) of the Code.
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5.
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ELIGIBILITY
AND AWARDS
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All Eligible Persons are eligible to be designated by the
Committee to receive an Award under the Plan. The Committee has
the authority, in its sole discretion, to determine and
designate from time to time those Eligible Persons who are to be
granted Awards, the types of Awards to be granted and the number
of shares or units subject to the Awards that are granted under
the Plan. To the extent deemed necessary by the Committee, an
Award will be evidenced by an Award Agreement as described in
Section 15.1 hereof.
Section 6.1 Grant of
Option. An Option may be granted to any Eligible
Person selected by the Committee. Subject to the provisions of
Section 6.6 hereof and Section 422 of the Code, each
Option shall be designated, in the discretion of the Committee,
as an Incentive Stock Option or a Nonqualified Stock Option. The
maximum number of shares of Common Stock that may be subject to
Options granted to any Participant during any calendar year
shall be limited to 500,000 shares (subject to adjustment
as provided in Section 4.2 hereof).
Section 6.2 Exercise
Price. The exercise price under any Option
granted to Participants under the Plan shall be equal to
100 percent of the Fair Market Value per share of the
Common Stock on the Date of Grant, or such other amount as may
be determined by the Committee.
Section 6.3 Vesting; Term of
Option. The Committee, in its sole discretion,
shall prescribe the time or times at which, or the conditions
upon which, an Option or portion thereof shall become vested
and/or
exercisable, and may accelerate the exercisability of any Option
at any time. The period during which a vested Option may be
exercised shall be ten years from the Date of Grant, unless a
shorter exercise period is specified by the Committee in an
Award Agreement. An Option may be earlier terminated as
specified by the Committee and set forth in an Award Agreement
upon or following the termination of a Participants
employment or other service with the Company or any Subsidiary,
including by reason of voluntary resignation, death, Disability,
termination for cause or any other reason.
Section 6.4 Option Exercise; Tax
Withholding. Subject to such terms and conditions
as shall be specified in an Award Agreement, an Option may be
exercised in whole or in part at any time during the term
thereof by notice in the form required by the Company, together
with payment of the aggregate exercise price therefor. Payment
of the exercise price shall be made in the manner set forth in
the Award Agreement, unless otherwise provided by the Committee:
(i) in cash or by cash equivalent acceptable to the
Committee, (ii) by
A-4
payment in shares of Common Stock that have been held by the
Participant for at least six months (or such other period as the
Committee may deem appropriate for purposes of applicable
accounting rules), valued at the Fair Market Value of such
shares on the date of exercise, (iii) through an
open-market broker-assisted transaction, (iv) by a
combination of the foregoing methods, or (v) by such other
method as may be approved by the Committee and set forth in the
Award Agreement. In addition to and at the time of payment of
the exercise price, the Participant shall pay to the Company the
full amount of any and all applicable income tax and employment
tax amounts required to be withheld in connection with such
exercise, payable under such of the methods described above for
the payment of the exercise price of the Options as may be
approved by the Committee and set forth in the Award Agreement.
Section 6.5 Limited Transferability of
Nonqualified Options. All Options shall be
nontransferable except (i) upon the Participants
death, by the Participants will or the laws of descent and
distribution or (ii) in the case of Nonqualified Stock
Options only, on a
case-by-case
basis as may be approved by the Committee in its discretion, in
accordance with the terms provided below. An award for a
Nonqualified Stock Option may provide that the Participant shall
be permitted to, during his or her lifetime and subject to the
prior approval of the Committee at the time of proposed
transfer, transfer all or part of the Option to the
Participants family member, as defined in the
Award Agreement in a manner consistent with the requirements for
the
Form S-8
registration statement under the Securities Act of 1933, which
may include a trust for the benefit of a Participant
and/or a
Participants family member. The transfer of a Nonqualified
Stock Option may be subject to such other terms and conditions
as the Committee may in its discretion impose from time to time.
Subsequent transfers of an Option shall be prohibited other than
by will or the laws of descent and distribution upon the death
of the transferee.
Section 6.6 Additional Rules for Incentive
Stock Options.
(i) Eligibility. An Incentive Stock Option may only
be granted to an Eligible Person who is considered an employee
of the Company or any Subsidiary for purposes of Treasury
Regulation § 1.421-7(h).
(ii) Annual Limits. No Incentive Stock Option shall
be granted to a Participant as a result of which the aggregate
Fair Market Value (determined as of the Date of Grant) of the
stock with respect to which Incentive Stock Options are
exercisable for the first time in any calendar year under the
Plan and any other stock option plans of the Company or any
Subsidiary would exceed $100,000, determined in accordance with
Section 422(d) of the Code. This limitation shall be
applied by taking Incentive Stock Options into account in the
order in which granted.
(iii) Ten Percent Stockholders. If an Option
granted under the Plan is intended to be an Incentive Stock
Option, and if the Participant, at the time of grant, owns stock
possessing ten percent or more of the total combined voting
power of all classes of Common Stock of the Company or any
Subsidiary, then (a) the Option exercise price per share
shall in no event be less than 110 percent of the Fair
Market Value of the Common Stock on the date of such grant and
(b) such Option shall not be exercisable after the
expiration of five years following the date such Option is
granted.
(iv) Termination of Employment. An Award of an
Incentive Stock Option may provide that such Option may be
exercised not later than 3 months following termination of
employment of the Participant with the Company and all
Subsidiaries, or not later than one year following death or a
permanent and total disability within the meaning of
Section 22(e)(3) of the Code, as and to the extent
determined by the Committee to comply with the requirements of
Section 422 of the Code.
(v) Other Terms and Conditions; Nontransferability.
Any Incentive Stock Option granted hereunder shall contain such
additional terms and conditions, not inconsistent with the terms
of the Plan, as are deemed necessary or desirable by the
Committee, which terms, together with the terms of the Plan,
shall be intended and interpreted to cause such Incentive Stock
Option to qualify as an incentive stock option under
Section 422 of the Code. An Award Agreement for an
Incentive Stock Option may provide that such Option shall be
treated as a Nonqualified Stock Option to the extent that
certain requirements applicable to incentive stock
options under the Code shall not be satisfied. An
Incentive Stock Option shall by its terms
A-5
be nontransferable other than by will or by the laws of descent
and distribution, and shall be exercisable during the lifetime
of a Participant only by such Participant.
(vi) Disqualifying Dispositions. If shares of Common
Stock acquired by exercise of an Incentive Stock Option are
disposed of within two years following the Date of Grant or one
year following the issuance of such shares to the Participant
upon exercise, the Participant shall, promptly following such
disposition, notify the Company in writing of the date and terms
of such disposition and provide such other information regarding
the disposition as the Company may reasonably require.
Section 6.7 Repricing of Stock Options
Prohibited. The Committee shall not cause the
cancellation, substitution or amendment of an Option that would
have the effect of reducing the exercise price of an Option
previously granted under the Plan, or otherwise approve any
modification to an Option that would be treated as a
repricing under the then applicable rules,
regulations or listing requirements adopted by the NASDAQ,
except in accordance with an adjustment permitted under
Section 4.2 hereof.
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7.
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STOCK
APPRECIATION RIGHTS
|
Section 7.1 Grant of Stock Appreciation
Rights. A Stock Appreciation Right may be granted
to any Eligible Person selected by the Committee. A Stock
Appreciation Right granted to an Eligible Person is an Award in
the form of a right to receive, upon settlement or exercise of
the right but without other payment, an amount based on
appreciation in the Fair Market Value of shares of Common Stock
over a base price established for the Award. Stock Appreciation
Rights shall be settled or exercisable at such time or times and
upon conditions as may be approved by the Committee, provided
that the Committee may accelerate the settlement or
exercisability of a Stock Appreciation Right at any time. The
maximum number of shares of Common Stock that may be subject to
Stock Appreciation Rights granted to any Participant during any
calendar year shall be limited to 500,000 shares (subject
to adjustment as provided in Section 4.2 hereof).
Section 7.2 Vesting; Term; Base Price of
Stock Appreciation Rights. A Stock Appreciation
Right shall be settled or exercisable at such time or times as
determined by the Committee, but in no event after 10 years
from the Date of Grant. The base price of a Stock Appreciation
Right shall be determined by the Committee in its sole
discretion; provided, however, that the base price per share of
any such Stock Appreciation Right shall not be less than
100 percent of the Fair Market Value of the shares of
Common Stock on the Date of Grant.
Section 7.3 Payment of Stock Appreciation
Rights. A Stock Appreciation Right will entitle
the holder, upon settlement or exercise of the Stock
Appreciation Right, as applicable, to receive payment of an
amount determined by multiplying: (i) the excess of the
Fair Market Value of a share of Common Stock on the date of
settlement or exercise of the Stock Appreciation Right over the
base price of such Stock Appreciation Right, by (ii) the
number of shares as to which such Stock Appreciation Right is
settled or exercised. Payment of the amount determined under the
foregoing may be made, as approved by the Committee and set
forth in the Award Agreement, in cash, in shares of Common Stock
valued at their Fair Market Value on the date of settlement or
exercise, as applicable, or in a combination of cash and shares
of Common Stock, subject to applicable tax withholding
requirements.
Section 7.4 Repricing of Stock Appreciation
Rights Prohibited. The Committee shall not cause
the cancellation, substitution or amendment of a Stock
Appreciation Right that would have the effect of reducing the
base price of a Stock Appreciation Right previously granted
under the Plan, or otherwise approve any modification to a Stock
Appreciation Right that would be treated as a
repricing under the then applicable rules,
regulations or listing requirements adopted by the NASDAQ,
except in accordance with an adjustment permitted under
Section 4.2 hereof.
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8.
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RESTRICTED
STOCK AWARDS
|
Section 8.1 Grant of Restricted Stock
Awards. A Restricted Stock Award may be granted
to any Eligible Person selected by the Committee. A Restricted
Stock Award granted to an Eligible Person represents shares of
Common Stock that are issued subject to such vesting and
transfer restrictions as the Committee shall determine and set
forth in an Award Agreement. The Committee may, in connection
with any Restricted
A-6
Stock Award, require the payment of a specified purchase price.
The Committee may grant Restricted Stock Awards that are
Section 162(m) Awards, as well as Restricted Stock Awards
that are not Section 162(m) Awards. The maximum number of
shares of Common Stock that may be subject to Restricted Stock
Awards granted to a Participant during any one calendar year
shall be limited to 250,000 shares (subject to adjustment
as provided in Section 4.2 hereof).
Section 8.2 Vesting
Requirements. The restrictions imposed on shares
granted under a Restricted Stock Award shall lapse in accordance
with the vesting requirements specified by the Committee in the
Award Agreement, provided that the Committee may accelerate the
vesting of a Restricted Stock Award at any time. Such vesting
requirements may be based on the continued employment of the
Participant with the Company or its Subsidiaries for a specified
time period or periods. Such vesting requirements may also be
based on the attainment of specified performance goals or
measures established by the Committee in its sole discretion. In
the case of any Restricted Stock Award that is a
Section 162(m) Award, any such performance-based vesting
requirements shall be based upon the performance criteria
identified in Section 12.2 hereof, and the terms of the
Award shall otherwise comply with the requirements described in
Section 12.3 hereof. If the vesting requirements of a
Restricted Stock Award shall not be satisfied, the Award shall
be forfeited and returned to the Company, with any purchase
price paid by the Participant to be refunded, unless otherwise
provided by the Committee.
Section 8.3 Restrictions. Shares
granted under any Restricted Stock Award may not be transferred,
assigned or subject to any encumbrance, pledge, or charge until
all applicable restrictions are removed or have expired, unless
otherwise allowed by the Committee. Failure to satisfy any
applicable restrictions shall result in the subject shares of
the Restricted Stock Award being forfeited and returned to the
Company, with any purchase price paid by the Participant to be
refunded, unless otherwise provided by the Committee. The
Committee may require in an Award Agreement that certificates
representing the shares granted under a Restricted Stock Award
bear a legend making appropriate reference to the restrictions
imposed, and that certificates representing the shares granted
or sold under a Restricted Stock Award will remain in the
physical custody of an escrow holder until all restrictions are
removed or have expired.
Section 8.4 Rights as
Stockholder. Subject to the foregoing provisions
of this Section 8 and the applicable Award Agreement, the
Participant will have all rights of a stockholder with respect
to the shares granted to the Participant under a Restricted
Stock Award, including the right to vote the shares and receive
all dividends and other distributions paid or made with respect
thereto, unless the Committee determines otherwise at the time
the Restricted Stock Award is granted.
Section 8.5 Section 83(b)
Election. If a Participant makes an election
pursuant to Section 83(b) of the Code with respect to a
Restricted Stock Award, the Participant shall be required to
file, within 30 days following the Date of Grant, a copy of
such election with the Company and with the Internal Revenue
Service, in accordance with the regulations under
Section 83 of the Code. The Committee may provide in an
Award Agreement that the Restricted Stock Award is conditioned
upon the Participants refraining from making an election
with respect to the Award under Section 83(b) of the Code.
Section 9.1 Grant of Stock Unit
Awards. A Stock Unit Award may be granted to any
Eligible Person selected by the Committee. A Stock Unit Award is
an Award to an Eligible Person of a number of hypothetical share
units with respect to shares of Common Stock that are granted
subject to such vesting and transfer restrictions and conditions
of payment as the Committee shall determine and set forth in an
Award Agreement. The value of each unit under a Stock Unit Award
is equal to the Fair Market Value of the Common Stock on any
applicable date of determination. The Committee may grant Stock
Unit Awards that are Section 162(m) Awards, as well as a
Stock Unit Awards that are not Section 162(m) Awards. The
maximum number of units that may be subject to Stock Unit Awards
granted to a Participant during any one calendar year shall be
limited to 250,000 units (subject to adjustment as provided
in Section 4.2 hereof). A Stock Unit Award shall be subject
to such restrictions and conditions as the Committee shall
determine. A Stock Unit Award may be granted, at the discretion
of the Committee, together with a dividend equivalent right with
respect to the same number of shares of Common Stock.
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Section 9.2 Vesting of Stock Unit
Awards. On the Date of Grant, the Committee shall
determine, in its sole discretion, any vesting requirements with
respect to a Stock Unit Award, which shall be set forth in the
Award Agreement, provided that the Committee may accelerate the
vesting of a Stock Unit Award at any time. Vesting requirements
may be based on the continued employment of the Participant with
the Company or its Subsidiaries for a specified time period or
periods. Vesting requirements may also be based on the
attainment of specified performance goals or measures
established by the Committee in its sole discretion. In the case
of any Stock Unit Award that is a Section 162(m) Award, any
such performance-based vesting requirements shall be based upon
the performance criteria identified in Section 12.2 hereof,
and the terms of the Award shall otherwise comply with the
requirements described in Section 12.3 hereof. A Stock Unit
Award may also be granted on a fully vested basis, with a
deferred payment date.
Section 9.3 Payment of Stock Unit
Awards. A Stock Unit Award shall become payable
to a Participant at the time or times determined by the
Committee and set forth in the Award Agreement, which may be
upon or following the vesting of the Award. The payment with
respect to each share unit under a Stock Unit Award shall be
determined by reference to the Fair Market Value of one share of
Common Stock on each applicable payment date. Payment may be
made, at the discretion of the Committee, in cash or in shares
of Common Stock, or in a combination thereof, subject to
applicable tax withholding requirements. In accordance with
Section 15.4 hereof, the Committee may permit a Participant
to defer the receipt of payment under a Stock Unit Award until
such date or event as may be elected by the Participant in
accordance with rules established by the Committee.
Section 9.4 No Rights as
Stockholder. The Participant shall not have any
rights as a stockholder with respect to the shares subject to a
Stock Unit Award until such time as shares of Common Stock are
delivered to the Participant pursuant to the terms of the Award
Agreement.
Section 10.1 Grant of Stock
Awards. A Stock Award may be granted to any
Eligible Person selected by the Committee. A Stock Award may be
granted for past services, in lieu of bonus or other cash
compensation, directors fees or for any other valid
purpose as determined by the Committee. A Stock Award granted to
an Eligible Person represents shares of Common Stock that are
issued free of restrictions on transfer and other incidents of
ownership and free of forfeiture conditions, except as otherwise
provided in the Plan and the Award Agreement. The Committee may,
in connection with any Stock Award, require the payment of a
specified purchase price. The Committee may grant Stock Awards
that are Section 162(m) Awards, as well as Stock Awards
that are not Section 162(m) Awards. The maximum number of
shares of Common Stock that may be subject to Stock Awards
granted to a Participant during any one calendar year shall be
limited to 250,000 shares (subject to adjustment as
provided in Section 4.2 hereof).
Section 10.2 Rights as
Stockholder. Subject to the foregoing provisions
of this Section 10 and the applicable Award Agreement, the
Participant will have all rights of a stockholder with respect
to the shares granted to him under a Stock Award, including the
right to vote the shares and receive all dividends and other
distributions paid or made with respect thereto.
Section 11.1 Grant of Performance
Awards. The Committee may grant Performance
Awards under the Plan, which shall represent the right to
receive a payment in cash if performance goals established by
the Committee for a performance period are satisfied. The
Committee may grant Performance Awards that are
Section 162(m) Awards, as well as Performance Awards that
are not Section 162(m) Awards. At the time a Performance
Award is granted, the Committee shall determine, in its sole
discretion, the applicable performance period and performance
goals to be achieved during the performance period, as well as
such other conditions as the Committee deems appropriate. The
Committee may also determine a target payment amount or a range
of payment amounts for each Award. The performance goals
applicable to a Performance Award grant may be subject to
adjustments as the Committee shall deem appropriate to reflect
significant unforeseen events, such as changes in law,
accounting practices or unusual or nonrecurring items or
occurrences. The Committees authority to make such
adjustments shall be subject to such limitations as the
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Committee deems appropriate in the case of a Performance Award
that is a Section 162(m) Award. In the case of any
Performance Award that is a Section 162(m) Award,
performance goals shall be based upon the performance criteria
identified in Section 12.2 hereof, and the terms of the
Award shall otherwise comply with the requirements described in
Section 12.3 hereof. The maximum amount of cash
compensation that may be paid to a Participant during any one
calendar year under Performance Awards shall be $2,000,000.
Section 11.2 Payment of Performance
Awards. At the end of the performance period, the
Committee shall determine the extent to which performance goals
have been attained, or a degree of achievement between minimum
and maximum levels, in order to establish the level of payment
to be made, if any. Payments of Performance Awards shall
generally be made as soon as practicable following the end of
the performance period, subject to any tax withholding
requirements.
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12.
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SECTION 162(M)
AWARDS
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Section 12.1 Awards. Awards of
Options and Stock Appreciation Rights granted under the Plan are
intended by their terms to qualify as Section 162(m)
Awards. Restricted Stock Awards, Stock Unit Awards, Stock Awards
and Performance Awards granted under the Plan may qualify as
Section 162(m) Awards if the Awards are granted or become
payable or vested based upon pre-established performance goals
in accordance with this Section 12.
Section 12.2 Performance
Criteria. In the case of a Restricted Stock
Award, Stock Unit Award, Stock Award or Performance Award that
is intended to be a Section 162(m) Award, the performance
criteria upon which the grant, payment or vesting may be based
shall be limited to one or more of the following performance
measures, which may be applied with respect to the Company, any
Subsidiary or any business unit: annual recurring revenues;
recurring revenues; services revenues; license revenues; net or
gross revenue; operating expenses; cash flow; total earnings;
earnings per share, diluted or basic; earnings before interest
and taxes; earnings before interest, taxes, depreciation, and
amortization; gross or operating margin; return on equity;
return on capital; return on investment; market share; economic
value added; stock price; and total stockholder return. The
foregoing performance criteria shall have any reasonable
definitions that the Committee may specify, which may include or
exclude any items specified by the Committee, including but not
limited to any or all of the following items: discontinued
operations, extraordinary, unusual or non-recurring items,
effects of accounting changes, effects of currency or interest
rate fluctuations, effects of financing activities (e.g., effect
on earnings per share of issuing convertible debt securities),
changes in tax rates, expenses for restructuring or productivity
initiatives, litigation losses, non-operating items, effects of
acquisitions or divestitures and changes of law or regulation
affecting the Companys business. The foregoing performance
measures may be determined on an absolute basis or relative to
internal goals or relative to levels attained in prior years, or
related to other companies or indices, or as ratios expressing
relationships between two or more performance measures. In the
case of Awards that are not Section 162(m) Awards, the
Committee may designate performance criteria from among the
foregoing or such other performance criteria as it shall
determine in its sole discretion.
Section 12.3 Section 162(m)
Requirements. In the case of a Restricted Stock
Award, Stock Unit Award, Stock Award or Performance Award that
is intended to be a Section 162(m) Award, the Committee
shall make such determinations with respect to an Award as
required by Section 162(m) of the Code within 90 days
after the beginning of the performance period (or such other
time period as is required under Section 162(m) of the
Code). As and to the extent required by Section 162(m) of
the Code, the terms of an Award that is a Section 162(m)
Award must state, in terms of an objective formula or standard,
the method of computing the amount of compensation payable under
the Award, and must preclude discretion to increase the amount
of compensation payable under the terms of the Award (but may
allow the Committee discretion to decrease the amount of
compensation payable).
Section 13.1 Board
Discretion. Subject to the express limitations of
the Plan, the Board shall have authority in its discretion to
determine the Non-Employee Directors of the Company to whom, and
the time or times at which, Options may be granted, the number
of shares subject to each Option, the exercise
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price of an Option, the time or times at which an Option will
become vested and exercisable, the duration of an Option, and
all other terms of an Option. Unless otherwise provided by the
Board and set forth in an Award Agreement, Non-Employee
Directors of the Company shall be granted Director Fee Options
in accordance with the provisions of this Section 13.
Section 13.2 Grant of Director Fee
Option. Subject to Sections 13.1 and 13.7
hereof, as of each Date of Grant (determined under
Section 13.3 hereof), each Non-Employee Director of the
Company shall receive a grant of a Director Fee Option at an
exercise price (determined under Section 13.4 hereof) to
purchase a number of shares of Common Stock (determined under
Section 13.5 hereof) in lieu of directors fees which
such Non-Employee Director earned during the calendar quarter
ending immediately prior to such Date of Grant.
Section 13.3 Date of
Grant. The Date of Grant of a Director Fee Option
shall be the first business day of the calendar quarter
immediately following the calendar quarter during which
directors fees are earned by a Non-Employee Director, with
the first such Date of Grant to be January 3, 2005.
Section 13.4 Exercise
Price. The exercise price of each share of Common
Stock subject to a Director Fee Option shall be 30% of the Fair
Market Value of a share of Common Stock on the applicable Date
of Grant, or such other amount as may be determined by the
Board. Payment of the exercise price shall be determined in
accordance with the provisions of Section 6.4 hereof.
Section 13.5 Number of
Shares. The number of shares of Common Stock
subject to any Director Fee Option shall equal (i) the
dollar amount of the Non-Employee Directors fees which
were earned during the calendar quarter ending immediately prior
to the Date of Grant, divided by (ii) the excess of the
Fair Market Value of a share of Common Stock on the applicable
Date of Grant over the exercise price of the Director Fee Option
(determined in accordance with Section 13.4 hereof),
rounded to the nearest whole share.
Section 13.6 Vesting. Each
Director Fee Option shall be fully vested on the Date of Grant.
Section 13.7 Exercise. A
Director Fee Option shall first become exercisable on the
earliest to occur of the following events: (i) the fifth
anniversary of the Date of Grant, (ii) the date on which
the Non-Employee Director ceases to be a member of the Board,
and (iii) the effective date of a Change in Control; and
shall remain exercisable for the period specified in the Award
Agreement as provided by the Committee at the time of grant. To
the extent that a Director Fee Option is not exercised within
the applicable time period (or is not otherwise settled in
accordance with Section 13.8 hereof), such Director Fee
Option shall be terminated and the Non-Employee Directors
rights thereunder shall be automatically forfeited.
Section 13.8 Cash
Settlement. Notwithstanding the provisions of
Section 13.7 hereof, the Committee may, in its discretion,
cancel the right of a Non-Employee Director to exercise a
Director Fee Option upon or following the occurrence of an
exercise event as described in Section 13.7 hereof in
exchange for a cash payment to the Non-Employee Director equal
to the product of (i) the number of shares of Common Stock
subject to the Director Fee Option being cancelled, multiplied
by (ii) the excess of the per share Fair Market Value of
the Common Stock on the date of cancellation of the Director Fee
Option over the exercise price per share of the Director Fee
Option.
Section 14.1 Effect of Change in
Control. The Committee may, at the time of the
grant of an Award and as set forth in an Award Agreement,
provide for the effect of a Change in Control (as
defined below) on an Award. Such provisions may include any one
or more of the following: (i) the acceleration or extension
of time periods for purposes of exercising, vesting in, or
realizing gain from any Award, (ii) the elimination or
modification of performance or other conditions related to the
payment or other rights under an Award, (iii) provision for
the cash settlement of an Award for an equivalent cash value, as
determined by the Committee, or (iv) such other
modification or adjustment to an Award as the Committee deems
appropriate to maintain and protect the rights and interests of
Participants upon or following a Change in Control. Unless
otherwise provided by the Committee and set forth in the Award
Agreement, upon a Change in Control, (i) each outstanding
Option and Stock Appreciation Right, to the extent that it shall
not otherwise have
A-10
become vested and exercisable, shall automatically become fully
and immediately vested and exercisable, without regard to any
otherwise applicable vesting requirement, (ii) each
Restricted Stock Award shall become fully and immediately vested
and all forfeiture and transfer restrictions thereon shall
lapse, and (iii) each outstanding Stock Unit Award, Stock
Award and Performance Award shall become immediately and fully
vested and payable.
Section 14.2 Definition of Change in
Control. For purposes of this Agreement, a
Change in Control shall be deemed to have occurred
upon:
(i) the consummation of any consolidation or merger of the
Company pursuant to which the stockholders of the Company
immediately prior to the merger or consolidation do not
represent, immediately after the merger or consolidation, the
beneficial owners (within the meaning of
Rule 13d-3
under the Securities Exchange Act of 1934 (the Exchange
Act)) of 50% or more of the combined voting power
(ii) of the Companys (or the surviving entitys)
then outstanding securities ordinarily (and apart from rights
occurring in special circumstances) having the right to vote in
the election of directors;
(iii) the consummation of any sale, lease, exchange or
transfer (in any single transaction or series of related
transactions) of all or substantially all of the assets or
business of the Company and its Subsidiaries; or
(iv) the occurrence of any event the result of which is
that any person (as such term is used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other
than (A) the Company or any Subsidiary, or (B) any
employee benefit plan sponsored by the Company or any
Subsidiary, shall become the beneficial owner (within the
meaning of
Rule 13d-3
under the Exchange Act) of securities of the Company
representing more than 50% of the combined voting power of the
Companys then outstanding securities ordinarily (and apart
from rights accruing in special circumstances) having the right
to vote in the election of directors, as a result of a tender,
leveraged buyout or exchange offer, open market purchases,
privately negotiated purchases, other arrangements or
understandings or otherwise.
Section 15.1 Form of
Agreement. To the extent deemed necessary by the
Committee, an Award under the Plan shall be evidenced by an
Award Agreement in a form approved by the Committee setting
forth the number of shares of Common Stock or units subject to
the Award, the exercise price, base price, or purchase price of
the Award, the time or times at which an Award will become
vested, exercisable or payable and the term of the Award. The
Award Agreement shall also set forth the effect on an Award of
termination of employment under certain circumstances. The Award
Agreement shall be subject to and incorporate, by reference or
otherwise, all of the applicable terms and conditions of the
Plan, and may also set forth other terms and conditions
applicable to the Award as determined by the Committee
consistent with the limitations of the Plan. Award Agreements
evidencing Incentive Stock Options shall contain such terms and
conditions as may be necessary to meet the applicable provisions
of Section 422 of the Code.
Section 15.2 Forfeiture
Events. The Committee may specify in an Award
Agreement at the time of the Award that the Participants
rights, payments and benefits with respect to an Award shall be
subject to reduction, cancellation, forfeiture or recoupment
upon the occurrence of certain specified events, in addition to
any otherwise applicable vesting or performance conditions of an
Award. Such events shall include, but shall not be limited to,
termination of employment for cause, violation of material
Company policies, breach of noncompetition, confidentiality or
other restrictive covenants that may apply to the Participant,
or other conduct by the Participant that is detrimental to the
business or reputation of the Company.
Section 15.3 No Assignment or Transfer;
Beneficiaries. Except as provided in
Section 6.5 hereof, Awards under the Plan shall not be
assignable or transferable, except by will or by the laws of
descent and distribution, and during the lifetime of a
Participant, an Award shall be exercised only by such
Participant or by his guardian or legal representative.
Notwithstanding the foregoing, the Committee may provide in the
terms of an Award Agreement that the Participant shall have the
right to designate a beneficiary or
A-11
beneficiaries who shall be entitled to any rights, payments or
other benefits specified under an Award following the
Participants death.
Section 15.4 Deferrals of
Payment. The Committee may permit a Participant
to defer the receipt of payment of cash or delivery of shares of
Common Stock that would otherwise be due to the Participant by
virtue of the exercise of a right or the satisfaction of vesting
or other conditions with respect to an Award. If any such
deferral is to be permitted by the Committee, the Committee
shall establish the rules and procedures relating to such
deferral, including, without limitation, the period of time in
advance of payment when an election to defer may be made, the
time period of the deferral and the events that would result in
payment of the deferred amount, the interest or other earnings
attributable to the deferral and the method of funding, if any,
attributable to the deferred amount.
Section 15.5 Rights as
Stockholder. A Participant shall have no rights
as a holder of shares of Common Stock with respect to any
unissued securities covered by an Award until the date the
Participant becomes the holder of record of such securities.
Except as provided in Section 4.2 hereof, no adjustment or
other provision shall be made for dividends or other stockholder
rights, except to the extent that the Award Agreement provides
for dividend payments or dividend equivalent rights.
Section 15.6 Employment or
Service. Nothing in the Plan, in the grant of any
Award or in any Award Agreement shall confer upon any Eligible
Person any right to continue in the service of the Company or
any of its Subsidiaries, or to serve as a director thereof, or
interfere in any way with the right of the Company or any of its
Subsidiaries to terminate the Participants employment or
other service relationship for any reason at any time.
Section 15.7 Securities
Laws. No shares of Common Stock will be issued or
transferred pursuant to an Award unless and until all then
applicable requirements imposed by Federal and state securities
and other laws, rules and regulations and by any regulatory
agencies having jurisdiction, and by any exchanges upon which
the shares of Common Stock may be listed, have been fully met.
As a condition precedent to the issuance of shares pursuant to
the grant or exercise of an Award, the Company may require the
Participant to take any reasonable action to meet such
requirements. The Committee may impose such conditions on any
shares of Common Stock issuable under the Plan as it may deem
advisable, including, without limitation, restrictions under the
Securities Act of 1933, as amended, under the requirements of
any exchange upon which such shares of the same class are then
listed, and under any blue sky or other securities laws
applicable to such shares. The Committee may also require the
Participant to represent and warrant at the time of issuance or
transfer that the shares of Common Stock are being acquired only
for investment purposes and without any current intention to
sell or distribute such shares.
Section 15.8 Tax
Withholding. The Participant shall be responsible
for payment of any taxes or similar charges required by law to
be withheld from an Award or an amount paid in satisfaction of
an Award, which shall be paid by the Participant on or prior to
the payment or other event that results in taxable income in
respect of an Award. The Award Agreement shall specify the
manner in which the withholding obligation shall be satisfied
with respect to the particular type of Award.
Section 15.9 Unfunded
Plan. The adoption of the Plan and any setting
aside of cash amounts or shares of Common Stock by the Company
with which to discharge its obligations hereunder shall not be
deemed to create a trust or other funded arrangement. The
benefits provided under the Plan shall be a general, unsecured
obligation of the Company payable solely from the general assets
of the Company, and neither a Participant nor the
Participants permitted transferees or estate shall have
any interest in any assets of the Company by virtue of the Plan,
except as a general unsecured creditor of the Company.
Notwithstanding the foregoing, the Company shall have the right
to implement or set aside funds in a grantor trust, subject to
the claims of the Companys creditors, to discharge its
obligations under the Plan.
Section 15.10 Other Compensation and Benefit
Plans. The adoption of the Plan shall not affect
any other share incentive or other compensation plans in effect
for the Company or any Subsidiary, nor shall the Plan preclude
the Company from establishing any other forms of share incentive
or other compensation for employees of the Company or any
Subsidiary. The amount of any compensation deemed to be received
by a
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Participant pursuant to an Award shall not constitute
compensation with respect to which any other employee benefits
of such Participant are determined, including, without
limitation, benefits under any bonus, pension, profit sharing,
life insurance or salary continuation plan, except as otherwise
specifically provided by the terms of any such plan.
Section 15.11 Plan Binding on
Transferees. The Plan shall be binding upon the
Company, its transferees and assigns, and the Participant, his
or her executor, administrator and permitted transferees and
beneficiaries.
Section 15.12 Construction and
Interpretation. Whenever used herein, nouns in
the singular shall include the plural, and the masculine pronoun
shall include the feminine gender. Headings of Sections hereof
are inserted for convenience and reference and constitute no
part of the Plan.
Section 15.13 Severability. If
any provision of the Plan or any Award Agreement shall be
determined to be illegal or unenforceable by any court of law in
any jurisdiction, the remaining provisions hereof and thereof
shall be severable and enforceable in accordance with their
terms, and all provisions shall remain enforceable in any other
jurisdiction.
Section 15.14 Foreign
Jurisdictions. The Committee may adopt, amend and
terminate such arrangements and grant such Awards, not
inconsistent with the intent of the Plan, as it may deem
necessary or desirable to comply with any tax, securities,
regulatory or other laws of other jurisdictions with respect to
Awards that may be subject to such laws. The terms and
conditions of such Awards may vary from the terms and conditions
that would otherwise be required by the Plan solely to the
extent the Committee deems necessary for such purpose. Moreover,
the Board may approve such supplements to or amendments,
restatements or alternative versions of the Plan, not
inconsistent with the intent of the Plan, as it may consider
necessary or appropriate for such purposes, without thereby
affecting the terms of the Plan as in effect for any other
purpose.
Section 15.15 Governing
Law. The Plan and all rights hereunder shall be
subject to and interpreted in accordance with the laws of the
State of Delaware, without reference to the principles of
conflicts of laws, and to applicable Federal securities laws.
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16.
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EFFECTIVE
DATE, AMENDMENT AND TERMINATION
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Section 16.1 Effective
Date. The Plan shall become effective following
its adoption by the Board and upon its approval by the
Companys stockholders. The term of the Plan shall be
10 years from the date of such adoption by the Board,
subject to Section 16.3 hereof.
Section 16.2 Amendment. The
Board may at any time and from time to time and in any respect,
amend or modify the Plan; provided, however, that the Board may
seek the approval of any amendment or modification by the
Companys stockholders to the extent it deems necessary or
advisable in its sole discretion for purposes of compliance with
Section 162(m) or Section 422 of the Code, the listing
requirements of the NASDAQ or other exchange or securities
market or for any other purpose. No amendment or modification of
the Plan shall adversely affect any Award theretofore granted
without the consent of the Participant or the permitted
transferee of the Award.
Section 16.3 Termination. The
Plan shall terminate on December 15, 2014, which is the
date immediately preceding the tenth anniversary of the date of
the Plans adoption by the Board. The Board may, in its
sole discretion and at any earlier date, terminate the Plan.
Notwithstanding the foregoing, no termination of the Plan shall
adversely affect any Award theretofore granted without the
consent of the Participant or the permitted transferee of the
Award.
THE ULTIMATE SOFTWARE GROUP, INC.
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MR A SAMPLE
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Electronic Voting Instructions
You can vote by Internet or telephone!
Available 24 hours a
day, 7 days a week!
Instead of mailing your proxy, you may choose
one of the two voting methods outlined below
to vote your proxy.
VALIDATION DETAILS ARE LOCATED BELOW IN THE TITLE BAR.
Proxies submitted by the Internet or telephone
must be received by 1:00 a.m., Central Time, on
May 12, 2009
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Vote by Internet
Log on to the Internet and go to
www.envisionreports.com/ULTI
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Follow the steps outlined on the secured website. |
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Vote by telephone
Call toll free 1-800-652-VOTE (8683) within the United States, Canada & Puerto Rico any time on
a touch tone telephone. There is NO CHARGE to you for the call. |
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Follow the instructions provided by the recorded message. |
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Using a black ink pen, mark your votes
with an X as shown in this example. Please
do not write outside the designated areas.
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Annual Meeting Proxy Card |
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IF YOU HAVE NOT VOTED VIA THE INTERNET
OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
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A
Proposals The Board of Directors recommends a vote FOR all the nominees listed and FOR Proposals 2 and 3.
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1. |
To elect three directors to serve until the 2012 Annual Meeting. |
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01 - Mark D. Scherr
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02 - James FitzPatrick
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03 - Rick A. Wilber
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To approve the Amended and Restated 2005 Equity and Incentive Plan, as proposed to be amended. |
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To ratify KPMG LLP as the Companys independent registered public accounting firm for the fiscal year ending December 31, 2009
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B Non-Voting
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Change of Address
Please print new address below.
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Meeting Attendance |
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Mark box to the right if you plan to attend the Annual Meeting. |
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Authorized
Signatures
This section must be completed for your vote to be counted.
Date and Sign Below
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Please sign exactly as name appears hereon. Joint owners should each sign. When signing as
attorney, executor, administrator, trustee or guardian, please give full title as such.
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Date (mm/dd/yyyy) Please print date below.
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Signature 1 Please keep signature within the box.
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Signature 2 Please keep signature within the box. |
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<STOCK#> 0117DD
▼ IF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. ▼
Proxy The Ultimate Software Group, Inc.
PROXY FOR THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD MAY 12, 2009
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF THE COMPANY
The undersigned, revoking all prior proxies, hereby appoints Mitchell K. Dauerman and Vivian Maza,
with full power of substitution, as proxies to represent and vote, as designated herein, all the
shares of Common Stock of The Ultimate Software Group, Inc. (the Company) which the undersigned
would be entitled to vote if personally present at the Annual Meeting of Stockholders of the
Company to be held at 2000 Ultimate Way, Weston, Florida, on Tuesday, May 12, 2009, at 10:00 a.m.
(E.D.T.), and at any adjournment thereof (the Annual Meeting).
In their discretion, the proxies are authorized to vote upon such other matters as may properly
come before the Annual Meeting.
This proxy, when properly executed, will be voted in the manner directed herein by the undersigned
stockholder. IF NO DIRECTION IS GIVEN, THIS PROXY WILL BE VOTED FOR THE ELECTION AS DIRECTOR OF
THE NOMINEES NAMED HEREIN, FOR THE APPROVAL OF THE AMENDED AND RESTATED 2005 EQUITY AND INCENTIVE
PLAN, AS PROPOSED TO BE AMENDED AND FOR THE RATIFICATION OF KPMG LLP AS THE COMPANYS INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2009. Attendance of the
undersigned at the Annual Meeting will not be deemed to revoke this proxy unless the undersigned
shall revoke this proxy in writing or shall deliver a subsequently dated proxy to the Secretary of
the Company prior to the Annual Meeting or shall vote in person at the Annual Meeting.
PLEASE FILL IN, DATE, SIGN AND MAIL THIS PROXY IN THE ENCLOSED POSTAGE-PAID RETURN ENVELOPE.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE