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8-K - FORM 8-K - Swisher Hygiene Inc. | g27187e8vk.htm |
EX-10.3 - EX-10.3 - Swisher Hygiene Inc. | g27187exv10w3.htm |
Exhibit 10.2
SWISHER
HYGIENE INC.
SENIOR
EXECUTIVE OFFICERS
PERFORMANCE
INCENTIVE BONUS PLAN
1. | PURPOSE |
The purpose of this Plan is to attract, retain and motivate key
employees by providing cash performance bonuses to designated
key employees of the Company or its Subsidiaries. This Plan is
effective for fiscal years of the Company commencing on or after
January 1, 2011, subject to approval by the stockholders of
the Company in accordance with the laws of the State of Delaware.
2. | DEFINITIONS |
Unless the context otherwise requires, the terms which follow
shall have the following meaning:
(a) Board shall mean the
Board of Directors of the Company.
(b) Cause shall mean, with respect to a
termination of employment or other service with the Company or
any Subsidiary, a termination of employment or other service due
to a Participants dishonesty, fraud, insubordination,
willful misconduct, refusal to perform services (for any reason
other than illness or incapacity) or materially unsatisfactory
performance of the Participants duties for the Company or
any Subsidiary; provided, however, that if the
Participant and the Company (or any Subsidiary) have entered
into an employment agreement or consulting agreement which
defines the term Cause, the term Cause shall be defined in
accordance with such agreement. The Committee shall determine in
its sole and absolute discretion whether Cause exists for
purposes of the Plan.
(c) Change of Control of the
Company shall have the meaning set forth
in Exhibit A hereto.
(d) Code shall mean the
Internal Revenue Code of 1986, as amended and any successor
thereto.
(e) Code Section 162(m)
Exception shall mean the exception for
performance based compensation under Section 162(m) of the
Code or any successor section and the Treasury regulations
promulgated thereunder.
(f) Company shall mean
Swisher Hygiene Inc. and any successor by merger, consolidation
or otherwise.
(g) Committee shall mean the
Compensation Committee of the Board or such other Committee of
the Board that is appointed by the Board to administer this
Plan; it is intended that all of the members of any such
Committee shall satisfy the requirements to be outside
directors, as defined under Code Section 162(m).
(h) Individual Target Bonus
shall mean the targeted Performance Bonus for a Performance
Period as specified by the Committee in accordance with
Section 5 hereof.
(i) Participant shall mean a
key employee of the Company or any Subsidiary selected, in
accordance with Section 4 hereof, to be eligible to receive
a Performance Bonus in accordance with this Plan.
(j) Performance Bonus shall
mean the amount paid or payable under Section 6 hereof.
(k) Performance Goals shall
mean the objective performance goals, formulas and standards
described in Section 6 hereof.
(l) Performance Period shall
mean the period of time, measured in Plan Years (as specified by
the Committee) over which achievement of the Performance Goals
is to be measured.
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(m) Plan shall mean this
Swisher Hygiene Inc. Senior Executive Officers Performance
Incentive Bonus Plan.
(n) Plan Year shall mean a
fiscal year of the Company.
(o) Pro Rata Bonus shall
mean a portion of a Performance Bonus equal to the Performance
Bonus payable had the Participant continuously performed
services throughout the applicable Performance Period and
certification of applicable Performance Goals, multiplied by the
percentage of days during the Performance Period prior to the
date of termination during which the Participant was employed
by, or otherwise performed services for, the Company, as
compared to the number of days in such Performance Period.
(p) Subsidiary shall mean
any subsidiary of the Company, including any corporation,
limited liability company, partnership or other entity that is a
subsidiary of the Company, as determined by the Committee.
(q) Swisher Bonus Program shall mean a
program or annual bonus, established from time to time, setting
forth terms and conditions of Performance Bonuses under the
Plan, to the extent not inconsistent with the Plan.
3. | ADMINISTRATION AND INTERPRETATION OF THE PLAN |
The Plan shall be administered by the Committee. The Committee
shall have the exclusive authority and responsibility to:
(i) interpret the Plan; (ii) approve the designation
of eligible Participants; (iii) set the performance
criteria for Performance Bonuses within the Plan guidelines;
(iv) determine the timing and form of amounts to be paid
out under the Plan and the conditions for payment thereof;
(v) certify attainment of Performance Goals and other
material terms; (vi) reduce Performance Bonuses as provided
herein; (vii) authorize the payment of all benefits and
expenses of the Plan as they become payable under the Plan;
(viii) adopt, amend and rescind rules and regulations
relating to the Plan; and (ix) make all other
determinations and take all other actions necessary or desirable
for the Plans administration, including, without
limitation, correcting any defect, supplying any omission or
reconciling any inconsistency in this Plan in the manner and to
the extent it shall deem necessary to carry this Plan into
effect, but only to the extent such action would be permitted
under Code Section 162(m) and the Code Section 162(m)
Exception.
All decisions of the Committee on any question concerning the
selection of Participants and the interpretation and
administration of the Plan shall be final, conclusive and
binding upon all parties. The Committee may rely on information,
and consider recommendations, provided by the Board or the
executive officers of the Company. The Plan is intended to
comply with Code Section 162(m) and the Code
Section 162(m) Exception, and all provisions contained
herein shall be limited, construed and interpreted in a manner
to so comply.
4. | ELIGIBILITY AND PARTICIPATION |
(a) For each Performance Period, the Committee shall select
the employees of the Company or its Subsidiaries who are to
participate in the Plan from among the executive employees of
the Company or its Subsidiaries.
(b) No person shall be entitled to any Performance Bonus
under this Plan for a Performance Period unless the individual
is designated as a Participant for the Performance Period. The
Committee may add to or delete individuals from the list of
designated Participants at any time and from time to time, in
its sole discretion, subject to any limitations required to
comply with Code Section 162(m) and the Code
Section 162(m) Exception.
5. | PERFORMANCE BONUSES |
The terms and conditions of the Performance Bonuses shall be set
forth in this Plan and in any Swisher Bonus Program. For each
Participant for each Performance Period, the Committee may, in
its sole discretion,
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specify an Individual Target Bonus. The Individual Target Bonus
may be expressed, at the Committees sole discretion, as a
fixed dollar amount, a percentage of base pay, or an amount
determined pursuant to an objective formula or standard. The
Committees establishment of an Individual Target Bonus for
a Participant for a Performance Period shall not imply or
require that the same level Individual Target Bonus (if any
such bonus is established by the Committee for the relevant
employee) be set for any other Performance Period. At the time
the Performance Goals are established (as provided in subsection
6.2 below), the Committee shall prescribe a formula to be used
to determine the percentages (which may be greater than
one-hundred percent (100%)) of an Individual Target Bonus that
may be earned or payable based upon the degree of attainment of
the Performance Goals during the Performance Period.
Notwithstanding anything else herein, the Committee may, in its
sole discretion, elect to pay a Participant an amount that is
less than the Participants Individual Target Bonus (or
attained percentages thereof) regardless of the degree of
attainment of the Performance Goals; provided that no such
discretion to reduce a Performance Bonus earned based on
achievement of the applicable Performance Goals shall be
permitted for the Performance Period in which a Change of
Control of the Company occurs, or during such Performance Period
with regard to the prior Performance Period if the Bonuses for
the prior Performance Period have not been made by the time of
the Change of Control of the Company, with regard to individuals
who were Participants at the time of the Change of Control of
the Company.
6. | PERFORMANCE BONUS PROGRAM |
6.1 PERFORMANCE BONUSES. Subject to the
satisfaction of any conditions on payment, each Participant
shall be eligible to receive their Performance Bonus with
respect to the applicable Performance Period (or, subject to the
last sentence of Section 5, such lesser amount as
determined by the Committee in its sole discretion) based upon
the attainment of the Performance Goals established pursuant to
subsection 6.2 and the formula established pursuant to
Section 5. Unless otherwise provided in the Swisher Bonus
Program, no Performance Bonus shall be made to a Participant for
a Performance Period unless the applicable Performance Goals for
such Performance Period are attained.
6.2 OBJECTIVE PERFORMANCE GOALS, FORMULAE OR
STANDARDS. The Committee in its sole discretion
shall establish the objective performance goals, formulae or
standards and in the case of a covered employee, as
defined in Code Section 162(m)(3), the Performance Bonus
(if any) applicable to each Participant or class of Participants
for a Performance Period in writing prior to the beginning of
such Performance Period or at such later date as permitted under
Code Section 162(m) and the Code Section 162(m)
Exception and while the outcome of the Performance Goals are
substantially uncertain. Such Performance Goals may incorporate,
if and only to the extent permitted under Code
Section 162(m), provisions for disregarding (or adjusting
for) changes in accounting methods, corporate transactions
(including, without limitation, dispositions and acquisitions)
and similar type events or circumstances. To the extent any such
provision would create impermissible discretion under the Code
Section 162(m) Exception or otherwise violate the Code
Section 162(m) Exception, such provision shall be of no
force or effect. Performance Goals will be based on one or more
of the following criteria, as determined by the Committee in its
absolute and sole discretion: (i) the attainment of certain
target levels of, or a specified increase in, the Companys
enterprise value or value creation targets; (ii) the
attainment of certain target levels of, or a percentage increase
in, the Companys after-tax or pre-tax profits including,
without limitation, that attributable to the Companys
continuing
and/or other
operations; (iii) the attainment of certain target levels
of, or a specified increase relating to, the Companys
operational cash flow or working capital, or a component
thereof; (iv) the attainment of certain target levels of,
or a specified decrease relating to, the Companys
operational costs, or a component thereof (v) the
attainment of a certain level of reduction of, or other
specified objectives with regard to limiting the level of
increase in all or a portion of bank debt or other of the
Companys long-term or short-term public or private debt or
other similar financial obligations of the Company, which may be
calculated net of cash balances
and/or other
offsets and adjustments as may be established by the Committee;
(vi) the attainment of a specified percentage increase in
earnings per share or earnings per share from the Companys
continuing operations; (vii) the attainment of certain
target levels of, or a specified percentage increase in, the
Companys net sales, revenues, net income or earnings
before income tax or other exclusions; (viii) the
attainment of certain target levels of, or a specified increase
in, the Companys return on capital
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employed or return on invested capital; (ix) the attainment
of certain target levels of, or a percentage increase in, the
Companys after-tax or pre-tax return on shareholder
equity; (x) the attainment of certain target levels in the
fair market value of the Companys common stock;
(xi) the growth in the value of an investment in the
Companys common stock assuming the reinvestment of
dividends; (xii) successful mergers, acquisitions of other
companies or assets and any cost savings or synergies associated
therewith
and/or
(xiii) the attainment of certain target levels of, or a
specified increase in, EBITDA (earnings before income tax,
depreciation and amortization).
In addition, Performance Goals may be based upon the attainment
by Subsidiary, division or other operational unit of the Company
of specified levels of performance under one or more of the
measures described above. Further, the Performance Goals may be
based upon the attainment by the Company (or Subsidiary,
division or other operational unit of the Company) of specified
levels of performance under one or more of the foregoing
measures relative to the performance of other corporations. To
the extent permitted under Code Section 162(m) of the Code
(including, without limitation, compliance with any requirements
for stockholder approval), the Committee may (i) designate
additional business criteria upon which the Performance Goals
may be based; (ii) modify, amend or adjust the business
criteria described herein or (iii) incorporate in the
Performance Goals provisions regarding changes in accounting
methods, corporate transactions (including, without limitation,
dispositions or acquisitions) and similar events or
circumstances. Performance Goals may include a threshold level
of performance below which no Performance Bonus will be earned,
levels of performance at which a Performance Bonus will become
partially earned and a level at which a Performance Bonus will
be fully earned.
6.3 MAXIMUM PERFORMANCE BONUS. The
maximum amount of Performance Bonuses payable to a Participant
during any one Plan Year is $1,500,000.
6.4 PAYMENT DATE; COMMITTEE
CERTIFICATION. The Performance Bonuses may be
paid at such time after the Performance Period in which they are
earned, as determined by the Committee but not before the
Committee certifies in writing that the Performance Goals
specified pursuant to subsection 6.2 were, in fact, satisfied.
The Committee may place such additional conditions on payment
thereof as it shall determine. Notwithstanding anything in this
Section 6.4 to the contrary, the payment of the Performance
Bonus shall be made during the calendar year immediately
following the calendar year in which the corresponding
Performance Period ends.
6.5 CLAWBACK. Unless otherwise provided
in the Swisher Bonus Program, if: a) the amount of the
Performance Bonus was calculated based upon the achievement of
certain financial results that were subsequently the subject of
a restatement, and b) the amount of the Performance Bonus
that would have been awarded to the Participant had the
financial results been properly reported would have been lower
than the amount actually awarded (such lower Performance Bonus
shall be referred to herein as the Restated Performance
Bonus), then the Board shall have the full and absolute
discretion, to the full extent permitted by governing law,
require reimbursement of any Performance Bonus under the Plan
(including any bonus or incentive compensation that has been
deferred) to the extent such Performance Bonus exceeds the
Restated Performance Bonus.
6.6 CONTINUOUS SERVICE
REQUIREMENT. Unless otherwise provided herein, in
the Swisher Bonus Program or in any written agreement between
the Company (or any Subsidiary) and the Participant, the
Participant must continuously perform services for the Company
or its Subsidiaries in the course of the Performance Period and
until Performance Bonuses for the applicable Performance Period
have been paid out pursuant to Section 6.4 hereof, in order
to be eligible for a Performance Bonus with respect to such
Performance Period. Unless otherwise provided by the Committee,
temporary absence from employment or other service including for
reasons such as illness, vacation, approved leaves of absence or
military service shall not constitute a termination of
employment or other service for purposes of the immediately
preceding sentence. Unless otherwise provided by applicable law,
if a Participant is temporary absent from employment or other
service including for reasons such as illness, vacation,
approved leaves of absence or military service for more than
4 weeks during the Performance Period, the Performance
Bonus for such Performance Period
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the Participant would otherwise be eligible for shall be
prorated based on the number of weeks the Participant performed
services for the Company or any Subsidiary during the course of
the Performance Period.
7. | PARTIAL BONUSES |
Unless otherwise provided in the Swisher Bonus Program or in any
written agreement between the Company (or any Subsidiary) and
the Participant, the Participant shall be eligible for Pro Rata
Bonus, for a Performance Period in the event of death,
disability (within the meaning of Code
Section 22(e)(3)) or termination of employment or other
services within 12 months following the Change of Control
(other than for Cause) which occur prior to the Performance
Bonuses for the applicable Performance Period being paid out
pursuant to Section 6.4 hereof. Unless otherwise provided
in the Swisher Bonus Program, all such Pro Rata Bonuses shall be
contingent on achievements of the Performance Goals for the
applicable Performance Period.
8. | NON-ASSIGNABILITY |
No Performance Bonus under this Plan or payment thereof nor any
right or benefit under this Plan shall be subject to
anticipation, alienation, sale, assignment, pledge, encumbrance,
garnishment, execution or levy of any kind or charge, and any
attempt to anticipate, alienate, sell, assign, pledge, encumber
and to the extent permitted by applicable law, charge, garnish,
execute upon or levy upon the same shall be void and shall not
be recognized or given effect by the Company.
9. | NO RIGHT TO EMPLOYMENT |
Nothing in the Plan or in any notice of bonus pursuant to the
Plan shall confer upon any person the right to continue in the
employment of the Company or one of its subsidiaries or
affiliates nor affect the right of the Company or any of its
subsidiaries or affiliates to terminate the employment of any
Participant.
10. | AMENDMENT OR TERMINATION |
While the Company hopes to continue the Plan indefinitely, it
reserves the right in its Board (or a duly authorized committee
thereof) to amend, suspend or terminate the Plan or any bonus
thereunder, or to adopt a new plan in place of this Plan at any
time; provided, that no such amendment shall, without the prior
approval of the stockholders of the Company in accordance with
the laws of the State of Delaware to the extent required under
Code Section 162(m): (i) alter the Performance Goals
as set forth in Section 6.2; (ii) increase the maximum
amounts set forth in subsection 6.3; (iii) change the class
of eligible employees set forth in Section 4(a); or
(iv) implement any change to a provision of the Plan
requiring stockholder approval in order for the Plan to continue
to comply with the requirements of the Code Section 162(m)
Exception. Furthermore, unless explicitly provided herein, no
amendment, suspension or termination shall, without the consent
of the Participant, alter or impair a Participants right
to receive payment of a Performance Bonus for a Performance
Period otherwise payable hereunder.
11. | SEVERABILITY |
In the event that any one or more of the provisions contained in
the Plan shall, for any reason, be held to be invalid, illegal
or unenforceable, in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of the
Plan and the Plan shall be construed as if such invalid, illegal
or unenforceable provisions had never been contained therein.
12. | WITHHOLDING |
The Company shall have the right to make such provisions as it
deems necessary or appropriate to satisfy any obligations it may
have to withhold federal, state or local income or other taxes
incurred by reason of payments pursuant to the Plan.
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13. | GOVERNING LAW |
This Plan and any amendments thereto shall be construed,
administered, and governed in all respects in accordance with
the laws of the State of Delaware (regardless of the law that
might otherwise govern under applicable principles of conflict
of laws).
14. | IRS CODE SECTION 409A. |
14.1 GENERAL. It is the intention of both
the Company and the Participant that the benefits and rights to
which the Participant is entitled pursuant to this Plan are
exempt from or comply with Section 409A of the Code, and
the regulations issued thereunder (collectively Code
Section 409A) to the extent that the requirements of
Code Section 409A are applicable thereto, and the
provisions of this Plan shall be construed in a manner
consistent with that intention. If the Participant or the
Company believes, at any time, that any such benefit or right
that is subject to Code Section 409A does not so comply, it
shall promptly advise the other and shall negotiate reasonably
and in good faith to amend the terms of such benefits and rights
such that they comply with Code Section 409A (with the most
limited possible economic effect on the Participant and on the
Company).
14.2 DISTRIBUTIONS ON ACCOUNT OF SEPARATION FROM
SERVICE. To the extent required to comply with
Code Section 409A, any payment or benefit required to be
paid under this Plan on account of termination of the
Participants employment, service (or any other similar
term) shall be made only in connection with a separation
from service with respect to the Participant within the
meaning of Code Section 409A.
14.3 NO ACCELERATION OF PAYMENTS. Neither
the Company nor the Participant, individually or in combination,
may accelerate any payment or benefit that is subject to Code
Section 409A, except in compliance with Code
Section 409A and the provisions of this Plan, and no amount
that is subject to Code Section 409A shall be paid prior to
the earliest date on which it may be paid without violating Code
Section 409A.
14.4 SIX MONTH DELAY FOR SPECIFIED
EMPLOYEES. In the event that the Participant is a
specified employee (as described in Code
Section 409A), and any payment or benefit payable pursuant
to this Plan constitutes deferred compensation under Code
Section 409A, then the Company and the Participant shall
cooperate in good faith to undertake any actions that would
cause such payment or benefit not to constitute deferred
compensation under Code Section 409A. In the event that,
following such efforts, the Company determines (after
consultation with its counsel) that such payment or benefit is
still subject to the six-month delay requirement described in
Code Section 409A(2)(b) in order for such payment or
benefit to comply with the requirements of Code
Section 409A, then no such payment or benefit shall be made
before the date that is six months after the Participants
separation from service (as described in Code
Section 409A) (or, if earlier, the date of the
Participants death). Any payment or benefit delayed by
reason of the prior sentence shall be paid out or provided in a
single lump sum at the end of such required delay period in
order to catch up to the original payment schedule.
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EXHIBIT A
Change of Control of the Company shall mean that one of the
following has occurred:
(i) any person as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 (the Exchange Act) (other than the Company, any
trustee or other fiduciary holding securities under any employee
benefit plan of the Company, or any company owned, directly or
indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of common stock of the
Company), is or becomes the beneficial owner (as
defined in
Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company representing twenty-five percent (25%) or more of
the combined voting power of the Companys then outstanding
securities;
(ii) during any period of two (2) consecutive years
individuals who at the beginning of such period constitute the
Board, and any new director (other than a director designated by
a person who has entered into an agreement with the Company to
effect a transaction described in paragraph (i), (iii), or
(iv) of this section) whose election by the Board or
nomination for election by the Companys stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of
the two-year period or whose election or nomination for election
was previously so approved, cease for any reason to constitute
at least a majority of the Board;
(iii) a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent
(50%) of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately
after such merger or consolidation; provided, however, that a
merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person
acquires more than twenty-five percent (25%) of the combined
voting power of the Companys then outstanding securities
shall not constitute a Change of Control of the Company; or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or the consummation of the
sale or disposition by the Company of all or substantially all
of the Companys assets other than (x) the sale or
disposition of all or substantially all of the assets of the
Company to a person or persons who beneficially own, directly or
indirectly, at least fifty percent (50%) or more of the combined
voting power of the outstanding voting securities of the Company
at the time of the sale or (y) pursuant to a spinoff type
transaction, directly or indirectly, of such assets to the
stockholders of the Company.
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