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Exhibit 10.4
Amended as of
July 15, 1999
PRINTPACK INC.
INCENTIVE COMPENSATION PLAN
(CASH ECONOMIC VALUE ADDED [CASH EVA] PLAN)
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Section
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1 Cash EVA Plan Statement of Purpose
2 Definition of Cash EVA and its Components
3 Definition and Computation of Unit Award Pool
4 Definition of Award Allocation
5 Description of Bonus Banks
6 Cash EVA Plan Transfers and Termination
7 Performance Share Plan Statement of Purpose and Administration
8 Certain Definitions Related to Performance Shares
9 Limitation on Outstanding Performance Shares and Call Provision
10 Redemption of Performance Shares
11 Termination of Employment, Disability and Death
12 Limitations
13 General Provisions
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Exhibit
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A Calculation of the Cost of Capital
B Calculation of CIP, Severance and Restructuring Charge
C Calculation of the Cash EVA Award
D Bonus Bank
E Purchase of Performance Shares
F Calculation of Performance Share Value
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PRINTPACK INC.
INCENTIVE COMPENSATION PLAN
(CASH ECONOMIC VALUE ADDED [CASH EVA] PLAN)
1. CASH EVA PLAN STATEMENT OF PURPOSE
1.1 The purpose of the Plan is to provide a system of incentive
compensation that will promote the maximization of the Company's market
value over the long term. In order to align management incentives with
ownership interests, incentive compensation will reward the creation of
value. This Plan will tie incentive compensation to Cash Economic Value
Added ("Cash EVA") and, thereby, reward management for creating value
and penalize management for destroying value.
1.2 Cash EVA is the performance measure of value creation. Cash EVA
reflects the benefits and costs of capital employment. Managers create
value when they employ capital in an endeavor that generates an
operating profit exceeding the cost of the capital employed. Managers
destroy value when they employ capital in an endeavor that generates an
operating profit less than the cost of capital employed. By comparing
the cost of capital to the operating profits generated by a business
unit, Cash EVA measures the total value created (or destroyed) by
management.
Cash EVA = Operating Earnings Before Interest, Taxes,
Depreciation and Amortization (EBITDA) less the Capital Charge
1.3 For each business unit, a percentage of total management salary and a
percentage of the change in Cash EVA are summed to create an Award Pool
for the managers of that unit. That Award Pool is then allocated among
the individual managers and is deposited in each manager's Bonus Bank.
A portion of the balance in the Bonus Banks (if it is positive) is then
paid out in cash as an annual bonus.
2. DEFINITION OF CASH EVA AND THE COMPONENTS OF CASH EVA
Unless the context provides a different meaning, the following terms
shall have the following meanings.
2.1 "Participating Unit" or "Unit" means a business unit or group of
business units that is uniquely identified for the purpose of
calculating Cash EVA and Cash EVA based bonus awards.
The Participating Units for 2000 are defined as follows:
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Total Company (Worldwide) U.S. Flexibles
Total Company (U.S.) Labels
Confectionery Rampart Packaging
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National Account Europe
Snacks Mexico
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These units may change as the divisional structure of the Company
changes.
2.2 "Capital" means the total gross investment utilized in the operation of
each Participating Unit. The components of Capital are as follows:
Cash
Plus: Net receivables
Plus: Inventory
Plus: Other current assets (i.e., deposits, prepaids, etc.)
Less: Accounts payable
Less: Taxes and dividends payable
Less: Accrued salaries, wages, benefits and bonuses
Plus: Gross fixed assets
Plus: Other operating assets
Less: Construction-in-progress
Plus: Adjustments (if any):
LIFO reserve
Cumulative amortization of goodwill
Cumulative write-offs (before tax)
NOTES:
Non-Interest Bearing Current Liabilities (NIBCL's) do not
include the contingent liability associated with Bonus Banks,
accrued interest payable, or the current portion of deferred
taxes.
2.3 Each component of Capital will be measured by computing an average
balance based on the ending monthly balance for the twelve months of
the fiscal year.
2.4 "Cost of Capital" means the weighted average of the before tax cost of
debt and equity.
The Cost of Capital will be reviewed annually and revised if it has
changed significantly. Calculations will be rounded up to one decimal
point.
The methodology for the calculation of the Cost of Capital is:
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Weighted cost of debt
Plus: Weighted cost of equity
Equals: Weighted average Cost of Capital
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The cost of equity equals the risk free investment rate plus the
historical equity market risk premium times our industry's risk index.
The historical equity market risk premium will be held constant at 6%
and our industry's unlevered risk index will be held constant at .99.
This industry risk was determined by a comparison of our publicly
traded peers and is equivalent to their betas during the period from
1993 to 1995. The risk free investment rate will be measured using the
daily average of the yield on twenty year U.S. Treasury Bonds for the
two months prior to the beginning of each fiscal year. The weighting
factor for equity will be our target equity percentage of our total
capitalization.
The cost of debt equals our marginal long-term borrowing cost. The
weighting factor for debt will be the target debt percentage of our
total market capitalization. Our marginal long-term borrowing cost will
be measured using the daily average of the yield on ten year U.S.
Treasury Bonds for the two months prior to the beginning of each fiscal
year plus our market spread over Treasury Bonds in effect for our last
borrowing prior to the computation.
See Exhibit A for sample calculation.
2.5 "Capital Charge" means the deemed opportunity cost of employing the
Capital in the business of each Participating Unit.
The Capital Charge shall be equal to the Cost of Capital multiplied by
Capital.
2.6 "Earnings before Interest, Taxes, Depreciation and Amortization" or
"EBITDA"
"EBITDA" means the adjusted cash operating earnings attributable to the
capital employed in the Participating Unit for the year in question.
The components of EBITDA are as follows:
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Net Sales
Less: Operating expenses
Less: Other expense/(income)
Less: Profit sharing and other benefit expenses
Less: Bonuses
Equals: EBIT
Less: Amortization of CIP, severance and restructuring charges
Plus: Depreciation
Plus: Amortization of intangibles
Plus: Increases/(decreases) in the LIFO reserve
Plus: Write-offs (before tax)
Equals: EBITDA
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Note: "Amortization of CIP, Severance and Restructuring Charges"
means the amortization of the capital charge on
construction-in-progress (CIP) and the amortization of the
expenses for severance pay or for restructuring charges.
For each year, there is a capital charge computed on the
average balance of CIP, severance and restructuring. This
charge equals the average CIP, and the severance accrual and
the restructuring charge times the cost of capital.
This capital charge is not subtracted from EBITDA in the year
in which it is measured, but amortized against EBITDA over the
following five years.
The amount of this amortization is determined in the manner of
a mortgage payment, with the capital charge as the principal,
the cost of capital as the interest rate, and five as the
number of years over which the principal is amortized.
Using this method, the Amortization of CIP, Severance and
Restructuring Charge will be the sum of the five overlapping
amortization payments. That is, for a given year the
Amortization of CIP. Severance and Restructuring Charge will
be the sum of amortization amounts that were calculated one,
two, three, four and five years prior.
See Exhibit B for sample calculation.
2.7 "Cash Economic Value Added" or "Cash EVA" means the EBITDA that remains
after subtracting the Capital Charge, expressed as follows:
Cash EVA = EBITDA minus Capital Charge
Cash EVA may be positive or negative.
3. DEFINITION AND COMPUTATION OF UNIT AWARD POOL
3.1 "Actual Cash EVA" means the Cash EVA as calculated for each
Participating Unit for the year in question.
3.2 "Target Cash EVA" means the measure of the Cash EVA for the year prior
to the year in question. The Target Cash EVA is calculated as follows:
EBITDA of year prior to year in question
Less the following quantity:
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Capital of year prior to year in question
Times: Cost of Capital for year in question
In the first year of the Plan, the Target Cash EVA is derived such that
achieving a performance specified by the Committee will result in
Target Awards.
3.3 "Unit Award Pool" means the total award that is calculated for each
Participating Unit. It is equal to the sum of the Base Award and the
Improvement Award for the year in question.
The Unit Award Pool can be positive or negative.
3.4 "Base Award" means the dollar award for each Participating Unit, which
is a fixed percentage of the total Participant salaries for that unit.
Each unit will be allocated a portion of Participant salaries for
Participants at the corporate level and such allocation will be based
on the expected average capital employed by each unit during of the
year.
The computation for the Base Award is as follows:
Average Responsibility Percentage
Times: Total participant salaries
Times: Performance Indicator (75% for Participating Units with
negative Cash EVA for three years running and 100% for
those with positive Cash EVA)
3.5 "Average Responsibility Percentage" means the weighted average award,
as a percent of salary, for the participant group based on each
Participant's "Responsibility Percentage."
3.6 "Responsibility Percentage" means the typical award that a Participant
would expect to earn, as a percent of salary, given that Participant's
base salary and level of responsibility.
3.7 "Improvement Award" means the dollar award for each Participating Unit,
which results from the difference between the Target Cash EVA and the
Actual Cash EVA of that Participating Unit.
The Improvement Award can be positive or negative.
The computation for the Improvement Award for each Participating Unit
is as follows:
Improvement Award Percentage
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Times the following quantity,
Actual Cash EVA
Less: Target Cash EVA
The "Improvement Award Percentage" for each of the Participating Units
is 20%.
See Exhibit C for sample calculation of both Base and Improvement
Awards.
The Committee will review Improvement Award Percentages annually and
revise them when appropriate.
4. DEFINITION OF AWARD ALLOCATION
4.1 "Individual Allocation Percentage" means the percentage of a Unit's
Award Pool that is allocated to an individual Participant.
The Individual Allocation Percentage for each Participant is
calculated as follows:
The Participant's Target Award
Divided By:
The sum of all Target Awards for the Participant
group
4.2 "Target Award" means the dollar award that is determined by multiplying
the Responsibility Percentage times the Participant's base salary.
4.3 "Individual Award" means the amount of the Unit Award Pool that is
allocated to each individual. The Individual Award is calculated as
follows:
Individual Allocation Percentage
Times:
Unit Award Pool
5. DESCRIPTION OF BONUS BANKS
5.1 Establishment of a Bonus Bank. To encourage a long-term commitment by
Participants to the Company, awards under the Plan shall be credited to
"at risk" deferred accounts ("Bonus Banks"), with the level of payout
contingent on sustained high performance and improvements and continued
employment as provided herein.
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5.2 Annual Allocation. Each Participant's Individual Award is credited to
the Bonus Bank maintained for that Participant. Such crediting will
occur as soon as possible after the conclusion of each Plan Year.
Although a Bonus Bank may, as a result of negative Cash EVA, have a
deficit, no Plan Participant shall be required, at any time, to
reimburse his Bonus Bank.
5.3 "Bonus Bank" means, with respect to each Participant, a bookkeeping
record of an account to which Individual Awards for such Participant
are added or subtracted, as the case may be, from time to time under
the Plan and from which bonus payments to such Participant are
subtracted.
5.4 "Bank Balance" means, with respect to each Participant, a bookkeeping
record of the net balance of the amounts added to and subtracted from
such Participant's Bonus Bank. A Participant's Bank Balance shall
initially be equal to zero.
5.5 "Available Balance" means the Bank Balance at the point in time
immediately after the Individual Award has been added to the Bonus
Bank.
5.6 "Current Bonus" means amount of the Available Balance that may be paid
out in cash to the Participant. The Current Bonus is calculated as
follows:
If the Available Balance is zero or less,
Current Bonus equals zero.
If the Available Balance is greater than zero, but less than
the Target Award,
Current Bonus equals the Available Balance.
If the Available Balance is greater than the Target Award,
Current Bonus equals the Target Award plus one-third
of the amount by which the Available Balance exceeds
the Target Award.
The Current Bonus is subtracted from the Bank Balance.
See Exhibit D for sample calculation.
6. CASH EVA PLAN TRANSFERS AND TERMINATION
6.1 Transfers. A Participant who transfers his employment from one
Participating Unit of the Company to another shall have his Bonus Bank
transferred to such new unit on an equitable basis. At the time of
transfer, the Participant and the Company shall agree on the manner of
prorating any award with respect to the year in which the transfer
occurs. If the new entity does not offer Bonus Banking or a similar
deferred compensation plan, the Participant's Bank Balance (giving
effect to any prorated award for the year of transfer) shall vest and
be distributed over a two-
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year period.
6.2 Death. A Participant who dies shall receive full payment of his Bank
Balance and a pro rata bonus for the year in which he dies. Such
payment shall be made at the regular time for making bonus payments
attributable to the year of such death.
6.3 Retirement or Disability. A Participant who retires from the Company or
suffers a "permanent incapacitating disability" while in the employ of
the Company shall receive a pro rata bonus for the year in which he
retires. Payment shall be equal to the Current Bonus for the year of
retirement. Any remaining Bank Balance will be paid over two years in
two equal installments at the regular time for making bonus payments as
long as the former Participant is not employed by or under contract
with a competitor of the Company.
A Participant shall be deemed to suffer a "permanent incapacitating
disability" if, because of physical or mental condition, the
Participant is unable for a period of at least one year to perform the
principal duties of his occupation as determined by a physician
selected by the Committee.
6.4 Voluntary Termination or Involuntary Termination for Cause. Voluntary
termination of employment with the Company shall result in forfeiture
of the Balance in a Participant's Bonus Bank. In addition, a
Participant's Bank Balance shall be forfeited in the event of
termination of employment for cause.
"Cause" shall mean:
I. any act or acts of the Participant constituting a felony under
the laws of the United States, any state thereof or any
foreign jurisdiction;
II. any material breach by the Participant of any employment
agreement with the Company or the policies of the Company or
the willful and persistent (after written notice to the
Participant) failure or refusal of the Participant to comply
with any lawful directives of the Board;
III. a course of conduct amounting to gross neglect, willful
misconduct or dishonesty;
IV. any misappropriation of material property of the Company by
the Participant or any misappropriation of a corporate or
business opportunity of the Company by the Participant; or
V. the Participant not meeting the performance standards
specified for his job.
6.5 Involuntary Termination Without Cause. A Participant who is terminated
without cause and has a positive Bank Balance in his Bonus Bank shall
become vested
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with respect to such Bank Balance and shall be paid in full at the
regular time for making bonus payments in respect of the year of such
termination.
6.6 Breach of Agreement. Notwithstanding any other provision of the Plan or
any other agreement, in the event that a Participant shall breach any
non-competition agreement with the Company or breach any agreement with
respect to the post-employment conduct of such Participant, the Bank
Balance in such Participant's Bonus Bank shall be forfeited.
6.7 No Guarantee. Participation in the Plan provides no guarantee that a
bonus under the Plan will be paid. Similarly, the payment of a bonus
under the Plan in one year or selection as a Participant is no
guarantee that a bonus under the Plan will be paid in the subsequent
year. The success of the Company as measured by the achievement of Cash
EVA shall determine the extent to which Participants shall be entitled
to receive bonuses hereunder.
7. PERFORMANCE SHARE PLAN STATEMENT OF PURPOSE AND ADMINISTRATION
7.1 The purpose of the Printpack, Inc. Performance Share Plan (the "Plan")
is to promote the success and enhance the value of Printpack, Inc. (the
"Company"), by aligning the interests of its associates with the
worldwide consolidated results of the Printpack companies and to allow
its associates to participate in the long term appreciation in the
equity value of Printpack Holdings, Inc. ("Printpack Holdings").
7.2 The Plan shall be administered by a Committee (the "Committee")
consisting of the President and the Vice Presidents of Finance and of
Human Resources of the Company or, at the discretion of the Board of
Directors of the Company (the "Board") from time to time, by the Board.
The Committee may from time to time make such decisions and adopt such
rules and regulations for implementing the Plan as it deems appropriate
for any Participant under the Plan. Any decision taken by the Committee
arising out of or in connection with the construction, administration,
interpretation and effect of the Plan shall be final, conclusive and
binding upon all Participants and any person claiming under or through
them. The Committee will have sole discretion in determining which
associates are eligible to participate in the Plan. Whereas the annual
incentive bonus plans provide for near-and intermediate-term rewards,
the Performance Share Plan provides a longer-term focus by allowing
associates to participate in the long-term appreciation in the equity
value of Printpack Holdings Inc.
7.3 For purposes of administering the Plan, the following rules of
procedure shall govern the Committee. A majority of the Committee shall
constitute a quorum. The acts of a majority of the members present at
any meeting at which a quorum is present, and acts approved unanimously
in writing by the members of the Committee in lieu of a meeting, shall
be deemed the acts of the Committee. Each
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member of the Committee is entitled to, in good faith, rely or act upon
any report or other information furnished to that member by any officer
or other associate of the company or any parent or subsidiary of the
Company, the Company's independent certified public accountants, or any
executive compensation consultant or other professional retained by the
Company to assist in the administration of the Plan.
8. CERTAIN DEFINITIONS RELATED TO PERFORMANCE SHARES
8.1 "Cash Bonus" means the Current Employment Bonus less the Investment
Amount. The Cash Bonus is the cash payment that Participants receive
from the Current Employment Bonus.
8.2 "Current Employment Bonus" means the annual employment bonus awarded to
a Participant under any of the various associate award programs and
incentive arrangements established by the Company from time to time.
8.3 "Incentive Compensation Plan (Performance Share Plan)" means that
certain Printpack, Inc. Incentive Compensation Plan adopted by the
Board and effective as of July 15, 1999 pursuant to which participants
in that plan may elect to purchase performance shares as defined
therein.
8.4 "Salaried Associate Performance Shares" means performance shares as
defined in and issued under the Incentive Compensation Plan
(Performance Share Plan), including without limitation, all performance
shares issued prior to 1993 under the "old" performance share program,
which shares are referred to as the "Pre-1993 Series under the EVA
Performance Share Plan" and all performance shares issued in the series
under the EVA Performance Share Plan.
8.5 "Equity Change" means any material change in the book value of the
Company or in the outstanding common shares of the Company that would
dilute the value of the performance shares outstanding. In the case of
such a change, the number of outstanding performance shares outstanding
shall be adjusted so that the total value of such performance shares
after the "Equity Change" shall be the same as the total value before
the "Equity Change."
8.6 "Investment Amount" means a Participant's Investment Percentage times
his or her Current Employment Bonus.
8.7 "Investment Percentage" means the percentage of each Participant's
Current Employment Bonus that the Participant elects to invest in
Performance Shares. Each Participant shall elect an "Investment
Percentage" equal to 25%.
8.8 Number of Performance Shares" means the number of Performance Shares
that each Participant purchases in a given year. The Number of
Performance Shares
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equals the Investment Amount divided by the Performance Share Value.
See Exhibit E for an example of Number of Performance Shares
calculation.
8.9 "Participant" means an associate of the Company who has been determined
by the committee to be eligible to participate in the Plan and who has
elected to invest a portion of his or her Current Employment Bonus in
Performance Shares.
8.10 "Performance Share" means a right to receive a payment from the Company
on the terms and conditions of the Plan, which right is based upon a
fraction of the Phantom Equity Value and is issued to a Participant
under the Plan. A Performance Share is not an EVA Performance Share,
but references to "Performance Shares" in the EVA Performance Share
Plan include Performance Shares as defined hereby.
8.11 "Performance Share Series" means all of the Performance Shares issued
in a given year. For example, all Performance Shares issued for 2000
would be referred to as the "2000 Series."
8.12 "Performance Share Value" means the Phantom Equity Value divided by the
sum of (a) the number of Printpack Holdings, Inc.'s outstanding common
shares at the end of the year, (b) the number of outstanding
Performance Shares at the end of the year, including the current year's
purchase of Performance Shares, and (c) the number of outstanding EVA
Performance Shares at the end of the year, including the current year's
purchase of EVA Performance Shares.
See Exhibit F for an example of Performance Share Value Calculation.
8.13 "Phantom Equity Value" means the estimated value of Printpack Holdings'
worldwide equity. It is determined as follows:
Seven times the average two years' EBITDA less total debt,
both short and long-term equals Phantom Equity Value.
The minimum "Phantom Equity Value" under this Plan will be
$100,000,000.
8.14 "Redemption Proceeds" equals the Performance Share Value times the
number of Performance Shares redeemed. Redemption Proceeds, which are
to be paid in cash, will be distributed in March subsequent to the end
of the fiscal year.
8.15 "Vested Performance Shares" means Performance Shares that are eligible
for redemption. Each Performance Share Series becomes eligible for
redemption four years after issuance.
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9. LIMITATION ON OUTSTANDING PERFORMANCE SHARES AND CALL PROVISION
9.1 The aggregate Performance Share Value of all issued and outstanding
Performance Shares and all issued and outstanding EVA Performance
Shares may not exceed 15% of the Phantom Equity Value. If the 15%
limitation is reached, no discretionary investment in Performance
Shares may be made.
10. REDEMPTION OF PERFORMANCE SHARES
10.1 A Participant may, but is not required to, exercise 100% of his or her
Vested Performance Shares.
10.2 After the end of each fiscal year, each Participant who holds Vested
Performance Shares will receive a form upon which the Participant may
indicate the number of Performance Shares that the Participant wishes
to redeem. Such redemption will take place in March.
10.3 Subject to the provisions of Section 5 below and subject to the call
provisions Of Section 3 above, a Participant may hold their Performance
Shares for as long as they wish until they leave the Company.
11. TERMINATION OF EMPLOYMENT, DISABILITY AND DEATH
11.1 Involuntary Termination Without Cause or Death. A participant whose
employment is terminated without cause or who dies shall receive the
Performance Share Value of all Performance Shares held by such
Participant In redemption of such Performance Shares, whether those
Performance Shares were vested or not. Such payments will be made as
soon as is practical.
11.2 Retirement or Disability. A participant who retires from the Company or
suffers a "permanent incapacitating disability" while in the employ of
the Company shall receive the Performance Share Value of all
Performance Shares held by such Participant in redemption of such
Performance Shares, whether those Performance Shares were vested or
not. Such payments will be made as soon as is practical. A Participant
shall be deemed to suffer a "permanent incapacitating disability" if,
because of physical or mental condition, the Participant is unable for
a period of at least one year to perform the principal duties of his or
her occupation as determined by a physician selected by the Committee.
11.3 Voluntary Termination. In the event that a Participant voluntarily
terminates employment with the Company, the Participant will receive
the lesser of either the Performance Share Value times the Number of
Performance Shares held by the Participant as of the date of such
termination, or the Investment Amount related to those Performance
Shares, in either case, in redemption of the Performance Shares.
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11.4 Involuntary Termination for Cause. In the event of termination of
employment for cause, the right of the Participant to exercise his of
her Performance Shares shall be determined by the Committee.
"Cause" shall mean:
(i) any act or acts of the Participant constituting a felony under
the laws of the United States, any state thereof or any
foreign jurisdiction;
(ii) any material breach by the Participant of any employment
agreement with the Company or the policies of the Company or
the willful and persistent (after written notice to the
Participant) failure or refusal of the Participant to comply
with any lawful directives of the Board of Directors of the
Company (the "Board") or the Participant's supervisor;
(iii) a course of conduct amounting to gross neglect, willful
misconduct or dishonesty;
(iv) any misappropriation of material property of the Company by
the Participant or any misappropriation of a corporate or
business opportunity of the Company by the Participant; or
(v) the Participant not meeting the performance standards
specified for his or her job.
11.5 Breach of Agreement. Notwithstanding any other provision of the Plan or
any other agreement, in the event that a Participant shall breach any
non-competition agreement with the Company or breach any agreement with
respect to the post-employment conduct of such Participant, the
Performance Shares held by such Participant shall be forfeited.
11.6 No Guarantee. Participation in the Plan provides no guarantee that a
payment under the plan will be paid. Similarly, the redemption of
Performance Shares under the Plan in one year or selection as A
Participant is no guarantee that payments under the Plan will be paid
in any subsequent year or that a Participant may participate in the
Plan in any subsequent year.
12. LIMITATIONS
12.1 No Continued Employment. Nothing contained herein shall be deemed to
constitute an express or implied contract of employment for any period
of time nor provide any employee with any right to continued employment
or in any way abridge the rights of the Company to determine the terms
and conditions of employment or whether to terminate employment of any
employee with or without cause at any time.
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12.2 No Vested Rights. Except as otherwise provided herein, no employee or
other person shall have any claim of right (legal, equitable, or
otherwise) to any award, allocation, or distribution and no officer or
employee of the Company or any other person shall have any authority to
make representations or agreements to the contrary.
12.3 Rights Personal; No Assignment. Any rights provided to an employee
under Plan shall be personal to such employee, shall not be
transferable (except by will or pursuant to the laws of descent or
distribution), and shall be exercisable, during his or her lifetime,
only by such employee. No interest conferred herein to a Participant
shall be assignable or subject to claim by a Participant's creditors.
12.4 Not Part of Other Benefits. The benefits provided in this Plan shall
not be deemed a part of any other benefit provided by the Company to
its employees except to the extent that all or a portion of a
Participant's Current Employment Bonus is taken in the form of
Performance Shares. The Company assumes no obligation to Plan
Participants except as specified herein. This is a complete statement,
along with the Schedules and Appendices attached hereto, of the terms
and conditions of the Plan.
12.5 Other Plans. Nothing contained herein shall limit the Company or the
Committee's power to grant bonuses to employees of the Company, whether
or not they are Participants in this Plan.
13. GENERAL PROVISIONS
13.1 Withholding of Taxes. The Company shall have the right to withhold the
amount of taxes, which in the determination of the Company, are
required to be withheld under law with respect to any amount due or
paid under the Plan.
13.2 Expenses. All expenses and costs in connection with the adoption and
administration of the Plan shall be borne by the Company.
13.3 No Prior Right or Offer. Except and until expressly granted pursuant to
the Plan, nothing in the Plan shall be deemed to give any employee any
contractual or other right to participate in the benefits of the Plan.
13.4 Claims for Benefits. In the event a Participant (a "claimant") desires
to make a claim with respect to any of the benefits provided hereunder,
the claimant shall submit evidence satisfactory to the Committee of
facts establishing his or her entitlement to a payment under the Plan.
Any claim with respect to any of the benefits provided under the Plan
shall be made in writing within ninety (90) days of the event which the
claimant asserts entitles him to benefits. Failure by the claimant to
submit his or her claim within such ninety (90) day period shall bar
the claimant from any claim for Benefits under the Plan.
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13.5 Denied Claims. In the event that a claim made by a claimant is wholly
or partially denied, the claimant will receive from the Committee a
written explanation of the reason for denial and the claimant or his or
her duly authorized representative may appeal the denial of the claim
to the Committee at any time within ninety (90) days after the receipt
by the claimant of written notice from the Committee of the denial of
the claim. In connection therewith, the claimant or his or her duly
authorized representative may request a review of the denied claim, may
review pertinent documents, and may submit issues and comments in
writing. Upon receipt of an appeal, the Committee shall make a decision
with respect to the appeal and, not later than sixty (60) days after
receipt of a request for review, shall furnish the claimant with a
decision on review in writing, including the specific reasons for the
decision written in a manner calculated to be understood by the
claimant, as well as specific reference to the pertinent provisions of
the Plan upon which the decision is based. In reaching its decision,
the Committee shall have complete discretionary authority to determine
all questions arising in the interpretation and administration of the
Plan, and to construe the terms of the Plan, including any doubtful or
disputed terms and the eligibility of a Participant for benefits.
13.6 Action Taken in Good Faith; Indemnification. The Committee may employ
attorneys, consultants, accountants or other persons and the Company's
directors and officers shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in good faith
shall be final and binding upon all employees who have received awards,
the Company and all other interested parties. No member of the
Committee, nor any officer, director, employee or representative of the
Company, or any of its affiliates acting on behalf of or in conjunction
with the Committee, shall be personally liable for any action,
determination, or interpretation, whether of commission or omission,
taken or made with respect to the Plan, except in circumstances
involving actual bad faith or willful misconduct. In addition to such
other rights of indemnification as they may have as members of the
Board, as members of the Committee or as officers or employees of the
Company, all members of the Committee and any officer, employee or
representative of the Company or any of its subsidiaries acting on
their behalf shall be fully indemnified and protected by the Company
with respect to any such action, determination or interpretation
against the reasonable expenses, including attorneys' fees actually and
necessarily incurred, in connection with the defense of any civil or
criminal action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with the Plan or
an award granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent
legal counsel selected by Company) or paid by them in satisfaction of a
judgement in any action, suit or proceeding, except in relation to
matters as to which it shall be adjudged in such action, suit or
proceeding that such person claiming indemnification shall in writing
offer the Company the opportunity, at its
16
<PAGE> 17
own expense, to handle and defend the same. Expenses (including
attorneys' fees) incurred in defending a civil or criminal action, suit
or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding if such person claiming
indemnification is entitled to be indemnified as provided in this
Section.
13.7 Amendment of Plan. This Plan may be amended, suspended or terminated at
any time at the sole discretion of the Board upon the recommendation of
the Committee. Provided, however, that no such change in the Plan shall
be effective to eliminate or diminish the Performance Share Value of
Performance Shares issued to Participants prior to the date of such
amendment, suspension or termination. Notice of any such amendment,
suspension or termination shall be given promptly to each Participant.
13.8 Termination of Plan. Upon termination of the Plan or suspension for a
period of more than 90 days, the Performance Share Value of all Vested
Performance shares shall be distributed to each Participant, in
redemption of all such Performance Shares, in two equal annual
installments in each of the two Septembers following the termination.
13.9 Written Notice. Any notice to be given pursuant to the provisions of
the Plan shall be in writing and directed to the appropriate recipient
thereof at his or her business address or office location.
13.10 Captions. Paragraph titles or captions and the index contained in this
Plan are inserted only as a matter of convenience and for reference.
Such titles and captions in no way define, limit, extend, or describe
the scope of this Plan or the intent of any provisions.
13.11 Pronouns. Any pronoun shall be deemed to be of the number and gender
necessary to refer to the person or persons designated in the context
of the reference.
13.12 Severability. If any portion of this Plan is declared by a court of
competent jurisdiction to be void or unenforceable, such portion shall
be deemed severed from the Plan and the balance of the Plan shall
remain in effect.
13.13 Construction. This Plan shall be interpreted, construed and enforced in
accordance with the laws of the State of Georgia.
17
<PAGE> 18
EXHIBIT A
CALCULATION OF THE COST OF CAPITAL
<TABLE>
<S> <C>
Risk free investment rate 6.67%
Historical equity market risk premium 6.00%
-----
Total expected equity rate 12.67%
X Target beta 1.58
-----
= Cost of equity 20.02%
=====
= Marginal cost of debt 10.5%
=====
<CAPTION>
Target
Before-Tax Capital Weighted
Cost Weight Cost
---------- ------- --------
<S> <C> <C> <C>
Debt 10.50% 50% 5.25%
Equity 20.02% 50 10.01
--- -----
Weighted Cost of Capital 100% 15.26%
=== =====
</TABLE>
<PAGE> 19
EXHIBIT B
CALCULATION OF CIP, SEVERANCE AND RESTRUCTURING CHARGE
<TABLE>
<CAPTION>
1989 1990 1991 1992 1993 1994 1995 1996
------ ------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Year End CIP 3,132 1,953 5,174 13,788 6,906 11,582 19,940 10,000
Average CIP 2,543 3,564 9,481 10,347 9,244 15,761 14,970
X Cost of Capital 15.0% 15.0% 15.0% 15.0% 15.0% 15.0% 15.0%
= Capital Charge 381 535 1,422 1,552 1,387 2,364 2,245
Amortization Payment(1) 109 153 406 443 396 675 641
Amortization of Capital Charge
1990 109 109 109 109 109
1991 153 153 153 153 153
1992 406 406 406 406
1993 443 443 443
1994 396 396
1995 675
------------------ ---- ------ ------ ------ ------ ------
Total Amortization 109 262 668 1,111 1,507 2,073
</TABLE>
(1) The Amortization Payment is calculated by taking the Capital
Charge as the principal and then determining the payment
necessary to amortize it in five years using an interest rate
equal to the Cost of Capital.
<PAGE> 20
EXHIBIT C
CALCULATION OF THE CASH EVA AWARD
<TABLE>
<S> <C> <C> <C>
Average Target Award Percentage 27.5%
X Total Participant Salaries $ 600,000
----------
= Base Award 165,000
Improvement Award Percentage 20%
Actual Cash EVA 2,415,000
- Target Cash EVA 833,000
---------
= Improvement in EVA 1,582,000
= Improvement Award 316,400
----------
UNIT AWARD POOL $ 481,400
</TABLE>
<PAGE> 21
EXHIBIT D
BONUS BANK
<TABLE>
<S> <C> <C>
Calculated bonus $30,000
+ Beginning balance 0
-------
= Available balance 30,000
-------
Less distribution:
Target award 20,000
1/3 of excess 3,333
-------
Total current bonus 23,333
-------
Ending balance $ 6,667
=======
</TABLE>
<PAGE> 22
EXHIBIT E
PURCHASE OF PERFORMANCE SHARES
<TABLE>
<S> <C>
Cash Employment Bonus $ 8,000
Investment Percentage 25%
-------
Investment Amount $ 1,200
=======
Performance Share Value $ 52.22
=======
Number of Performance Shares Purchased 22.98
=======
</TABLE>
<PAGE> 23
EXHIBIT F
CALCULATION OF PERFORMANCE SHARE VALUE
<TABLE>
<S> <C>
AVERAGE EBITDA (Current EBITDA + Prior EBITDA)/2
7 X AVERAGE EBITDA Average EBITDA times 7
PHANTOM EQUITY VALUE 7 X Average EBITDA less Short-term and Long-term Debt
</TABLE>
EXAMPLE
<TABLE>
<S> <C>
AVERAGE EBITDA = (100,000,000 + 110,000,000)/2 = 105,000,000
7 X AVERAGE EBITDA = 105,000,000 X 7 = 735,000,000
PHANTOM EQUITY VALUE = 735,000,000 - 500,000,000 = 235,000,000
ACTUAL COMMON SHARES
OUTSTANDING AT END OF
YEAR PLUS PERFORMANCE
SHARES OUTSTANDING
AT END OF YEAR
(INCLUDING CURRENT
YEAR'S INVESTMENT) = 4,500,000
PERFORMANCE SHARE VALUE = 235,000,000/4,500,000 = $ 52.22
</TABLE>
