Current Report — Form 8-K Filing Table of Contents
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2: EX-10.1 Material Contract HTML 27K
3: EX-10.2 Material Contract HTML 12K
4: EX-10.3 Material Contract HTML 64K
5: EX-99.1 Miscellaneous Exhibit HTML 132K
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Item
2.02.Results
of Operations and Financial Condition.
Item
5.02.Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
Amendment
to CEO Employment Agreement
On
August3, 2007, the Company entered into Amendment No. 3 (the “Amendment”) to the
Employment Agreement between the Company and Harvey R. Blau, dated July 1,2001,
as amended on August 8, 2003 and July 18, 2006 (the “Employment Agreement”). Mr.
Blau is the Chief Executive Officer and Chairman of the Board of Directors
of
the Company (the “Board”).
The
purpose of the Amendment was to bring the existing agreement into compliance
with the final regulations issued under Section 409A of the Internal Revenue
Code (“Section 409A”). Section 409A applies to arrangements that provide for the
payment of deferred compensation, including severance arrangements, on or after
January 1, 2005. The Amendment was effective as of August 3, 2007 and includes
the following material terms:
· The
definition of change in control has been modified to relate to the acquisition
of 30% of the voting power of the Company, replacing the prior 35% threshold.
· A
change
in control resulting from a change in the composition of the Board has also
been
modified to provide that a change in a majority of the directors on the Board
(excluding directors whose election was approved by a majority of the then
existing Board) over any 12 month period will give rise to a change in control.
Previously, a change in the majority of the directors on the Board (excluding
new directors whose election was approved by a majority of the then existing
Board) since the original execution of the Employment Agreement would arise
to a
change in control.
· As
required under Section 409A, language has been added to the Employment Agreement
that requires the payment of any post-termination: tax gross-up, medical
reimbursements and/or other reimbursements to Mr. Blau must be made prior to
the
end of the year following the year in which the underlying expense is
incurred.
· A
provision has been added that payments due to a separation from service (other
than due to death) must be delayed at least six months if such payments would
otherwise result in additional taxation under Section 409A, regardless of
whether a change in control occurred in the intervening period between a
separation of service and the end of the six month period following such
separation.
The
above
is a brief summary of the Amendment and does not purport to be complete.
Reference is made to the Amendment for a full description of its terms, a copy
of which is attached hereto as Exhibit 10.1 and incorporated herein by
reference.
2
Amendment
to Severance Agreement with Vice President
On
August3, 2007, the Company entered into Amendment No. 1 (“Amendment No. 1”) to the
SeveranceAgreement
between the Company and Patrick L. Alesia, dated July 18, 2006 (the
“SeveranceAgreement”).
Mr. Alesia is the Vice President, Treasurer and Secretary of the Company.
The
purpose of Amendment No. 1 was to bring the existing agreement into compliance
with the final regulations issued under Section 409A. Amendment No. 1 was
effective as of August 3, 2007 and includes the following material terms:
· The
definition of change in control has been modified to relate to the acquisition
of 30% of the voting power of the Company, replacing the prior 35% threshold.
· As
required under Section 409A, language has been added to the
SeveranceAgreement
that requires the payment of any post-termination medical reimbursements be
made
prior to the end of the year following the year in which the underlying medical
expense is incurred.
The
above
is a brief summary of Amendment No. 1 and does not purport to be complete.
Reference is made to Amendment No. 1 for a full description of its terms, a
copy
of which is attached hereto as Exhibit 10.2 and incorporated herein by
reference.
Amendment
to Supplemental Executive Retirement Plan
On
August3, 2007, Amendment No. 1 to the Amended and Restated Supplemental Executive
Retirement Plan of the Company (the “Plan”) was adopted. In part, the amendment
to the Plan serves to bring the provisions of the Plan into compliance with
the
final regulations issued under Section 409A, to provide for payments upon a
participant’s disability, to adopt more accurate mortality assumptions and to
provide for the elimination of certain benefit reductions with regard to
selected participants. The amendment to the Plan became effective as of August3, 2007 and includes the following material terms:
· The
definition of change in control has been modified to relate to the acquisition
of 30% of the voting power of the Company, replacing the prior 35% threshold.
· A
change
in control resulting from a change in the composition of the Board has also
been
modified to provide that a change in a majority of the directors on the Board
(excluding directors whose election was approved by a majority of the then
existing Board) over any 12 month period will give rise to a change in control.
Previously under the terms of the Plan, a change in the majority of the
directors on the Board (excluding new directors whose election was approved
by a
majority of the then existing Board) would occur upon a change in the majority
of the Board over any two year period.
·
The
mortality assumptions under the Plan, which are used in determining the amount
of any lump sum benefits paid under the Plan, have been changed to the Annuity
2000 Male Mortality Table mortality assumptions.
3
· The
Plan
has been amended to provide for lump sum distributions upon a participant’s
“Disability” (as defined in Section 409A). Previously, the Plan did not provide
for any distribution upon the disability of a participant.
·
A
provision has been added to the Plan that payments due to a separation from
service (other than due to death) must be delayed at least six months if such
payments would otherwise result in additional taxation under Section 409A,
regardless of whether a change in control occurred in the intervening period
between a separation of service and the end of the six month period following
such separation.
· The
early
retirement reduction has been eliminated for all participants who receive a
distribution under the Plan due to a change in control and for Mr. Alesia in
all
cases.
· The
Plan
provides that a participant’s benefit under the Plan shall be offset by the
value of the Social Security benefit such participant is entitled to receive.
This offset has been eliminated with respect to Mr. Alesia.
·
The Plan
has been amended to provide that the applicable death benefit, if any, for
any
participant who terminated employment with the Company after December 31, 2006
shall be payable in lump sum.
The
above
is a brief summary of Amendment No. 1 to the Plan and does not purport to be
complete. Reference is made to Amendment No. 1 to the Plan for a full
description of its terms, a copy of which is attached hereto as Exhibit 10.3
and
incorporated herein by reference.
Item
9.01.Financial
Statements and Exhibits.
(d)
Exhibits.
10.1
Amendment
No. 3 to the Employment Agreement, dated August 3, 2007, between
the
Company
and Harvey R. Blau.
10.2
Amendment
No. 1 to the Severance Agreement, dated August 3, 2007, between the
Company and
Patrick L. Alesia.
10.3
Amendment
No. 1 to the Amended and Restated Supplemental Executive Retirement
Plan,
dated
August 3, 2007.
The
information filed as exhibit 99.1 to this Form 8-K is being furnished in
accordance with Item 2.02 and shall not be deemed to be “filed” for the purposes
of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise subject to the liabilities of such section, nor shall such
information be deemed incorporated by reference in any filing under the
Securities Act of 1933, as amended, or the Exchange Act, except as shall be
expressly set forth by specific reference in such a filing.
5
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
