Exhibit 10.15
THE
KITCHEN COLLECTION, INC.
LONG-TERM INCENTIVE COMPENSATION PLAN
FOR THE PERIOD FROM JANUARY 1, 2003 THROUGH DECEMBER 31, 2007
(As Amended and Restated Effective As of December 1,
2007)
The general Effective Date of this
amendment and restatement of The Kitchen Collection, Inc. Long-
Term Incentive Compensation Plan (the “Plan”) is
December 1, 2007.
For periods prior to January 1,
2008, the purpose of this Plan was to further the long-term profits
and growth of The Kitchen Collection, Inc. (the
“Company”) by enabling the Company to attract and
retain key management employees by offering long-term incentive
compensation to those officers and key management employees who
will be in a position to make significant contributions to such
profits and growth. This incentive is in addition to annual
compensation and is intended to reflect growth in the value of the
Company’s stockholders’ equity. For all purposes other
than crediting of interest, the Plan shall be frozen effective
December 31, 2007.
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Application of Code Section 409A |
All amounts
payable hereunder are subject to the provisions of Code
Section 409A It is intended that the compensation arrangements
under of the Plan be in full compliance with the requirements of
Code Section 409A. The Plan shall be interpreted and
administered in a manner to give effect to such intent
Notwithstanding the foregoing, the Company does not guarantee
Participants or Beneficiaries any particular tax treatment under
Code Section 409A.
(a) “Account” shall
mean the record maintained by the Company in accordance with
Section 7 to reflect the Participants’ Awards under the
Plan (plus interest thereon). The Account shall be further
sub-divided into the Sub-Accounts as described in Sections 7
and 8.
(b) “Award” shall
mean the award of Book Value Units that were granted to a
Participant under this Plan for the pre-2007 Award Years or the
cash award granted to a Participant under this Plan for the 2007
Award Year.
(c) “Award Units”
shall mean Book Value Units that were issued pursuant to this Plan
and the Guidelines for the pre-2007 Award Terms.
(d) “Award Year”
shall mean the calendar year on which an Award is based. The last
Award Year shall be the 2007 calendar year.
(e) “Beneficiary”
shall mean the person(s) designated in writing (on a form
acceptable to the Committee) to receive the payment of all Awards
hereunder in the event of the death of a Participant. In the
absence of such a designation and at anytime when there is no
existing Beneficiary hereunder, a Participant’s beneficiary
shall be his surviving legal spouse or, if none, his estate.
(f) “Book Value” as
to any Book Value Unit shall mean an amount determined by the
Committee or, if no amount is set by the Committee, as of any date
(i) the stockholders’ equity (as determined in
accordance with generally accepted accounting principles, applied
on a consistent basis) allocable to the Common Stock of the
Company, as set forth on the balance sheet of the Company as of the
Quarter Date coincident with or immediately preceding such date,
divided by (ii) the number of Notional Shares existing as of such
Quarter Date; provided, however, that Book Value and/or the number
of Notional Shares may be adjusted to such an extent as may be
determined by the Committee to preserve the benefit of the
arrangement for holders of Book Value Units and the Company, if in
the opinion of the Committee, after consultation with the
Company’s independent public accountants, changes in the
Company’s accounting policies, acquisitions or other unusual
or extraordinary items have materially affected the
stockholders’ equity allocable to the Notional Shares.
(g) Book Value Unit” or
“Unit” shall mean a right previously granted under the
prior versions of this Plan for the pre-2007 Award Years.
(h) “
Change in Control” shall mean the occurrence of an event
described in Appendix A hereto.
(i) “Code” shall
mean the Internal Revenue Code of 1986, as amended.
(j) “Committee”
shall mean the Compensation Committee of the Company’s Board
of Directors or any other committee appointed by the
Company’s Board of Directors to administer this Plan in
accordance with Section 5.
(k) “Disability” or
“Disabled.” A Participant shall be deemed to have a
“Disability” or be “Disabled” if the
Participant is determined to be totally disabled by the Social
Security Administration or if the Participant (i) is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is,
by reason of any medically determinable physical or mental
impairment which
can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months
under an employer-sponsored accident and health plan.
(l) “Fixed Income
Fund” shall mean the Vanguard Retirement Savings Trust IV
under the Company’s qualified 401(k) plan or any equivalent
fixed income fund that is designated as the successor to such
fund.
(m) “Grant Date”
shall mean the effective date of an Award, which is the January 1
st
following the end of the Award Year.
(n) “Guidelines”
shall mean the annual guidelines that are approved by the Committee
for each Award Year for the administration of the Awards granted
under the Plan. To the extent that there is any inconsistency
between the Guidelines and the Plan on matters other than the time
and form of payment of the Awards, the Guidelines shall control. If
there is any inconsistency between the Guidelines and this restated
Plan document regarding the time and form of payment of the Awards,
this Plan document shall control.
(o) “Hay Salary
Grade” shall mean the salary grade or points assigned to a
Participant by the Company pursuant to the Hay Salary System, or
any successor salary system subsequently adopted by the
Company.
(p) “Key Employee.”
Effective April 1, 2008, a Participant shall be classified as
a Key Employee if he meets the following requirements:
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The Participant, with respect to his relationship with the
Company and its affiliates, met the requirements of
Section 416(i)(1)(A)(i), (ii) or (iii) of the Code
(without regard to Section 416(i)(5) thereof) and the Treasury
Regulations issued thereunder) at any time during the 12-month
period ending on the most recent Identification Date (defined
below) and his Termination of Employment occurs during the 12-month
period beginning on the most recent Effective Date (defined below).
When applying the provisions of Code Section 416(i)(1)(A)(i),
(ii) or (iii) for this purpose: (i) the definition
of “compensation” (A) shall be the definition contained
in Treasury Regulation Section 1.415(c)-2(d)(4) (i.e.,
wages and other compensation for which the Employer is required to
furnish the Employee with a Form W-2 under Code Sections 6041,
6051 and 6052, plus amounts deferred at the election of the
Employee under Code Sections 125, 132(f)(4) or 401(k)) and
(B) shall apply the rule of Treasury
Regulation Section 1.415-2(g)(5)(ii) which excludes
compensation of non-resident alien employees and (ii) the
number of officers described in Code Section 416(i)(1)(A)(i) shall
be 60 instead of 50. |
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The Identification Date for Key Employees is each
December 31 st and the
Effective Date is the following April 1 st . As such, any
Employee who is classified as a Key Employee as of December 31
st
of |
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a particular Plan Year shall maintain such classification for
the 12-month period commencing on the following April 1 st . |
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Notwithstanding the foregoing, a Participant shall not be
classified as a Key Employee unless the stock of NACCO Industries,
Inc. (or a related entity) is publicly traded on an established
securities market or otherwise on the date of the
Participant’s Termination of Employment. |
(q) “Maturity Date”
shall mean the date established under Section 10(a) of the
Plan.
(r) “Notional
Shares” shall mean the number of assumed shares of Common
Stock of the Company as determined by the Committee from time to
time in order to implement the purposes of the Plan. The number of
Notional Shares under the Plan (including the Plan as in effect
prior to the Effective Date) shall equal one million shares.
(s) “Participant”
shall mean any person who meets the eligibility criteria set forth
in Section 6 and who is granted an Award under the Plan or a
person who maintains an Account balance hereunder.
(t) “Quarter Date”
shall mean the last business day of each calendar quarter. The
final Quarter Date hereunder shall be December 31, 2007.
(u) “Retirement” or
“Retire” shall mean the termination of a
Participant’s employment with the Company after the
Participant has reached age 60 and completed at least 15 years
of service.
(v) “ROTCE Table
Rate” shall mean the interest rate determined under the
annual ROTCE Table that is adopted and approved by the Committee
within the first 90 days of each calendar year, which Rate is
used to calculate the interest on the Participant’s
Sub-Accounts under the Plan for calendar years beginning on or
after January 1, 2008.
(w) “Target Award”
shall mean the dollar value of the Award to be paid to a
Participant under the Plan assuming that the applicable performance
targets are met.
(x) “Termination of
Employment” shall mean, with respect to any
Participant’s relationship with the Company and its
affiliates, a separation from service as defined in Code
Section 409A (and the regulations and guidance issued
thereunder).
(a) This Plan shall be
administered by the Committee. A majority of the Committee shall
constitute a quorum, and the action of members of the Committee
present at any meeting at which a quorum is present, or acts
unanimously approved in writing, shall be the act of the Committee.
All acts and decisions of the Committee with respect to any
questions arising in connection with the administration and
interpretation of this Plan, including the severability of any or
all of the provisions hereof, shall be conclusive, final and
binding upon the Company and all present and former Participants,
all other employees of the Company, and their respective
descendants, successors and assigns. No member of the Committee
shall be liable for any such act or decision made in good
faith.
(b) The Committee shall have
complete authority to interpret all provisions of this Plan, to
prescribe the form of any instrument evidencing any Award granted
under this Plan, to adopt, amend and rescind general and special
rules and regulations for its administration, and to make all other
determinations necessary or advisable for the administration of
this Plan.
For periods prior to January 1,
2008, any person who is classified by the Company as a salaried
employee of the Company generally with Hay points of 800 or above
(or a compensation level equivalent thereto), who in the judgment
of the Committee occupies an officer or other key management
position in which his efforts may significantly contribute to the
profits or growth of the Company, may be eligible to participate in
the Plan; provided, however, that (a) directors of the Company
who are not classified as salaried employees of the Company and
(b) leased employees (as such term is defined in Code
Section 414) shall not be eligible to participate in this
Plan. A person who satisfies the requirements of this Section shall
become a Participant in the Plan when granted an Award hereunder.
No new Participants shall be added to the Plan for periods on or
after January 1, 2008.
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Accounts; Conversion of Outstanding Book Value Units to
Sub-Account Balances |
(a) The Company shall establish
and maintain on its books an Account for each Participant which
shall reflect the credits described in Section 7(c) and 8(d)
hereof. Such Account shall also reflect credits for the interest
described in Section 10(b) and debits for any distributions
therefrom.
(b) Participants in this Plan
previously received Awards with Grant Dates of 1/1/04, 1/1/05 and
1/1/07. Those Awards were previously converted to Book Value Units
in accordance with the terms of the prior versions of the Plan.
These outstanding Book Value Units shall be converted to cash
values in accordance with the following rules. The outstanding Book
Value Units of Participants who incurred a Termination of
Employment for reasons other than Retirement or Disability prior to
December 31, 2007 (the “Frozen Participants”)
shall be multiplied by the Book Value in effect on the Quarter Date
preceding the date of their Termination of Employment to determine
a cash value. The outstanding Book Value Units of all other
Participants (the “Non-Frozen Participants”) shall be
multiplied by the Book Value in effect on December 31, 2007 to
determine a cash value.
(c) As of December 31,
2007, the cash values determined under Subsection (b) above
shall be credited to the Participants’ Accounts established
under Subsection (a) above. Specifically, the cash values
determined from the Awards with a Grant Date of 1/1/04 and 1/1/05
shall be credited to the Pre-2006 Sub-Account and the cash values
determined from the Awards with a Grant Date of 1/1/07 shall be
credited to the 2007 Sub-Account.
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Granting of Awards for the 2007 Award Year. |
The Committee may authorize the
granting of Awards to Participants for the 2007 Award Year, which
shall be not inconsistent with, and shall be subject to all of the
requirements of, the following provisions:
(a) Not later than the ninetieth
day of the 2007 Award Year, the Committee approved (i) a
Target Award to be granted to each Participant for such Award Year
and (ii) a formula for determining the amount of each 2007
Award, which formula is based upon the Company’s average
return on total capital employed for such 2007 Award Year.
(b) Effective no later than
April 1, 2008, the Committee shall approve:
(i) a preliminary calculation of the
amount of each Award based upon the application of the formula (as
in effect at the calculation date) a
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