þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware | 47-0554096 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
2707 North 108th Street, Suite 102, Omaha, Nebraska | 68164 | |
(Address of principal executive offices) | (Zip Code) |
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company)
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- 9 -
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- 18 -
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- 22 -
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- 24 -
Three months ended
November 30,
(in thousands, except per share amounts)
2008
2007
$
113,121
$
75,928
84,472
56,632
28,649
19,296
6,763
5,130
8,349
6,144
1,741
1,506
16,853
12,780
11,796
6,516
(625
)
(599
)
316
476
(1,706
)
114
9,781
6,507
3,459
2,141
$
6,322
$
4,366
$
0.52
$
0.37
$
0.51
$
0.36
12,250
11,766
235
462
12,485
12,228
$
0.075
$
0.070
(Unaudited)
Three months ended
November 30,
$ in thousands
2008
2007
$
6,322
$
4,366
9
27
530
(918
)
(9,053
)
3,457
$
( 2,174
)
$
6,914
(1)
Net of tax expense (benefit) of $437 and ($600) for the three months ended November 30, 2008 and
2007, respectively.
November 30,
November 30,
August 31,
$ in thousands
2008
2007
2008
$
42,164
$
27,374
$
24,867
(9,581
)
(6,139
)
(8,203
)
32,583
21,235
16,664
19,845
18,777
20,568
21,304
15,801
17,586
(1,244
)
(849
)
(1,409
)
$
72,488
$
54,964
$
53,409
November 30,
November 30,
August 31,
2008
2007
2008
13
%
14
%
9
%
8
%
11
%
8
%
79
%
75
%
83
%
November 30,
November 30,
August 31,
$ in thousands
2008
2007
2008
$
2,195
$
1,539
$
2,269
23,140
20,250
23,893
57,726
53,454
58,382
7,202
7,720
6,661
90,263
82,963
91,205
(51,079
)
(49,319
)
(51,144
)
$
39,184
$
33,644
$
40,061
3,522
2,808
3,597
15,694
12,063
16,210
$
19,216
$
14,871
$
19,807
(2,731
)
(1,229
)
(2,297
)
$
16,485
$
13,642
$
17,510
$
55,669
$
47,286
$
57,571
November 30,
November 30,
August 31,
$ in thousands
2008
2007
2008
$
20,357
$
24,643
$
21,429
9,896
11,781
10,367
(6,171
)
(6,171
)
(6,171
)
$
24,082
$
30,253
$
25,625
Due within:
$
6,171
6,171
6,171
6,171
5,098
471
$
30,253
Level 1 Unadjusted quoted prices in active markets for identical assets or liabilities.
Level 2 Significant observable pricing inputs other than quoted prices included within
Level 1 that are either directly or indirectly observable as of the reporting date.
Essentially, this represents inputs that are derived principally from or corroborated by
observable market data.
Level 3 Generally unobservable inputs, which are developed based on the best
information available and may include the Companys own internal data.
$ in thousands
Level 1
Level 2
Level 3
Total
$
97
$
13
$
$
110
(60
)
(1,828
)
(1,888
)
Three months ended
November 30,
$ in thousands
2008
2007
$
$
10
87
84
44
40
$
131
$
134
Three months ended
November 30,
$ in thousands
2008
2007
$
2,011
$
1,644
1,076
216
(1,286
)
(386
)
$
1,801
$
1,474
Three months ended
November 30,
$ in thousands
2008
2007
$
85,964
$
56,502
27,157
19,426
$
113,121
$
75,928
$
16,195
$
9,091
3,950
3,569
20,145
12,660
(8,349
)
(6,144
)
(2,015
)
(9
)
$
9,781
$
6,507
$
1,826
$
810
449
3,692
$
2,275
$
4,502
$
1,144
$
929
1,542
1,202
$
2,686
$
2,131
November 30,
November 30,
August 31,
2008
2007
2008
$
196,553
$
151,076
$
201,522
115,873
103,894
125,355
$
312,426
$
254,970
$
326,877
Three months ended
Percent
November 30,
Increase
$ in thousands
2008
2007
(Decrease)
$
113,121
$
75,928
49.0
%
$
84,472
$
56,632
49.2
%
$
28,649
$
19,296
48.5
%
25.3
%
25.4
%
$
16,853
$
12,780
31.9
%
$
11,796
$
6,516
81.0
%
10.4
%
8.6
%
$
(625
)
$
(599
)
4.3
%
$
316
$
476
(33.6
)%
$
(1,706
)
$
114
(1,596.5
)%
$
3,459
$
2,141
61.6
%
35.4
%
32.9
%
$
6,322
$
4,366
44.8
%
$
85,964
$
56,502
52.1
%
$
16,195
$
9,091
78.1
%
18.8
%
16.1
%
$
27,157
$
19,426
39.8
%
$
3,950
$
3,569
10.7
%
14.5
%
18.4
%
(1)
Includes $8,349 and $6,144 of unallocated general and administrative expenses for the three months ended November 30,
2008 and 2007, respectively.
(2)
Excludes unallocated general
& administrative expenses.
3.1
Restated Certificate of Incorporation of the Company, incorporated by reference
to Exhibit 3.1 to the Companys Current Report on Form 8-K filed on December 14, 2006.
3.2
Restated By-Laws of the Company, incorporated by reference to Exhibit 3.1 of
the Companys Current Report on Form 8-K filed on November 6, 2007.
4.1
Specimen Form of Common Stock Certificate, incorporated by reference to Exhibit
4(a) of the Companys Quarterly Report on Form 10-Q for the fiscal quarter ended
November 30, 2006.
10.1*
Lindsay Corporation Management Incentive Plan (MIP), 2009 Plan Year. **
10.2*
Form of Indemnification Agreement between the Company and its Officers and Directors.
31.1*
Certification of Principal Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 18 U.S.C. Section 1350.
31.2*
Certification of Principal Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 18 U.S.C. Section 1350.
32.1*
Certification of Principal Executive Officer and Principal Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 18 U.S.C. Section 1350.
*-
filed herein
**-
certain confidential portions of this Exhibit were omitted by means of redacting a
portion of the text. This Exhibit has been filed separately with the Secretary of the
Commission with the redacted text pursuant to the Companys application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
LINDSAY CORPORATION
By:
Name:
/s/ TIM J. PAYMAL
Title:
Vice President and Chief Accounting Officer
(Principal Financial Officer)
1. Purpose
|
1 | |||
2. Definitions
|
1 | |||
3. Effective Date
|
1 | |||
4. Eligibility for Participation
|
2 | |||
5. Enrollment in the Plan
|
2 | |||
6. Determination of Target Payout Levels
|
2 | |||
7. Basis of Awards
|
3 | |||
8. Changes in Employment Status
|
5 | |||
9. Administration
|
5 | |||
10. Attachments
|
6 |
| Encourage performance consistent with the Companys business strategy | ||
| Focus on near-term performance results as well as progress toward the achievement of long-term objectives | ||
| Strengthen the link between performance and pay by delivering awards based on measurable corporate and individual goal. |
A. | Company shall mean Lindsay Corporation | ||
B. | Compensation Committee shall mean the Compensation Committee of the Companys Board of Directors. | ||
C. | Financial Performance Component shall mean the portion of a Participants Plan award that is based on the Companys and specific Market financial performance as defined in Section 7B. | ||
D. | Individual Performance Component shall mean the portion of a Participants Plan award that is based on a Participants performance relative to individual objectives established in accordance with Section 7C. | ||
E. | Named Executive Officers shall mean the executives of the Company listed in the Executive Compensation section of the Companys Proxy Statement, other executive officers of the Company for SEC reporting purposes and any other individuals who report directly to the Chief Executive Officer (other than his personal assistant). | ||
F. | Participant shall mean a key employee eligible for awards under the terms outlined in Section 4 of this Plan. | ||
G. | Plan shall mean Lindsay Corporation Management Incentive Plan. |
1
A. | Participation in the Plan is limited to individuals in positions which have significant responsibility for and impact on the Companys corporate performance. | ||
B. | Only the Chief Executive Officer and those employees in grades G(50) through I(60) are eligible to be considered for participation in the Plan. | ||
C. | Participation in the Plan does not guarantee or entitle any employee to participate in any bonus plan enacted in the future. Participation in the Plan at any target bonus level does not guarantee or entitle any employee to be eligible to participate at any similar target bonus level in any bonus plan which may be enacted in the future. |
i. | Plan Participants will participate in the Plan at the standard target percent per grade level as listed in Section 6. | ||
ii. | The Companys Chief Executive Officer will review the participant list and projected bonus costs of enrolled employees with the Compensation Committee. The Compensation Committee provides final approval on the aggregate potential cost of the Plan. |
i. | Prior to the commencement of the recruiting or promotion process, the hiring manager consults with Human Resources to determine the positions eligibility for participation in the Plan and the recommended target bonus amount. | ||
ii. | Offer letters indicating bonus Plan participation and target bonus award opportunities to new hires and/or promoted employees must be reviewed by the CEO or, in the case of a Named Executive Officer, by the Compensation Committee. Target bonus recommendations must be approved before communication to a prospective Participant. Generally, employees hired or promoted during the fourth quarter 2009 are not eligible to participate in the 2009 Plan. |
A. | Incentive awards will be calculated as a percentage of the Participants annual base salary received during the Plan year, provided that annual base salary increases which are made during the first quarter of the Plan year will be treated for purposes of calculating a Participants bonus as if they had been made at the beginning of the Plan year. While award amounts will vary based on the range of award opportunity and an assessment of individual performance results, the target award opportunities for each grade level are shown below: |
Grade | Target % of Salary | |
CEO(60) | 60% | |
I(55) | 45% | |
H(50) | 35% |
2
i. | Actual participation is subject to approval by the CEO and by the Compensation Committee. Actual participation is based on an assessment of the individuals position impact on the organization. | ||
ii. | Standard target percents per grade level should be followed for all Plan Participants. |
B. | If a Participants Plan target award opportunity (Target % of Salary as set forth above) changes due to promotion into a grade level with a higher target bonus, the Participants bonus will be calculated based on his or her annual salary during the Plan year and a pro-rated bonus award. The pro-rated bonus award will reflect the portion of the Plan year spent in each grade level (e.g., seven months at 35% and five months at 45%). In evaluating the performance of Participants who change positions during the Plan year, consideration will be given to the length of time and results in each position. Actual award decisions will be made by the CEO or, in the case of a Named Executive Officer, by the Compensation Committee. Generally, fourth quarter promotions will not result in an increase in a Participants target award opportunity. | ||
C. | Examples of various award calculations are included with this Plan document as Attachment A. | ||
D. | The CEO will review and approve award recommendations for all employees other than Named Executive Officers prior to payout. Final approval authority for all payments (except for award payments to the Named Executive Officers) rests with the CEO. Individual award payments for all Participants (except the Named Executive Officers) may be adjusted at any time and for any reason at the discretion of the CEO. | ||
E. | The Compensation Committee will determine the award payments to the Named Executive Officers. | ||
F. | Award payments will be calculated on an annual basis and paid in accordance with the Companys normal payroll cycle. Payments will be made during the first quarter following the Plan year. The payment date may be changed at any time and for any reason at the discretion of the CEO, or in the case of a Named Executive Officer, with approval of the Compensation Committee, but may not be later than March 15 following the end of the Plan year for which the award is paid. |
A. | Measurable performance objectives for each Plan Participant will be established at the beginning of the Plan year (or at mid-year for mid-year hires or newly eligible employees). In 2009, consideration will be given to: |
i. | Financial Performance Component: Company and Market financial performance vs. Plan performance objectives in accordance with Section 7B. | ||
ii. | Individual Performance Component: Participants performance relative to individual goals established in accordance with Section 7C. | ||
iii. | Individual and Financial Performance Components will be added to reach a Participants total bonus. The relative weighting will vary by grade in accordance with the following schedule: |
Financial | Individual | |||
Grade | Performance | Performance | ||
CEO(60) | 80% | 20% | ||
I(55) | 80% | 20% | ||
H(50) | 80% | 20% |
3
B. | At the beginning of the Plan year, the objectives for the Financial Performance Component are identified and approved by the Compensation Committee. |
i. | Recommended award amounts may range from 0 200% of the Financial Performance Component of the Participants target award, based on performance. | ||
ii. | Percentages between the threshold, intermediate, target, and maximum award will be interpolated. | ||
iii. | In the event of an acquisition, revenue and operating income resulting from the acquisition will be excluded from award payout calculations, unless |
a) | The CEO or Compensation Committee suggests a modification to the objectives under the Financial Performance Component that would incorporate revenue and income generated as a result of the acquisition, and | ||
b) | The Compensation Committee approves the modification. |
C. | The Individual Performance Component will be based on written objectives set annually for Participants by their supervisors and approved by the CEO or, in the case of a Named Executive Officer, by the Compensation Committee. Objectives will be based on the Participants position and may be financial, operational or strategic. |
i. | Objectives under the Individual Performance Component may be linked to team-based goals, if appropriate | ||
ii. | Examples of appropriate objectives under the Individual Performance Component include: |
| Safety | ||
| Customer Service | ||
| Market Share | ||
| On-time Delivery | ||
| Cost Reduction | ||
| Product Development |
iii. | Recommended award amounts may range from 0% 200% of the target amount under the Individual Performance Component. Recommended award amounts will be based on an assessment of the individuals performance relative to objectives established under the Individual Performance Component, in accordance with the following guidelines: |
Payout | ||
Individual | (as % of Target Individual | |
Performance | Performance Component) | |
Does not meet objectives | 0% | |
Meets some objectives | 50% | |
Meets most objectives | 75% | |
Meets all objectives | 100% | |
Exceeds objectives | 150% | |
Significantly exceeds objectives | 200% |
iv. | The Payout (as % of Target Individual Performance Component) represents the payout relative to target award for the Individual Performance Component of the Plan. |
4
A. | Under most circumstances, Participants who cease to be employees of the Company during the Plan year or after the Plan year but prior to the date of actual payment will receive no award. Only active employees on the date that the bonus is paid will be eligible to receive an award. Any exceptions will require the approval of the CEO, or in the case of a Named Executive Officer, the Compensation Committee. | ||
B. | In the event that a Participant transfers out of an eligible position into an ineligible position within the Company, the employee may be eligible for a prorated bonus award based upon the approval of the CEO, or in the case of a Named Executive Officer, the Compensation Committee. | ||
C. | In all cases awards will be calculated and paid according to the provisions in Sections 6 and 7 of this Plan document. |
A. | General authority for Plan administration and responsibility for ongoing Plan administration will rest with the Compensation Committee of the Companys Board of Directors. The Compensation Committee has sole authority for decisions regarding interpretation of the terms of this Plan. | ||
B. | The Company reserves the right to amend or change the Plan in whole or in part at any time during the Plan year. Amendments to the Plan require the approval of the Compensation Committee. | ||
C. | Participation in the Plan does not constitute a contract of employment nor a contractual agreement of payment. It shall not affect the right of the Company to discharge, transfer, or change the position of a Participant. The Plan shall not be construed to limit or prevent the Company from adopting or changing, from time to time, any rules, standards or procedures affecting the Participants employment with the Company or any Company affiliate, including those which affect bonus payouts. | ||
D. | If any provision of this Plan is found to be illegal, invalid or unenforceable under present or future laws, that provision shall be severed from the Plan. If such a provision is severed, this Plan shall be construed and enforced as if the severed provision had never been part of it and the remaining provisions of this Plan shall remain in full force and effect and shall not be affected by the severed provisions or by its severance from this Plan. In place of any severed provision there shall be added automatically as part of this Plan a provision as similar in terms to the severed provision as may be possible and be legal, valid and enforceable. | ||
E. | This is not an ERISA plan. This is a bonus program. |
5
Full Year Participation | ||||
Individual Score:
|
100 | |||
Financial Performance Score:
|
100.00 | % | ||
Individual Score
|
100 | |||
Total Incentive Plan %
|
35.0 | % | ||
%
Objectives to Total Incentive Plan Participation
|
20 | % | ||
Base Salary
|
$ | 150,000 | ||
|
||||
Objective Performance Payout
|
$ | 10,500 | ||
|
||||
Financial Score
|
100 | % | ||
Total Incentive Plan %
|
35 | % | ||
% Financial to Total Incentive Plan Participation
|
80 | % | ||
Base Salary
|
$ | 150,000 | ||
|
||||
Financial Performance Payout
|
$ | 42,000 | ||
|
||||
Incentive Amount
|
$ | 52,500 | ||
|
||||
Time Period (Months)
|
12 | |||
Proration Factor
|
1 | |||
Prorated Payout for Time Period
|
$ | 52,500 | ||
Partial Year Participation | ||||
Individual Score:
|
100 | |||
Financial Performance Score:
|
100.00 | % | ||
Individual Score
|
100 | |||
Total Incentive Plan
%
|
35.0 | % | ||
%
Objectives to Total Incentive Plan Participation
|
20 | % | ||
Base Salary
|
$ | 150,000 | ||
|
||||
Objective Performance Payout
|
$ | 10,500 | ||
|
||||
Financial Score
|
100 | % | ||
Total Incentive Plan
%
|
35 | % | ||
%
Financial to Total Incentive Plan Participation
|
80 | % | ||
Base Salary
|
$ | 150,000 | ||
|
||||
Financial Performance Payout
|
$ | 42,000 | ||
|
||||
Incentive Amount
|
$ | 52,500 | ||
|
||||
Time Period (Months)
|
7 | |||
Proration Factor
|
0.583333 | |||
Prorated Payout for Time Period
|
$ | 30,625 | ||
Mid-Year Promotion | ||||
Individual Score:
|
100 | |||
Financial Performance Score:
|
100.00 | % | ||
Pre-Promotion Calculation
|
||||
Individual Score
|
100 | |||
Total Incentive Plan %
|
35.0 | % | ||
%
Objectives to Total Incentive Plan Participation
|
20 | % | ||
Base Salary
|
$ | 150,000 | ||
|
||||
Objective Performance Payout
|
$ | 10,500 | ||
|
||||
Financial Score
|
100 | % | ||
Total Incentive Plan
%
|
35 | % | ||
% Financial to Total Incentive Plan Participation
|
80 | % | ||
Base Salary
|
$ | 150,000 | ||
|
||||
Financial Performance Payout
|
$ | 42,000 | ||
|
||||
Incentive Amount
|
$ | 52,500 | ||
|
||||
Time Period (Months)
|
6 | |||
Proration Factor
|
0.5 | |||
Prorated Payout for Time Period
|
$ | 26,250 | ||
Post Promotion Calculation | ||||
Individual Score
|
100 | |||
Total Incentive Plan
%
|
45.0 | % | ||
%
Objectives to Total Incentive Plan Participation
|
20 | % | ||
Base Salary
|
$ | 200,000 | ||
|
||||
Objective Performance Payout
|
$ | 18,000 | ||
|
||||
Financial Score
|
100 | % | ||
Total Incentive Plan
%
|
45 | % | ||
%
Financial to Total Incentive Plan Participation
|
80 | % | ||
Base Salary
|
$ | 200,000 | ||
|
||||
Total Financial Performance Payout
|
$ | 72,000 | ||
|
||||
Incentive Amount
|
$ | 90,000 | ||
|
||||
Time Period (Months)
|
6 | |||
Proration Factor
|
0.5 | |||
Prorated Payout forTime Period
|
$ | 45,000 | ||
Total Prorated Incentive Amount
|
$ | 71,250 |
6
7
1. | Definitions. |
a. | Expenses . Expenses means, for the purposes of this Agreement, all direct and indirect costs and expenses of any type or nature whatsoever (including, without limitation, any fees, retainers and disbursements of Indemnitees counsel, accountants, experts, other witnesses, investigation costs, defense costs, mediation costs, arbitration costs, court costs (including appeals), costs of attachment or bonds, transcript costs, travel expenses, duplicating, printing and binding costs, telephone charges, postage, delivery service fees and other out-of-pocket costs and expenses) actually and reasonably incurred by the Indemnitee in connection with the investigation, preparation, defense or appeal of a Proceeding; provided, however, that Expenses shall not include judgments, fines, penalties or amounts paid in settlement of a Proceeding. |
1
b. | Proceeding . Proceeding means, for the purposes of this Agreement, any threatened, pending or completed action, suit, arbitration, alternative dispute resolution mechanism, investigation, inquiry, administrative, legislative or other hearing, or any other actual, threatened or completed proceeding, whether civil, criminal, administrative or investigative and whether brought by or in the right of the Company or otherwise, in which Indemnitee was, is or may be involved as a party, witness or otherwise, by reason of the fact that Indemnitee is or was a director and/or officer of the Company or any subsidiary or affiliate of the Company, by reason of any action taken by him or her or of any inaction on his or her part while acting as such director and/or officer, or by reason of the fact that he or she is or was serving at the request of the Company as a director, officer, employee or agent of another domestic or foreign corporation, partnership, joint venture, trust or other enterprise, whether or not he or she is serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement can be provided under this Agreement. |
2. | Agreement to Serve . In consideration of the protection afforded by this Agreement, if Indemnitee is a director, he or she has agreed to serve to the best of his or her abilities until the earlier of (i) the time when Indemnitee fails to be reelected to the Board of Directors and qualified or (ii) such time as he or she tenders his or her resignation in writing. If Indemnitee is an officer, he or she has agreed to serve to the best of his or her abilities at the will of the Company or under separate contract, if such contract exists, for so long as Indemnitee is duly appointed or until such time as he or she tenders his or her resignation in writing. Nothing contained in this Agreement is intended to create in Indemnitee any right to continued employment or any requirement of a continuing relationship. | |
3. | Indemnification . The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent authorized by law, including but not limited to the Delaware General Corporation Law, as the same exists on the date hereof or as may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than the law permitted the Company to provide prior to such amendment). In furtherance of the foregoing indemnification, and without limiting the generality thereof: |
a. | Third Party Proceedings . The Company shall indemnify Indemnitee against Expenses, judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with a Proceeding (other than a Proceeding by or in the right of the Company) if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal proceeding, had no reasonable cause to believe Indemnitees conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal Proceeding, had reasonable cause to believe that Indemnitees conduct was unlawful. | ||
b. | Proceedings By or in the Right of the Company . To the fullest extent permitted by law, the Company shall indemnify Indemnitee against Expenses and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with a Proceeding by or in the right of the Company to procure a judgment in its favor if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. Notwithstanding the foregoing, no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged liable to the Company in the performance of Indemnitees duty to the Company, unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for Expenses and then only to the extent that the court shall determine. | ||
c. | Indemnification for Expenses as a Witness . Notwithstanding any other provision of this Agreement, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding in which Indemnitee is a witness, but not a party. | ||
d. | Scope . Notwithstanding any other provision of this Agreement, the Company shall indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized by |
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other provisions of this Agreement, the Companys Restated Certificate of Incorporation, the Companys Bylaws or by statute. | |||
e. | Exception to Right of Indemnification . Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification under this Agreement with respect to any Proceeding brought by Indemnitee, or the making of any claim therein, unless (i) the bringing of such Proceeding or making of such claim shall have been approved by the Board of Directors of the Company, or (ii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitees rights under this Agreement (including rights to D&O Insurance provided in Section 8 hereof). |
4. | Determination of Right to Indemnification . Upon receipt of a written claim addressed to the Board of Directors for indemnification pursuant to Section 3, the Company shall indemnify Indemnitee with respect to such written claim to the fullest extent permitted by law. If a claim under Section 3 is not paid in full by the Company within 30 days after such written claim has been received by the Company, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim, and, if successful in whole or in part, the Indemnitee shall also be entitled to be paid the expenses of prosecuting such claim. Neither the failure of the Company (including its Board of Directors, independent legal counsel, or its shareholders) to make a determination prior to the commencement of such action that indemnification of the Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct under applicable law, nor an actual determination by the Company (including its Board of Directors, independent legal counsel or its shareholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct. It shall at all times be presumed that Indemnitee has met the applicable standard of conduct to be entitled to indemnification, and the Company or anyone else seeking to overcome this presumption shall have the burden of proof to establish that Indemnitee has not met the applicable standard of conduct. | |
5. | Advancement and Repayment of Expenses . The Expenses incurred by Indemnitee in connection with any Proceeding shall be paid by the Company in advance of the final disposition of such Proceeding within 30 days after receiving from Indemnitee copies of invoices presented to Indemnitee or other satisfactory evidence for such Expenses, if Indemnitee shall provide an undertaking to the Company to repay such amount to the extent it is ultimately determined that Indemnitee is not entitled to indemnification. In determining whether or not to make an advance hereunder, the ability of Indemnitee to repay shall not be a factor. Any advancements and undertakings for repayment of Expenses shall be unsecured and interest free. Notwithstanding the foregoing, the Company shall not be required to make the advances called for hereby if the Board of Directors reasonably determines in good faith that it does not appear that Indemnitee has met the standards of conduct which make it permissible under applicable law to indemnify Indemnitee and the advancement of Expenses would not be in the best interests of the Company and its shareholders. | |
6. | Partial Indemnification . If the Indemnitee is entitled under any provision of this Agreement to indemnification or advancement by the Company of some or a portion of any Expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, penalties, and amounts paid in settlement) incurred by him or her in the investigation, defense, settlement or appeal of a Proceeding, but is not entitled to indemnification or advancement of the total amount thereof, the Company shall nevertheless indemnify or pay advancements to the Indemnitee for the portion of such Expenses or liabilities to which the Indemnitee is entitled. In addition, if Indemnitee is not wholly successful in any Proceeding, but is successful, on the merits or otherwise (including dismissal, with or without prejudice), as to one or more, but less than all claims, issues or matters involved in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with each successfully resolved claim, issue or matter involved in such Proceeding. | |
7. | Notice to Company by Indemnitee . Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof; provided that any delay in so notifying the Company shall not constitute a waiver by Indemnitee of his or her rights hereunder. The written notification to the Company shall be addressed to the Board of Directors and shall include a description of the nature of the Proceeding and the facts underlying the Proceeding and be accompanied by copies of any documents filed with the court in which the Proceeding is pending. In addition, Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitees power. |
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8. | Maintenance of Liability Insurance. |
a. | Coverage . The Company hereby agrees that so long as Indemnitee shall continue to serve as a director and/or officer of the Company and for a period of six years thereafter (or for such longer period so long as Indemnitee shall be subject to any possible Proceeding), the Company shall obtain and maintain in full force and effect directors and officers liability insurance (D&O Insurance) which provides Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Companys directors, if Indemnitee is a director, or of the Companys officers, if Indemnitee is not a director of the Company but is an officer. Unless the Board of Directors approves lesser coverage, the Company shall maintain D&O Insurance subject to terms and conditions (including amounts and retentions) which, in the aggregate, are no less advantageous to Indemnitee than the coverage in existence at November 1, 2008. | ||
b. | Notice to Insurers . If, at the time of the receipt of a notice of a claim pursuant to Section 7 hereof, the Company has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
9. | Defense of Claim . In the event that the Company shall be obligated under Section 5 hereof to pay the Expenses of any Proceeding against Indemnitee and the Company or any other person entitled to indemnification by the Company is a party to the Proceeding, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitees expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, or (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such Proceeding, then the fees and expenses of Indemnitees counsel shall be at the expense of the Company. If the Company assumes the defense of any Proceeding, the Company shall be obligated to defend all claims against Indemnitee in such Proceeding in good faith and in a manner consistent with the best interests of Indemnitee, and the Company shall not settle or compromise any claims on any basis or in any manner which would impose any liability, limitation or restriction of any kind on Indemnitee without Indemnitees express written consent. | |
10. | Attorneys Fees . In the event that Indemnitee or the Company institutes an action to enforce or interpret any terms of this Agreement, the Company shall reimburse Indemnitee for all of the Indemnitees reasonable fees and expenses in bringing and pursuing such action or defense if Indemnitee is successful in whole or in part in such action or defense. | |
11. | Continuation of Obligations . All agreements and obligations of the Company contained herein shall continue during the period the Indemnitee is a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, fiduciary, employee or agent of a corporation, partnership, joint venture, trust or other enterprise, and shall continue thereafter so long as the Indemnitee shall be subject to any possible Proceeding by reason of the fact that Indemnitee served in any capacity referred to herein. | |
12. | Successors and Assigns . This Agreement establishes contract rights that shall he binding upon, and shall inure to the benefit of, the successors, assigns, heirs and legal representatives of the parties hereto. | |
13. | Non-exclusivity. |
a. | Other Rights . The provisions for indemnification and advancement of Expenses set forth in this Agreement shall not be deemed to be exclusive of any other rights that the Indemnitee may have under any provision of law, the Companys Restated Certificate of Incorporation or Bylaws, the vote of the Companys shareholders or disinterested directors, other agreements or otherwise, both as to action in his or her official capacity and action in another capacity while occupying his or her position as a director and/or officer of the Company. |
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b. | Changes in Law . In the event of any changes, after the date of this Agreement, in any applicable law, statute, or rule which expand the right of a Delaware corporation to indemnify its officers and/or directors, the Indemnitees rights and the Companys obligations under this Agreement shall be expanded to the full extent permitted by such changes. In the event of any changes in any applicable law, statute or rule, which narrow the right of a Delaware corporation to indemnify a director or officer, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties rights and obligations hereunder. |
14. | Effectiveness of Agreement . This Agreement shall be effective as of the date set forth on the first page and shall, to the fullest extent permitted by law, apply to acts of omissions of Indemnitee which occurred at any time prior to or after such date if Indemnitee was an officer, director, employee or other agent of the Company, or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, at the time such act or omission occurred. | |
15. | Subrogation . In the event of any payment under this Agreement by the Company to or on behalf of Indemnitee, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. | |
16. | Severability . Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law, rule or regulation. The provisions of this Agreement shall be severable as provided in this Section 16. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms. | |
17. | Governing Law . This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware. To the extent permitted by applicable law, the parties hereby waive any provisions of law which render any provision of this Agreement unenforceable in any respect. | |
18. | Amendment and Termination . No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both the Company and Indemnitee. |
INDEMNITEE | LINDSAY CORPORATION | |||||||
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By: | |||||||
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President and CEO |
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1. | I have reviewed this quarterly report on Form 10-Q of Lindsay Corporation; | ||
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/
RICHARD W. PAROD
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President and Chief Executive Officer (Principal Executive Officer) | |
Richard W. Parod
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January 9, 2009 |
1. | I have reviewed this quarterly report on Form 10-Q of Lindsay Corporation; | ||
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/
TIM J. PAYMAL
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Vice President and Chief Accounting Officer | |
Tim J. Paymal
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(Principal Financial Officer) | |
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January 9, 2009 |
(1) | the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | ||
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/
Richard W. Parod
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President and Chief Executive Officer
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(Principal Executive Officer)
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/s/
Tim J. Paymal
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Vice President and Chief Accounting Officer
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(Principal Financial Officer)
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January 9, 2009
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