UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 23, 2018

 

 

RETAIL PROPERTIES OF AMERICA, INC.

(Exact name of registrant as specified in charter)

 

 

 

Maryland   001-35481   42-1579325

(State or other jurisdiction

of incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

 

2021 Spring Road, Suite 200, Oak Brook, Illinois   60523
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (630) 634-4200

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company    ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    ☐

 

 

 


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On July 23, 2018, the Executive Compensation Committee (the “Committee”) of the Board of Directors of Retail Properties of America, Inc. (the “Company”) approved the adoption of the Company’s Senior Executive Cash Incentive Bonus Plan (the “Plan”), which is the general plan under which the Company intends to award annual cash incentive compensation to its executive officers. The Plan replaces some of the formal structure relating to cash incentive compensation that had previously been included in the Company’s 2014 Long-Term Equity Compensation Plan prior to its amendment and restatement in May 2018.

Under the Plan, the Committee may select key executives of the Company (the “Executives”) to be eligible to receive cash bonuses based on the attainment of corporate and/or individual performance goals established by the Committee in its sole discretion. Bonuses based on corporate performance goals may relate to same store earnings before interest, taxes, depreciation and amortization (“EBITDA”) growth, operating funds from operations per share and the ratio of net debt to adjusted EBITDA, which were the corporate performance goals utilized for 2017, or other financial or operational metrics selected by the Committee in its discretion. Bonuses based on individual performance goals may relate to objectively determinable or subjective goals relating to individual performance of the Executive or the Company in areas of the Executive’s responsibility. The Committee also has the authority to make discretionary bonus payments under the Plan on such terms and conditions as the Committee determines in its sole discretion.

The Committee will establish target bonus opportunities payable pursuant to the Plan for each Executive for each performance period, which will be communicated to each Executive prior to the end of each performance period, unless otherwise provided by the Committee. The Committee may also establish one or more additional bonus opportunities that are higher or lower than the target bonus opportunity, provide for payouts for performance between specifically identified corporate and/or individual performance goals or pay bonuses to Executives under the Plan based on such other terms and conditions as the Committee in its discretion may determine. Corporate and individual performance goals will be measured at the end of each performance period, with achievement of such goals determined by the Committee following the completion of the applicable period, unless otherwise provided by the Committee.

Bonus payments under the Plan will be made as soon as practicable following the end of the applicable performance period, but in any event not later than 74 days after the end of the fiscal year in which such performance period ends, and will be conditioned upon the Executive’s continued employment through the payment date, in each case, unless otherwise provided by the Committee or agreed by the Company. In addition, bonus payments made under the Plan will be subject to the Company’s clawback policy in effect from time to time to the extent applicable.

The Plan may be amended or terminated at any time and bonuses may be paid outside of the Plan by the Company in its discretion.

The foregoing summary is qualified in its entirety by reference to the Plan, which is filed as Exhibit 10.1 to this Form 8-K and incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits

(d) Exhibits:

 

10.1    Retail Properties of America, Inc. Senior Executive Cash Incentive Bonus Plan.


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, thereunto duly authorized.

 

    RETAIL PROPERTIES OF AMERICA, INC.
   

(Registrant)

    By:   /s/ Julie M. Swinehart
      Julie M. Swinehart
Date: July 24, 2018       Executive Vice President, Chief Financial Officer and Treasurer

Exhibit 10.1

RETAIL PROPERTIES OF AMERICA, INC.

SENIOR EXECUTIVE CASH INCENTIVE BONUS PLAN

 

1. Purpose

This Senior Executive Cash Incentive Bonus Plan (the “ Incentive Plan ”) is intended to provide an incentive for superior work and to motivate eligible executives of Retail Properties of America, Inc. (the “ Company ”) and its subsidiaries toward even higher achievement and business results, to tie their goals and interests to those of the Company and its shareholders and to enable the Company to attract and retain highly qualified executives. The Incentive Plan is for the benefit of Covered Executives (as defined below).

 

2. Covered Executives

From time to time, the Executive Compensation Committee of the Board of Directors of the Company (the “ Compensation Committee ”) may select certain key executives (the “ Covered Executives ”) to be eligible to receive bonuses hereunder. Participation in this Incentive Plan does not change the “at will” nature of a Covered Executive’s employment with the Company.

 

3. Administration

The Compensation Committee shall have the sole discretion and authority to administer and interpret the Incentive Plan. All decisions and interpretations of the Compensation Committee hereunder, including its decisions with respect to the bonus opportunities to be awarded to the Covered Executives, the measurement of the achievement of Corporate Performance Goals and Individual Performance Goals (as defined below) and the bonus payments to be made to the Covered Executives, shall be made in its sole and absolute discretion and shall be final and binding on all persons, including the Company and the Covered Executives.

 

4. Bonus Awards

(a)     Corporate Performance Goals . A Covered Executive may receive a bonus payment under the Incentive Plan based upon the attainment of one or more performance objectives that are established by the Compensation Committee and relate to financial and operational metrics with respect to the Company or any of its subsidiaries (the “ Corporate Performance Goals ”), including the following: funds from operations (“ FFO ”) attributable to common shareholders or similar measures; cash flow (including, but not limited to, operating cash flow and free cash flow); revenue; earnings before interest, taxes, depreciation and amortization (“ EBITDA ”); same store EBITDA; net income (loss) (either before or after interest, taxes, depreciation and/or amortization); net debt to adjusted EBITDA; changes in the market price of the Company’s Class A common stock; economic value-added; volume of acquisitions, dispositions or other strategic transactions; operating income (loss); return on capital, assets, equity, or investment; total stockholder return; profits; market share; gross or net profit levels; productivity; expense; objectively determinable expense management; margins; operating efficiency; working capital; earnings (loss) per share of the Company’s Class A common stock;


FFO attributable to common shareholders per share; operating FFO attributable to common shareholders per share; leasing; rent growth; occupancy or percentage leased; operating income and/or net annual recurring revenue; net operating income; capital deployment; development milestones, any of which may be (A) measured in absolute terms or compared to any incremental increase, (B) measured in terms of growth, (C) compared to another company or companies or to results of a peer group, (D) measured against the market as a whole and/or as compared to applicable market indices, (E) measured on an adjusted basis, excluding categories of items specifically identified in advance by the Compensation Committee or, if so specified, items that the Compensation Committee determines, in its discretion, are appropriate to exclude whether or not specifically identified in advance, and/or (F) measured on a pre-tax or post-tax basis (if applicable). Further, any Corporate Performance Goals may be used to measure the performance of the Company as a whole or a business unit or other segment or portion of the Company (e.g., on a same store basis), or one or more specific markets. The Corporate Performance Goals may differ from Covered Executive to Covered Executive.

(b)     Individual Performance Goals . A Covered Executive also may receive a bonus payment under the Incentive Plan based upon the attainment of one or more performance objectives that are established in advance by the Compensation Committee and relate to one or more objectively determinable or subjective goals relating to the individual performance of the Covered Executive on an overall basis, certain aspects of the Covered Executive’s individual performance or the achievement by the Covered Executive or the Company or its subsidiaries of specific goals in areas of the Covered Executive’s responsibility (the “ Individual Performance Goals ”).

(c)     Discretionary Bonuses . The Compensation Committee may also make discretionary bonus payments under the Incentive Plan based upon such terms and conditions as the Compensation Committee may determine in its sole discretion, regardless of whether the Compensation Committee establishes such terms and conditions or a target amount for such discretionary bonus payment in advance or not.

(d)     Individual Target Bonuses . Unless otherwise provided by the Compensation Committee with respect to particular bonus payments under the Incentive Plan, target bonus opportunities for bonuses payable pursuant to the Incentive Plan for each Covered Executive for each performance period shall be established by the Compensation Committee and communicated to each Covered Executive prior to the end of each performance period. For each Covered Executive, the Compensation Committee shall have the authority to apportion the target award so that a portion of the target award shall be tied to attainment of Corporate Performance Goals and a portion of the target award shall be tied to attainment of Individual Performance Goals. The Compensation Committee may also establish one or more additional bonus opportunities that are higher or lower than the target bonus opportunity and correspond with the achievement of higher or lower Corporate Performance Goals and/or Individual Performance Goals. The Compensation Committee may also provide for payouts for performance between specifically identified Corporate Performance Goals and/or Individual Performance Goals to be based on linear interpolation or such other mechanism as is specified by the Compensation Committee.

 

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5. Bonus Measurement and Payment

(a)     Measurement of Performance Goals . Corporate Performance Goals and Individual Performance Goals will be measured at the end of each performance period, with the achievement of Corporate Performance Goals and Individual Performance Goals determined by the Compensation Committee following the completion of the applicable performance period, unless otherwise provided by the Compensation Committee with respect to particular bonus payments under the Incentive Plan. If a Covered Executive was not employed for an entire performance period, the Compensation Committee may pro rate the bonus based on the number of days employed during such period.

(b)     Payment . Bonus payments, including any discretionary bonus payment under Paragraph 4(c), will be made as soon as practicable following the end of the applicable performance period, but in any event not later than 74 days after the end of the fiscal year in which such performance period ends, unless otherwise provided by the Compensation Committee with respect to particular bonus payments, including any discretionary bonus payment under Paragraph 4(c), under the Incentive Plan. Payment of any bonus to a Covered Executive with respect to a performance period shall be conditioned upon the Covered Executive’s continued employment by the Company and/or subsidiary thereof through the bonus payment date, unless otherwise provided by the Compensation Committee with respect to particular bonus payments or in a written agreement between the Covered Executive and the Company and/or any subsidiary.

(c)     Withholding . The Company will be entitled to withhold from any payments due under the Incentive Plan the amount of tax withholding it determines, in its sole discretion, to be required by law.

 

6. Section  409A

The Company intends that the Incentive Plan will be administered in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), and the regulations and other guidance promulgated thereunder (“ Section  409A ”) and that the compensation arrangements under the Incentive Plan will be exempt from Section 409A as “short-term deferrals” as described in Section 409A. The Incentive Plan shall be construed in a manner to give effect to such intention. To the extent that any provision of the Incentive Plan is ambiguous as to its exemption from Section 409A, the provision shall be read in such a manner so that all payments hereunder are exempt from or comply with Section 409A. To the extent that any bonus payment under the Incentive Plan is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A, the bonus payment shall be subject to such additional rules and requirements as specified by the Compensation Committee from time to time in order to comply with Section 409A.

 

7. Clawback Policy

Bonus payments made under the Incentive Plan shall be subject to the Company’s clawback policy in effect from time to time to the extent applicable.

 

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8. Amendment and Termination

The Company reserves the right to amend or terminate the Incentive Plan at any time in its sole discretion.

 

9. Non-Exclusivity

The Incentive Plan is not intended to be exclusive, and the Company and/or a subsidiary thereof may pay bonuses to one or more of the Covered Executives outside of the Incentive Plan.

Adopted: July 23, 2018

 

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