First Acceptance Corporation
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
o |
|
Preliminary Proxy Statement |
o |
|
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
þ |
|
Definitive Proxy Statement |
o |
|
Definitive Additional Materials |
o |
|
Soliciting Material Pursuant to §240.14a-12 |
First Acceptance Corporation
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
þ |
|
No fee required. |
o |
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
|
(1) |
|
Title of each class of securities to which transaction applies: |
|
|
|
|
|
|
|
|
|
|
|
(2) |
|
Aggregate number of securities to which transaction applies: |
|
|
|
|
|
|
|
|
|
|
|
(3) |
|
Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was
determined): |
|
|
|
|
|
|
|
|
|
|
|
(4) |
|
Proposed maximum aggregate value of transaction: |
|
|
|
|
|
|
|
|
|
|
|
(5) |
|
Total fee paid: |
|
|
|
|
|
|
|
|
|
o |
|
Fee paid previously with preliminary materials. |
|
o |
|
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of its
filing. |
|
(1) |
|
Amount Previously Paid: |
|
|
|
|
|
|
|
|
|
|
|
(2) |
|
Form, Schedule or Registration Statement No.: |
|
|
|
|
|
|
|
|
|
|
|
(3) |
|
Filing Party: |
|
|
|
|
|
|
|
|
|
|
|
(4) |
|
Date Filed: |
|
|
|
|
|
|
|
|
|
FIRST ACCEPTANCE CORPORATION
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD NOVEMBER 7, 2007
To our Stockholders:
The 2007 annual meeting of stockholders of First Acceptance Corporation will be held
Wednesday, November 7, 2007, at 9:30 a.m., central time, at our corporate headquarters, which are
located at 3322 West End Ave., Suite 1000, Nashville, Tennessee 37203. At the meeting,
stockholders will vote on the following matters:
|
1. |
|
Election of nine directors to serve until the next annual meeting of
stockholders or until their respective successors are duly elected and qualified; |
|
|
2. |
|
Approval of an increase in the number of shares authorized for issuance
pursuant to the First Acceptance Corporation Employee Stock Purchase Plan; |
|
|
3. |
|
Ratification of the appointment of Ernst & Young LLP as our independent
auditors for the fiscal year ending June 30, 2008; and |
|
|
4. |
|
Any other matters that may properly come before the meeting. |
Stockholders of record at the close of business on October 1, 2007 are entitled to notice of
and to vote at the meeting.
Your vote is important. Please COMPLETE, DATE, SIGN AND RETURN THE ENCLOSED PROXY CARD in the
enclosed stamped envelope in order that as many shares as possible will be represented.
By Order of the Board of Directors,
Thomas M. Harrison, Jr.
Secretary
Nashville, Tennessee
October 5, 2007
TABLE OF CONTENTS
|
|
|
|
|
|
|
PAGE |
|
|
|
|
1 |
|
|
|
|
1 |
|
|
|
|
1 |
|
|
|
|
1 |
|
|
|
|
1 |
|
|
|
|
1 |
|
|
|
|
2 |
|
|
|
|
2 |
|
|
|
|
2 |
|
|
|
|
2 |
|
|
|
|
2 |
|
|
|
|
3 |
|
|
|
|
4 |
|
|
|
|
4 |
|
|
|
|
4 |
|
|
|
|
4 |
|
|
|
|
5 |
|
|
|
|
6 |
|
|
|
|
7 |
|
|
|
|
7 |
|
|
|
|
7 |
|
|
|
|
9 |
|
|
|
|
9 |
|
|
|
|
9 |
|
|
|
|
10 |
|
|
|
|
11 |
|
|
|
|
11 |
|
|
|
|
11 |
|
|
|
|
11 |
|
|
|
|
14 |
|
|
|
|
14 |
|
|
|
|
15 |
|
|
|
|
15 |
|
|
|
|
17 |
|
|
|
|
17 |
|
|
|
|
17 |
|
|
|
|
18 |
|
|
|
|
18 |
|
|
|
|
26 |
|
|
|
|
26 |
|
|
|
|
27 |
|
|
|
|
28 |
|
|
|
|
29 |
|
|
|
|
29 |
|
|
|
|
29 |
|
|
|
|
29 |
|
|
|
|
29 |
|
|
|
|
30 |
|
|
|
|
30 |
|
|
|
|
|
|
FIRST ACCEPTANCE CORPORATION
3322 WEST END AVE., SUITE 1000
NASHVILLE, TENNESSEE 37203
PROXY STATEMENT
The Board of Directors of First Acceptance Corporation is soliciting proxies to be used at the
2007 annual meeting of stockholders. This proxy statement and the enclosed proxy will be first
mailed to stockholders on or about October 5, 2007.
ABOUT THE MEETING
What Is the Purpose of the Annual Meeting?
At our annual meeting, stockholders will vote on the matters outlined in the accompanying
notice of meeting. In addition, our management will report on our performance during fiscal 2007
and respond to questions from stockholders.
Who Is Entitled to Vote?
Only stockholders of record at the close of business on the record date, October 1, 2007, are
entitled to receive notice of the annual meeting and vote the shares of common stock that they held
on that date at the meeting, or any postponement or adjournment of the meeting. Each outstanding
share of our common stock entitles its holder to cast one vote on each matter to be voted upon.
What Constitutes a Quorum?
For purposes of voting on all matters, the presence at the meeting, in person or by proxy, of
the holders of a majority of the shares of common stock outstanding on the record date will
constitute a quorum. As of the record date, 47,615,289 shares of our common stock were outstanding.
Proxies received but marked as abstentions will be included in the calculation of the number of
shares considered to be present at the meeting. Broker nonvotes also will be included in the
calculation of the number of shares considered to be present at the meeting.
How Do I Vote?
If you complete and properly sign the accompanying proxy card and return the card to us, the
card will be voted as you direct. If you are a registered stockholder and attend the meeting, you
may deliver your completed proxy card in person. Street name stockholders who wish to vote at the
meeting will need to obtain a proxy form from the institution that holds their shares.
Can I Change My Vote After I Return My Proxy Card?
Yes. You can revoke your proxy at any time before it is exercised in any of three ways:
|
|
|
by submitting written notice of revocation to the Secretary; |
|
|
|
|
by submitting another proxy that is later dated and properly signed; or |
|
|
|
|
by voting in person at the meeting. |
1
What Are the Boards Recommendations?
Unless you give other instructions on your proxy card, the persons named as proxy holders on
the proxy card will vote in accordance with the recommendations of the Board of Directors. The
Boards recommendations are set forth below, and a description of each item is included in this
proxy statement. In summary, the Board recommends a vote:
|
|
|
for election of each of the nominated directors (see page 4); |
|
|
|
|
for approval of the amendment to the First Acceptance Corporation Employee Stock
Purchase Plan (see page 26); and |
|
|
|
|
for ratification of the appointment of Ernst & Young LLP as our independent auditors
for the fiscal year ending June 30, 2008 (see page 29). |
With respect to any other matter that properly comes before the meeting, the proxy holders
will vote as recommended by the Board of Directors or, if no recommendation is given, in their own
discretion.
What Vote Is Required to Approve Each Proposal?
Each of the director nominees must receive affirmative votes from a plurality of the votes
cast to be elected. This means that the nine nominees receiving the greatest number of votes will
be elected as directors. The approval of the amendment to the First Acceptance Corporation
Employee Stock Purchase Plan and ratification of the appointment of Ernst & Young LLP as our
independent auditors, as well as any other matter that properly comes before the meeting, in order
to be approved, must receive affirmative votes from a majority of the shares represented in person
or by proxy and entitled to vote on the matter. If you abstain from voting on the election of
directors, your abstention will have no effect on the outcome, provided that a quorum has been
established. If you abstain from voting on the amendment to the First Acceptance Corporation
Employee Stock Purchase Plan and ratification of the appointment of Ernst & Young LLP as our
independent auditors, your abstention will have the same effect as a vote against the proposal.
Will My Shares Be Voted if I Do Not Sign and Return My Proxy Card?
If you are a registered stockholder and do not sign and return your proxy card, your shares
will not be voted at the annual meeting. If your shares are held in street name and you do not
issue instructions to your broker, your broker may vote your shares at its discretion on routine
matters, but may not vote your shares on nonroutine matters. Under current New York Stock Exchange
rules, the proposals relating to the election of directors and the ratification of the appointment
of Ernst & Young LLP as our independent auditors are deemed to be routine matters with respect to
which brokers and nominees may exercise their voting discretion without receiving instructions from
the beneficial owner of the shares. The proposal relating to the amendment to the First Acceptance
Corporation Employee Stock Purchase Plan is deemed a nonroutine matter, and brokers and nominees
may not exercise their discretion to vote on that proposal without receiving instructions from the
beneficial owner of the shares.
What Is a Broker Nonvote?
Under current New York Stock Exchange rules, brokers and nominees may exercise their voting
discretion without receiving instructions from the beneficial owner of the shares on proposals that
are deemed to be routine matters. If a proposal is not a routine matter, the broker or nominee may
not vote the shares with respect to the proposal without receiving instructions from the beneficial
owner of the shares. If a broker turns in a proxy card expressly stating that the broker is not
voting on a nonroutine matter, such action is referred to as a broker nonvote.
What Is the Effect of a Broker Nonvote?
Broker nonvotes will be counted for the purpose of determining the presence or absence of a
quorum, but will not be counted for determining the number of votes cast. A broker nonvote will
not affect the outcome of any proposal in the proxy statement, provided that a quorum has been
established.
2
STOCK OWNERSHIP
The following table shows the amount of our common stock beneficially owned (unless otherwise
indicated) by our current directors, our executive officers named in the Summary Compensation Table
in this proxy statement and our current directors and executive officers as a group. Except as
indicated in the table, none of our stockholders beneficially owns more than 5% of our common
stock. Except as otherwise indicated, all information is as of October 1, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquirable |
|
|
|
|
|
|
Outstanding |
|
|
Within 60 |
|
|
Percent of |
|
Name |
|
Shares (1) |
|
|
Days (2) |
|
|
Class (3) |
|
Stephen J. Harrison |
|
|
6,999,999 |
(4) |
|
|
71,677 |
|
|
|
14.8 |
% |
Edward L. Pierce |
|
|
50,000 |
|
|
|
62,500 |
|
|
|
* |
|
Thomas M. Harrison, Jr. |
|
|
6,999,999 |
(5) |
|
|
71,677 |
|
|
|
14.8 |
% |
Kevin P. Cohn |
|
|
|
|
|
|
25,000 |
|
|
|
* |
|
William R. Pentecost |
|
|
4,972 |
|
|
|
40,000 |
|
|
|
* |
|
Rhodes R. Bobbitt |
|
|
169,661 |
|
|
|
|
|
|
|
* |
|
Harvey B. Cash |
|
|
2,000 |
|
|
|
|
|
|
|
* |
|
Donald J. Edwards |
|
|
536,666 |
(6) |
|
|
3,725,678 |
|
|
|
8.3 |
% |
Gerald J. Ford |
|
|
15,673,219 |
(7) |
|
|
|
|
|
|
32.9 |
% |
Tom C. Nichols |
|
|
22,500 |
|
|
|
|
|
|
|
* |
|
Lyndon L. Olson, Jr. |
|
|
23,000 |
|
|
|
|
|
|
|
* |
|
William A. Shipp, Jr. |
|
|
17,000 |
|
|
|
|
|
|
|
* |
|
All directors and executive officers
as a group (14 persons) |
|
|
30,501,959 |
|
|
|
4,046,532 |
|
|
|
66.9 |
% |
|
|
|
* |
|
Represents less than 1% of our outstanding common stock. |
|
(1) |
|
The number of shares shown includes shares that are individually or jointly owned, as
well as shares over which the individual has either sole or shared investment or voting
authority. |
|
(2) |
|
Reflects the number of shares that could be purchased by exercise of options
exercisable on October 1, 2007 or within 60 days thereafter under our stock option plan. |
|
(3) |
|
Pursuant to the rules of the Securities and Exchange Commission, or the SEC, shares of
common stock that an individual owner has a right to acquire within 60 days pursuant to the
exercise of stock options are deemed to be outstanding for the purpose of computing the
ownership of that owner, but are not deemed outstanding for the purpose of computing the
ownership of any other individual owner. Likewise, the shares subject to options held by our
directors and executive officers that are exercisable within 60 days are all deemed
outstanding for the purpose of computing the percentage ownership of all executive officers
and directors as a group. |
|
(4) |
|
Reflects 2,825,506 shares held by the Stephen J. Harrison 2006 Grantor Retained Annuity
Trust and 4,174,493 shares held by the Stephen J. Harrison 2007 Grantor Retained Annuity
Trust. Address: 3322 West End Ave., Suite 1000, Nashville, Tennessee 37203. |
|
(5) |
|
Reflects 2,825,506 shares held by the Thomas M. Harrison, Jr. 2006 Grantor Retained
Annuity Trust and 4,174,493 shares held by the Thomas M. Harrison, Jr. 2007 Grantor Retained
Annuity Trust. Address: 3322 West End Ave., Suite 1000, Nashville, Tennessee 37203. |
|
(6) |
|
Address: Flexpoint Partners, LLC, 676 N. Michigan Avenue, Suite 3300, Chicago, Illinois
60611. |
|
(7) |
|
Includes 11,919,408 shares owned through Hunters Glen/Ford Ltd. (Hunters Glen);
1,793,446 shares owned through Turtle Creek Revocable Trust (Turtle Creek Trust); and
1,960,365 shares owned by Jeremy B. Ford, Mr. Fords son. Because Mr. Ford is one of two
general partners of Hunters Glen and the sole stockholder of Ford Diamond Corporation, a
Texas corporation and the other general partner of Hunters Glen, Mr. Ford is considered the
beneficial owner of the shares that Hunters Glen owns. Since Mr. Ford is trustee of Turtle
Creek Trust, Mr. Ford is considered the beneficial owner of the shares that Turtle Creek Trust
owns. Address: 200 Crescent Court, Suite 1365, Dallas, Texas 75201. |
3
Section 16(a) Beneficial Ownership Reporting Compliance
The federal securities laws require our directors and officers and persons who own more than
10% of our common stock to timely file with us and the SEC initial reports of ownership and reports
of changes in ownership. Based solely upon a review of filings with the SEC and written
representations that no other reports were required, we believe that all of our directors and
officers complied during fiscal 2007 with their reporting requirements.
CORPORATE GOVERNANCE
Corporate Governance Guidelines
We have adopted Corporate Governance Guidelines that outline the composition, operations and
responsibilities of the Board of Directors. The Guidelines require that at least a majority of the
members of the Board must be independent, as defined by applicable law and the standards of The New
York Stock Exchange. The Board has determined that each of Messrs. Bobbitt, Cash, Nichols, Olson
and Shipp are independent within the meaning of the rules of The New York Stock Exchange as
currently in effect. The Guidelines also require that all of the members of the committees of the
Board must be independent. A copy of our Corporate Governance Guidelines may be found on the
corporate governance page of our website at www.firstacceptancecorp.com, and we will send a written
copy of our Corporate Governance Guidelines to any stockholder who requests a copy by delivering
written notice to Thomas M. Harrison, Jr., Secretary, First Acceptance Corporation, 3322 West End
Ave., Suite 1000, Nashville, Tennessee 37203.
The non-management members of the Board of Directors meet regularly in executive sessions.
The Chairman of the Board of Directors presides over executive sessions of the non-management
directors. Stockholders and all other interested parties may send communications to the Chairman
of the Board of Directors or to any of the non-management directors at 3322 West End Ave., Suite
1000, Nashville, Tennessee 37203.
Code of Business Conduct and Ethics
The Board has adopted a Code of Business Conduct and Ethics which outlines the principles,
policies and laws that govern our activities and establishes guidelines for professional conduct in
the workplace. The Code of Business Conduct and Ethics includes provisions relating to ethical
conduct, conflicts of interest, compliance with law and internal reporting of violations of the
code. The Code of Business Conduct and Ethics applies to directors as well as executive officers
and other employees. Every employee is required to read and certify annually that he or she has
read and understands, and will comply with, the code. A copy of our Code of Business Conduct and
Ethics may be found on the corporate governance page of our website at www.firstacceptancecorp.com,
and we will send a written copy of our Code of Business Conduct and Ethics to any stockholder who
requests a copy by delivering written notice to Thomas M. Harrison, Jr., Secretary, First
Acceptance Corporation, 3322 West End Ave., Suite 1000, Nashville, Tennessee 37203. We intend to
disclose amendments to or waivers from the Code of Business Conduct and Ethics for the benefit of
our executive officers or directors, if any, on our web site at www.firstacceptancecorp.com.
4
PROPOSAL 1 ELECTION OF DIRECTORS
The Board of Directors is comprised of nine members. The Board of Directors has nominated and
recommends to the stockholders Rhodes R. Bobbitt, Harvey B. Cash, Donald J. Edwards, Gerald J.
Ford, Stephen J. Harrison, Thomas M. Harrison, Jr., Tom C. Nichols, Lyndon L. Olson, Jr. and
William A. Shipp, Jr. for election to serve as directors until our next annual meeting of
stockholders and until such time as their respective successors are duly elected and qualified.
Each of the director nominees is currently a director and was elected by the stockholders at our
2006 annual meeting of stockholders.
If any of the nominees should become unable to accept election, the persons named in the proxy
may vote for such other person or persons as may be designated by the Board of Directors.
Management has no reason to believe that any of the nominees named above will be unable to serve.
Certain information with respect to the nominees for election as directors is set forth below.
Rhodes R. Bobbitt, 62, has served as a director of the Company
since August 2004. From February 1987 until his retirement in June
2004, Mr. Bobbitt served as managing director and Dallas regional
office manager of the Private Client Service Group Credit Suisse
First Boston and its predecessor, Donaldson, Lufkin & Jenrette.
Prior to joining Donaldson, Lufkin & Jenrette, Mr. Bobbitt was vice
president of security sales in the Dallas office of Goldman Sachs &
Co. Mr. Bobbitt is a director of Hilltop Holdings, Inc. (formerly
Affordable Residential Communities Inc.).
Harvey B. Cash, 68, has served as a director of the Company since
November 1996. Mr. Cash has been a general partner of InterWest
Partners, a venture capital fund, since 1986. Mr. Cash is a
director of Silicon Laboratories, i2 Technologies, Inc., Ciena
Corporation, Staktek Holdings, Inc. and Argonaut Group, Inc.
Donald J. Edwards, 41, has served as a director of the Company
since July 2002. Mr. Edwards currently is the managing principal
for Flexpoint Partners, LLC, a Chicago-based private equity firm,
and served as our President and Chief Executive Officer from July
2002 through April 2004. Prior to July 2002, Mr. Edwards served as
a Principal in GTCR Golder Rauner, a Chicago-based private equity
firm, for over five years.
Gerald J. Ford, 63, has been Chairman of the Board of Directors and
a director of the Company since its formation in August 1996. Mr.
Ford served as our Chief Executive Officer from our formation until
July 2002. He currently is a private investor, and serves as
Chairman of the Board of Trustees of Southern Methodist University
and as a trustee of Southwestern Medical Foundation. Mr. Ford was
the Chairman of the Board, Chief Executive Officer and a director
of Golden State Bancorp Inc., a holding company whose primary asset
was its indirect ownership of California Federal Bank, from
September 1998 through November 2002. Mr. Ford is a director of
Freeport-McMoRan Copper & Gold, McMoRan Exploration Co., Scientific
Games Corporation and Hilltop Holdings, Inc. (formerly Affordable
Residential Communities Inc.).
Stephen J. Harrison, 55, has served as President and Chief
Executive Officer and a director of the Company since April 2004.
In 1995, Mr. Harrison co-founded USAuto Insurance Company, Inc.,
predecessor of USAuto Holdings, Inc. (USAuto Holdings), which we
acquired in April 2004, and served as President and Chief Executive
Officer of USAuto Holdings since its inception. Mr. Harrison has
over 30 years experience in insurance and related industries,
including automobile insurance and insurance agency operations.
From 1974 to 1991, he served in various capacities with the
Harrison Insurance Agency, a family-owned multi-line insurance
agency. From 1991 to 1993, Mr. Harrison served as President of
Direct Insurance Company, a non-standard automobile insurance
company. Mr. Harrison is the brother of Thomas M. Harrison, Jr.,
who is Executive Vice President, Secretary and a director of the
Company.
5
Thomas M. Harrison, Jr., 57, has served as Executive Vice
President, Secretary and a director of the Company since April
2004. In 1995, Mr. Harrison co-founded USAuto Insurance Company,
Inc., predecessor to USAuto Holdings, which we acquired in April
2004, and has served as Vice President and Secretary of USAuto
Holdings since its inception. He has over 30 years experience in
insurance and related industries, including automobile insurance
and insurance agency operations. From 1976 to 1995, Mr. Harrison
served in various capacities with the Harrison Insurance Agency, a
family-owned multi-line insurance agency. Mr. Harrison is the
brother of Stephen J. Harrison, who is President, Chief Executive
Officer and a director of the Company.
Tom C. Nichols, 60, has served as a director of the Company since
November 2005. Mr. Nichols has been President and a director of
First United Bancorp and Chairman, President and Chief Executive
Officer of State National Bancshares, Fort Worth since October
1996. Mr. Nichols previously served as President of Ford Bank Group
and First United Bancshares, a multibank holding company. Mr.
Nichols is a director of United New Mexico Financial.
Lyndon L. Olson, Jr., 60, has served as a director of the Company
since August 2004. Mr. Olson has served as a senior advisor to
Citigroup, Inc., serving as a consultant to senior management,
since 2001. Mr. Olson served as United States Ambassador to Sweden
from 1998 until 2001. From 1990 to 1998, Mr. Olson served with
Citigroup as President and Chief Executive Officer of Travelers
Insurance Holdings and the Associated Madison Companies. Prior to
joining Citigroup, Mr. Olson served as President of the National
Group Corporation and Chief Executive Officer of its National Group
Insurance Company.
William A. Shipp, Jr., 55, has served as a director of the Company
since August 2004. Mr. Shipp has been principal of W.A. Shipp, Jr.
& Co., a financial advisory firm, since July 1995 and has served as
Treasurer/Secretary of the Jack C. Massey Foundation since July
1999. From December 1983 to June 1995, Mr. Shipp served as Vice
President of Massey Investment Company. Prior to joining Massey
Investment Company, Mr. Shipp worked for more than eight years in
various audit and tax capacities for Ernst & Young. Mr. Shipp is a
certified public accountant.
Required Vote; Recommendation of the Board
The affirmative vote of a plurality of the votes cast by the stockholders entitled to vote at
the meeting is required for the election of directors. Abstentions and broker nonvotes will be
counted in determining whether there is a quorum, but will not be voted with respect to the
proposal. Therefore, so long as a quorum has been established, abstentions and broker nonvotes
will have no effect on whether this proposal is approved.
The Board of Directors recommends that you vote FOR each of the nominees.
6
How Are Our Directors Compensated?
Each non-employee director receives an annual retainer of $20,000, payable in equal, quarterly
installments in arrears. The Chairman of the Audit Committee of the Board of Directors receives an
additional annual retainer of $5,000, payable in equal, quarterly installments in arrears.
Non-employee directors also receive a fee of $2,000 for each Board of Directors meeting attended
and $1,000 for each board committee meeting attended. In addition, non-employee directors other
than Messrs. Ford and Edwards receive an award pursuant to our 2002 Long Term Incentive Plan of
1,000 shares of restricted stock on the date of each annual meeting of our stockholders. The
restricted stock is subject to forfeiture if the director ceases to serve as a director of the
Company during the period of six months following the date of the award, subject to certain
exceptions.
The following table summarizes information with respect to the compensation paid to the
members of our board in fiscal 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees |
|
|
|
|
|
|
|
|
|
Earned or |
|
|
Stock |
|
|
|
|
|
|
Paid in |
|
|
Awards |
|
|
|
|
Name |
|
Cash ($) |
|
|
($) (1) |
|
|
Total ($) |
|
Rhodes R. Bobbitt |
|
|
40,000 |
|
|
|
10,660 |
|
|
|
50,660 |
|
Harvey B. Cash |
|
|
31,000 |
|
|
|
10,660 |
|
|
|
41,660 |
|
Donald J. Edwards |
|
|
31,000 |
|
|
|
|
|
|
|
31,000 |
|
Gerald J. Ford |
|
|
28,000 |
|
|
|
|
|
|
|
28,000 |
|
Thomas C. Nichols |
|
|
36,000 |
|
|
|
10,660 |
|
|
|
46,660 |
|
Lyndon L. Olson, Jr. |
|
|
29,000 |
|
|
|
10,660 |
|
|
|
39,660 |
|
William A. Shipp, Jr. |
|
|
45,000 |
|
|
|
10,660 |
|
|
|
55,660 |
|
|
|
|
(1) |
|
Represents the proportionate amount of the total value of stock awards to directors
recognized as an expense during fiscal 2007 for financial accounting purposes under
Statement of Financial Accounting Standards No. 123 (Revised), Share Based Payment (FAS
123R) in fiscal 2007, disregarding for this purpose estimated forfeitures relating to
service-based vesting conditions. Compensation expense is equal to the grant date fair
value of the stock awards using the actual closing price for the Companys Common Stock
on the NYSE (New York Stock Exchange) as of the date of grant. The non-employee
directors (excluding Mr. Edwards and Mr. Ford) were granted 1,000 shares of restricted
stock on November 9, 2006 pursuant to our 2002 Long Term Incentive Plan. As of June 30,
2007, non-employee directors held outstanding stock awards for the following number of
shares of our common stock: Mr. Bobbitt, 2,000; Mr. Cash, 2,000; Mr. Nichols, 2,000; Mr.
Olson, 2,000; and Mr. Shipp, 2,000. |
What Committees Has the Board Established?
The Board of Directors has standing Audit, Compensation, and Nominating and Corporate
Governance Committees. A copy of the charter for each committee may be found on the corporate
governance page of our website at www.firstacceptancecorp.com and is available to any stockholder
who requests a copy by delivering written notice to Thomas M. Harrison, Jr., Secretary, First
Acceptance Corporation, 3322 West End Ave., Suite 1000, Nashville, Tennessee 37203.
Audit Committee. The principal functions of the Audit Committee are (i) to oversee our
accounting and financial reporting processes and audits of our financial statements; (ii) to engage
or discharge our independent auditors; (iii) to review the nature and scope of the audit,
including, but not limited to, a determination of the effectiveness of the audit effort through
meetings held at least annually with independent auditors, and a determination through discussion
with the auditors that no unreasonable restrictions were placed on the scope or implementation of
their examinations; (iv) to oversee and review the independence, qualifications and performance of
the auditors; (v) to pre-approve all auditing and non-auditing services to be provided by our
independent auditors; (vi) to review our financial statements and disclosures in our periodic
reports with management and our independent auditors; (vii) to review our policies with respect to
risk assessment, risk management and the quality and adequacy of our internal controls and
processes through discussions with and reports from our independent auditors and management; (viii)
to establish procedures for handling any complaints relating to accounting, internal controls or
auditing matters and to ensure that such complaints are treated confidentially and anonymously;
(ix) to review material changes in accounting and reporting principles and practices and discuss
with management and outside auditors the selection, application and disclosure of critical
accounting policies and practices used in our financial statements; (x) to retain, at our expense,
outside counsel, auditors or other experts, consultants or advisors as it deems necessary or
appropriate in the performance of its duties; and (xi) to report to the full Board of Directors on
the
7
results of its reviews. The Audit Committee operates under a written charter adopted by the
full Board of Directors. Members of the Audit Committee are Messrs. Bobbitt, Nichols and Shipp,
all of whom are independent directors. Mr. Shipp is an audit committee financial expert, as
defined in Item 407(d)(5)(ii) of Regulation S-K. During fiscal 2007, the Audit Committee met seven
times.
Compensation Committee. The functions of the Compensation Committee include reviewing and
approving the Companys compensation policies, the compensation arrangements for senior management
and directors, the compensation and benefit plans in which officers and directors are eligible to
participate, and awards under (and otherwise administering) such plans. The Compensation Committee
operates under a written charter adopted by the full Board of Directors. Members of the
Compensation Committee are Messrs. Cash, Nichols and Olson, all of whom are independent directors.
During fiscal 2007, the Compensation Committee met one time.
Nominating and Corporate Governance Committee. The Nominating and Corporate Governance
Committee is responsible for identifying qualified individuals to serve as directors; reviewing the
qualifications of incumbent directors and those candidates proposed by a director, executive
officer or stockholder; making recommendations to the full Board of Directors regarding such
candidates; recommending the candidates that will serve on the various committees of the Board;
reviewing Board composition; and reviewing the management succession plan of the Company.
When determining whether to nominate a current director to be reelected as a director, the
Nominating and Corporate Governance Committee must review the performance of the director during
the prior year using performance criteria established by the Nominating and Corporate Governance
Committee which, at a minimum, shall include:
|
|
|
attendance at Board and Committee meetings; |
|
|
|
|
preparedness for Board and Committee meetings; |
|
|
|
|
quality of objectivity in exercising business judgment; |
|
|
|
|
participation at Board and Committee meetings; and |
|
|
|
|
candor toward other directors, management and professionals retained by the Company. |
The Nominating and Corporate Governance Committee has no specifically defined process for
identifying and evaluating nominees, but it seeks to identify potential candidates for membership
on the Board through conversations with members of the Board, senior management and other
constituencies. The Nominating and Corporate Governance Committee may from time to time engage a
third party to identify or evaluate or assist in identifying or evaluating potential nominees. The
Nominating and Corporate Governance Committee is also responsible for reviewing the qualifications
and performance of incumbent directors to determine whether to recommend them to the Board of
Directors as nominees for re-election.
The Nominating and Corporate Governance Committee also considers nominees proposed by our
stockholders in accordance with the provisions contained in our bylaws and certificate of
incorporation. Nominations made by stockholders must be made by written notice setting forth the
information required by our bylaws and certificate of incorporation received by the secretary of
the Company at least 60 days in advance of the annual meeting of stockholders, or (if later) within
ten days after the first public notice of that meeting is sent to stockholders. Stockholders may
propose nominees for consideration by the Nominating and Corporate Governance Committee by
submitting the names and supporting information to: Secretary, First Acceptance Corporation, 3322
West End Ave., Suite 1000, Nashville, Tennessee 37203.
In addition, the Nominating and Corporate Governance Committee is responsible for reviewing
and recommending corporate governance policies for the Company; reviewing potential director
conflicts of interest; evaluating Board performance, including the effectiveness of current Board
policies and practices; and reviewing any regulatory requirements relating to the continuing
education of directors. The Nominating and Corporate Governance Committee operates under a written
charter adopted by the full Board of Directors. Members of the Nominating and Corporate Governance
Committee are Messrs. Bobbitt, Cash and Shipp, all of whom are independent directors. During
fiscal 2007, the Nominating and Corporate Governance Committee met two times.
8
How Often Did the Board Meet During Fiscal 2007?
The Board of Directors met four times during fiscal 2007. Each of the directors attended at
least 75% of the aggregate of all meetings of the Board of Directors and all meetings of the
committees on which the director served. All of the directors attended our 2006 annual meeting of
stockholders.
How Do I Communicate with the Board?
Stockholders and all other interested parties can send communications to the Board of
Directors and, if applicable, to specified individual directors c/o First Acceptance Corporation,
3322 West End Ave., Suite 1000, Nashville, Tennessee 37203. All stockholder communications will be
forwarded directly to the Board of Directors or, if applicable, to specified individual directors.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In accordance with our Related Party Transaction Policy, our Audit Committee is responsible
for reviewing and approving the terms and conditions of all transactions involving the Company and
our executive officers, directors and beneficial owners of 5% or more of our common stock and their
affiliates. The Audit Committee considers all relevant information and facts available to the
Audit Committee regarding a related party transaction, and takes into account factors that it deems
to be appropriate, including, without limitation, whether the transaction is on terms no less
favorable to the Company than could be obtained from unaffiliated third parties and whether the
transaction is reasonably expected to benefit the Company. Approval of the Audit Committee is not
required for compensation paid to any director of the Company for services rendered to the Company
in his or her capacity as a director if the compensation is required to be disclosed in the
Companys proxy statement pursuant to applicable SEC rules. The Audit Committee is also not
required to approve any compensation paid to an executive officer of the Company if the
compensation is required to be reported in the Companys proxy statement pursuant to applicable SEC
rules or if the executive officer is not an immediate family member of another executive officer or
director of the Company, the compensation would be required to be included in the Companys proxy
statement if the executive officer was a named executive officer and the Companys Compensation
Committee approved such compensation.
Donald J. Edwards, our former President and Chief Executive Officer and a current director,
was terminated as our President and Chief Executive Officer on April 30, 2004. In connection with
Mr. Edwards separation from the Company, we entered into a Separation Agreement with Mr. Edwards.
Pursuant to the terms of the Separation Agreement, we agreed to provide Mr. Edwards and his family
with medical and dental insurance coverage through July 1, 2007 on terms consistent with the
insurance provided to our other senior executives. We also agreed to reimburse Flexpoint Partners,
LLC, an entity controlled by Mr. Edwards, for all expenses incurred by Flexpoint Partners pursuant
to the lease for its office space located in Chicago, Illinois. The lease expires on August 31,
2009. During the 2007 fiscal year, we paid Mr. Edwards and Flexpoint Partners an aggregate of
$225,034 pursuant to the Separation Agreement.
Effective May 1, 2004, we entered into an Advisory Services Agreement with Flexpoint Partners
pursuant to which Flexpoint Partners renders advisory services to us in connection with financings,
mergers and acquisitions and other related matters. Pursuant to the Advisory Services Agreement,
we pay Flexpoint Partners a quarterly fee of $62,500 and reimburse it for its reasonable expenses
incurred in connection with providing those advisory services. The Advisory Services Agreement
expires on April 30, 2008. The Advisory Services Agreement may be terminated by us if Flexpoint
Partners fails or refuses to perform its services pursuant to the agreement, does any act, or fails
to do any act, which results in an indictment for or conviction of a felony or other similarly
serious offense or upon the written agreement of Flexpoint Partners. Flexpoint Partners may
terminate the agreement upon our written consent or if we are in material breach of our obligations
thereunder. During the 2007 fiscal year, we paid Flexpoint Partners advisory services fees of
$250,000 and reimbursed it for $32,134 of expenses pursuant to the Advisory Services Agreement.
9
AUDIT COMMITTEE REPORT
The Audit Committee of the Board of Directors is composed of three directors who are
independent directors as defined under the applicable rules of The New York Stock Exchange. The
Audit Committee operates under a written charter adopted by the full Board of Directors. The Audit
Committees responsibilities include oversight of our independent auditors and internal audit
function, as well as oversight of our financial reporting process on behalf of the full Board of
Directors. Management has the primary responsibility for the financial statements and the reporting
process. Our independent auditors are responsible for expressing an opinion on the conformity of
our audited financial statements to generally accepted accounting principles.
In this context, for fiscal 2007, the Audit Committee reviewed and discussed with management
and the independent auditors the audited financial statements. Management represented to the Audit
Committee that our consolidated financial statements were prepared in accordance with accounting
principles generally accepted in the United States. The Audit Committee reviewed a report on the
effectiveness of our internal control over financial reporting and Managements Annual Report on
Internal Control over Financial Reporting and Ernst and Youngs Report of Independent Registered
Public Accounting Firm, which are included in our Annual Report on Form 10-K for the year ended
June 30, 2007.
The Audit Committee discussed with the independent auditors the matters required to be
discussed by Statement on Auditing Standards No. 61, as amended (Communication with Audit
Committees) (AICPA, Professional Standards, Vol. 1, AU Section 380). In addition, the Audit
Committee received from the independent auditors the written disclosures and the letter required by
Independence Standards Board Standard No. 1 (Independence Discussions with Audit Committees) and
has discussed with them their independence from the Company and its management. The Audit Committee
has considered whether the independent auditors provision of non-audit services to the Company is
compatible with maintaining the auditors independence.
In reliance on the reviews and discussions referred to above, the Audit Committee recommended
to the full Board of Directors that the audited financial statements be included in our Annual
Report on Form 10-K for the year ended June 30, 2007, which was filed with the SEC.
THE AUDIT COMMITTEE
Rhodes R. Bobbitt
Tom C. Nichols
William A. Shipp, Jr.
The foregoing report of the Audit Committee shall not be deemed incorporated by reference by
any general statement incorporating by reference the proxy statement into any filing under the
Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent that the
Company specifically incorporates this information by reference, and shall not otherwise be deemed
filed under such acts.
10
EXECUTIVE COMPENSATION
Compensation Committee Report
The Compensation Committee of the Company has reviewed and discussed the Compensation
Discussion and Analysis required by Item 402(b) of Regulation S-K with management and, based upon
such review and discussions, the Compensation Committee recommended to the Board that the
Compensation Discussion and Analysis be included in this Proxy Statement.
THE COMPENSATION COMMITTEE
Harvey B. Cash
Tom C. Nichols
Lyndon L. Olson
Compensation Discussion and Analysis
Overview of Compensation Process. The Compensation Committee of our Board of Directors is
responsible for establishing the compensation arrangements for our employees, including our
executive officers, and reviewing and making recommendations to the full Board of Directors
regarding non-employee director compensation. The Compensation Committee is also responsible for
the administration of our stock incentive plans and other compensation plans in which our employees
participate. It is the responsibility of the Compensation Committee to determine whether, in its
judgment, our executive compensation policies are reasonable and appropriate, meet the stated
objectives of those policies and effectively serve our best interests and the best interests of our
stockholders. Each member of the Compensation Committee is an independent director as defined
under the applicable rules of The New York Stock Exchange and our Corporate Governance Guidelines,
a non-employee director as defined in Rule 16b-3 of the rules promulgated under the Securities
Exchange Act of 1934, and an outside director for the purposes of the Internal Revenue Code of
1986, in each case as determined by our Board of Directors.
The Compensation Committee reviews our compensation policies on an annual basis and the
compensation of individual executives is reviewed annually in light of the compensation policies
for that year. In setting and reviewing executive compensation, in addition to corporate
performance, the Compensation Committee believes it is appropriate to consider the level of
experience and responsibilities of each executive, as well as the personal contributions a
particular individual may make to the success of the corporate enterprise. No relative weight is
assigned to quantitative or qualitative factors considered by the Compensation Committee in
reaching its decisions. The Company did not engage a compensation consultant, or engage in
benchmarking of component companies, in determining the compensation of its executive officers
during fiscal 2007.
Role of Executive Officers in Compensation Decisions. The Compensation Committee makes all
decisions regarding the compensation of our executive officers. The Compensation Committee
annually evaluates the performance of our executive officers, and our chief executive officer
provides the Compensation Committee with his assessment of the performance of our executive
officers other than himself. Decisions regarding the compensation of employees other than our
executive officers are made by our chief executive officer in consultation with other members of
management.
What Is Our Philosophy of Executive Officer Compensation?
The Compensation Committee believes that the primary objectives of our executive compensation
policies should be:
|
|
|
To attract and retain talented executives by providing compensation that is,
overall, competitive with the compensation provided to executives at companies of
comparable position in our industry, while maintaining compensation within levels
that are consistent with our annual budget, financial objectives and operating
performance; |
11
|
|
|
To provide appropriate incentives for executives to work toward the achievement
of our annual financial performance and business goals based on our annual budget;
and |
|
|
|
|
To more closely align the interests of executives with those of stockholders and
the long-term interests of the company by providing long-term incentive
compensation in the form of stock options or other equity-based long-term incentive
compensation. |
The Compensation Committee is committed to a strong link between our financial and strategic
objectives and our compensation and benefit practices. It is the Committees objective to have a
substantial portion of each executive officers compensation contingent upon our performance, as
well as upon his or her individual performance. Accordingly, the Compensation Committees
compensation philosophy for an executive officer emphasizes an overall analysis of the executives
performance for the prior year, his or her projected role and responsibilities, required impact on
execution of our strategy, total cash and equity compensation internally, and other factors the
Compensation Committee deems appropriate.
Elements of 2007 Executive Compensation. For the fiscal year ended June 30, 2007, the
principal components of compensation for our executive officers were:
Base Salary. We provide executive officers with base salaries to compensate them for
services provided during the year. The base salaries of Stephen J. Harrison, Edward L. Pierce,
Thomas M. Harrison, Jr., and Kevin P. Cohn are established by the terms of employment agreements
between the Company and those executives. These employment agreements provide for a minimum base
salary, adjusted for such increases as the Compensation Committee shall determine to be
appropriate. The base salaries of our other executive officers are determined by the Compensation
Committee in its discretion. The Compensation Committee generally reviews the base salaries of our
executive officers on an annual basis. In determining whether an increase in base compensation for
the executive officers is appropriate, the Compensation Committee considers the performance of the
Company and the executive officer during the prior year, the executive officers level of base
salary relative to other executive officers of the Company, and the recommendations of the chief
executive officer. Based upon these factors, the Compensation Committee approved base salaries for
our executive officers for fiscal 2007 and 2006 as follows:
|
|
|
|
|
|
|
|
|
|
|
2007 Base Salary |
|
2006 Base Salary |
Name |
|
($) |
|
($) |
Stephen J. Harrison |
|
|
500,000 |
|
|
|
500,000 |
|
Edward L. Pierce |
|
|
300,000 |
|
|
|
N/A |
|
Thomas M. Harrison, Jr. |
|
|
300,000 |
|
|
|
300,000 |
|
Kevin P. Cohn |
|
|
200,000 |
|
|
|
N/A |
|
William R. Pentecost |
|
|
200,000 |
|
|
|
191,650 |
|
Randy L. Reed |
|
|
205,000 |
|
|
|
175,000 |
|
Michael J. Bodayle |
|
|
175,000 |
|
|
|
164,300 |
|
The Compensation Committee has not approved any increases in base salaries for fiscal 2008.
Cash Bonus. The Compensation Committee considers that compensation should be linked
primarily to operating performance. To achieve this link with regard to short-term performance, the
Compensation Committee relies on cash bonuses awarded to executive officers. Pursuant to the terms
of their employment agreements, Stephen J. Harrison and Thomas M. Harrison, Jr. are entitled to
annual bonuses equal to up to 100% and 50%, respectively, of their annual salary. Pursuant to the
terms of their employment agreements, Edward L. Pierce and Kevin P. Cohn are entitled to receive an
annual bonus of up to $200,000 and $100,000, respectively, provided that the annual bonus will be
no less than $100,000 and $50,000, respectively, for fiscal 2007 and $50,000 and $25,000,
respectively, for fiscal 2008. They may receive an additional bonus at the discretion of the
Compensation Committee. Bonuses for other executive officers are determined by the Compensation
Committee in its discretion. Actual bonuses paid for fiscal 2007 are reflected in the Summary
Compensation Table.
Stock Options. Stock options are the principal vehicle for payment of long-term
compensation for our executive officers. The Compensation Committee believes long-term stock-based
incentive compensation should be
12
structured so as to closely align the interests of the executive officers with the interests
of our stockholders and, in particular, to provide limited or no value to the executive officers in
the event that our stock price fails to increase over time. All stock options are granted pursuant
to incentive plans approved by our stockholders. The Compensation Committee determines the award
of stock option grants to the executive officers and takes into account the recommendations of the
chief executive officer prior to approving annual awards of long-term stock-based incentive
compensation. These stock options are granted in part to reward the senior executives for their
long-term strategic management of the Company, and to motivate the executives to improve
stockholder value. During fiscal 2007, the Compensation Committee awarded options to purchase an
aggregate of 635,000 shares of common stock to executive officers and certain key employees.
401(k) Plan. The Company maintains a 401(k) plan that provides for a matching
contribution by the Company of 100% of the participants voluntary salary contributions of the
first 3% of the participants salary contributed by the participant, plus 50% of the next 2% of
salary, up to the maximum voluntary salary contribution established by the U.S. Department of
Labor.
Perquisites and Other Benefits. The Company does not generally provide material perquisites
that are not, in the Compensation Committees view, integrally and directly related to the
executive officers duties. Our executive officers also participate in other broad-based benefit
programs that are generally available to our salaried employees, including health, dental and life
insurance programs.
Benefits Upon Termination of Employment. We have employment agreements with certain of our
executive officers. These agreements generally provide that if the executive is terminated without
cause or resigns for good reason (as defined in the employment agreements), the executive will
receive certain severance payments and benefits. The Compensation Committee believes that the
severance provisions contained in the employment agreements are an important element in attracting
and retaining executive officers. See Potential Payments Upon
Termination or Change-in-Control
for information with respect to potential payments and benefits under these employment agreements
and our other compensation arrangements upon the termination of our executive officers.
Tax and Accounting Matters. Section 162(m) of the Internal Revenue Code of 1986, enacted as
part of the Omnibus Budget Reconciliation Act of 1993, generally disallows a tax deduction to
public companies for compensation over $1,000,000 paid to the chief executive officer and the four
other most highly compensated executive officers. Under Internal Revenue Service regulations,
qualifying performance-based compensation will not be subject to the deduction limit if certain
requirements are met. The Compensation Committee does not believe that any of the executive
compensation arrangements for fiscal 2007 will result in the loss of a tax deduction pursuant to
Section 162(m). The Compensation Committee expects to continue to monitor the application of
Section 162(m) to executive compensation and will take appropriate action if it is warranted in the
future. We operate our compensation programs with the intention of complying with Section 409A of
the Code.
13
Compensation Committee Interlocks and Insider Participation
During fiscal 2007, the Compensation Committee of the Board of Directors was composed of
Harvey B. Cash, Tom C. Nichols and Lyndon L. Olson, Jr. None of these persons has at any time been
an officer or employee of the Company or any of its subsidiaries. In addition, there are no
relationships among our executive officers, members of the Compensation Committee or entities whose
executives serve on the Board of Directors or the Compensation Committee that require disclosure
under applicable SEC regulations.
Summary Compensation Table
The following table sets forth compensation for fiscal 2007 earned by our Chief Executive
Officer, our Chief Financial Officer and our three other most highly paid executive officers who
were serving as executive officers on June 30, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option |
|
|
All Other |
|
|
|
|
|
|
|
|
|
|
Salary |
|
|
Bonus |
|
|
Awards |
|
|
Compensation |
|
|
|
|
Name and Principal Position |
|
Year |
|
|
($) |
|
|
($) |
|
|
($) (5) |
|
|
($) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
2007 |
|
|
|
500,000 |
|
|
|
|
|
|
|
73,806 |
|
|
|
9,146 |
(6) |
|
|
582,952 |
|
President and
Chief Executive
Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward L. Pierce |
|
|
2007 |
|
|
|
269,423 |
(1) |
|
|
285,838 |
(3) |
|
|
317,544 |
|
|
|
62,007 |
(7) |
|
|
934,812 |
|
Executive Vice
President and
Chief Financial
Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas M. Harrison, Jr. |
|
|
2007 |
|
|
|
300,000 |
|
|
|
|
|
|
|
73,806 |
|
|
|
7,438 |
(6) |
|
|
381,244 |
|
Executive Vice
President and
Secretary |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin P. Cohn |
|
|
2007 |
|
|
|
145,513 |
(2) |
|
|
125,000 |
(4) |
|
|
108,648 |
|
|
|
117,876 |
(8) |
|
|
497,037 |
|
Vice President,
Chief Accounting
Officer and
Corporate
Controller |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William R. Pentecost |
|
|
2007 |
|
|
|
197,912 |
|
|
|
|
|
|
|
98,225 |
|
|
|
8,783 |
(6) |
|
|
304,920 |
|
Chief Information
Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents the prorated portion of Mr. Pierces annual base salary of $300,000 as
provided in his September 2006 employment agreement. Mr. Pierces employment with the
Company commenced on September 13, 2006. |
|
(2) |
|
Represents the prorated portion of Mr. Cohns annual base salary of $200,000 as
provided in his October 2006 employment agreement. Mr. Cohns employment with the Company
commenced on October 9, 2006. |
|
(3) |
|
Represents a bonus earned during fiscal 2007 and a special one-time, non-recurring
signing bonus of $185,838 paid in connection with Mr. Pierces September 2006 employment
agreement. |
|
(4) |
|
Represents a bonus earned during fiscal 2007 and a special one-time,
non-recurring signing bonus of $75,000 received in connection with Mr. Cohns October 2006
employment agreement. |
|
(5) |
|
Represents the proportionate amount of the total value of option awards to named
executive officers recognized as an expense during fiscal 2007 for financial accounting
purposes under FAS 123R, disregarding for this purpose estimated forfeitures relating to
service-based vesting conditions. See Note 5 to our consolidated financial statements in
our Annual Report on Form 10-K for the year ended June 30, 2007 for the assumptions made in
determining FAS 123R values. Compensation expense is equal to the grant date fair value of
the options estimated using the Black-Scholes option pricing model as amortized over the
service period. See Note 5 to our consolidated financial statements in our Annual Report
on Form 10-K for the year ended June 30, 2007 for the assumptions made in determining
option values. |
|
(6) |
|
Represents the matching amounts paid under our 401(k) Plan to Mr. Stephen J. Harrison
of $9,146, Mr. Thomas M. Harrison, Jr. of $7,438, and Mr. Pentecost of $8,783. |
|
(7) |
|
Reflects relocation expenses of $62,007. |
|
(8) |
|
Reflects expenses of $117,876, which includes $50,266 attributable to the loss incurred
by the Company from the purchase and sale of Mr. Cohns home in Houston, Texas, $44,734
related to other normal and customary closing costs and $22,876 of relocation expenses. |
14
Grants of Plan-Based Awards
The following table sets forth information concerning each grant of an equity or non-equity
award made to a named executive officer in fiscal 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future Payouts Under Non- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive Plan Awards (1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option |
|
|
|
|
|
|
Grant |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
|
Exercise |
|
|
Date |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
or Base |
|
|
Fair |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares |
|
|
Price of |
|
|
Value of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Underlying |
|
|
Option |
|
|
Option |
|
|
|
Grant |
|
|
Threshold |
|
|
Target |
|
|
Maximum |
|
|
Options ($) |
|
|
Awards |
|
|
Awards |
|
Name |
|
Date |
|
|
($) |
|
|
($) |
|
|
($) |
|
|
(2) |
|
|
($)/sh (3) |
|
|
($) (4) |
|
Stephen J. Harrison |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward L. Pierce |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/13/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
250,000 |
|
|
|
11.81 |
|
|
|
1,596,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas M. Harrison, Jr. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin P. Cohn |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/9/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
11.13 |
|
|
|
598,770 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William R. Pentecost |
|
|
9/13/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000 |
|
|
|
11.81 |
|
|
|
319,260 |
|
|
|
|
(1) |
|
Represents the maximum limit of payout awards for fiscal 2007 for each of these
executive officers pursuant to the terms of the respective executive officer employment
agreement. Actual award payouts earned in fiscal 2007 and paid in fiscal 2008 are shown
within the Bonus column in the Summary Compensation Table. |
|
(2) |
|
All amounts reported in this column represent options granted during fiscal 2007 under
our 2002 Long Term Incentive Plan. Options generally vest in equal installments over a four
or five year period on each anniversary of the grant date. Options will become fully
exercisable in certain circumstances, including any termination of employment for Mr.
Pierce, as described within the Potential Payments Upon Termination or Change in Control
section. Each option has a maximum term of 10 years, subject to earlier termination in the
event of the optionees termination of employment. |
|
(3) |
|
In accordance with the terms of our 2002 Long Term Incentive Plan, the exercise price
of stock options we grant has consistently been set at 100 percent of the closing market
price of our Common Stock on the date of grant. |
|
(4) |
|
Represents the grant date fair value of options granted using the Black-Scholes option
pricing model consistent with those values used under FAS 123R. The assumptions made in
determining option values are disclosed in Note 5 to our consolidated financial statements
in our Annual Report on Form 10-K for the year ended June 30, 2007. |
Employment Agreements
We have employment agreements with each of Messrs. Stephen J. Harrison, Pierce, Thomas M.
Harrison, Jr., and Cohn. The employment agreements provide for a minimum base salary, adjusted for
such increases as the Compensation Committee determines to be appropriate. The employment
agreements provide that the Company will employ the executive until the executives termination of
employment with the Company. In the event the executives employment with the Company is
terminated for any reason, including termination by the Company for or without cause, resignation
by the execution for or without good reason, or the executives death or disability, he will be
entitled to receive his accrued but unpaid base salary, bonus and vacation pay through the
effective date of termination, and unreimbursed employment-related expenses. In the event the
executives employment with the Company is terminated by the Company for cause (as defined under
Potential Payments Upon Termination or Change-in-Control), the Company shall have no further
obligations under the employment agreement. In the event the executives employment with the
Company is terminated by the executive without good reason (as defined under Potential Payments
Upon Termination or Change-in-Control), the Company shall have no further obligations under the
employment agreement. In the event the executives employment with the Company is terminated by the
Company without cause, by the executive for good reason, or as the result of death or disability or
in connection with
15
a change-in-control, the employment agreement provides that the executive will be entitled to
severance payments and benefits as described below under Potential Payments Upon Termination or
Change-in-Control. Payment of the severance payments and benefits generally is conditioned upon
the executives compliance with other provisions of his employment agreement, which include
limitations upon his use and disclosure of confidential information, solicitation of employees,
interference with the Companys business opportunities and an obligation not to compete with the
business of the Company for a specified period following termination of employment.
16
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth information concerning outstanding stock options held by named
executive officers at June 30, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Options |
|
|
|
Number of |
|
|
Number of |
|
|
|
|
|
|
|
|
|
Securities |
|
|
Securities |
|
|
|
|
|
|
|
|
|
Underlying |
|
|
Underlying |
|
|
|
|
|
|
|
|
|
Unexercised |
|
|
Unexercised |
|
|
Option |
|
|
Option |
|
|
|
Options (#) |
|
|
Options (#) |
|
|
Exercise |
|
|
Expiration |
|
Name |
|
Exercisable |
|
|
Unexercisable |
|
|
Price ($) |
|
|
Date |
|
Stephen J. Harrison |
|
|
63,342 |
|
|
|
36,658 |
(1) |
|
|
6.64 |
|
|
|
4/30/14 |
|
Edward L. Pierce |
|
|
|
|
|
|
250,000 |
(2) |
|
|
11.81 |
|
|
|
9/13/16 |
|
Thomas M. Harrison, Jr. |
|
|
63,342 |
|
|
|
36,658 |
(1) |
|
|
6.64 |
|
|
|
4/30/14 |
|
Kevin P. Cohn |
|
|
|
|
|
|
100,000 |
(2) |
|
|
11.13 |
|
|
|
10/9/16 |
|
William R. Pentecost |
|
|
20,000 |
|
|
|
30,000 |
(3) |
|
|
8.13 |
|
|
|
10/27/14 |
|
|
|
|
|
|
|
|
50,000 |
(3) |
|
|
11.81 |
|
|
|
9/13/16 |
|
|
|
|
(1) |
|
Mr. Stephen J. Harrison and Mr. Thomas M. Harrison, Jr. were each granted 100,000 stock
options on April 30, 2004. These stock options provide for a 20% vest on the first
anniversary date of the grant with the balance of stock options vesting in equal 1.667%
monthly installments over a four-year period. |
|
(2) |
|
Mr. Pierce was granted 250,000 stock options on September 13, 2006 and Mr. Cohn was
granted 100,000 stock options on October 9, 2006. The stock options of Mr. Pierce and Mr.
Cohn vest in equal 25% installments over a four-year period on the first, second, third and
fourth anniversaries of the grant date. |
|
(3) |
|
Mr. Pentecost was granted 50,000 stock options on both October 27, 2004 and September
13, 2006. The stock options of Mr. Pentecost vest in equal 20% installments over a
five-year period on the first, second, third, fourth and fifth anniversaries of the grant
date. |
Option Exercises and Stock Vested
During fiscal 2007, none of our named executive officers exercised any stock options.
Equity Compensation Plan Information
The following table summarizes information with respect to our equity compensation plans as of
June 30, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Securities |
|
|
|
|
|
|
|
|
|
|
|
Remaining Available For |
|
|
|
Number of Securities To |
|
|
Weighted Average |
|
|
Future Issuance Under |
|
|
|
Be Issued Upon Exercise |
|
|
Exercise Price of |
|
|
Equity Compensation Plans |
|
|
|
of Outstanding Options, |
|
|
Outstanding Options, |
|
|
(excluding securities |
|
Plan Category |
|
Warrants and Rights |
|
|
Warrants and Rights |
|
|
reflected in column (a)) |
|
|
|
(a) |
|
|
(b) |
|
|
(c) |
|
Equity compensation plans
approved by security holders |
|
|
4,715,678 |
(1) |
|
$ |
4.48 |
|
|
|
3,378,470 |
(2) |
Equity compensation plans not
approved by security holders |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
4,715,678 |
|
|
$ |
4.48 |
|
|
|
3,378,470 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Includes 4,715,678 options outstanding under the 2002 Long Term Incentive Plan. |
|
(2) |
|
Includes 3,337,322 shares available for future issuance under the 2002 Long Term
Incentive Plan and 41,148 shares available for future issuance under the First Acceptance
Corporation Employee Stock Purchase Plan. |
17
Pension Benefits
The Company does not have any pension benefit plan that provides for payments or other
benefits following or in connection with the retirement of a named executive officer.
Potential Payments Upon Termination or Change-in-Control
Certain of the Companys named executive officers (Stephen J. Harrison, Thomas M. Harrison,
Jr., Edward L. Pierce and Kevin P. Cohn) are subject to written employment agreements that set
forth the consideration payable to such named executive officers in connection with the termination
of their employment. Payments of these amounts generally are conditioned upon the named executive
officers compliance with the other provisions of his employment agreement, which include
limitations upon his use and disclosure of confidential information, solicitation of employees,
interference with the Companys business opportunities and an obligation not to compete with the
business of the Company for a specified period following termination of employment. In addition,
the nonqualified stock option agreements to which each of the named executive officers are a party
include certain provisions that address the rights of the named executive officers upon
termination.
Description of Potential Payments on Termination or Change of Control. The discussion below
outlines the amount of compensation payable to each of the named executive officers of the Company
listed above in the event of a termination of employment or following a change of control. Except
as otherwise noted, the discussion below applies to each of the named executive officers.
Payments Made Upon Any Termination of Employment. Regardless of the manner in which a
named executive officers employment with the Company is terminated, he will be entitled to receive
the following amounts:
|
|
|
accrued but unpaid base salary through the effective date of termination; |
|
|
|
|
accrued but unpaid bonus owed to the executive as of the date of termination; |
|
|
|
|
accrued but unpaid vacation pay; and |
|
|
|
|
unreimbursed employment-related expenses. |
Payments Made Upon Termination of a Named Executive Officer for Cause. The Company
may terminate each named executive officer for cause, which is defined as:
|
|
|
his conviction of a felony or a crime involving moral turpitude; |
|
|
|
|
his act of dishonesty or fraud that has caused material harm to the Company; |
|
|
|
|
his willful and continued failure to substantially perform duties and obligations
under his employment agreement (other than any such failure resulting from incapacity
due to physical or mental illness); or |
|
|
|
|
his uncured gross negligence or willful misconduct. |
If a named executive officer were terminated for cause, he would not be entitled to receive
any amounts other than as listed under Payments Made Upon Any Termination of Employment above.
Payments Made Upon Resignation of a Named Executive Officer without Good Reason. Each
named executive officer may resign at any time. If his resignation were not for good reason (as
defined below), he would not be entitled to receive any amounts other than as listed under
Payments Made Upon Any Termination of Employment above.
The term good reason is defined under each named executive officers employment agreement
as:
|
|
|
a reduction in the amount of the executives compensation in a manner that
constitutes a breach of his employment agreement; |
|
|
|
|
a material uncured breach of the Companys obligations under the employment
agreement; or |
|
|
|
|
an assignment of duties inconsistent with his position, duties, responsibilities and
status with the Company, a reduction of his authority, a change in his reporting
responsibilities, titles or officers, or removal of him from any such positions (except
in connection with the termination of his employment |
18
for cause, resignation of his employment other than for good reason or as a result of
his death or disability).
The following also constitutes good reason under Messrs. Cohns and Pierces employment
agreements:
|
|
|
a requirement that he relocate his place of work to a location more than 50 miles
from the Companys current corporate headquarters. |
The following also constitute good reason under Messrs. Stephen J. Harrisons and Thomas M.
Harrison, Jr.s employment agreements:
|
|
|
a requirement that he relocate his place of work to a location more than 25 miles
from his present place of work; |
|
|
|
|
a change of control (as defined below) of the Company (other than one that he
approved or voted in favor of in his capacity as a director and/or stockholder of the
Company); or |
|
|
|
|
removal from the Board other than for cause or is not reelected to the Board at the
end of his term of service thereon. |
The following also constitutes good reason under Mr. Stephen J. Harrisons employment
agreement:
|
|
|
termination of the employment of Mr. Thomas M. Harrison, Jr. without cause or
resignation of Mr. Thomas M. Harrison, Jr. for good reason (other than in the case
where he approved or voted in favor of the termination of Mr. Thomas M. Harrison, Jr.
or the events that constituted good reason in his capacity as a director and/or
stockholder of the Company). |
The following also constitutes good reason under Mr. Thomas M. Harrison, Jr.s employment
agreement:
|
|
|
termination of the employment of Mr. Stephen J. Harrison without cause or
resignation of Mr. Stephen J. Harrison for good reason (other than in the case where he
approved or voted in favor of the termination of Mr. Stephen J. Harrison or the events
that constituted good reason in his capacity as a director and/or stockholder of the
Company). |
The term change of control is defined under Messrs. Stephen J. Harrisons and Thomas M.
Harrison, Jr.s employment agreements as:
|
|
|
any sale, transfer or issuance or series of sales, transfers and/or issuances of
capital stock of the Company by the Company or any holders thereof (including without
limitation, any merger, consolidation or other transaction or series of related
transactions having the same effect) which results in any person, entity or group (as
such term is used in the Securities Exchange Act of 1934), other than those who hold
more than 10% of the Companys common stock as of immediately giving effect to the
transactions occurring concurrent with the execution of the employment agreement,
owning capital stock of the Company possessing the voting power (under ordinary
circumstances) to elect a majority of the Board; or |
|
|
|
|
any sale or transfer of all or substantially all of the assets of the Company and
its subsidiaries in any transaction or series of transactions (other than sales in the
ordinary course of business) to any person, entity or group, other than those who hold
more than 10% of the Companys common stock as of immediately giving effect to the
transactions occurring concurrent with the execution of the employment agreement. |
Payments Made Upon Disability of a Named Executive Officer. In the event of a named
executive officers disability (defined as executives incapacitation or other absence from his
full-time duties for six consecutive months or for at least 180 days during any 12-month period, in
either case as a result of a mental or physical illness or injury), he would be entitled to:
|
|
|
all amounts under Payments Made Upon Any Termination of Employment above. |
19
In the event of Messrs. Stephen J. Harrisons or Thomas M. Harrison, Jr.s disability, he
would also be entitled to:
|
|
|
payments during the severance period (as defined below) in an amount equal to 60% of
his initial base salary, payable in regular installments, net of any benefits he
receives from disability insurance; |
|
|
|
|
participate during the severance period in all employee benefit programs made
generally available to the Companys senior management (other than bonus and incentive
compensation plans); and |
|
|
|
|
the immediate vesting of all options granted pursuant to his nonqualified stock
option agreement. |
The term severance period is defined under Messrs. Stephen J. Harrisons and Thomas M.
Harrison, Jr.s employment agreements as the later to occur of the second anniversary of the
termination of employment and April 30, 2009.
Payments Made Upon Death of a Named Executive Officer. In the event of a named
executive officers death, his estate would be entitled to:
|
|
|
all amounts under Payments Made Upon Any Termination of Employment above. |
In the event of Messrs. Stephen J. Harrisons or Thomas M. Harrison, Jr.s death, his estate
would also be entitled to:
|
|
|
a bonus in the amount equal to the annual bonus he would have been entitled to had
he remained an employee for the entire year, multiplied by the number of days in such
year prior to the date of death, divided by 365; and |
|
|
|
|
the immediate vesting of all options granted pursuant to his nonqualified stock
option agreement. |
Payments Made Upon Termination Without Cause or Resignation for Good Reason of Messrs.
Pierce or Cohn. In the event of the termination without cause or resignation for good reason
of Messrs. Pierce or Cohn, he would be entitled to:
|
|
|
all amounts under Payments Made Upon Any Termination of Employment above; |
|
|
|
|
a payment equal to the product of his then current base salary, times two, payable
in regular installments through the first anniversary of termination or resignation (if
the termination or resignation is in connection with a change of control (as defined
below) of the Company, then the payment is payable in one lump sum as of the effective
date of the change of control); |
|
|
|
|
participate through the first anniversary of termination or resignation in all
employee benefit programs made generally available to the Companys senior management
(other than bonus and incentive compensation plans); |
|
|
|
|
an additional payment for any excise taxes resulting from the foregoing payments if
the foregoing payments are made in connection with a change of control of the Company; |
|
|
|
|
the immediate vesting of 50% of his unvested options granted pursuant to his
nonqualified stock option agreement if he is terminated without cause during his first
year of employment with the Company; and |
|
|
|
|
the immediate vesting of 25% of his unvested options granted pursuant to his
nonqualified stock option agreement if he is terminated without cause following his
first anniversary of employment with the Company. |
The term change of control is defined under Messrs. Pierces and Cohns employment
agreements as:
|
|
|
any consolidation, merger or share exchange of the Company in which the holders of a
majority of the Companys outstanding voting power prior to such transaction do not own
at least a majority of the outstanding voting power of the Company or any successor
thereto following such transaction; |
|
|
|
|
any sale, lease, exchange or other transfer (excluding transfer by way of pledge or
hypothecation) in one transaction or a series of related transactions, of all or
substantially all of the assets of the Company; |
|
|
|
|
the approval by the stockholders of the Company of any plan or proposal for the
liquidation or dissolution of the Company; |
20
|
|
|
the cessation of control (by virtue of their not constituting a majority of
directors) of the Board by the individuals who (a) at July 1, 2002 were directors or
(b) become directors after July 1, 2002 and whose election or nomination for election
by the Companys stockholders was approved by a vote of at least two-thirds of the
directors then in office who were directors on July 1, 2002 or whose election or
nomination for election was previously so approved; or |
|
|
|
|
the acquisition of beneficial ownership (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of an aggregate of 50% or more of the voting power of
the Companys outstanding voting securities by any person or group (as such term is
used in the Securities Exchange Act of 1934) who beneficially owned less than 50% of
the voting power of the Companys outstanding voting securities on July 1, 2002; |
Provided, however, that notwithstanding the foregoing, an acquisition shall not constitute a
change of control if the acquiror is (a) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company and acting in such capacity; (b) a subsidiary of the Company
or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of voting securities of the Company; or (c) in a Title 11
bankruptcy proceeding, the appointment of a trustee or the conversion of a case involving the
Company to a case under Chapter 7.
Pursuant to the terms of Messrs. Pierces and Cohns nonqualified stock option agreements,
upon the effective date of a change of control, all unvested options granted to him will
immediately become fully vested and exercisable provided that he is employed by (or, if he is a
consultant or an outside director, is providing services to) the Company or a subsidiary from the
grant date to the effective date of the change of control.
Payments Made Upon Termination Without Cause or Resignation for Good Reason of Messrs.
Stephen J. Harrison or Thomas M. Harrison, Jr. In the event of the termination without cause
or resignation for good reason of Messrs. Stephen J. Harrison or Thomas M. Harrison, Jr., he would
be entitled to:
|
|
|
all amounts under Payments Made Upon Any Termination of Employment above; |
|
|
|
|
his base salary, payable in regular installments, for the severance period; |
|
|
|
|
a lump sum payment for each 12-month period that falls within the severance period,
equal to the annual bonus paid to him for the fiscal year immediately preceding the
fiscal year in which the termination or resignation occurs; |
|
|
|
|
participate during the severance period in all employee benefit programs made
generally available to the Companys senior management (other than bonus and incentive
compensation plans); and |
|
|
|
|
the immediate vesting of all options granted pursuant to his nonqualified stock
option agreement. |
William Pentecost Nonqualified Stock Option Agreement. Pursuant to Mr. Pentecosts
nonqualified stock option agreement, all unvested options granted to him will immediately become
fully vested and exercisable upon the effective date of a change of control.
21
Summary of Potential Payments on Termination or Change of Control. The tables below estimate
the potential payments upon termination or resignation of a named executive officer or upon a
change of control of the Company for each named executive officer, assuming that the triggering
event took place on and as of June 30, 2007.
The following table sets forth the benefits to which each named executive officer is entitled
in the event that the Company terminates the named executive officer for cause or the named
executive officer resigns without good reason:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued |
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Benefit |
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance |
|
|
Plan |
|
|
Stock Option |
|
|
|
|
|
|
Bonus |
|
|
Payment |
|
|
Coverage |
|
|
Acceleration |
|
|
|
|
Name |
|
($) (1) |
|
|
($) |
|
|
($) |
|
|
($) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward L. Pierce |
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000 |
|
Thomas S. Harrison, Jr. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin P. Cohn |
|
|
75,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75,000 |
|
|
|
|
(1) |
|
In the case of Messrs. Pierce and Cohn, includes the receipt of the accrued and unpaid
bonuses and future minimum bonus payments as stipulated in their respective employment
agreements. |
The following table sets forth the benefits to which each named executive officer is
entitled in the event that the Company terminates the named executive officer without cause or the
named executive officer resigns for good reason:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued |
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Benefit |
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance |
|
|
Plan |
|
|
Stock Option |
|
|
|
|
|
|
Bonus |
|
|
Payment |
|
|
Coverage |
|
|
Acceleration |
|
|
|
|
Name |
|
($) (1) |
|
|
($) (2) |
|
|
($) (3) |
|
|
($) (4) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
450,000 |
|
|
|
1,000,000 |
|
|
|
13,770 |
|
|
|
135,268 |
|
|
|
1,599,038 |
|
Edward L. Pierce |
|
|
150,000 |
|
|
|
600,000 |
|
|
|
9,835 |
|
|
|
|
|
|
|
759,835 |
|
Thomas S. Harrison, Jr. |
|
|
200,000 |
|
|
|
600,000 |
|
|
|
13,770 |
|
|
|
135,268 |
|
|
|
949,038 |
|
Kevin P. Cohn |
|
|
75,000 |
|
|
|
400,000 |
|
|
|
9,835 |
|
|
|
|
|
|
|
484,835 |
|
|
|
|
(1) |
|
In the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., includes a lump
sum payment for each 12-month period that falls within the severance period equal to the
bonus paid to the executive for the fiscal year immediately preceding the year in which the
termination of employment occurs. In the case of Messrs. Pierce and Cohn, includes the
receipt of the accrued and unpaid bonuses and future minimum bonus payments as stipulated
in their respective employment agreements. |
|
(2) |
|
In the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., includes the
receipt of the then current base salary until the later of April 30, 2009 and the second
anniversary of the date of termination of employment. In the case of Messrs. Pierce and
Cohn, includes the receipt of the then current base salary times two (2). |
|
(3) |
|
Represents the estimated maximum aggregate amount of the named executive officers
payable share of all medical, dental, health and disability insurance payables by the
Company for the benefit of the named executive officer and members of his immediate family
until the later of April 30, 2009 and the second anniversary of the date of termination of
employment in the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., and for
the period of twelve (12) months after the termination date in the case of Messrs. Pierce
and Cohn; also includes the continuation of all employee benefit programs generally
available to the Companys senior management during the defined post-termination period. |
|
(4) |
|
Information regarding outstanding unexercisable options held by each named executive
officer is set forth in the Outstanding Equity Awards at Fiscal Year-End table above.
Stock options that have vested on an accelerated basis for each named executive officer are
exercisable within twenty-four (24) months following the date of the termination of service
(which for purposes of this table is June 30, 2007). Consequently, the amounts represented
in this column for Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr. represent the
maximum profit the named executive officer would have received had he (i) exercised any of
these options that were in-the-money and (ii) sold the underlying stock at $10.33 per share
on July 12, 2007, the date of the highest recorded actual sale price for the Companys
Common Stock on the NYSE (New York Stock Exchange) through the latest available date during
the twenty-four (24) month period. All stock options held by Messrs. Pierce and Cohn that
vested were out-of-the-money at all times during the appropriate exercise period and are
assumed to have expired unexercised for purposes of the this table. |
22
The following table sets forth the benefits to which each named executive officer is
entitled in the event that the Company terminates the named executive officer without cause or the
named executive officer resigns for good reason in connection with a change of control of the
Company, or in the case of Mr. Pentecost, upon the effective date of a change of control of the
Company:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued |
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Benefit |
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance |
|
|
Plan |
|
|
Stock Option |
|
|
|
|
|
|
Bonus |
|
|
Payment |
|
|
Coverage |
|
|
Acceleration |
|
|
|
|
Name |
|
($) (1) |
|
|
($) (2) |
|
|
($) (3) |
|
|
($) (4) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
450,000 |
|
|
|
1,000,000 |
|
|
|
13,770 |
|
|
|
135,268 |
|
|
|
1,599,038 |
|
Edward L. Pierce |
|
|
150,000 |
|
|
|
600,000 |
|
|
|
9,835 |
|
|
|
|
|
|
|
759,835 |
|
Thomas S. Harrison, Jr. |
|
|
200,000 |
|
|
|
600,000 |
|
|
|
13,770 |
|
|
|
135,268 |
|
|
|
949,038 |
|
Kevin P. Cohn |
|
|
75,000 |
|
|
|
400,000 |
|
|
|
9,835 |
|
|
|
|
|
|
|
484,835 |
|
William R. Pentecost |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
66,000 |
|
|
|
66,000 |
|
|
|
|
(1) |
|
In the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., includes a
bonus payment a lump sum payment for each 12-month period that falls within the severance
period equal to the bonus paid to the executive for the fiscal year immediately preceding
the year in which the termination of employment occurs. In the case of Messrs. Pierce and
Cohn, includes the receipt of the accrued and unpaid bonuses and future minimum bonus
payments as stipulated in their respective employment agreements. |
|
(2) |
|
In the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., includes the
receipt of the then current base salary until the later of April 30, 2009 and the second
anniversary of the date of termination of employment. In the case of Messrs. Pierce and
Cohn, includes the receipt of the then current base salary times two (2). |
|
(3) |
|
Represents the estimated maximum aggregate amount of the named executive officers
payable share of all medical, dental, health and disability insurance payables by the
Company for the benefit of the named executive officer and members of his immediate family
until the later of April 30, 2009 and the second anniversary of the date of termination of
employment in the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., and for
the period of twelve (12) months after the termination date in the case of Messrs. Pierce
and Cohn; also includes the continuation of all employee benefit programs generally
available to the Companys senior management during the defined post-termination period. |
|
(4) |
|
Information regarding outstanding unexercisable options held by each named executive
officer is set forth in the Outstanding Equity Awards at Fiscal Year-End table above.
Stock options that have vested on an accelerated basis for each named executive officer are
exercisable within twenty-four (24) months following the date of the termination of service
(which for purposes of this table is June 30, 2007). Consequently, the amounts represented
in this column for Messrs. Stephen J. Harrison, Thomas M. Harrison, Jr. and Pentecost
represent the maximum profit the named executive officer would have received had he (i)
exercised any of these options that were in-the-money and (ii) sold the underlying stock at
$10.33 per share on July 12, 2007, the date of the highest recorded actual sale price for
the Companys Common Stock on the NYSE (New York Stock Exchange) through the latest
available date during the twenty-four (24) month period immediately following the date of
the termination event. All stock options held by Messrs. Pierce and Cohn and those stock
options granted in September 2006 that vested were out-of-the-money at all times during the
appropriate exercise period and are assumed to have expired unexercised for purposes of the
this table. |
23
The following table sets forth the benefits to which each named executive officer is
entitled in the event of a named executive officers disability:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued |
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Benefit |
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance |
|
|
Plan |
|
|
Stock Option |
|
|
|
|
|
|
Bonus |
|
|
Payment |
|
|
Coverage |
|
|
Acceleration |
|
|
|
|
Name |
|
($) (1) |
|
|
($) (2) |
|
|
($) (3) |
|
|
($) (4) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
|
|
|
|
300,000 |
|
|
|
13,770 |
|
|
|
135,268 |
|
|
|
449,038 |
|
Edward L. Pierce |
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000 |
|
Thomas S. Harrison, Jr. |
|
|
|
|
|
|
180,000 |
|
|
|
13,770 |
|
|
|
135,268 |
|
|
|
329,038 |
|
Kevin P. Cohn |
|
|
75,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75,000 |
|
|
|
|
(1) |
|
In the case of Messrs. Pierce and Cohn, includes the receipt of the accrued and unpaid
bonuses and future minimum bonus payments as stipulated in their respective employment
agreements. |
|
(2) |
|
In the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., includes the
receipt of 60% of their respective initial base salaries, net of any benefits received from
disability insurance, as stipulated in their respective employment agreements. |
|
(3) |
|
In the case of Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr., represents the
estimated maximum aggregate amount of the named executive officers payable share of all
medical, dental, health and disability insurance payables by the Company for the benefit of
the named executive officer and members of his immediate family until the later of April
30, 2009 and the second anniversary of the date of termination of employment; also includes
the continuation of all employee benefit programs generally available to the Companys
senior management during the defined post-termination period. |
|
(4) |
|
Information regarding outstanding unexercisable options held by each named executive
officer is set forth in the Outstanding Equity Awards at Fiscal Year-End table above.
Stock options that have vested on an accelerated basis for each named executive officer are
exercisable within twenty-four (24) months following the date of the termination of service
(which for purposes of this table is June 30, 2007). Consequently, the amounts represented
in this column for Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr. represent the
maximum profit the named executive officer would have received had he (i) exercised any of
these options that were in-the-money and (ii) sold the underlying stock at $10.33 per share
on July 12, 2007, the date of the highest recorded actual sale price for the Companys
Common Stock on the NYSE (New York Stock Exchange) through the latest available date during
the twenty-four (24) month period. All stock options held by Messrs. Pierce and Cohn that
vested were out-of-the-money at all times during the appropriate exercise period and are
assumed to have expired unexercised for purposes of the this table. |
The following table sets forth the benefits to which each named executive officers
estate is entitled in the event of a named executive officers death:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued |
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Benefit |
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance |
|
|
Plan |
|
|
Stock Option |
|
|
|
|
|
|
Bonus |
|
|
Payment |
|
|
Coverage |
|
|
Acceleration |
|
|
|
|
Name |
|
($) (1) |
|
|
($) |
|
|
($) |
|
|
($) (2) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
135,268 |
|
|
|
135,268 |
|
Edward L. Pierce |
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000 |
|
Thomas S. Harrison, Jr. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
135,268 |
|
|
|
135,268 |
|
Kevin P. Cohn |
|
|
75,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75,000 |
|
|
|
|
(1) |
|
In the case of Messrs. Pierce and Cohn, includes the receipt of the accrued and unpaid
bonuses and future minimum bonus payments as stipulated in their respective employment
agreements. |
|
(2) |
|
Information regarding outstanding unexercisable options held by each named executive
officer is set forth in the Outstanding Equity Awards at Fiscal Year-End table above.
Stock options that have vested on an accelerated basis for each named executive officer are
exercisable within twenty-four (24) months following the date of the termination of service
(which for purposes of this table is June 30, 2007). Consequently, the amounts represented
in this column for Messrs. Stephen J. Harrison and Thomas M. Harrison, Jr. represent the
maximum profit the named executive officer would have received had he (i) exercised any of
these options that were in-the-money and (ii) sold the underlying stock at $10.33 per share
on July 12, 2007, the date of the highest recorded actual sale price for the Companys
Common Stock on the NYSE (New York Stock Exchange) through the latest available date during
the twenty-four (24) month period. All stock options held by Messrs. Pierce and Cohn that
vested were out-of-the-money at all times during the appropriate exercise period and are
assumed to have expired unexercised for purposes of the this table. |
24
The following table sets forth the benefits to which each named executive officers
estate is entitled in the event of a named executive officers retirement:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued |
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
Benefit |
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance |
|
|
Plan |
|
|
Stock Option |
|
|
|
|
|
|
Bonus |
|
|
Payment |
|
|
Coverage |
|
|
Acceleration |
|
|
|
|
Name |
|
($) (1) |
|
|
($) |
|
|
($) |
|
|
($) |
|
|
Total ($) |
|
Stephen J. Harrison |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward L. Pierce |
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000 |
|
Thomas S. Harrison, Jr. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin P. Cohn |
|
|
75,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75,000 |
|
|
|
|
(1) |
|
In the case of Messrs. Pierce and Cohn, includes the receipt of the accrued and unpaid
bonuses and future minimum bonus payments as stipulated in their respective employment
agreements. |
25
PROPOSAL
2 APPROVAL OF THE AMENDMENT TO THE FIRST ACCEPTANCE CORPORATION EMPLOYEE STOCK PURCHASE PLAN
The Company believes that broad-based ownership of equity interests in the Company by its
employees provides a substantial motivation for superior performance by more closely aligning the
economic interests of those employees with the overall performance of the Company and the interests
of the stockholders of the Company. In order to encourage ownership of the Companys common stock
by its employees, the Board of Directors and stockholders of the Company previously approved the
First Acceptance Corporation Employee Stock Purchase Plan, which we will refer to as the plan.
As of October 1, 2007, 100,000 shares of common stock were authorized for issuance under the plan
and a total of 58,852 shares of common stock had been issued pursuant to the plan, resulting in
41,148 shares of common stock remaining available for issuance under the plan. The Board of
Directors has reviewed the plan and determined that, in order to encourage continued participation
in the plan by the Companys employees, the Company should amend the plan to increase the number of
shares authorized for issuance under the plan from 100,000 shares to 200,000 shares. If approved
by the stockholders, the amendment will become effective November 7, 2007.
Summary of the Material Provisions of the Plan, as Amended
The following summary of the material provisions of the plan is qualified in its entirety by
reference to the text of the plan, which is attached to this proxy statement as Appendix A.
Participation; Awards under the Plan. Pursuant to the plan, each employee of the Company or a
subsidiary of the Company (including executive officers of the Company) having at least six (6)
months of continuous service prior to January 1 or July 1 of each year (each a Commencement
Date), except for employees whose customary employment is 20 hours per week or less or whose
customary employment is not for more than five months in any calendar year, is eligible to
participate in the plan. Holders of 5% or more of the outstanding shares of common stock are not
eligible to participate in the plan. The Company and its subsidiaries currently have approximately
1,030 employees who are eligible to participate in the plan.
Eligible employees may elect to deduct from their compensation an after-tax amount of not less
than $25.00 per bi-weekly payroll period (or $25.00 per semi-monthly payroll period) and not more
than 15% of their base pay on the Commencement Date for each six-month option period starting on
each such Commencement Date (each such six-month period is referred to in the plan as an Option
Period). The dollar amount deducted is credited to the participants Contribution Account (as
defined in the plan). In addition, a participant who has neither discontinued nor withdrawn his or
her contributions during each Option Period is permitted to make one lump sum contribution during
each Option Period (except during the last 30 days of the Option Period), as long as the aggregate
amount of contributions does not exceed 15% of the participants base pay on the Commencement Date
(expressed as base pay for the applicable payroll period) multiplied by the number of payroll
periods during that Option Period.
On the Grant Date (the first trading date of each Option Period), each participant in the plan
shall be deemed to receive an option to purchase shares of common stock in accordance with the
terms of the plan. On the Exercise Date (the last trading day of each Option Period), the amount
deducted from each participants salary and any additional amounts contributed on a lump-sum basis
over the course of the period will be used to purchase shares of common stock at a purchase price
(the Exercise Price) equal to the lesser of (a) 100% of the Closing Market Price of the shares of
common stock on the Exercise Date and (b) 100% of the Closing Market Price of the shares of common
stock on the Grant Date. On an Exercise Date, all options shall be automatically exercised, except
for options which are cancelled when a participant withdraws the balance of his or her Contribution
Amount or which are otherwise terminated under the provisions of the plan (such as upon the
termination of a participants employment for any reason except death, disability, or retirement at
or after age 65).
Participants rights under the plan are subject to the following limitations: (i) subject to
certain adjustments, the maximum number of shares of common stock which may be purchased by a
participant on an Exercise Date is 3,000 shares; (ii) no participant is allowed to purchase, during
a calendar year, stock under the plan having a market value in excess of $25,000, as determined on
the Grant Date; (iii) no option may be granted to a participant who would own 5% or more of the
common stock of the Company immediately after the option is granted and (iv) no participant may
assign, transfer or otherwise alienate any rights under the plan or any options granted to him or
her
26
thereunder, except by will or the laws of descent and distribution, and such options must be
exercised during the participants lifetime only by him or her.
Upon termination of a participants employment, the employee shall cease being a participant
under the plan, and the balance of the employees Contribution Account shall be paid to the
participant as soon as practical after termination. An option granted to such a participant shall
be null and void from the date of termination. Upon the death, retirement or disability of a
participant, the participant or his or her legal representative may withdraw the balance in his or
her Contribution Account or may use the accumulated balance to purchase stock under the plan. Any
remaining money that is insufficient to purchase a whole share is returned to such participant or
his or her legal representative. Nothing in the plan is to be construed so as to give an employee
the right to be retained in the service of the Company.
Administration. The plan is administered by a Plan Administrator, which Plan Administrator is
currently the Compensation Committee of the Board of Directors. The Plan Administrator does not,
however, have the discretion to deny the right to participate in the plan to any employee who meets
the eligibility criteria.
Adjustments. In the case of a stock split, stock dividend, reclassification,
recapitalization, merger, reorganization or other change in the Companys structure affecting the
common stock, appropriate adjustments will be made by the Plan Administrator in the number of
shares reserved for issuance under the plan and calculation of the Exercise Price.
Amendment. The Board of Directors of the Company has the right to amend or terminate the plan
at any time, but cannot make an amendment to increase the number of shares reserved under the plan
(except pursuant to certain changes in the capital structure of the Company) without the approval
of the Companys stockholders. If the plan is terminated, all options outstanding at the time of
termination shall become null and void, and the balance in each participants Contribution Account
shall be paid to that participant.
Certain U.S. Federal Income Tax Consequences
The following is a brief summary of the Federal income tax aspects of awards made under the
plan based upon the Federal income tax laws in effect on the date hereof. This summary is not
intended to be exhaustive and does not describe state or local tax consequences.
A holder will not recognize income for Federal tax purposes when shares are purchased. Income
may be recognized when a holder disposes of his or her stock. If shares of stock are disposed of
before a statutory holding period is met, ordinary income is recognized in an amount equal to the
difference between the price paid for the shares and the market value of the shares of the date
such shares were purchased. If shares are disposed of after meeting the holding period
requirement, the holder receives ordinary taxable income in the calendar year of disposition equal
to the excess of the fair market value of such shares of common stock on the day of disposition
over the price paid for such shares. In either case, (i) if a holders disposition is by gift,
such holder will have no further income tax consequences and (ii) in the case of a sale of such
shares, the difference between the net proceeds on the date of the disposition and the holders tax
basis in such shares (including ordinary income recognized in the disposition) will be taxable as
capital gain or loss.
If an employee leaves contributions in the plan to purchase common stock after he or she
retires, the tax consequences depend on whether the termination date is within three months of the
Exercise Date. If the termination is not more than three months prior to the Exercise Date, the
tax consequences are described above. However, if the termination date is more than three months
prior to the Exercise Date, the holder is treated as exercising a non-qualified option and is taxed
on the Exercise Date on the excess of market value of the stock on that date over the price paid.
27
Required Vote; Recommendation of the Board
Approval of this proposal requires the affirmative vote of a majority of the shares
represented in person or by proxy and entitled to vote on the matter. A properly executed proxy
marked ABSTAIN with respect to this proposal will have the same effect as a vote against the
proposal. Broker nonvotes will not affect this proposal. However, as discussed elsewhere in this
proxy statement, both abstentions and broker nonvotes will factor into the determination of the
existence of a quorum.
The Board of Directors recommends that you vote FOR approval of the amendment to the First
Acceptance Corporation Employee Stock Purchase Plan.
28
PROPOSAL 3 RATIFICATION OF INDEPENDENT AUDITORS
The Audit Committee has selected Ernst & Young LLP to serve as our independent auditors for
the current fiscal year, and the stockholders are requested to ratify this appointment. Ernst &
Young has served as our independent registered public accounting firm since September 2006. A
representative of Ernst & Young is expected to be present at the annual meeting, will have an
opportunity to make a statement if he or she so desires and is expected to be available to respond
to appropriate questions. Stockholders should recognize that the ratification of the appointment
of Ernst & Young does not preclude the Audit Committee from subsequently determining to change
independent auditors if the Audit Committee determines such action to be in the best interests of
the Company and its stockholders.
KPMG LLP (KPMG) was previously the principal accountant for the Company. On September 27,
2005, the Audit Committee of the Board of Directors of the Company terminated KPMGs appointment as
our independent registered public accounting firm.
In connection with the audit of the fiscal year ended June 30, 2005, and during the subsequent
interim period through September 27, 2005, there were no reportable events as defined in Item
304(a)(1)(v) of Regulation S-K.
Fees Billed to Us by Ernst & Young LLP During Fiscal 2007 and 2006
Audit Fees. The aggregate audit fees billed by Ernst & Young for the fiscal years ended June
30, 2007, and 2006 were $769,000 and $739,750, respectively. The fees include professional
services and expenses for annual audits and quarterly reviews of our financial statements.
Audit-Related Fees. Audit-related fees billed by Ernst & Young for the fiscal years ended
June 30, 2007 and 2006 were $20,000 and $0, respectively. These fees related to the audit of the
Companys 401(k) plan.
Tax Fees. The aggregate tax fees billed by Ernst & Young for the fiscal year ended June 30,
2007 were $50,000. There were no tax fees billed by Ernst & Young for the fiscal year ended June
30, 2006. The fiscal 2007 fees related to the preparation of fiscal 2006 federal and state income
tax returns for the Company.
All Other Fees. No amounts were billed by Ernst & Young during the fiscal years ended June 30,
2007 and 2006 that would be categorized as All Other Fees.
Audit Committee Pre-Approval Policies and Procedures.
Our Audit Committee has adopted a policy, contained in its Restated Charter, which provides
that our Audit Committee must pre-approve all audit and non-audit services provided to the Company
by our independent auditors. This policy is administered by our senior management, which reports
throughout the year to the Audit Committee. The Audit Committee pre-approved all audit and
non-audit services provided by Ernst & Young during fiscal 2007 and 2006.
Auditor Rotation Policies
Ernst & Young maintains partner rotation policies in accordance with the rules promulgated by
the SEC. Such rules have required rotation of the lead audit partner after five years of
assignment to the engagement.
Required Vote; Recommendation of the Board
Approval of this proposal requires the affirmative vote of a majority of the shares
represented in person or by proxy and entitled to vote on the matter. A properly executed proxy
marked ABSTAIN with respect to this proposal will have the same effect as a vote against the
proposal. However, as discussed elsewhere in this proxy statement, both abstentions and broker
nonvotes will factor into the determination of the existence of a quorum.
The Board of Directors recommends that you vote FOR the ratification of the appointment of
Ernst & Young LLP as First Acceptance Corporations independent auditors.
29
OTHER MATTERS
As of the date of this proxy statement, we know of no business that will be presented for
consideration at the annual meeting other than the items referred to above. If any other matter is
properly brought before the meeting for action by stockholders, proxies in the enclosed form
returned to us will be voted in accordance with the recommendation of the Board of Directors or, in
the absence of such a recommendation, in accordance with the judgment of the proxy holder.
ADDITIONAL INFORMATION
Stockholder Proposals for the 2008 Annual Meeting. Pursuant to Rule 14a-8(e) of the Securities
Exchange Act of 1934, stockholder proposals submitted in accordance with applicable rules and
regulations for presentation at our next annual meeting and received at our executive offices no
later than June 13, 2008 will be considered for inclusion in our proxy statement and form of proxy
relating to the 2008 annual meeting.
For other stockholder proposals to be timely (but not considered for inclusion in our proxy
statement), a stockholders notice must be received at our executive offices no later than 60 days
before our annual meeting or (if later) ten days after the public notice of that meeting is sent to
the stockholders of the Company, and should otherwise comply with the advance notice provisions of
our certificate of incorporation. For proposals that are not timely filed, we retain discretion to
vote the proxies that we receive. For proposals that are timely filed, we retain discretion to vote
the proxies that we receive, provided (1) we include in our proxy statement advice on the nature of
the proposal and how we intend to exercise our voting discretion and (2) the proponent does not
issue a proxy statement.
Proxy Solicitation Costs. The proxies being solicited hereby are being solicited by us. We
will bear the cost of soliciting proxies in the enclosed form. Our officers and regular employees
may, but without compensation other than their regular compensation, solicit proxies by mail,
personal conversations, telephone, telex, facsimile or electronic means. Upon request, we will
reimburse brokerage firms and others for their reasonable expenses in forwarding solicitation
material to the beneficial owners of our common stock.
Financial Statements Available. A copy of our 2007 Annual Report to Stockholders containing
our Annual Report on Form 10-K for the year ended June 30, 2007 and other information accompanies
this proxy statement.
Householding Information. As permitted by the SECs proxy statement rules, we will deliver
only one copy of our 2007 Annual Report to Stockholders or this proxy statement to two or more
stockholders who share an address, unless we have received contrary instructions from one or more
of the stockholders. We will deliver promptly, upon written or oral request, a separate copy of the
annual report or proxy statement to a stockholder at a shared address to which a single copy of the
documents was delivered. Conversely, stockholders sharing an address who are receiving multiple
copies of our annual reports or proxy statements may request delivery of a single copy.
Requests in this regard should be addressed to:
Thomas M. Harrison, Jr.
Secretary
First Acceptance Corporation
3322 West End Ave., Suite 1000
Nashville, TN 37203
(615) 844-2811
30
APPENDIX A
FIRST AMENDMENT TO
FIRST ACCEPTANCE CORPORATION EMPLOYEE STOCK PURCHASE PLAN
Section 6.1 of the Plan is hereby deleted in its entirety and replaced with the following:
6.1
RESERVED SHARES OF STOCK. The Company shall reserve two hundred thousand (200,000) shares of Stock for issuance upon exercise of the options granted under this Plan.
FIRST ACCEPTANCE CORPORATION Proxy Solicited on Behalf of the Board of Directors of t h e
Company for the Annual Meeting, November 7, 2007 You are encouraged to specify your vote by
marking the appropriate box ON THE REVERSE SIDE but you need not mark any box if you wish to vote
in accordance wit h the Board of Directors recommendations which are FOR the electio n of th e
named nomin ees as directors and FOR Proposals 2 and 3. The Proxies cannot vote your shares unless
you sig n and return this card. This Proxy may be revoked in writin g at anytime prior to the
voting thereof. ? DETACH PROXY CARD HERE ? Mark, Sign, Date and Return x the Proxy Promptly
Using the Enc losed Envelope. Votes mustb e indicated x ( ) in Black or Blu e ink. 1. Election of
Directors (Proposal No. 1) FOR AGAIN ST ABSTAIN FOR all nominees x WITHHOLD AUTHORITY o t vote
x *EXC EPTIONS x 2. To approve an increase in the number of shares x x x list ed below for
all nominees listed below authorized for issuance pursuant to the First Acceptance Corporation
Employee Stock Purchase Plan. Nominees: Rhodes R. Bobbitt, Harvey B. Cash, Donald J. Edwards,
Gerald J. Ford, Stephen J. Harrision, Thomas M. Harrison, Jr., 3. To ratify the election of Ernst &
Young LLP as x x x Tom C. Nichols, Lyndon L. Olson, Jr. and William A. Shipp, Jr. n i dependent
auditors for the Company for the if scal year ending June 30, 2008. I ( NSTRUCT IONS: To withh
old authority to vote fo r any individual n ominee, mark th e Exceptions box and write that
nominees name in the space provided below). This Proxy, when properlye xecuted, will be v oted
int hem anner dir ecte dh erein andw ill authorize the Proxies to takea ction in theird iscre tion
upon other mat ers that mayproperly come *Exceptions ___befor e the m eeti ng.
If no di rection ism ade, the Proxy wil l be votedi na ccordance w it h the recommendatio ns o f
the Board ofD ire ctors. P r o xi esa rea uthorizedt o vote upon matte rs To change your address,
please mark this box. x in cid entt o thec onduct of them eeti ng, such as approval of one or
morea djournments of h t e meeting fort hep urposes o f obtaining additi onals toc kholder votes.
To include any comments, please mark this box. x S C A N L I N E Joint owners must each sign.
Please sign your name(s) EX ACTLY a s your name(s) appear(s) on this card. When sig ninga s attorne
y , t r ustee, executor, administrator, guardian or corporate o ffic er ple ase giv e your FUL L ti
tle. P ( LEASES IGN, DATE, AND MAIL TODAY.) Date Share Owner sign here Co-Owner sign here |
FIRSTA CCEPTANCE CORPORATION THIS IS YOUR PROXY Dear Stockholder: Your Proxy is being solicited
by the Board of Directors of First Acceptance Corporatio nf or th e Annual Meeti ng of Stockholders
tob e heldo n November 7, 2007, at 9:30 a.m. lo cal time, at our corporate headquarters which are
lo cateda t3 322W est EndAvenue, Suite 1000, Nashville,Tennessee3 7203. Enclosed with th is Proxyi
sa Proxy Statement containing im portanti nfo rmatio n about the matters that you are being asked
to approve. Yourv otei s important. Wheth er orn ot youp la nt oa tte nd th eAnnualM eeting, you
can be sure your shares are represented at th e meeting by promptly returning your completed Proxy
card prior to the Annual Meeting. Please mark th e boxes on the Proxy card below to in dicate how
your shares are to be voted, then sign the card, detach it and return your Proxy cardi n the
enclosed envelope. Thank you in advance for your prompt consideration of these matters. CONTINUED
AND TO BE SIGNED ON REVERSE SIDE FIRST ACCEPTANCE CORPORATION P R O X Y BOARD OF DIRECTORS PROXY
FOR THE ANNUAL MEETING OF STOCKHOLDERS AT 9:30A M, WEDNESDAY, NOVEMBER7 , 2007 FIR ST ACCEPTANCE
CORPORATION, 3322 WESTE ND AVENUE, SUITE1 000, NASHVILLE, TENNESSEE3 7203 The undersignedh ereby
constitutes anda ppoints each of Ste phen J. Harrison and Thomas M. Harrison, Jr. his or her true
and lawful agents andp roxies with ful power of substitution in each to represent the undersigned,
wit h al t he powers whicht he undersigned wouldp ossess ifp ersonally p resent,a nd to vote the
Common Stock of FirstA cceptanceC orporation held of record by the undersigned on the re cord date,
at the Annual Meeting of Stockholders of FirstA cceptance Corporation, to be held at
FirstAcceptanceC orporati on, 3322 West EndA venue, Suit e 1000, Nashvil e, Tennessee 37203, on
November 7, 2007, at 9:30 a.m. local time,a nda t any adjo urn ment or postponement thereof, on
all matters coming before said meeting. ELECTION OF DIRECTORS: To elect each of Rhodes R. Bobbit ,
Harvey B. Cash, Donald J. Edwards, Gerald J. Ford, Stephen J. Harrision, Thomas M. Harrison, Jr.,
Tom C. Nichols, Lyndon L. Olson, Jr. andW illi am A. Ship p, Jr. to serve until the next Annual
Meetin g of Stockholders and until their successors are duly elected and qualifi ed or their
earlier death, re signation or removal from of ic e. The Board of Directo rsr ecommendsa vote FOR
the ele ction of al n ominees for FIRST ACCEPTANCE CORPORATION director and FOR Proposals 2 a nd
3. P.O. BOX 11018 NEW YORK, N.Y. 10203-0018 (SEE REVERSES IDE) |