def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
(Rule
14a-101)
SCHEDULE 14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the
Securities Exchange
Act of 1934
Filed by the
Registrant
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o Confidential, for Use of the Commission Only (as permitted
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þ Definitive
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o Definitive
Additional Materials.
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o Soliciting
Material Pursuant to § 240.14a-12.
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The Ultimate Software Group, Inc.
(Name
of Registrant as Specified In Its Charter)
(Name
of Person(s) Filing Proxy Statement, if Other Than the
Registrant)
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THE
ULTIMATE SOFTWARE GROUP, INC.
2000 ULTIMATE WAY
WESTON, FLORIDA 33326
April 1,
2010
Dear Stockholder:
You are cordially invited to attend the 2010 Annual Meeting of
Stockholders of The Ultimate Software Group, Inc.
(Ultimate, we, us or
our), which will be held on Tuesday, May 11,
2010, at 10:00 a.m. (EDT), at Ultimates principal
corporate office at 2000 Ultimate Way, Weston, Florida 33326
(the Annual Meeting).
The principal business of the meeting will be (i) to elect
two directors to serve until the 2013 Annual Meeting of
Stockholders or until their successors are duly elected and
qualified; (ii) to ratify the appointment of KPMG LLP as
Ultimates independent registered public accounting firm
for the fiscal year ending December 31, 2010; and
(iii) to transact such other business as may properly come
before the meeting or any postponement or adjournment thereof.
During the Annual Meeting, we will also review the results of
the past fiscal year and report on significant aspects of our
operations during the first quarter of fiscal 2010.
In accordance with the Securities and Exchange Commission
(SEC) rule (Notice and Access Rule) that
allows companies to furnish their proxy materials (including the
form of proxy, this proxy statement and our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009, filed with the
SEC on March 5, 2010) over the Internet, we sent a
Notice of Internet Availability of Proxy Materials
(Notice) on or about April 1, 2010 to our
stockholders of record as of March 15, 2010. We also
provided access to our proxy materials over the Internet
beginning on that date. As a result of the Notice and Access
Rule, all stockholders receiving the Notice have the ability to
access the proxy materials over the Internet and request to
receive a paper copy of the proxy materials by mail.
Instructions on how to access the proxy materials over the
Internet or to request a paper copy may be found on the Notice.
In addition, the Notice contains instructions on how
stockholders may request to receive proxy materials
electronically by
e-mail.
Whether you plan to attend the Annual Meeting or not, to have
your vote recorded, you should vote over the Internet or by
telephone, or, if you requested paper copies of the proxy
materials by mail, you can also vote by mail by following the
instructions on the proxy card. Voting by any of these methods
will ensure your representation at the Annual Meeting regardless
of whether you attend in person. If you decide to attend the
meeting, you may, of course, revoke your proxy and personally
cast your votes.
We thank you for your continued interest in Ultimate.
Sincerely yours,
Scott Scherr
Chairman, President and Chief
Executive Officer
THE
ULTIMATE SOFTWARE GROUP, INC.
2000 ULTIMATE WAY
WESTON, FLORIDA 33326
NOTICE OF
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 11, 2010
TO THE STOCKHOLDERS OF THE ULTIMATE SOFTWARE GROUP, INC.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders
of The Ultimate Software Group, Inc. (Ultimate,
we, us or our) will be held
on Tuesday, May 11, 2010, at 10:00 a.m. (EDT), at
Ultimates principal corporate office at 2000 Ultimate Way,
Weston, Florida 33326 for the following purposes:
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1.
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To elect two directors to serve until the 2013 Annual Meeting of
Stockholders or until their successors are duly elected and
qualified;
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2.
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To ratify the appointment of KPMG LLP as Ultimates
independent registered public accounting firm for the fiscal
year ending December 31, 2010; and
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3.
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To transact such other business as may properly come before the
meeting or any postponement or adjournment thereof.
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Stockholders of record of the voting stock of Ultimate at the
close of business on March 15, 2010 are entitled to notice
of and to vote at the Annual Meeting or any postponement or
adjournment thereof.
By Order of the Board of Directors:
Vivian Maza
Secretary
Weston, Florida
April 1, 2010
IMPORTANT
NOTICE REGARDING AVAILABILITY OF PROXY MATERIALS FOR THE
STOCKHOLDERS MEETING TO BE HELD ON MAY 11, 2010:
This proxy statement, the form of proxy and Ultimates
annual report on
Form 10-K
for the year ended December 31, 2009 (2009 Annual
Report) are being mailed to stockholders who have
requested hard copies on or after April 1, 2010.
Registered stockholders may view and print Ultimates proxy
statement and the 2009 Annual Report at
www.Envisionreports.com/ULTI.
Beneficial stockholders may view and print Ultimates proxy
statement and the 2009 Annual Report at www.proxyvote.com.
All stockholders may view and print Ultimates proxy
statement and the 2009 Annual Report, which are located on the
Investors link of Ultimates website at
http://ultimatesoftware.com/investors.asp.
1
THE
ULTIMATE SOFTWARE GROUP, INC.
2000 ULTIMATE WAY
WESTON, FLORIDA 33326
PROXY
STATEMENT
FOR
ANNUAL MEETING OF STOCKHOLDERS
MAY 11, 2010
This proxy statement (this Proxy Statement) is being
furnished to holders of The Ultimate Software Group, Inc.
(Ultimate, we, us, or
our) common stock, par value $0.01 per share (the
Common Stock). Proxies are being solicited on behalf
of the Board of Directors of Ultimate (the Board) to
be used at the Annual Meeting of Stockholders (the Annual
Meeting) to be held on Tuesday, May 11, 2010, at
10:00 a.m. (EDT), at Ultimates principal corporate
office at 2000 Ultimate Way, Weston, Florida 33326 and at any
postponement or adjournment thereof, for the purposes set forth
in the Notice of Annual Meeting of Stockholders.
Ultimate is using the Securities and Exchange Commission (the
SEC) rule that allows companies to furnish their
proxy materials over the Internet. As a result, we mailed to our
stockholders a Notice of Internet Availability of Proxy
Materials (the Notice) instead of a paper copy of
the proxy materials (including the form of proxy, this Proxy
Statement and our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009, filed with the
SEC on March 5, 2010 (the 2009 Annual Report),
collectively, the Proxy Materials) on or about
April 1, 2010. We also provided access to our Proxy
Materials over the Internet beginning on that date. The Notice
contained instructions on how to access this Proxy Statement and
the 2009 Annual Report and how to vote online or by toll-free
number. Subsequent to receiving the Notice, all stockholders
have the ability to access the Proxy Materials over the Internet
and request to receive a paper copy of the Proxy Materials by
mail. Instructions on how to access the Proxy Materials over the
Internet or to request a paper copy may be found on the Notice.
In addition, the Notice contains instructions on how
stockholders may request to receive Proxy Materials
electronically by
e-mail.
Registered stockholders may view and print this Proxy Statement
and the 2009 Annual Report at www.Envisionreports.com/ULTI.
Beneficial stockholders may view and print this Proxy Statement
and the 2009 Annual Report at www.proxyvote.com.
All stockholders may view and print this Proxy Statement and the
2009 Annual Report, which are located on the
Investors link of Ultimates website at
http://ultimatesoftware.com/investors.asp.
Proxies are being solicited from holders of Ultimates
Common Stock. If a proxy is properly executed and returned, the
shares represented by it will be voted and, where specification
is made by the stockholder as provided in such proxy will be
voted in accordance with such specification. Unless a
stockholder specifies otherwise, all shares represented by valid
proxies will be voted (i) FOR the election of the persons
named in this Proxy Statement as nominees of Ultimate under the
heading Election of Directors; (ii) FOR the
ratification of the appointment of KPMG LLP as Ultimates
independent registered public accounting firm for the fiscal
year ending December 31, 2010; and (iii) at the
discretion of the proxy holders on any other matter that may
properly come before the Annual Meeting or any adjournment
thereof.
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SOLICITATION
OF PROXIES
Ultimate is paying all of the costs of soliciting proxies,
including preparation costs, assembly, posting on the Internet,
printing and mailing of the Proxy Materials, the Notice and any
additional information furnished to stockholders. Proxies are
being solicited by Ultimate primarily by mail and the Internet,
but in addition, the solicitation by these means may be followed
by solicitation in person, or by telephone or facsimile, by
directors, officers and other employees of Ultimate without
additional compensation. Brokers, dealers, banks, voting trusts,
custodians and other institutions, and their nominees, who are
holders of shares of Ultimates Common Stock on the Record
Date, referred to below, will be requested to forward the
soliciting material to the beneficial owners of such shares of
Common Stock and to obtain authorization for the execution of
proxies. Ultimate will, upon request, reimburse such
institutions for their reasonable expenses in forwarding the
Proxy Materials to their beneficial owners.
VOTING
RIGHTS AND PROCEDURES
Only stockholders of record of the Common Stock of Ultimate at
the close of business on March 15, 2010 (the Record
Date) will be entitled to vote at the Annual Meeting. As
of that date, a total of 26,106,304 shares of Common Stock
were outstanding, each share being entitled to one vote. There
is no cumulative voting.
A majority of the issued and outstanding shares of Common Stock
entitled to vote at the Annual Meeting, represented in person or
by proxy, constitutes a quorum for the transaction of business
at the Annual Meeting. If a stockholder abstains from voting as
to any matter, then the shares held by such stockholder shall be
deemed present at the Annual Meeting for purposes of determining
a quorum. If a broker returns a non-vote proxy,
indicating a lack of authority to vote on such matter, then the
shares covered by such non-vote shall be deemed present at the
Annual Meeting for purposes of determining a quorum but shall
not be deemed to have been voted in favor of or against such
matter.
Assuming the presence of a quorum, the affirmative vote of a
plurality of the votes cast is required for the election of
directors. If a stockholder returns a proxy withholding
authority to vote the proxy with respect to a nominee for
director, then the shares of the Common Stock covered by such
proxy shall be deemed present at the Annual Meeting for purposes
of determining a quorum and for purposes of calculating the vote
with respect to such nominee, but shall not be deemed to have
been voted for such nominee. In the election of directors,
abstentions will have no effect on the outcome of the vote.
The affirmative vote of the holders of a majority of the shares
represented in person or by proxy and entitled to vote at the
Annual Meeting is required for the ratification of the
appointment of KPMG LLP as Ultimates independent
registered public accounting firm for the fiscal year ending
December 31, 2010. Abstentions will not be counted either
for or against the proposal for the ratification of the
appointment of KPMG LLP as Ultimates independent
registered public accounting firm for 2010.
A stockholder may revoke a proxy at any time prior to its
exercise by giving to the Secretary of Ultimate a written notice
of revocation of the proxys authority prior to the voting
thereof or by submitting a later dated proxy by telephone, on
the Internet or by mail, or by voting in person at the Annual
Meeting.
PROPOSAL IELECTION
OF DIRECTORS
The Board of Ultimate is currently composed of seven members
divided into three classes. The members of each class are
elected to serve three-year terms with the term of office of
each class ending in successive years. Messrs. Scott Scherr
and Alois T. Leiter serve in the class whose term expires at the
Annual Meeting.
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The Board has nominated Messrs. Scott Scherr and Alois T.
Leiter for election to the Board at the Annual Meeting for a
term of three years, expiring at the 2013 Annual Meeting, and
each has indicated a willingness to serve. Messrs. LeRoy A.
Vander Putten and Robert A. Yanover serve in the class whose
term expires at the Annual Meeting of Stockholders in 2011.
Messrs. Rick A. Wilber, Marc D. Scherr and James A.
FitzPatrick, Jr. serve in the class whose term expires at
the Annual Meeting of Stockholders in 2012.
The affirmative vote of a plurality of the votes cast at the
Annual Meeting is necessary to elect the nominees as directors.
The persons named as proxies in the enclosed form of proxy will
vote the proxies received by them FOR the election of
Messrs. Scott Scherr and Alois T. Leiter, unless authority
is withheld by the stockholder in the proxy or unless a broker
returns a non-vote proxy. In the event that either of
Messrs. Scott Scherr or Alois T. Leiter becomes unavailable
for election at the Annual Meeting, the persons named as proxies
in this Proxy Statement may vote for a substitute nominee in
their discretion as recommended by the Board.
The following table sets forth certain information concerning
the nominees, based on data furnished by them. Information
regarding incumbent directors whose terms are not expiring is
included in the section labeled Directors and Executive
Officers below.
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Name of Nominee
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Age
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Principal Occupation
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Director Since
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Scott Scherr
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57
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Chairman of the Board, President and Chief Executive Officer,
The Ultimate Software Group, Inc.
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April 1996
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Alois T. Leiter
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44
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Director; Television Analyst and Commentator, MLB Network and
Yankees Entertainment and Sports Network
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October 2006
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Scott Scherr has served as President and a director of Ultimate
since its inception in April 1996 and has been Chairman of the
Board and Chief Executive Officer of Ultimate since September
1996. Mr. Scherr is also a member of the Executive
Committee of the Board. In 1990, Mr. Scherr founded The
Ultimate Software Group, Ltd. (the Partnership), the
business and operations of which were assumed by Ultimate in
1998. Mr. Scherr served as President of the
Partnerships general partner from the inception of the
Partnership until its dissolution in March 1998. From 1979 until
1990, he held various positions at Automatic Data Processing,
Inc. (ADP), a payroll services company, where his
titles included Vice President of Operations and Sales
Executive. Prior to joining ADP, Mr. Scherr operated
Management Statistics, Inc., a data processing service bureau
founded by his father, Reuben Scherr, in 1959. He is the brother
of Marc Scherr, the Vice Chairman of the Board and Chief
Operating Officer of Ultimate, and the
father-in-law
of Adam Rogers, Senior Vice President and Chief Technology
Officer.
As Ultimates founder and Chief Executive Officer,
Mr. Scherr brings to the Board a unique and deeply rooted
understanding of our company, its business, its employees and
its customers. During his long tenure as Chairman of our Board
and our Chief Executive Officer, Mr. Scherrs
leadership skills have been essential to Ultimates
attraction and retention of high quality personnel, product
development, attraction and retention of customers, and
establishment of a culture of teamwork that has allowed Ultimate
to grow from a start up operation in 1990 to a leading provider
of human capital management solutions.
Alois T. Leiter has served as director of Ultimate since October
2006 and is a member of the Compensation Committee of the Board.
Mr. Leiter was a three-time Major League Baseball World
Champion and two-time All-Star pitcher formerly with the New
York Yankees, New York Mets, Toronto Blue Jays, and Florida
Marlins, and has been an official spokesperson for Ultimate
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since 2002. Mr. Leiter has served as a television
commentator for the Yankees Entertainment and Sports Network
since 2006 and as an analyst with MLB Network since January
2009. He has served on the Executive Committee of New York
Citys official tourism marketing organization,
NYC & Company, since 2000 and is a member of the Board
of Directors of Americas Camp, a legacy organization of
the Twin Towers Fund, on which he also served as a board member.
Mr. Leiter brings to our Board and to our company a strong
understanding of leadership, dedication, performance under
pressure and the importance of communication and teamwork to the
operations of Ultimate. Mr. Leiters success as a
professional athlete and television broadcaster reflects a
commitment to excellence that he regularly imparts to our
management and employees as a member of our Board and as an
official spokesman for Ultimate (see Certain Relationships
and Related Transactions below). Mr. Leiter also
brings to the Board 14 years of proven leadership skills
and management experience as president and founder of
Leiters Landing, a charitable organization, and the
knowledge and experience acquired through his service on a
number of New York state and community boards.
THE BOARD RECOMMENDS A VOTE FOR THE ELECTION OF MESSRS.
SCOTT SCHERR AND ALOIS T. LEITER AS DIRECTORS OF ULTIMATE TO
HOLD OFFICE UNTIL THE 2013 ANNUAL MEETING AND UNTIL THEIR
RESPECTIVE SUCCESSORS ARE ELECTED AND QUALIFIED.
PROPOSAL IIRATIFICATION
OF THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
The audit committee of the Board (the Audit
Committee) has appointed KPMG LLP as the independent
registered public accounting firm for Ultimate for the fiscal
year ending December 31, 2010. KPMG LLP has served as the
independent registered public accounting firm for Ultimate since
2002. A representative of KPMG LLP will be present at the Annual
Meeting and will be given an opportunity to make a statement.
The representative will also be available to respond to
appropriate questions from stockholders.
Stockholder ratification of the appointment of KPMG LLP as
Ultimates independent registered public accounting firm is
not required by Ultimates By-Laws or otherwise. However,
the Board is submitting the selection of KPMG LLP to the
stockholders for ratification as a matter of corporate practice.
The affirmative vote of the holders of a majority of the shares
represented in person or by proxy and entitled to vote is
required for the ratification of the appointment of KPMG LLP as
Ultimates independent registered public accounting firm
for the fiscal year ending December 31, 2010. Abstentions
will not be counted either for or against the proposal for the
ratification of the appointment of KPMG LLP as Ultimates
independent registered public accounting firm for 2010. If the
stockholders fail to ratify the selection, the Audit Committee
will reconsider whether or not to retain KPMG LLP. Even if the
selection is ratified, the Audit Committee, in its discretion,
may direct the appointment of a different independent registered
public accounting firm at any time during the year if the Audit
Committee determines that such a change would be in the best
interests of Ultimate and its stockholders.
THE BOARD RECOMMENDS A VOTE FOR THE RATIFICATION OF THE
APPOINTMENT OF KPMG LLP AS ULTIMATES INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING
DECEMBER 31, 2010.
CORPORATE
GOVERNANCE, BOARD MEETINGS AND COMMITTEES OF THE BOARD
During fiscal 2009, the Board held four meetings. During fiscal
2009, each director holding office during the year attended all
of the meetings of the Board and all of the meetings of the
committees of the Board on which he served. The Board has an
Executive Committee, an Audit Committee and a Compensation
Committee, which are described below.
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Interested parties may communicate with the Board, anonymously
if they wish, by sending a written note or memo to the
Secretary, The Ultimate Software Group, Inc., 2000 Ultimate Way,
Weston, Florida 33326. Communications that are intended
specifically for non-management or independent directors should
be sent to the above address to the attention of the Chairman of
the Audit Committee. All such communications will be delivered
unopened by the Secretary to the Chairman of the Board or the
Chairman of the Audit Committee, as applicable.
Following consultation with counsel and based upon the facts
described below, the Board has determined that the following
individuals are independent directors within the meaning of the
Marketplace Rules of the NASDAQ Stock Market LLC
(NASDAQ): James A. FitzPatrick, Jr., Alois T.
Leiter, LeRoy A. Vander Putten, Rick A. Wilber and Robert A.
Yanover. In the course of the Boards determination
regarding the independence of each non-employee director, it
considered any transactions, relationships and arrangements as
required by the NASDAQ rules governing independence standards
for directors. In particular, with respect to each of the three
most recently completed fiscal years, the Board evaluated for
(i) Mr. FitzPatrick, the annual amount of fees
Ultimate paid for legal services to Dewey & LeBoeuf
LLP (formerly Dewey Ballantine LLP), the law firm in which
Mr. FitzPatrick is a partner, and
(ii) Mr. Leiter, the annual amount of charitable
contributions Ultimate made, in connection with his acting as a
spokesman for Ultimate, to Leiters Landing, the non-profit
charitable organization benefiting children that was formed by
Mr. Leiter. These relationships and transactions are
described in further detail below under Certain
Relationships and Related Transactions. The Board
determined that the annual payment or contribution, as the case
may be, to either of these organizations constituted an amount
less than the greater of $200,000 or five percent of such
organizations annual consolidated gross revenues during
each of such organizations three most recently completed
fiscal years, as such threshold is set forth in NASDAQ
Rule 5605(a)(2)(D). The Board determined that these
relationships would not interfere with the ability of either
Mr. FitzPatrick or Mr. Leiter in exercising
independent judgment in carrying out the responsibilities of a
director.
The independent directors met regularly in executive session and
outside the presence of Ultimates management throughout
the 2009 fiscal year, and will do so throughout fiscal 2010 in
compliance with the NASDAQ rules.
Nominating Committee. The Board does not have
a standing nominating committee or committee performing similar
functions. The Board has determined that it is appropriate not
to have a nominating committee because of the relatively small
size of the Board and because the entire Board, the majority of
whom are independent directors, functions in the capacity of a
nominating committee. The Board has adopted processes with
respect to the nomination of directors that require that a
majority of the independent directors shall recommend to the
Board the nominees to stand for election at the Annual Meeting.
When considering potential director candidates, the Board
considers the candidates independence (as mandated by the
NASDAQ rules), character, judgment, age, skills, financial
literacy, and experience in the context of the needs of Ultimate
and the Board. The Board does not have a formal diversity
policy; however, the Boards goal is to nominate candidates
that represent diverse viewpoints. When identifying nominees to
serve as directors, the Board will consider candidates with a
diversity of experiences and backgrounds who will enhance the
quality of the Boards deliberations and decisions.
In 2009, Ultimate did not pay any fees to a third party to
assist in identifying or evaluating potential nominees.
The Board will consider director candidates recommended by
Ultimates stockholders in a similar manner as those
recommended by members of management or other directors. The
name and qualifications of, and other information specified in
Ultimates By-Laws with respect to, any recommended
candidate for director should be sent to the attention of the
Secretary of Ultimate in
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accordance with the procedures set forth under the caption
Stockholder Proposals for the 2011 Annual Meeting of
Stockholders.
Ultimate does not have a policy with respect to attendance by
the directors at the Annual Meeting of Stockholders. Three of
the seven members of the Board attended the 2009 Annual Meeting
of Stockholders.
Executive Committee. The Executive Committee
of the Board is composed of Messrs. Scott Scherr
(Chairman), Marc D. Scherr and Robert A. Yanover. The Executive
Committee has the authority to exercise (except as provided by
law or as may have been specifically reserved by or for the
Board) all the powers and authority of the Board in the
management of the business and affairs of Ultimate between
regular meetings of the Board and while the Board is not in
session. The Executive Committee held no meetings during fiscal
2009.
Audit Committee. Messrs. Robert A.
Yanover (Chairman), Rick A. Wilber and LeRoy A. Vander Putten
are members of the Audit Committee of the Board. The Audit
Committee oversees Ultimates financial reporting process
on behalf of the Board and reviews the independence of
Ultimates auditors. The Audit Committee held four meetings
during fiscal 2009.
The Board has determined that the Audit Committees current
member composition satisfies the NASDAQ rules that govern audit
committee composition, including the requirement that audit
committee members all be independent directors as
that term is defined by NASDAQ Rule 5605(3)(2)(A). The
Board has determined that Mr. LeRoy A. Vander Putten is an
audit committee financial expert as defined in the
rules of the SEC.
Compensation Committee. Messrs. LeRoy A.
Vander Putten (Chairman), Robert A. Yanover, Rick A. Wilber and
Alois T. Leiter are members of the Compensation Committee of the
Board. The Compensation Committee is responsible for determining
the compensation and benefits for the executive officers of
Ultimate and administers Ultimates stock-based plans and
oversees such other benefit plans as Ultimate may from time to
time maintain. The Compensation Committee held four meetings
during fiscal 2009. The Compensation Committee does not have a
charter.
Board
Leadership
The current Chairman, Scott Scherr, also serves as
Ultimates President and Chief Executive Officer. A
combined Chairman and Chief Executive Officer role provides an
efficient and effective leadership model because it fosters
clear accountability, effective decision-making and alignment on
corporate strategy. The Chief Executive Officers direct
involvement in Ultimates operations and his familiarity
with Ultimates business and industry make him best
positioned to lead productive Board meetings and strategic
planning sessions. While Ultimates independent directors
bring experience, oversight and expertise from outside the
company and industry, the Chief Executive Officer brings
company-specific experience and expertise to the Board. The
Board retains the authority to modify this structure.
Board
Role in Risk Oversight
Management is responsible for the
day-to-day
management of risks that Ultimate encounters, while the Board,
as a whole and through its committees, has responsibility for
the oversight of risk management. Management regularly presents
to the Board reports from members of senior management on areas
that may include material risk to Ultimate, including
operational, strategic, financial, compliance, legal, product,
competitive and reputational risks. While oversight of risk
management efforts is the responsibility of the entire Board,
the Audit Committee assists the Board in fulfilling its
oversight responsibilities with respect to risk management in
the areas of accounting, auditing, financial reporting and
maintaining effective internal controls for financial reporting.
The Compensation Committee assists the Board in fulfilling its
oversight responsibilities with respect to the management of any
risks arising from Ultimates compensation policies and
arrangements.
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DIRECTOR
COMPENSATION
Each non-employee director of Ultimate receives compensation for
serving on the Board, payable exclusively in the form of
restricted stock awards granted under Ultimates Amended
and Restated 2005 Equity and Incentive Plan (the
Plan). Prior to 2009, non-employee directors
received as compensation for service on the Board and Board
committees options to purchase Common Stock granted under the
Plan and the Nonqualified Stock Option Plan (the Prior
Plan).
During 2009, non-employee directors and the Chairmen of the
Audit and Compensation committees of the Board, respectively,
were granted restricted stock awards for each regular Board and
Committee meeting attended. Under the arrangement, (i) each
non-employee director was granted a restricted stock award of
1,000 shares of Common Stock for each regular meeting of
the Board attended in 2009 and (ii) each of the Chairmen of
the Audit Committee and Compensation Committee of the Board was
granted a restricted stock award of 625 shares of Common
Stock for attendance at each regular meeting of the Committee in
2009 that he chaired. In addition, each non-employee director
was granted, for each fiscal quarter during which he served, a
restricted stock award of that number of shares of Common Stock
equal to the quotient of $12,500 divided by the closing price of
the Common Stock on NASDAQ on the date of grant, which is the
effective date of the grant determined by the Board for each
such quarter, rounded down to the closest full number of shares.
The date of grant shall not be a date prior to the date of the
Boards determination of the same. Such restricted stock
awards shall vest on the fourth anniversary of the date of
grant, subject to accelerated vesting in the event of a
directors death, disability, cessation of service at the
end of his term or the occurrence of a change of control of
Ultimate.
All directors are reimbursed (in cash) for expenses incurred in
connection with their attendance at Board and Committee
meetings. In addition, in connection with their having joined
the Board, each non-employee Director has received a single
option grant to purchase 25,000 shares of Ultimates
Common Stock. All such options were fully vested upon the date
of grant and have an exercise price equal to 100% of the fair
market value of Ultimates Common Stock on the date of
grant.
2009
DIRECTOR COMPENSATION
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Change in
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Pension
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($)
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($)
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Value and
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Fees
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Non-Equity
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Nonqualified
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($)
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Earned
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($)
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($)
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Incentive
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Deferred
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All
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or Paid
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Stock
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Option
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Plan
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Compensation
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Other
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($)
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Name (1)
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in Cash
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Awards (2)
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Awards
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Compensation
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Earnings
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Compensation
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Total
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Robert A. Yanover
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$
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$
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192,602
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$
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$
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$
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$
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192,602
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LeRoy A. Vander Putten
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192,602
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192,602
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James A. FitzPatrick, Jr.
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137,740
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137,740
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Rick A. Wilber
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137,740
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137,740
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Alois T. Leiter
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137,740
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137,740
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(1) Messrs. Scott Scherr and Marc D. Scherr are not
included in this table as they are employees of Ultimate and
receive no compensation for their services as directors. The
compensation for Messrs. Scott Scherr and Marc D. Scherr as
employees is shown in the Summary Compensation Table.
(2) The amounts reported in the Director Compensation table
above represent the aggregate grant date fair value of
restricted stock awards granted to each director as compensation
costs for Board services in accordance with Accounting Standards
Codification (ASC) 718,
Compensation Stock Compensation,
(ASC 718) (formerly Statement of Financial
Accounting Standards No. 123 (revised 2004),
Share-Based Payment
(SFAS No. 123R)) for fiscal 2009. Under
ASC 718, the fair value of each restricted stock award is
measured based on the closing market price of Ultimates
Common Stock at the date of grant and is recognized on a
straight-line basis over the vesting period. Holders of
restricted stock awards have all rights of a stockholder
including the right to vote the shares and receive all dividends
and other distributions paid or made with respect thereto. Each
award becomes vested on the fourth anniversary of the respective
date of grant, subject to the grantees continued Board
service with Ultimate on each such vesting date and subject
further to accelerated vesting in the event of a change in
control of Ultimate, death or disability, or at cessation of his
Board Service at the end of his term.
The number of outstanding stock option awards and outstanding
restricted stock awards for each non-employee director as of
December 31, 2009 was as follows:
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Outstanding
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Outstanding Restricted
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Name
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Option Awards
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Stock Awards
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Robert A. Yanover
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77,489
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11,773
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LeRoy A. Vander Putten
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70,427
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11,773
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James A. FitzPatrick, Jr.
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85,179
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9,273
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Rick A. Wilber
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66,419
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9,273
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Alois T. Leiter
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48,437
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9,273
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9
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information regarding
beneficial ownership of Ultimates Common Stock as of
February 28, 2010 (unless otherwise noted) by (i) each
person who is known by Ultimate to own beneficially more than 5%
of the Common Stock; and (ii) each of Ultimates
directors, director nominees and executive officers and all
directors and executive officers of Ultimate as a group.
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AMOUNT AND
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NATURE OF
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PERCENT
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BENEFICIAL
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OF
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NAME AND ADDRESS OF BENEFICIAL
OWNER
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OWNERSHIP (1)
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CLASS (2)
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William Blair & Company, L.L.C. (3)
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3,587,085
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13.7%
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222 W. Adams
Chicago, IL 60606
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TimesSquare Capital Management, L.L.C. (4)
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1,469,600
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5.6%
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1177 Avenue of the Americas,
39th
Floor
New York, NY 10036
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Janus Capital Management LLC (5)
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1,425,393
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5.5%
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151 Detroit Street
Denver, CO 80206
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BlackRock Inc. (6)
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1,301,331
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5.0%
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40 East
52nd
Street
New York, NY 10022
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Scott Scherr (7)
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753,887
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2.9%
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Marc D. Scherr (8)
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751,079
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2.9%
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Mitchell K. Dauerman (9)
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165,751
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*
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James A. FitzPatrick, Jr. (10)
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93,475
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*
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LeRoy A. Vander Putten (11)
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120,820
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*
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Rick A. Wilber (12)
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400,957
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1.5%
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Robert A. Yanover (13)
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298,758
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1.1%
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Alois T. Leiter (14)
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198,183
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*
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All directors and executive officers as a group (8 persons)
(15)
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2,782,910
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10.6%
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*
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Indicates beneficial ownership of
less than 1.0% of the outstanding Common Stock.
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(1) |
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Beneficial ownership is determined in accordance with the rules
of the SEC and includes voting or investment power with respect
to securities. Shares of Common Stock issuable upon the exercise
of stock options exercisable within 60 days from
February 28, 2010 are deemed outstanding and to be
beneficially owned by the person holding such option for
purposes of computing such persons percentage ownership,
but are not deemed outstanding for the purpose of computing the
percentage ownership of any other person. Ultimate has made
restricted stock awards to executive officers and non-employee
directors under the Plan (Restricted Stock Awards).
The shares of Common Stock issued under the Restricted Stock
Awards are subject to certain vesting requirements and
restrictions on transfers. The holders of such shares have all
the rights of a stockholder with respect to such shares,
including the right to vote the shares and receive all dividends
and other distributions paid or made with respect thereto,
unless the Compensation Committee or the Board determines
otherwise at the time the Restricted Stock Award is granted.
Each Restricted Stock Award becomes vested on the fourth
anniversary of the respective date of grant, subject to the
grantees continued employment with Ultimate or any
subsidiary, or service on the Board by a non-employee director
on each such vesting date and further subject to accelerated
vesting |
10
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in the event of a Change in Control of Ultimate or the
grantees death, disability or termination of the
grantees employment with Ultimate without cause or
termination of a non-employee directors service on the
Board at the end of his term. All shares of Common Stock issued
under the Restricted Stock Awards are considered to be
beneficially owned for purposes of computing the holders
respective percentages of ownership in this table. Except for
shares held jointly with a persons spouse or subject to
applicable community property laws, or as indicated in the
footnotes to this table, each stockholder identified in the
table possesses the sole voting and investment power with
respect to all shares of Common Stock shown as beneficially
owned by such stockholder. Ultimate has also made awards of
stock units under the Plan (Stock Unit Awards). A
Stock Unit Award is a grant of a number of hypothetical share
units with respect to shares of Common Stock that are subject to
vesting and transfer restrictions and conditions under a stock
unit award agreement. The value of each unit is equal to the
fair market value of one share of Common Stock on any applicable
date of determination. The payment with respect to each unit
under a Stock Unit Award may be made, at the discretion of the
Compensation Committee, in cash or shares of Common Stock or in
a combination of both. Stock Unit Awards are not included in
this table since the grantee does not have any rights as a
stockholder with respect to the shares subject to a Stock Unit
Award until such time as shares of Common Stock are delivered to
the grantee pursuant to the terms of the related stock unit
award agreement. |
(2) |
|
Applicable percentage of ownership is based on
26,138,271 shares of Common Stock outstanding. |
(3) |
|
Represents shares held as of December 31, 2009 as reported
on Schedule 13G/A filed by William Blair &
Company, L.L.C. (William Blair). As reported on
Schedule 13G/A, William Blair is a broker dealer registered
under Section 15 of the Securities Exchange Act of 1934, as
amended (the Exchange Act). William Blair has sole
voting power and sole dispositive power of 3,587,085 shares
of Common Stock of Ultimate. |
(4) |
|
Represents shares held as of December 31, 2009 as reported
on Schedule 13G/A filed by the respective stockholders. As
reported on Schedule 13G/A, TimesSquare Capital Management,
L.L.C. (TimesSquare) has sole voting power of
1,366,300 shares of Common Stock and sole dispositive power
of 1,469,600 shares of Common Stock which shares are also
beneficially owned by investment advisory clients of
TimesSquare. In its role as investment adviser, TimesSquare has
voting and dispositive power with respect to these shares. As
reported on Schedule 13G/A, TimesSquare is an investment
adviser in accordance with §240.13d-1(b)(1)(ii)(E)of the
Exchange Act. |
(5) |
|
Represents shares held as of December 31, 2009 as reported
on Schedule 13G/A filed by the respective stockholders. As
reported on Schedule 13G/A, Janus Capital Management LLC
(Janus Capital) has a direct 91.8% ownership stake
in INTECH Investment Management (INTECH) and a
direct 77.8% ownership stake in Perkins Investment Management,
LLC (Perkins). Due to this ownership structure,
holdings for Janus Capital, Perkins and INTECH are aggregated
for purposes of the shares reported on the December 31,
2009 Schedule 13G/A. Janus Capital, Perkins and INTECH are
registered investment advisers, each furnishing investment
advice to various investment companies registered under
Section 8 of the Investment Company Act of 1940 and to
individual and institutional clients (collectively referred to
as Managed Portfolios). As a result of its role as
investment advisor or
sub-adviser
to the Managed Portfolios, Janus Capital may be deemed to be the
beneficial owner of 1,425,393 shares of Common Stock of
Ultimate held by such Managed Portfolios. However, Janus Capital
does not have the right to receive any dividends from, or the
proceeds from the sale of, the securities held in the Managed
Portfolios and disclaims any ownership associated with such
rights. Janus Venture Fund is |
11
|
|
|
|
|
an investment company registered under the Investment Company
Act and is one of the Managed Portfolios to which Janus Capital
provides investment advice. |
(6) |
|
Represents shares held as of December 31, 2009 as reported
on Schedule 13G filed by BlackRock Inc. As reported on
Schedule 13G, BlackRock Inc. has sole voting power and sole
dispositive power of 1,301,331 shares of Common Stock. As
reported on Schedule 13G, BlackRock Inc is a parent holding
company or control person in accordance with
Rule 13d-1(b)(1)(ii)(G). |
(7) |
|
Represents 35,900 shares of Common Stock held by
Mr. Scott Scherr, exercisable options to purchase
180,000 shares of Common Stock held by Mr. Scott
Scherr, and 537,987 shares of Common Stock subject to
Restricted Stock Awards. Excludes 9,173 shares of Common
Stock subject to Stock Unit Awards. |
(8) |
|
Represents 10,000 shares of Common Stock held by
Mr. Marc D. Scherr, 29,066 shares of Common Stock held
by certain trusts established for the benefit of Mr. Marc
D. Scherrs children, exercisable options to purchase
333,417 shares of Common Stock and 378,596 shares of
Common Stock subject to Restricted Stock Awards. Excludes
7,430 shares of Common Stock subject to Stock Unit Awards.
Mr. Marc D. Scherr disclaims beneficial ownership of the
shares owned by the trusts established for the benefit of his
children. |
(9) |
|
Represents 18,750 shares of Common Stock held by
Mr. Mitchell K. Dauerman, 250 shares of Common Stock
held by certain trusts established for the benefit of
Mr. Mitchell K. Dauermans child, exercisable options
to purchase 86,751 shares of Common Stock held by
Mr. Dauerman and 60,000 shares of Common Stock subject
to Restricted Stock Awards. Mr. Mitchell K. Dauerman
disclaims beneficial ownership of the shares owned by the trusts
established for the benefit of his child. |
(10) |
|
Represents 2,000 shares of Common Stock held by
Mr. FitzPatrick, exercisable options to purchase
80,790 shares of Common Stock and 10,685 shares of
Common Stock subject to Restricted Stock Awards. |
(11) |
|
Represents 44,510 shares of Common Stock held by
Mr. Vander Putten, exercisable options to purchase
62,500 shares of Common Stock and 13,810 shares of
Common Stock subject to Restricted Stock Awards. |
(12) |
|
Represents 330,728 shares of Common Stock held by
Mr. Wilber, exercisable options to purchase
59,544 shares of Common Stock and 10,685 shares of
Common Stock subject to Restricted Stock Awards. These shares
shown include 319,639 shares of Common Stock pledged by
Mr. Wilber. |
(13) |
|
Represents 90,433 shares of Common Stock held by
Mr. Yanover, 6,700 shares of Common Stock held by
Mr. Yanovers spouse, 44,743 shares of Common
Stock held by Yanover Family Limited Partnership
(YFLP), 69,563 shares of Common Stock held by
Grantor Retained Annuity Trust (GRAT) of which
Mr. Yanover is the trustee, exercisable options held by
Mr. Yanover to purchase 73,509 shares of Common Stock
and 13,810 shares of Common Stock subject to Restricted
Stock Awards. Mr. Yanover is the President of the general
partner of Yanover Associates and an officer of the general
partner of YFLP. Mr. Yanover disclaims beneficial ownership
of the shares held by his spouse, shares held by the YFLP and
shares held by GRAT. |
(14) |
|
Represents 138,683 shares of Common Stock held by
Mr. Leiter, exercisable options to purchase
47,500 shares of Common Stock, 1,315 shares of Common
Stock held by certain trusts for the benefit of
Mr. Leiters children and 10,685 shares of Common
Stock subject to Restricted Stock Awards. Mr. Leiter
disclaims beneficial ownership of the shares owned by the trusts
established for the benefit of his children. |
12
|
|
|
(15) |
|
Represents an aggregate of 822,641 (both directly and indirectly
owned) shares of Common Stock, 1,036,258 shares of Common
Stock subject to Restricted Stock Awards and exercisable options
to purchase an aggregate of 924,011 shares of Common Stock.
Excludes 16,603 shares of Common Stock subject to Stock
Unit Awards. |
DIRECTORS
AND EXECUTIVE OFFICERS
The directors and named executive officers (Messrs. Scott
Scherr, Marc D. Scherr and Mitchell K. Dauerman), and their ages
as of February 28, 2010, are as follows:
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|
|
|
|
NAME
|
|
AGE
|
|
POSITION(S)
|
|
Scott Scherr
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|
|
57
|
|
|
Chairman of the Board, President and Chief Executive Officer
|
Marc D. Scherr
|
|
|
52
|
|
|
Vice Chairman of the Board and Chief Operating Officer
|
Mitchell K. Dauerman
|
|
|
53
|
|
|
Executive Vice President, Chief Financial Officer and Treasurer
|
James A. FitzPatrick, Jr.
|
|
|
60
|
|
|
Director
|
Alois T. Leiter
|
|
|
44
|
|
|
Director
|
LeRoy A. Vander Putten
|
|
|
75
|
|
|
Director
|
Rick A. Wilber
|
|
|
63
|
|
|
Director
|
Robert A. Yanover
|
|
|
73
|
|
|
Director
|
Marc D. Scherr has been a director of Ultimate since its
inception in April 1996 and has served as Vice Chairman since
July 1998 and as Chief Operating Officer since October 2003.
Mr. Scherr is also a member of the Executive Committee of
the Board. Mr. Scherr became an executive officer of
Ultimate effective March 1, 2000. Mr. Scherr served as
a director of Gerschel & Co., Inc., a private
investment firm from January 1992 until March 2000. In December
1995, Mr. Scherr co-founded Residential Company of America,
Ltd. (RCA), a real estate firm, and served as
President of its general partner until March 2000.
Mr. Scherr also served as Vice President of RCAs
general partner from its inception in August 1993 until December
1995. From 1990 to 1992, Mr. Scherr was a real estate
pension fund advisor at Aldrich, Eastman & Waltch.
Previously, he was a partner in the Boston law firm of
Fine & Ambrogne. Mr. Scherr is the brother of
Scott Scherr, Chairman of the Board, President and Chief
Executive Officer of Ultimate. Mr. Scherrs long
tenure in our executive and Board leadership supports
institutional continuity and industry knowledge accumulated
through all phases of economic cycles and through
Ultimates expansion over that period. With his experience
as a practicing lawyer and businessman, as well as his
longstanding position as a senior executive of Ultimate,
Mr. Scherr brings to Ultimates Board invaluable
insight in developing corporate strategy, strategic
relationships, ethical practices, quality staff and product
differentiation.
Mitchell K. Dauerman has served as Executive Vice President of
Ultimate since April 1998 and as Chief Financial Officer and
Treasurer of Ultimate since September 1996. From 1979 to 1996,
Mr. Dauerman held various positions with KPMG LLP, serving
as a Partner in the firm from 1988 to 1996. Mr. Dauerman is
a Certified Public Accountant. Mr. Dauermans
longstanding experience with accounting principles, financial
reporting rules and regulations, income and sales tax rules and
regulations, financial planning and general oversight of the
financial reporting process, both as a former partner of KPMG
LLP and as our Chief Financial Officer since 1996, as well as
his role interfacing with the analyst and investor communities,
are invaluable to the Board.
James A. FitzPatrick, Jr. has served as a director of
Ultimate since July 2000. Mr. FitzPatrick is a partner in
the law firm Dewey & LeBoeuf LLP (formed in October
2007 by merger of Dewey Ballantine LLP and LeBoeuf, Lamb,
Greene & MacRae LLP), which provides legal services to
Ultimate. Before joining Dewey Ballantine LLP as a partner in
February 1989, Mr. FitzPatrick was a partner in the law
firm LeBoeuf, Lamb, Leiby & MacRae.
Mr. FitzPatrick brings to the Board his longstanding
experience as a practicing attorney, including experience with
13
corporate governance, contractual matters, private and public
capital raising, purchase and sale of assets and mergers and
acquisitions. Mr. FitzPatricks knowledge of corporate
and securities laws and corporate governance facilitates the
Boards oversight responsibilities concerning such areas.
Rick A. Wilber has served as a director of Ultimate since
October 2002 and is a member of the Audit Committee and a member
of the Compensation Committee of the Board. Mr. Wilber
formerly served on Ultimates Board from October 1997
through May 2000. Since 1995, Mr. Wilber has been the
President of Lynns Hallmark Cards, which owns and operates
a number of Hallmark Card stores. Mr. Wilber has served as
a director for Synergy Resource Corporation since October 2008.
Mr. Wilber was a co-founder of Champs Sports Shops and
served as its President from 1974 to 1984. He served on the
Board of Royce Laboratories, a pharmaceutical concern, from 1990
until April 1997, when Royce was sold to Watson Pharmaceuticals,
Inc., a pharmaceutical concern. Mr. Wilber brings to the
Board his considerable business and entrepreneurial acumen and
business management experience, his understanding of business
opportunities and strategies and his experience with the
motivation of employees.
LeRoy A. Vander Putten has served as a director of Ultimate
since October 1997, is Chairman of the Compensation Committee
and is a member of the Audit Committee. Mr. Vander Putten
is a retired insurance company executive. He served as the
Executive Chairman of The Insurance Center, Inc., a holding
company for 14 insurance agencies, from October 2001 to
January 27, 2006. Previously, he served as the Chairman of
CORE Insurance Holdings, Inc., a member of the GE Global
Insurance Group, engaged in the underwriting of casualty
reinsurance, from August 2000 to August 2001. From April 1998 to
August 2000, he served as Chairman of Trade Resources
International Holdings, Ltd., a corporation engaged in trade
finance for exporters from developing countries. From January
1988 until May 1997, Mr. Vander Putten was Chairman and
Chief Executive Officer of Executive Risk Inc., a specialty
insurance holding company. From August 1982 to January 1988,
Mr. Vander Putten served as Vice President and deputy
Treasurer of The Aetna Life and Casualty Company, an insurance
company. Mr. Vander Puttens extensive executive and
board level experience, including his roles as chairman and
chief executive officer of a public company, Executive Risk
Inc., and as a senior financial officer of The Aetna Life and
Casualty Company, brings to the Board considerable expertise in
financial, operational and corporate strategy development as
well as organizational acumen. Mr. Vander Puttens
experience also enables him to serve in the important role as
audit committee financial expert of the Audit
Committee as defined in the rules of the SEC.
Robert A. Yanover has served as a director of Ultimate since
January 1997 and is Chairman of the Audit Committee and a member
of the Compensation Committee. Mr. Yanover founded Computer
Leasing Corporation of Michigan, a private leasing company, in
1975 and served as its President from its founding until 2007 at
which time Mr. Yanover retired. Mr. Yanover also
founded Lason, Inc., a corporation specializing in the imaging
business, and served as Chairman of the Board from its inception
in 1987 until 1998 and as a director through February 2001.
Mr. Yanover brings to the Board his experience and strong
business and leadership skills, having served as president and
chairman of public and private companies for over 30 years.
In addition, having served as a director of Ultimate for the
past 13 years, Mr. Yanover brings to the Board deep
institutional knowledge, including a well developed
understanding of Ultimates business operations and the
fundamentals essential to its business model.
Information regarding Messrs. Scott Scherr and Alois T.
Leiter is included under the heading
PROPOSAL I ELECTION OF DIRECTORS.
14
COMPENSATION
DISCUSSION AND ANALYSIS
Executive
Compensation Policy
As a provider of Web-based payroll and talent management
solutions, our long-term success depends on our ability to
develop, enhance and market our products and services to keep
pace with our competitors; adapt to technological advancements
and changing industry standards; and expand the functionality of
our products and services to address the increasingly
sophisticated requirements of our customers. To achieve these
goals, it is critical that we be able to attract, motivate and
retain highly talented individuals at all levels of the
organization who are committed to Ultimates core values of
excellence, integrity and teamwork.
It is our belief that compensation should be based on the level
of job responsibility, individual performance and
Ultimates performance. As employees progress to higher
levels in the organization, an increasing proportion of their
pay should be linked to Ultimates performance, since they
are more able to affect Ultimates results. Additionally,
compensation should reflect the value of the job in the
marketplace. In order to attract and retain a highly skilled
work force, we must remain competitive with the pay of other
employers who compete with us for talent. Although the programs
and individual pay levels will always reflect differences in job
responsibilities, geographies and marketplace considerations,
the overall structure of compensation and benefit programs
should be broadly similar across Ultimate.
Our Compensation Committee is responsible for developing and
approving Ultimates compensation program for the executive
officers and other officers of Ultimate. In addition, our
Compensation Committee administers Ultimates equity-based
plan and oversees such other benefit plans as Ultimate may from
time to time maintain.
Our Compensation Committee is composed of four non-employee
directors, Messrs. LeRoy A. Vander Putten (Chairman), Rick
A. Wilber, Robert A. Yanover and Alois T. Leiter.
The executive compensation program was designed to reward
executive officers for achieving Ultimates strategic goals
and to align the interests of the executive officers with those
of Ultimates stockholders. In particular, Ultimates
Amended and Restated 2005 Equity and Incentive Plan (the
Plan) is intended to (i) provide a vehicle for
compensating Ultimates key personnel by giving them the
opportunity to acquire a proprietary interest in Ultimates
Common Stock by receiving equity-based incentive compensation;
(ii) provide management with equity ownership in Ultimate
commensurate with Ultimates performance, as reflected in
increased stockholder value; (iii) attract, motivate and
retain key employees and non-employee directors by maintaining
competitive compensation levels; and (iv) provide an
incentive to management for continuous employment with or
service to Ultimate.
This philosophy is reflected in an executive compensation
package that is generally comprised of three elements
(collectively, Total Compensation): (i) base
salary, which is determined on the basis of the
individuals position and responsibilities with Ultimate;
(ii) incentive performance awards payable in cash and tied
to Ultimates achievement of specified financial targets;
and (iii) long-term stock-based incentive compensation,
which is related to Ultimates achievement of specified
financial and other performance targets and which includes the
issuance of restricted stock awards
and/or stock
unit awards that create a link between executive compensation
and the interests of Ultimates stockholders. The
Compensation Committee has also granted stock options to
executive officers and employees in prior years.
15
The
Compensation Committees Processes
The Compensation Committee utilizes different processes to
assist it in ensuring that Ultimates executive
compensation program is achieving its objectives. Among those
are:
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Industry Comparison. The Compensation Committee
establishes Total Compensation levels for executives that it
believes are competitive with industry compensation practices of
other software and technology companies of comparable size. In
order to enhance its objectivity and independence, the
Compensation Committee has, in the past, obtained advice
and/or
recommendations of an outside compensation consulting firm,
Watson Wyatt and Company (Watson Wyatt). In
addition, the Compensation Committee reviews available
information, including information published in secondary
sources, regarding prevailing salaries and compensation programs
offered to chief executive officers by businesses that are
comparable to Ultimate in terms of size and industry group.
Included in this group were the following companies: Concur
Technologies Inc., Epicor Software Corporation, SI Corporation,
NIC Inc., Art Technology Group, Inc., Vocus, Inc., Real
Networks, Inc., J2 Global Communications, Ariba,Inc., and
Websense, Inc. Generally, the Chief Executive Officer provides
recommendations for other executive officer compensation changes
to the Compensation Committee for its review. Ultimates
objective is generally to set the Total Compensation of the
executive officers of Ultimate in the broad middle range of
comparable sized companies. The Compensation Committee believes
Total Compensation for each of the executive officers is
competitive with other software and technology companies of
comparable size.
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Assessment of Ultimates Performance. The
Compensation Committee uses Ultimates performance measures
in establishing total compensation ranges. The Compensation
Committee may consider various measures of Ultimates
performance, including sales, earnings per share and growth in
recurring revenue. The Compensation Committee makes a subjective
determination after considering such measures collectively. In
addition, as described in more detail below, the Compensation
Committee may grant performance awards under a formula provided
for under the Plan. Such awards shall represent the right to
receive a payment in cash or equity if performance goals
established by the Compensation Committee for a certain
performance period are satisfied.
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Assessment of Individual Performance. Individual
performance has a strong impact on the compensation of all
employees, including the executive officers. The members of the
Compensation Committee meet with the Chief Executive Officer,
and then meet in executive session, when compensation is being
considered in order to evaluate the Chief Executive
Officers performance for the year. This evaluation is
considered by the Compensation Committee in setting the Chief
Executive Officers compensation. For the other executive
officers, the Compensation Committee reviews the compensation
recommendation from the Chief Executive Officer and may also
exercise its judgment based on the Compensation Committees
assessment of the performance of such executive officers.
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Components
of Executive Compensation for 2009
Ultimates compensation program balances both the mix of
cash and equity compensation and the mix of currently-paid and
longer-term compensation in a way that furthers the compensation
objectives discussed above. Following is a discussion of the
Compensation Committees considerations in establishing
each of the components for the executive officers.
16
Base
Salary
Base salary is the fixed element of employees annual cash
compensation. Our executive compensation program is designed to
align executive performance with the financial and strategic
objectives of Ultimate, to reward executive management for the
successful performance of these objectives and to encourage the
executives to be focused on building long-term success.
Therefore, a portion of these employees total compensation
is performance-based.
The Compensation Committee annually reviews and determines the
base salary of the Chief Executive Officer and the base salaries
of the other executive officers based on the recommendations of
the Chief Executive Officer. Base salaries are generally
adjusted to reflect promotions, increases in responsibilities
and competitive considerations. In order to attract and retain
qualified executives, Ultimate provides base salaries it
considers to be competitive.
While determining the base salary for Ultimates President
and Chief Executive Officer, Mr. Scott Scherr, for 2009,
the Compensation Committee reviewed the current and long term
incentive compensation of the chief executive officers of
certain software and technology companies, referred to above,
that have market capitalizations comparable to that of Ultimate.
This information provided the basis of a competitive review of
Mr. Scherrs compensation; however, the Compensation
Committee did not attempt to benchmark
Mr. Scherrs base salary against the base salary of
these or other chief executive officers. Instead, the
Compensation Committee exercised its own judgment based upon
Mr. Scherrs personal performance, in particular his
successful leadership of Ultimate with a business strategy
focused on maximizing recurring revenue streams by selling
Ultimates UltiPro software offerings primarily on a
recurring revenue basis. During the Compensation
Committees evaluation of Mr. Scherrs
performance as of October 2008, Mr. Scherr stated that he
and Mr. Marc D. Scherr had determined that they would not
request or accept an increase in their base salaries for 2009,
particularly in view of the state of the economy. However, in
February 2009, based on the 2008 accomplishments of Ultimate,
including the growth of new annual recurring revenues, the
development of Ultimates Workplace offering for midmarket
customers and customer and employee retention, and taking into
consideration the salaries of the chief executive officers of
certain other companies including Concur Technologies Inc. and
Epicor Software Corporation, the Compensation Committee
increased Mr. Scherrs base salary from $630,000 in
2008 to $700,000 for 2009.
The Compensation Committee reviewed with Mr. Scott Scherr
the performance of Mr. Marc D. Scherr as Ultimates
Vice Chairman and Chief Operating Officer in overseeing
Ultimates strategic and operational activities. As
discussed above, in October 2008, Mr. Marc D. Scherr
advised the Compensation Committee that he would not accept an
increase in his base salary for 2009. However, in February 2009,
based on the 2008 accomplishments of Ultimate described above,
Mr. Scott Scherr recommended and the Compensation Committee
determined that Mr. Marc D. Scherrs base salary would
be increased from $575,000 in 2008 to $625,000 for 2009. The
Compensation Committee also reviewed with Mr. Scott Scherr
the performance of Mr. Dauerman as Ultimates Chief
Financial Officer, including his oversight of financial and
accounting functions and Ultimates relationships with the
investment community. Based upon Mr. Scott Scherrs
recommendation and its review with him, the Compensation
Committee determined that Mr. Mitchell K. Dauermans
base salary should be increased from $450,000 in 2008 to
$475,000 for 2009.
Incentive
Compensation
From time to time, on a discretionary basis, the Compensation
Committee approves (i) incentive performance awards payable
in cash and tied to the achievement of performance goals
(Cash Bonuses); and (ii) long-term stock-based
incentive compensation. In order to provide incentives to new
employees and in recognition of superior performance, promotions
and increased responsibilities of executive officers and
employees, Ultimate provides long-term stock-based incentive
compensation payable through the issuance of (i) options to
purchase shares of Ultimates
17
Common Stock (Stock Options); (ii) Restricted
Stock Awards;
and/or
(iii) Stock Unit Awards (collectively, Stock-Based
Compensation). All employees of Ultimate are eligible for
discretionary Cash Bonuses and Stock-Based Compensation, based
on their individual achievement of performance goals and as
approved by the Compensation Committee.
Incentive Performance Awards
The Compensation Committee may grant performance awards under
the Plan, which shall represent the right to receive a payment
in cash or equity if the performance goals established by the
Compensation Committee for a performance period are satisfied.
At the time a performance award is granted, the Compensation
Committee shall determine, in its sole discretion, the
applicable performance period and performance goals to be
achieved during the performance period, as well as such other
conditions as the Compensation Committee deems appropriate. The
Compensation Committee may also determine a target payment
amount or a range of payment amounts for each award. The
performance goals applicable to a performance award grant may be
subject to adjustments as the Compensation Committee shall deem
appropriate to reflect significant unforeseen events, such as
changes in law, accounting practices or unusual or nonrecurring
items or occurrences. At the end of the performance period, the
Compensation Committee shall determine the extent to which
performance goals have been attained, or a degree of achievement
between minimum and maximum levels, in order to establish the
level of payment to be made, if any.
In February 2009, the Compensation Committee approved grants of
contingent cash Performance Awards (as defined in the Plan) to
certain members of senior management, including our named
executive officers, Mr. Scott Scherr, Mr. Marc D.
Scherr and Mr. Mitchell K. Dauerman. Pursuant to this
grant, the aggregate amount of the Performance Awards, subject
to the maximum referred to below, was equal to the excess, if
any, of (A) Ultimates pretax operating income, as
reflected in its audited financial statements for the year ended
December 31, 2009, adjusted to add back the charges for
such Performance Awards, as well as the charges for non-cash
stock based compensation expense and non-cash amortization of
acquired intangible assets, over (B) $12,870,000. The
maximum aggregate amount of the Performance Awards granted was
$1,500,000. The respective percentages of the aggregate
Performance Awards to Mr. Scherr, Marc D. Scherr and
Mr. Dauerman were 20%, 15% and 10% respectively. The
remainder of the aggregate Performance Awards were awarded to
other members of senior management. Based upon the audited
financial statements of Ultimate for the year ended 2009 and the
formula described in (A) and (B) above, Mr. Scott
Scherr, Mr. Marc D. Scherr and Mr. Mitchell K.
Dauerman received cash Performance Awards of $33,339, $25,004
and $16,669, respectively, in March 2010 for Ultimates
2009 performance. The Compensation Committee did not grant to
Mr. Scherr, Marc D. Scherr or Mr. Dauerman a Cash
Bonus opportunity for performance in 2008.
Long-Term Stock-Based Incentive Compensation
Ultimate grants long-term equity incentives in the form of
Stock-Based Compensation that converts into shares of Common
Stock. The Compensation Committee has sole discretion in
awarding stock awards and does not delegate such authority to
our management nor does our management have the ability to
select or influence stock award grant dates. Beginning in 2009,
Ultimate commenced granting Restricted Stock Unit Awards to its
employees and discontinued new grants of Stock Options under the
Plan. Such Restricted Stock Unit Awards vest in three equal
annual installments of
331/3%
of the number of Restricted Stock Unit Awards on each of the
first three anniversaries of the date of grant thereof, subject
to the participants continued employment with Ultimate or
any of its subsidiaries on each such vesting date, and shall be
payable in Common Stock or cash, provided, however, that if any
such anniversary is not a date on which Ultimates Common
Stock is traded on NASDAQ, then the vesting date shall be the
next such date; and provided further, however, that if the Chief
Financial Officer (CFO) of Ultimate should determine
that any such anniversary falls within a period during which the
participant is prohibited from trading Ultimates Common
Stock under Ultimates stock trading policy, the CFO shall
so advise the
18
participant in writing and the vesting date shall be the date as
of which the CFO has determined that such period has ended.
During 2009, the Compensation Committee provided long-term
stock-based incentive compensation to Mr. Scott Scherr,
based on his performance, as discussed above, his level of
equity ownership in Ultimate and the determination by the
Compensation Committee to increase the equity related component
of executive compensation, consistent with the recommendations
of Watson Wyatt. During 2009, Mr. Scherr received one grant
of a Restricted Stock Award for 50,000 restricted shares of
Common Stock.
During 2009, the Compensation Committee provided long-term
stock-based incentive compensation to Mr. Marc D. Scherr
based on his performance, as discussed above, his level of
equity ownership in Ultimate and the determination by the
Compensation Committee to increase the equity related component
of executive compensation, consistent with the recommendations
of Watson Wyatt. During 2009, Mr. Scherr received one grant
of a Restricted Stock Award for 25,000 restricted shares of
Common Stock.
During 2009, the Compensation Committee provided long-term
stock-based incentive compensation to Mr. Mitchell K.
Dauerman based on his performance as discussed above, his level
of equity ownership in Ultimate and the determination by the
Compensation Committee to increase the equity related component
of executive compensation, consistent with the recommendations
of Watson Wyatt. During 2009, Mr. Dauerman received one
grant of a Restricted Stock Award for 15,000 restricted shares
of Common Stock.
Holders of Restricted Stock Awards have all rights of a
stockholder including the right to vote the shares and receive
all dividends and other distributions paid or made with respect
thereto. Each Restricted Stock Award becomes vested on the
fourth anniversary of the respective date of grant, subject to
the grantees continued employment with Ultimate or any
subsidiary on each such vesting date.
Holders of Stock Unit Awards do not have any rights as a
stockholder with respect to the shares subject to a Stock Unit
Award until such time as shares of Common Stock are delivered to
the participant pursuant to the terms of the award agreement.
Severance
Benefits
Except as described below, Ultimate is not obligated to pay
severance or other enhanced benefits to executive officers upon
termination of their employment.
The Board has adopted two Amended and Restated Change in Control
Bonus Plans (first adopted in March 2004). One Change in Control
Bonus Plan provides for the payment of cash amounts to
Ultimates three named executive officers upon a
change in control of Ultimate. The other Change in
Control Bonus Plan provides for the payment of cash amounts in
the event of a change in control to employees other
than the named executive officers of Ultimate as designated by
the Compensation Committee. (The two Amended and Restated Change
in Control Bonus Plans are hereinafter referred to collectively
as the CIC Plan.) A change in control
would occur (i) if Ultimate were to complete a
consolidation or merger pursuant to which the stockholders of
Ultimate immediately prior to the merger or consolidation did
not have beneficial ownership of 50% or more of the combined
voting power of Ultimates securities outstanding
immediately after the merger or consolidation, (ii) if
Ultimate were to sell, lease or transfer all or substantially
all of its assets or business or (iii) if beneficial
ownership of more than 50% of Ultimates Common Stock were
acquired by a person or entity other than Ultimate, a subsidiary
or an employee benefit plan of Ultimate.
The amount of the payments to be made to the executive officers
under the CIC Plan is based upon the gross consideration
received by Ultimate or its stockholders in the change in
control transaction (the CIC Consideration). The
aggregate amount of payments (including the gross up
19
payments described below) that may be made to all participants
under the CIC Plan may not exceed 6% of the CIC Consideration.
To the extent this limit would otherwise be exceeded, the
Compensation Committee would reduce one or more payments in its
discretion in the manner that it determines to be equitable. No
payments will be made under the CIC Plan to any participant
whose employment with Ultimate is terminated prior to the
consummation of the change in control transaction.
In adopting the CIC Plan, the Board determined not to require
that only participants whose employment was terminated in
connection with a change in control would be eligible to receive
the CIC Consideration. The view of the Board upon adoption of
the CIC Plan was that the ownership of equity in Ultimate by
executives and employees was relatively small and that the CIC
Consideration would provide a fair and reasonable means by which
they could participate with stockholders in connection with a
change in control. In addition, it was the view of the Board
that these payment arrangements would encourage executives and
employees to remain with Ultimate during a period of uncertainty
in connection with a proposed change of control.
Under the CIC Plan, Messrs. Scott Scherr, Marc D. Scherr
and Mitchell K. Dauerman would be entitled to payments equal to
1.75%, 1.3125% and 0.4375%, respectively, of the CIC
Consideration. To the extent that change in control payments to
these individuals, whether under the CIC Plan or otherwise,
would exceed the limitations of Section 280G of the
Internal Revenue Code of 1954, as amended (the
Code), they would be entitled to receive an
additional gross up payment to indemnify them for
the effect of the resulting excise tax imposed on the
individuals, subject to the 6% aggregate limitation referred to
above. Assuming that there was a change in control on
December 31, 2009, at the closing price of Ultimates
Common Stock on NASDAQ on the last trading day of the year,
Messrs. Scott Scherr, Marc D. Scherr and Mitchell K.
Dauerman would have been entitled to receive approximately
$16.6 million, $12.4 million and $4.0 million,
respectively, inclusive of amounts in respect of such
gross up under the CIC Plan.
The Board may amend or terminate the CIC Plan at any time,
provided that any resulting reduction in a participants
right to payments is compensated for by an arrangement of
comparable or greater value. Unless terminated sooner by the
Board, the CIC Plan will automatically terminate on
July 23, 2012.
Accelerated
Vesting
In addition to the severance provisions described above,
Ultimates Stock-Based Compensation for our executive
officers is subject to accelerated vesting under certain
circumstances described below.
Stock Options. Ultimates stock options issued to
the executive officers pursuant to the Prior Plan and the Plan
ordinarily vest 25% on the date of grant and 25% on each of the
first three anniversaries of the date of grant, subject to each
executive officers continued employment with Ultimate.
However, pursuant to the terms of the Prior Plan and the
Nonqualified Stock Option Award Agreements entered into between
Ultimate and the executive officers under the Plan, in the event
of death, disability or a change in control of Ultimate (each,
an Accelerated Vesting Occurrence), each executive
officers unvested stock options under the Prior Plan and
the Plan would immediately vest and become fully exercisable.
Stock options held by Messrs. Scott Scherr, Marc D. Scherr
and Mitchell K. Dauerman were fully vested as of
December 31, 2009.
Restricted Stock Awards. Ultimates shares of
restricted stock issued pursuant to the Plan ordinarily vest on
the fourth anniversary of the date of grant, subject to each
executive officers continued employment with Ultimate.
However, pursuant to the terms of the Restricted Stock Award
Agreements entered into between Ultimate and the executive
officers under the Plan, in the event of an Accelerated Vesting
Occurrence, each executive officers shares of unvested
restricted stock would immediately vest. Assuming that there was
an Accelerated Vesting Occurrence on December 31, 2009, the
unvested shares of restricted stock held by Messrs. Scott
Scherr, Marc D.
20
Scherr and Mitchell K. Dauerman would have automatically vested
and they would have been entitled to receive amounts equal to
the value of $17,562,878, $12,441,015 and $1,762,200,
respectively, as a result of such acceleration. These amounts
are derived from the per share Year End Fair Market Value (as
defined below) of the Common Stock multiplied by the number of
shares being accelerated. In addition, pursuant to the terms of
the Restricted Stock Award Agreements entered into between
Ultimate and the executive officers under the Plan, in the event
an executive officers employment is terminated by Ultimate
without cause (a Termination Without Cause
Occurrence), 1/48th (one forty-eighth) of the shares
of restricted stock for each complete month of continued
employment by the executive officer with Ultimate following the
applicable dates of grant would immediately vest. Assuming that
there was a Termination Without Cause Occurrence on
December 31, 2009, a portion of the unvested shares of
restricted stock held by Messrs. Scott Scherr, Marc D.
Scherr and Mitchell K. Dauerman would have automatically vested
on a pro rated basis as described above and they would have been
entitled to receive amounts equal to the value of $8,522,040,
$6,283,663 and $734,250, respectively, as a result of such
acceleration. These amounts are derived from the per share fair
market value of the Common Stock, at the closing price of the
Common Stock on NASDAQ on the last trading day of 2009 (the
Year End Fair Market Value) multiplied by the pro
rated number of shares being accelerated.
Stock Units. Ultimates stock units
attributable to Ultimates matching contribution of a
portion of cash bonuses voluntarily deferred by an executive
officer under the Plan ordinarily vest on the fourth anniversary
of the date of grant, subject to each executive officers
continued employment with Ultimate. However, pursuant to the
terms of the Stock Unit Award Agreements entered into between
Ultimate and the executive officers under the Plan, in the event
of an Accelerated Vesting Occurrence, each executive
officers unvested stock units would immediately vest and
become fully exercisable. Assuming that there was an Accelerated
Vesting Occurrence on December 31, 2009, the unvested stock
units held by Messrs. Scott Scherr and Marc D. Scherr would
have automatically vested and they would have been entitled to
receive amounts equal to the value of $244,067 and $197,694,
respectively, as a result of such acceleration. These amounts
are derived from the per share Year End Fair Market Value of the
Common Stock multiplied by the number of shares subject to the
stock units being accelerated.
In addition, pursuant to the terms of the Stock Unit Award
Agreements entered into between Ultimate and the executive
officers under the Plan, in the event of a Termination Without
Cause Occurrence, 1/48th (one forty-eighth) of the stock
units for each complete month of continued employment by the
executive officer with Ultimate following the applicable dates
of grant would immediately vest and become fully exercisable.
Assuming that there was a Termination Without Cause Occurrence
on December 31, 2009, a portion of the unvested stock units
held by Messrs. Scott Scherr and Marc D. Scherr would have
automatically vested on a pro rated basis as described above and
they would have been entitled to receive amounts equal to the
value of $211,444 and $171,270, respectively, as a result of
such acceleration. These amounts are derived from the per share
Year End Fair Market Value of the Common Stock multiplied by the
pro rated number of shares subject to the stock units being
accelerated.
Tax
Deductibility of Executive Compensation
In general, Section 162(m) of the Code disallows a
deduction for any compensation paid in excess of $1 million
during a calendar year to any of the chief executive officer and
the four most highly paid executive officers of publicly held
companies, subject to an exception for compensation that
qualifies as performance-based compensation. The
Compensation Committee has endeavored, to the extent it deems
consistent with the best interests of Ultimate and its
stockholders, to obtain maximum deductibility of compensation
paid to executive officers. For example, awards of stock options
under the Plan satisfy the requirements for performance-based
compensation under Section 162(m). However, the
Compensation Committee also recognizes the need to retain
flexibility to make compensation decisions that may not meet
Section 162(m) standards when necessary to enable Ultimate
to meet its overall objectives, even if Ultimate may not
21
deduct all of the compensation. Accordingly, the Compensation
Committee will award non-deductible compensation in appropriate
circumstances. For 2009, all of the compensation paid by
Ultimate was tax deductible, consistent with the limitations of
Section 162(m) other than a portion of the compensation
related to Restricted Stock Awards that vested in 2009 and are
disclosed in the table entitled Option Exercises and Stock
Vested in 2009 on page 26.
Employee
Benefits
Ultimate offers core employee benefits coverage in order to
provide our workforce with a reasonable level of financial
support in the event of illness or injury, and to enhance
productivity and job satisfaction through programs that focus on
work/life balance.
The benefits available are the same for all U.S. employees
and executive officers and include medical and dental coverage,
disability insurance, and life insurance. In addition, our
401(k) Plan provides a reasonable level of retirement income
reflecting employees careers with Ultimate. All
U.S. employees, including executive officers, participate
in these plans.
The cost of post-employment benefits is partially borne by the
employee, including each executive officer.
Perquisites
Ultimate does not provide significant perquisites or personal
benefits to executive officers.
Summary
Compensation Table
The following table sets forth information, for the fiscal years
ended December 31, 2009, 2008 and 2007, regarding the
aggregate compensation we paid to our named executive officers:
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($)
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($)
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($)
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($)
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Name and
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Stock
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Option
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Non-Equity
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All Other
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Principal
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($)
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($)
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Awards
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Awards
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Incentive Plan
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Compensation
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($)
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Position
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Year
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Salary
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Bonus
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(1)
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(2)
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Compensation
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(3)
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Total
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Scott Scherr
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Chairman of the Board,
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2009
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$700,000
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$
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$1,381,500
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$
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$33,339
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$4,950
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$2,119,789
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President and Chief
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2008
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630,000
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3,091,097
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4,650
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3,725,747
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Executive Officer
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2007
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600,000
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7,716,239
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3,875
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8,320,114
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Marc D. Scherr
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|
|
|
|
|
|
|
|
|
|
|
|
Vice Chairman
|
|
|
2009
|
|
|
|
$625,000
|
|
|
|
$
|
|
|
|
$690,750
|
|
|
|
$
|
|
|
|
$25,004
|
|
|
|
$4,950
|
|
|
|
$1,345,704
|
|
and Chief
|
|
|
2008
|
|
|
|
575,000
|
|
|
|
|
|
|
|
2,237,411
|
|
|
|
|
|
|
|
|
|
|
|
4,650
|
|
|
|
2,817,061
|
|
Operating Officer
|
|
|
2007
|
|
|
|
550,000
|
|
|
|
|
|
|
|
5,525,371
|
|
|
|
|
|
|
|
|
|
|
|
3,875
|
|
|
|
6,079,246
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell K. Dauerman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Vice
|
|
|
2009
|
|
|
|
$475,000
|
|
|
|
$
|
|
|
|
$414,450
|
|
|
|
$
|
|
|
|
$16,669
|
|
|
|
$4,950
|
|
|
|
$911,069
|
|
President, Chief
|
|
|
2008
|
|
|
|
450,000
|
|
|
|
|
|
|
|
220,800
|
|
|
|
|
|
|
|
|
|
|
|
4,650
|
|
|
|
675,450
|
|
Financial Officer
|
|
|
2007
|
|
|
|
412,500
|
|
|
|
50,000
|
|
|
|
523,350
|
|
|
|
|
|
|
|
|
|
|
|
3,875
|
|
|
|
989,725
|
|
and Treasurer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Includes shares of Common Stock subject to Restricted Stock
Awards granted to the executive in 2009, 2008 and 2007 under
Restricted Stock Award agreements. The total number of
restricted shares of Common Stock issued to Messrs. Scott
Scherr, Marc D. Scherr and Mitchell K. Dauerman in 2009 was
50,000, 25,000 and 15,000, respectively. In accordance with ASC
718, the grant date fair value of such shares was $1,381,500,
$690,750 and $414,450, respectively. The aggregate number of
restricted shares of Common Stock issued to Messrs. Scott
Scherr, Marc D. Scherr and Mitchell K. Dauerman in 2008 was
209,993, 151,998 and 15,000, respectively. In accordance with
ASC 718, the grant date fair value of such shares was
$3,091,097, $2,237,411 and $220,800, respectively. The aggregate
number of restricted shares of Common Stock issued to
Messrs. Scott Scherr, Marc D. Scherr and Mitchell K.
|
22
|
|
|
Dauerman in 2007 was 227,994, 166,598 and 15,000, respectively.
In accordance with ASC 718, the grant date fair value of such
shares was $7,482,511, $5,336,054 and $523,350, respectively.
The restricted shares granted in 2009, 2008 and 2007 vest upon
the fourth anniversary of the respective date of grant, subject
to the executives continued employment by Ultimate, or a
subsidiary, on the vesting date and subject further to
accelerated vesting in the event of a Change in Control of
Ultimate, the executives death or disability or the
termination of the executives employment by Ultimate
without cause. In the cases of Messrs. Scott Scherr and
Marc D. Scherr, for 2007, the grants of Stock Unit Awards were
made in lieu of 50% of their cash performance bonuses earned for
2006 performance that they elected to defer pursuant to the
Plan. Upon their election to defer 50% of their earned cash
bonuses, Ultimate matched 50% of the amounts deferred by
Messrs. Scott Scherr and Marc D. Scherr, payable in Stock
Unit Awards and included herein. The aggregate number of Stock
Unit Awards issued to Messrs. Scott Scherr and Marc D.
Scherr in 2007 (for performance in 2006) was 9,173 and
7,430, respectively. The total amount in the Stock
Awards column above represents the grant date fair value
of both Restricted Stock Awards and Stock Unit Awards for each
executive officer (excluding forfeiture assumptions) in
accordance with ASC 718. A discussion of the assumptions used in
calculating these values may be found in Note 16 on pages
51-56 of
Ultimates Annual Report on
Form 10-K
filed with the SEC on March 5, 2010.
|
|
|
(2)
|
There were no option awards granted in 2009, 2008 or 2007.
|
|
(3)
|
Consists of contributions by Ultimate to Ultimates 401(k)
Plan on behalf of the executive officers indicated.
|
23
Grants of
Plan-Based Awards in 2009
The following table provides information concerning the Stock
Based Compensation awards and cash bonus awards made to the
named executive officers in fiscal 2009 under the Plan.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number
|
|
|
|
|
|
|
|
|
Estimated Possible Payouts
|
|
of
|
|
|
|
|
|
|
|
|
Under Non-Equity Incentive
|
|
Shares
|
|
|
|
|
|
|
Compensation
|
|
Plan Awards (1)
|
|
of Stock
|
|
Grant Date
|
|
|
Grant
|
|
Committee
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
or Units
|
|
Fair Value
|
Name
|
|
Date
|
|
Action Date
|
|
($)
|
|
($)
|
|
($)
|
|
(#)
|
|
($)
|
|
|
|
|
|
|
|
|
Scott Scherr
|
|
11/6/2009
|
|
|
10/26/2009
|
|
|
$
|
0
|
|
|
|
|
|
|
$
|
300,000
|
|
|
|
50,000
|
|
|
|
$1,381,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marc D. Scherr
|
|
11/6/2009
|
|
|
10/26/2009
|
|
|
$
|
0
|
|
|
|
|
|
|
$
|
225,000
|
|
|
|
25,000
|
|
|
|
$690,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell K. Dauerman
|
|
11/6/2009
|
|
|
10/26/2009
|
|
|
$
|
0
|
|
|
|
|
|
|
$
|
150,000
|
|
|
|
15,000
|
|
|
|
$414,450
|
|
|
|
|
|
(1)
|
These columns show the threshold and maximum payouts under the
Plan for cash Performance Awards. The Awards do not provide for
any target amount. For a description of these Performance
Awards, see Compensation Discussion and
Analysis Incentive Compensation
Incentive Performance Awards.
|
Ultimate has no employment agreements with its executive
officers.
The material factors necessary to understand each of the awards
listed in the Grants of Plan-Based Awards in the 2009 table are
discussed in detail above under the heading Compensation
Discussion and Analysis under the subheading
Incentive Compensation.
24
Outstanding
Equity Awards at 2009 Fiscal Year-End
The following table sets forth, for Ultimates Chief
Executive Officer and all other executive officers of Ultimate,
certain information concerning unexercised Stock Options; stock
that has not vested; and equity incentive plan awards as of the
end of Ultimates last completed fiscal year:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Number of
|
|
|
|
|
|
|
|
|
Stock Awards
|
|
|
|
|
|
|
Securities
|
|
|
Securities
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
|
|
|
Shares or
|
|
|
Market Value of
|
|
|
|
|
|
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Option
|
|
|
Option
|
|
|
|
|
|
Units That
|
|
|
Shares or Units
|
|
|
Vest Date of
|
|
|
|
|
|
|
Options
|
|
|
Options
|
|
|
Exercise
|
|
|
Expiration
|
|
|
|
|
|
Have Not
|
|
|
That Have Not
|
|
|
Stock
|
|
|
|
|
Name
|
|
Exercisable (#)
|
|
|
Unexercisable (#)
|
|
|
Price ($)
|
|
|
Date
|
|
|
|
|
|
Vested (#)
|
|
|
Vested ($)(3)
|
|
|
Awards
|
|
|
|
|
|
|
|
|
|
|
Scott Scherr
|
|
|
100,000
|
|
|
|
|
|
|
$
|
13.05
|
|
|
|
10/20/2014
|
|
|
|
(1
|
)
|
|
|
60,000
|
|
|
|
1,762,200
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
80,000
|
|
|
|
|
|
|
|
15.90
|
|
|
|
5/17/2015
|
|
|
|
(1
|
)
|
|
|
5,252
|
|
|
|
154,251
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
1,468,500
|
|
|
|
10/23/2010
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,058
|
|
|
|
89,813
|
|
|
|
2/7/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000
|
|
|
|
1,762,200
|
|
|
|
5/15/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
167,994
|
|
|
|
4,933,984
|
|
|
|
10/23/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
209,993
|
|
|
|
6,167,494
|
|
|
|
10/27/2012
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
1,468,500
|
|
|
|
11/6/2013
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marc D. Scherr
|
|
|
100,000
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/7/2011
|
|
|
|
(1
|
)
|
|
|
4,254
|
|
|
|
124,940
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
48,417
|
|
|
|
|
|
|
|
3.49
|
|
|
|
1/2/2013
|
|
|
|
(1
|
)
|
|
|
45,000
|
|
|
|
1,321,650
|
|
|
|
2/8/2010
|
|
|
|
(2
|
)
|
|
|
|
50,000
|
|
|
|
|
|
|
|
9.40
|
|
|
|
10/31/2013
|
|
|
|
(1
|
)
|
|
|
35,000
|
|
|
|
1,027,950
|
|
|
|
10/23/2010
|
|
|
|
(2
|
)
|
|
|
|
75,000
|
|
|
|
|
|
|
|
13.05
|
|
|
|
10/20/2014
|
|
|
|
(1
|
)
|
|
|
45,000
|
|
|
|
1,321,650
|
|
|
|
2/6/2011
|
|
|
|
(2
|
)
|
|
|
|
60,000
|
|
|
|
|
|
|
|
15.90
|
|
|
|
5/17/2015
|
|
|
|
(1
|
)
|
|
|
2,477
|
|
|
|
72,749
|
|
|
|
2/7/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
121,598
|
|
|
|
3,571,333
|
|
|
|
10/23/2011
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
151,998
|
|
|
|
4,464,181
|
|
|
|
10/27/2012
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,000
|
|
|
|
734,250
|
|
|
|
11/6/2013
|
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mitchell K. Dauerman
|
|
|
30,000
|
|
|
|
|
|
|
|
3.38
|
|
|
|
2/7/2011
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
440,550
|
|
|
|
10/23/2010
|
|
|
|
(2
|
)
|
|
|
|
11,751
|
|
|
|
|
|
|
|
3.49
|
|
|
|
1/2/2013
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
440,550
|
|
|
|
10/23/2011
|
|
|
|
(2
|
)
|
|
|
|
20,000
|
|
|
|
|
|
|
|
9.40
|
|
|
|
10/31/2013
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
440,550
|
|
|
|
10/27/2012
|
|
|
|
(2
|
)
|
|
|
|
25,000
|
|
|
|
|
|
|
|
13.05
|
|
|
|
10/20/2014
|
|
|
|
(1
|
)
|
|
|
15,000
|
|
|
|
440,550
|
|
|
|
11/6/2013
|
|
|
|
(2
|
)
|
|
|
(1)
|
All such options vest and become exercisable in equal annual
installments, each of which shall relate to 25% of the number of
shares of Common Stock subject to such Stock Option, on the
respective dates of grant and each of the first three
anniversaries thereof, subject to the optionees continued
employment with Ultimate or any Subsidiary on each such vesting
date or accelerated vesting in the event of a Change in Control
of Ultimate, death, disability or termination of employment by
Ultimate without cause. All such options expire ten years from
the date of grant.
|
(2)
|
All such restricted stock grants and the matching portion of the
restricted stock units fully vest on the fourth anniversary of
the date of grant subject to accelerated vesting in the event of
a Change in Control of Ultimate, death, disability or
termination of employment by Ultimate without cause.
|
(3)
|
The market value of the unvested equity incentive plan awards
was calculated based on the closing market price of
Ultimates stock at the end of the last completed fiscal
year. The closing price of Ultimates stock on NASDAQ on
December 31, 2009 was $29.37.
|
25
Option
Exercises and Stock Vested in 2009
The following table sets forth, for Ultimates Chief
Executive Officer and all other executive officers of Ultimate,
certain information concerning each exercise of Stock Options,
and each vesting of stock, including restricted stock, stock
units and similar instruments, during the last completed fiscal
year:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
|
|
|
(#)
|
|
|
|
|
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(#)
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Number of
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($)
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Number of
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($)
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Shares
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Value
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Shares
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Value
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Acquired on
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Realized
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Acquired on
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Realized on
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Name
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Exercise
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on Exercise (1)
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Vesting
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Vesting (2)
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Scott Scherr
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$
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70,000
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$
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1,818,600
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Marc D. Scherr
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50,000
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693,788
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40,000
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997,700
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Mitchell K. Dauerman
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50,000
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859,176
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10,000
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293,000
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(1) Amounts reflect the difference between the exercise
price of the Stock Option and the market price of the underlying
shares at the time of the exercise.
(2) Amounts reflect the fair market value on the date of
vesting. Messrs. Scott Scherr and Marc D. Scherr had
Restricted Stock Awards vest on May 17, 2009 and
October 18, 2009. Mr. Mitchell K. Dauerman had
Restricted Stock Awards vest on October 18, 2009. The
closing price of Ultimates stock on NASDAQ on May 17,
2009 and October 18, 2009 was $17.68 and $29.30,
respectively.
Relationship
between Compensation Policies and Risk Management
Ultimates management has reviewed Ultimates
compensation policies and practices for all employees and does
not believe that there are any risks arising from such
compensation policies and practices that are reasonably likely
to have a material adverse effect on Ultimate.
COMPENSATION
COMMITTEE REPORT
The Compensation Committee has reviewed and discussed with
Ultimates management the disclosure set forth under the
heading Compensation Discussion and Analysis
appearing on pages 15 to 27 of this Proxy Statement. Based on
such review and discussions, the Compensation Committee has
recommended to the Board that such Compensation Discussion
and Analysis be included in this Proxy Statement.
LeRoy A. Vander Putten, Chairman
Rick A. Wilber
Robert A. Yanover
Alois T. Leiter
Members of the Compensation Committee
AUDIT
COMMITTEE REPORT
The Audit Committee is composed of three non-employee directors,
Messrs. Robert A. Yanover (Chairman), LeRoy A. Vander
Putten and Rick A. Wilber, and operates under a written charter
adopted by the Board, a copy of which is available on
Ultimates website at www.ultimatesoftware.com. The Audit
Committee oversees Ultimates financial reporting process
on behalf of the Board, reviews the independence of
Ultimates auditors and fulfills the other
26
responsibilities provided for in its charter. The Audit
Committee has sole authority to appoint the independent auditors
and terminate their engagement.
Management is responsible for Ultimates consolidated
financial statements, systems of internal control and the
financial reporting process. Ultimates independent
registered public accounting firm, KPMG LLP, is responsible for
performing an independent audit of Ultimates consolidated
financial statements and expressing an opinion on the conformity
of those consolidated financial statements with generally
accepted accounting principles. In addition, KPMG was
responsible for expressing an opinion on Ultimates
internal control over financial reporting based on their audit
as of December 31, 2009. The Audit Committees
responsibility is to monitor and oversee these processes.
The Audit Committee has implemented procedures to ensure that
during the course of each fiscal year it devotes the attention
it deems necessary or appropriate to fulfill its oversight
responsibilities under the Audit Committees charter. To
carry out its responsibilities, the Audit Committee held four
meetings during fiscal 2009.
The Audit Committee hereby reports as follows:
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1.
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The Audit Committee reviewed and discussed the audited
consolidated financial statements with management and has met
with the independent registered public accounting firm, KPMG
LLP, with and without management present, to discuss the results
of their fiscal 2009 examination, their evaluation of
Ultimates internal controls, and the overall quality of
Ultimates financial reporting.
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2.
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The Audit Committee discussed with KPMG LLP the matters required
to be discussed by Statement on Auditing Standards No. 61,
Communication with Audit Committees, as amended.
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3.
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The Audit Committee reviewed the written disclosures and the
letter received from KPMG LLP required by applicable
requirements of the Public Company Accounting Oversight Board
regarding the independent accountants communications with
the Audit Committee concerning independence and discussed with
KPMG LLP that firms independence from Ultimate and its
management, including whether the independent auditors
provision of non-audit services to Ultimate are compatible with
maintaining their independence.
|
In reliance on the reviews and discussions referred to above,
the Audit Committee recommended to the Board that
Ultimates audited consolidated financial statements as of
and for the year ended December 31, 2009 be included in
Ultimates Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 for filing with
the SEC, which occurred on March 5, 2010.
Robert A. Yanover, Chairman
LeRoy A. Vander Putten
Rick A. Wilber
Members of the Audit Committee
27
KPMG LLP
FEES
The following table presents fees for professional services
rendered by Ultimates independent registered public
accounting firm, KPMG LLP, for the audit of Ultimates
annual consolidated financial statements and internal control
over financial reporting for the years ended December 31,
2009 and 2008, together with fees billed for other services
rendered by KPMG LLP during those periods.
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2009
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2008
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Audit Fees (1)
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$
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434,000
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$
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441,893
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Audit-Related Fees (2)
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144,000
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147,500
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Tax Fees (3)
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All Other Fees (4)
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Total Fees
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$
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578,000
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$
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589,393
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(1) |
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Consists of the aggregate fees incurred for the audits of
Ultimates consolidated financial statements for fiscal
years 2009 and 2008 and the reviews of Ultimates 2009 and
2008 quarterly reports on
Forms 10-Q.
The audit fees for the years ended December 31, 2009 and
2008 also include fees for services rendered in connection with
Section 404 of the Sarbanes-Oxley Act internal controls
audit work and, to a lesser extent, services performed in
connection with review of Ultimates
Form S-8
in 2009 and the issuance of a consent resulting from such
reviews. During 2009, Ultimate filed a registration statement
with the SEC on Form
S-8 covering
shares of Common Stock issuable under the Plan. |
(2) |
|
Consists of fees incurred for services provided by KPMG LLP in
relation to the issuances of Statement of Auditing Standards
(SAS) 70 service auditors reports during 2009 and 2008. |
(3) |
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There were no fees incurred for tax compliance services during
2009 or 2008. |
(4) |
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Consists of the aggregate fees for products and services
provided by KPMG LLP that were not reported above under
Audit Fees, Audit-Related Fees, or
Tax Fees. Ultimate did not purchase any other
products or services from KPMG LLP during 2009 or 2008. |
28
Audit
Committee Pre-approval of Audit and Permissible Non-Audit
Services of Independent Auditors
Consistent with the SEC requirements regarding auditor
independence, the Audit Committee has adopted a policy to
pre-approve services to be performed by Ultimates
principal independent auditor prior to commencement of the
specified service. Under the policy, the Audit Committee must
pre-approve the provision of services by Ultimates
principal auditor prior to commencement of the specified
service. The requests for pre-approval are submitted to the
Audit Committee by the Chairman of the Board, President and
Chief Executive Officer, the Chief Financial Officer, or a
designee of either with a statement as to whether, in their
view, the request is consistent with the SEC rules on auditor
independence. All of the services performed by KPMG LLP during
2009 and 2008 were pre-approved by the Audit Committee.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Mr. James A. FitzPatrick, Jr. is a partner in the law
firm Dewey & LeBoeuf LLP, which provides legal
services to Ultimate.
Mr. Alois T. Leiter has entered into an agreement with
Ultimate pursuant to which he agreed to (i) attend and
participate in certain internal meetings of Ultimate;
(ii) assist Ultimates salespeople with prospects; and
(iii) act as an official spokesperson for Ultimate in
exchange for which Ultimate agreed to make contributions to
Leiters Landing, a non-profit charitable organization
benefiting children that was formed by Mr. Leiter, in the
amount of one tenth (1/10) of one percent, or 0.1%, of
Ultimates total annual revenue as reported on its
financial statements, such payments not to exceed $200,000 in
any one year.
SECTION 16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires Ultimates
executive officers and directors and persons who beneficially
own more than 10% of Ultimates Common Stock to file
initial reports of ownership and reports of changes in ownership
with the SEC. Such executive officers, directors and greater
than 10% beneficial owners are required by the regulations of
the SEC to furnish Ultimate with copies of all
Section 16(a) reports they file. Based solely on a review
of the copies of such reports furnished to Ultimate and written
representations from the executive officers and directors,
Ultimate believes that all Section 16(a) filing
requirements applicable to its executive officers and directors
and greater than 10% beneficial owners were met during 2009.
STOCKHOLDER
PROPOSALS FOR THE 2011 ANNUAL MEETING OF
STOCKHOLDERS
Under the rules of the SEC, any proposal by a stockholder to be
presented at the 2011 Annual Meeting of Stockholders and to be
included in Ultimates Proxy Statement for such meeting
must be received at Ultimates principal corporate office
at 2000 Ultimate Way, Weston, Florida 33326, no later than the
close of business on December 2, 2010. Proposals should be
sent to the attention of the Secretary of Ultimate. Any such
stockholder proposal must comply with the applicable rules of
the SEC.
Under Ultimates By-Laws, proposals of stockholders not
included in the proxy materials may be presented at the 2011
Annual Meeting of Stockholders only if Ultimates Secretary
has been notified of the nature of the proposal and is provided
certain additional information at least sixty days but not more
than ninety days prior to April 1, 2011, the first
anniversary of the Proxy Statement in connection with the 2010
Annual Meeting of Stockholders (subject to exceptions if the
2011 Annual Meeting is advanced by more than thirty days and the
proposal is a proper one for stockholder action).
29
OTHER
MATTERS
Financial
Statements
A copy of Ultimates Annual Report on
Form 10-K,
for the year ended December 31, 2009, is available on
Ultimates website, www.ultimatesoftware.com.
Other
Ultimate is not aware of any other matters that may come before
the Annual Meeting. If other matters are properly presented at
the Annual Meeting, it is the intention of the persons named as
proxies in the enclosed proxy to vote in accordance with their
best judgment.
By Order of the Board of Directors:
Vivian Maza
Secretary
Weston, Florida
April 1, 2010
30
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Using a black ink pen, mark your
votes
with an X as shown in
this example. Please do not write outside the designated areas.
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x |
Electronic Voting Instructions
You can vote by Internet or telephone!
Available 24 hours a day, 7 days a week!
Instead of mailing your proxy, you may choose one of the
two voting
methods outlined below to vote your proxy.
VALIDATION DETAILS ARE LOCATED BELOW IN THE TITLE BAR.
Proxies submitted by the Internet or telephone must be received by
1:00 a.m., Central Time, on May 11, 2010
Vote by Internet
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Log on to the Internet and go to
www.envisionreports.com/ULTI |
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Follow the steps outlined on the secured website. |
Vote by telephone
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Call toll free 1-800-652-VOTE (8683) within the USA,
US territories & Canada any time on a touch tone
telephone. There is NO CHARGE to you for the call. |
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Follow the instructions provided by the recorded message. |
▼
IF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH
AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
▼
A
Proposals The Board of Directors recommends a vote FOR all the nominees
listed and FOR Proposal 2.
1. To elect two directors to serve until the 2012 Annual Meeting.
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For |
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Withhold |
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Withhold |
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01 - Scott Scherr |
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02 - Alois T. Leiter |
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c
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For |
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Against |
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Abstain |
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2.
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To ratify KPMG LLP as the Companys independent
registered public accounting firm for the fiscal year ending
December 31, 2010. |
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c
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c
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c
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B Non-Voting Items
Change of Address Please
print new address below.
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Meeting Attendance
Mark box to the right if
you plan to attend the
Annual Meeting. |
c |
C Authorized
Signatures This section must be completed for your
vote to be counted. Date and Sign Below
Please sign exactly
as name appears hereon. Joint owners should each sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such.
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Date (mm/dd/yyyy)
Please print date
below.
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Signature 1 Please
keep signature within
the box.
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Signature 2 Please
keep signature within
the box. |
⁄
⁄
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▼
IF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.▼
Proxy The Ultimate Software Group, Inc.
PROXY FOR THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD MAY 11, 2010
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF THE COMPANY
The undersigned, revoking all prior proxies,
hereby appoints Mitchell K. Dauerman and Vivian Maza, with full power of substitution, as proxies to represent
and vote, as designated herein, all the shares of common stock, par value $0.01, of The Ultimate Software Group,
Inc. (the Company) which the
undersigned would be entitled to vote if personally present at the Annual Meeting of Stockholders of the Company to be held at 2000 Ultimate Way, Weston,
Florida, on Tuesday, May 11, 2010, at 10:00 a.m. (EDT), and at any adjournment thereof (the Annual Meeting).
In their discretion, the proxies are authorized to vote upon such other matters as may properly come before the Annual Meeting.
This proxy, when properly executed, will be voted
in the manner directed herein by the undersigned stockholder. IF NO DIRECTION IS GIVEN, THIS
PROXY WILL BE VOTED FOR THE ELECTION AS DIRECTOR OF THE NOMINEES NAMED HEREIN AND FOR THE RATIFICATION OF KPMG LLP
AS THE COMPANYS INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2010.
Attendance of the undersigned at the Annual Meeting will not be deemed to revoke this proxy unless the undersigned shall revoke this proxy in writing or
shall deliver a subsequently dated proxy to the Secretary of the Company prior to the Annual Meeting or shall vote in person at the Annual Meeting.
PLEASE FILL IN, DATE, SIGN AND MAIL
THIS PROXY IN THE ENCLOSED POSTAGE-PAID RETURN ENVELOPE.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE