def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
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Exchange Act of 1934 (Amendment No. )
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MOD-PAC CORP
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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TABLE OF CONTENTS
MOD-PAC CORP.
1801 ELMWOOD AVENUE, BUFFALO, NEW YORK 14207
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
DEAR SHAREHOLDERS:
The Annual Meeting of Shareholders of MOD-PAC CORP. will be held at MOD-PACs Corporate
Headquarters, 1801 Elmwood Avenue, Buffalo, New York, on Tuesday, May 8, 2007 at 10:00
a.m., to consider and take action on the following:
1. To elect the Board of Directors;
2. To ratify the appointment of Ernst & Young LLP as the independent registered public
accounting firm for the Company for the current fiscal year;
3. To consider and vote upon a shareholder proposal recommending the Board of
Directors take action to convert all of the Companys shares of
Class B Stock into shares of Class A Stock; and
4. To transact such other business as may properly come before the meeting or any
adjournment thereof.
The Board of Directors has fixed the close of business on March 21, 2007 as the record date
for the determination of shareholders entitled to notice of, and to vote at, the meeting.
It is important that your shares be represented at the Annual Meeting whether or not you plan
to attend. Accordingly, we request that you vote at your earliest convenience. You may vote by
mail, telephone or internet. Further instructions are contained in the enclosed proxy card.
By Order of the Board of Directors
/s/ John B. Drenning, Secretary
Buffalo, New York
Dated: April 4, 2007
PROXY STATEMENT
FOR
ANNUAL MEETING OF SHAREHOLDERS
MAY 8, 2007
This Proxy Statement and the enclosed form of proxy are furnished to the Shareholders of
MOD-PAC CORP., a New York corporation (MOD-PAC or the Company), in connection with the
solicitation of proxies by the Board of Directors of the Company for use at the Annual Meeting of
Shareholders (the Annual Meeting) to be held on Tuesday, May 8, 2007 at 10:00 a.m., and at any
adjournment thereof, for the purposes set forth in the accompanying Notice of Annual Meeting of
Shareholders. In addition to solicitation by mail, to the extent necessary to ensure sufficient
representation at the Annual Meeting, solicitations may be made by personal interview,
telecommunication by officers and other regular employees of the Company. The cost of this proxy
solicitation will be borne by the Company. It is contemplated that this Proxy Statement and the
related form of proxy will be first sent to shareholders on April 4, 2007.
If the enclosed proxy is properly executed and returned, and the Shareholder specifies a
choice on the proxy, the shares represented thereby will be voted (or withheld from voting) in
accordance with the instructions contained therein. If the proxy is executed and returned but no
specification is made, the proxy will be voted FOR the election of each of the nominees for
director listed below, FOR the proposal to ratify the appointment of independent auditors and
AGAINST the shareholder proposals described herein. The Board of Directors of the Company knows of
no business that will be presented for consideration at the Annual Meeting other than the matters
described in this proxy statement. If any other matters are presented at the Annual Meeting, the
proxy holders will vote the proxies in accordance with their judgment.
A shareholder may revoke any proxy given pursuant to this solicitation at any time prior to
its use, by the Shareholder voting in person at the meeting, by submitting a proxy bearing a date
subsequent to the date on the proxy to be revoked or by written notice to the Secretary of the
Company. A notice of revocation need not be on any specific form.
RECORD DATE AND VOTING SECURITIES
The Board of Directors has fixed the close of business on March 21, 2007 as the record date
for determining the holders of Common Stock and Class B Stock entitled to notice of and to vote at
the meeting. On March 21, 2007, MOD-PAC had outstanding and entitled to vote at the meeting a
total of 2,766,172 shares of Common Stock and 683,260 shares of Class B Stock. Each outstanding
share of Common Stock is entitled to one vote and each outstanding share of Class B Stock is
entitled to ten votes on all matters to be brought before the meeting.
The presence, in person or by proxy, of the holders of a majority of the outstanding shares of
Common Stock and Class B Stock entitled to vote at the Annual Meeting will constitute a quorum.
Each nominee for election as a director requires a plurality of the votes cast in order to be
elected. A plurality means that the nominees with the largest number of votes are elected as
directors up to the maximum number of directors to be elected at the Annual Meeting. A majority of
the votes cast is required to approve the selection of the Companys auditors and the shareholder
proposal recommending the Board of Directors take action to convert the shares of Class B Stock
into shares of Common Stock. Under the law of the State of New York, the Companys state of
incorporation, only votes cast by the shareholders entitled to vote are determinative of the
outcome of the matter subject to shareholder vote. Votes withheld, abstentions and broker
non-votes will be counted in determining the existence of a quorum, but will not be counted towards
such nominees or any other nominees achievement of plurality or in determining the votes cast on
any other proposal.
1
PROPOSAL 1
ELECTION OF DIRECTORS
The Shareholders are being asked to elect five directors to the Companys Board of Directors
to hold office until the election and qualification of their successors at the next annual meeting.
The five directors who are so elected will be all of the directors of the Company. Unless the
proxy directs otherwise, the persons named in the enclosed form of proxy will vote for the election
of the five nominees named below, each of whom other than Messrs. Daniel G. Keane and Kevin T.
Keane is independent within the meaning of the NASDAQ Stock Market, Inc. director independence
standards as currently in effect. If any of the nominees should be unable to serve as a director,
or for good reason will not serve, the proxy will be voted in accordance with the best judgment of
the person or persons acting under it. It is not anticipated that any of the nominees will be
unable to serve.
The following information is provided concerning the nominees for director:
William G. Gisel, Jr., age 54, has been a director since 2003. Since mid-2006, he has been the
Chief Executive Officer of Rich Products Corporation, a privately held company that is a supplier
and solutions provider to the food service and in-store bakery segments of the food industry. From
1999 to 2006, Mr. Gisel served as Chief Operating Officer of Rich Products Corporation. From 1996
to 1999, Mr. Gisel served as President of Rich Products Food Group. Prior to that, he has held
positions with Rich Products of Executive Vice President, Vice-President International and General
Counsel. Mr. Gisel holds a B.A. from Williams College, a J.D. from Emory University and an M.B.A.
from the University of Rochester.
Kevin T. Keane, age 74, has served as the Chairman of the Board of the Company since 2002. From
1974 to the present, Mr. Keane has been Chairman of the Board of Astronics Corporation. Astronics
Corporation is a publicly traded company that manufactures advanced complex lighting and electronic
systems for the global aerospace industry. Astronics was the parent of the Company until the
spin-off in March 2003. Mr. Keane was also the President and Chief Executive Officer of Astronics
from 1974 to 2002. Mr. Keane received an A.B. in economics and an M.B.A. from Harvard University.
Mr. Keane is the father of Daniel G. Keane.
Daniel G. Keane, age 41, has served as a director since 2002 and has served as the Companys
President since 1997. Mr. Keane was appointed the Chief Executive Officer of the Company in 2002.
Prior to becoming President, he was employed by the Company in various other management capacities.
Mr. Keane received a B.A. in economics from Dartmouth College and received an M.B.A. from Duke
University. Mr. Keane is the son of Kevin T. Keane.
Robert J. McKenna, age 58, has been a director since 2003. He was President and Chief Executive
Officer of Wenger Corporation, a manufacturer of facility products for performing arts and
education markets from October 2001 to December 2005. From 1994 to October 2001, Mr. McKenna was
Chairman of the Board, President and Chief Executive Officer of Acme Electric Corporation, a
manufacturer of power conversion systems for electronic and electrical systems. Mr. McKenna also
serves as a director of Astronics Corporation. Mr. McKenna received a B.S. in Business Management
from Western Kentucky University.
Howard Zemsky, age 47, has been a director since 2003. He has been the Managing Partner of Taurus
Capital Partners LLC, a privately held investment group since 2001. From 1999 until 2001, Mr.
Zemsky was President of IBP Deli Group of Companies. For over twenty years, Mr. Zemsky was
employed in various management capacities by Russer Foods, Inc., a subsidiary of Tyson Foods, Inc.,
and from 1989 until 1999, he served as its President. Mr. Zemsky is a graduate of Michigan State
University and holds an M.B.A. from the University of Rochester.
Other Directorships
In addition to serving as a member of the MOD-PAC Board of Directors, Messrs. Robert J.
McKenna and Kevin T. Keane are also members of the Board of Directors of Astronics Corporation.
MOD-PAC is a former subsidiary of Astronics Corporation and was spun-off to the Astronics
Corporation shareholders in March 2003.
2
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR EACH OF THE DIRECTOR NOMINEES.
CORPORATE GOVERNANCE AND BOARD MATTERS
Board of Directors Independence
The Board of Directors has determined that each of its current directors, except for Messrs.
Daniel G. Keane and Kevin T. Keane, is independent within the meaning of the NASDAQ Stock Market,
LLC director independence standards as currently in effect.
Board of Directors Meetings and Standing Committees
The Board of Directors and its committees meet regularly throughout the year and also hold
special meetings and act by written consent from time to time as appropriate. All Directors are
expected to attend each meeting of the Board of Directors and the committees on which he serves,
and are also invited, but not required, to attend the Annual Meeting. The Board of Directors has
three standing committees: an Audit Committee, Compensation Committee, and Nominating/Governance
Committee. During the year ended December 31, 2006, the Board of Directors held four meetings.
Each director attended at least 75% of the meetings of the Board of Directors and of all committees
on which he served.
The Audit Committee consists of Messrs. Gisel (Chair), McKenna and Zemsky, each of whom is
independent within the meaning of the NASDAQ Stock Market, LLC director independence standards as
currently in effect. The Board of Directors has determined that Messrs. Gisel, McKenna and Zemsky
are each an audit committee financial expert as defined under federal securities laws.
Information regarding the functions performed by the Committee, its membership, and the number of
meetings held during the fiscal year is set forth in the Report of the Audit Committee included
in this proxy statement. The Audit Committee held three meetings in 2006. The Audit Committee is
governed by a written charter approved by the Board of Directors that is posted on the Investor
Relations section of the Companys website at www.modpac.com.
The Compensation Committee consists of Messrs. Zemsky (Chair), Gisel and McKenna, each of whom
is independent within the meaning of the NASDAQ Stock Market, LLC director independence standards
as currently in effect. The Compensation Committee is responsible for reviewing and approving
compensation levels for the Companys executive officers and reviewing and making recommendations
to the Board of Directors with respect to other matters relating to the compensation practices of
the Company. In appropriate circumstances, the Compensation Committee considers the
recommendations of Daniel G. Keane, the Companys Chief Executive Officer, with respect to
reviewing and approving compensation levels for other executive officers. The Compensation
Committee does not use outside compensation consultants on a regular basis. It does utilize market
compensation data that is reflective of the markets in which the Company competes for employees.
The Compensation Committee held three meetings in 2006. The Compensation Committee is not governed
by a written charter.
The Nominating/Governance Committee consists of Messrs. McKenna (Chair), Gisel and Zemsky,
each of whom is independent within the meaning of the NASDAQ Stock Market, LLC director
independence standards as currently in effect. The Nominating/Governance Committee is responsible
for evaluating and selecting candidates for the Board of Directors and addressing corporate
governance matters on behalf of the Board of Directors. In performing its duties to recommend
nominees for the Board of Directors, the Nominating/Governance Committee seeks director candidates
with the following qualifications, at minimum: high character and integrity; substantial life or
work experience that is of particular relevance to the Company; sufficient time available to devote
to his or her duties; and ability and willingness to represent the interests of all shareholders
rather than any special interest group. The Nominating/Governance Committee may use third-party
search firms to identify Board of Director candidates. It also relies upon recommendations from a
wide variety of its contacts, including current executive officers, directors, community leaders
and shareholders, as a source for potential candidates. Shareholders wishing to submit or nominate
candidates for election to the Board of Directors must supply information in writing regarding the
candidate to the Nominating/Governance Committee at the Companys executive offices in Buffalo, New
York. This information should include the candidates name, biographical data and qualifications.
Generally, the Nominating/Governance Committee will conduct a process of making a preliminary
assessment of each proposed nominee based upon biographical data and qualifications. This
information is evaluated against the criteria described above and the specific needs of the Company
at the time. Additional information regarding proposed nominees may be requested. On the basis of
the information gathered in this process, the Nominating/Governance Committee determines which
nominee to recommend to the Board of Directors. The Nominating/Governance Committee uses the same
process for evaluating all nominees, regardless of the source of the recommendation. The
Nominating/Governance Committee held three meetings in 2006. The Nominating/Governance Committee
is not governed by a written charter but acts pursuant to a resolution adopted by the Board of
Directors addressing the nomination process as required by federal securities laws and NASDAQ Stock
Market, LLC regulations.
Executive Sessions of the Board
Non-management directors meet regularly in executive sessions. Non-management directors are
all those directors who are not Company employees and includes directors, if any, who are not
independent as determined by the Board of Directors. The Companys non-management directors
consist of all of its current directors, except Messrs. Daniel G. Keane and Kevin T. Keane. An
3
executive session of the Companys non-management directors is generally held in conjunction with
each regularly scheduled Board of Directors meeting. Additional executive sessions may be called
at the request of the Board of Directors or the non-management directors.
Code of Ethics
The Board of Directors has adopted a Code of Business Conduct and Ethics that is applicable to
its Chief Executive Officer, Chief Financial Officer as well as all other directors, officers and
employees of the Company. This Code of Business Conduct and Ethics is posted on the Investor
Information section of the Companys website at www.modpac.com. The Company will disclose any
amendment to this Code of Business Conduct and Ethics or waiver of a provision of this Code of
Business Conduct and Ethics, including the name of any person to whom the waiver was granted, on
its website.
Compensation Committee Interlocks and Insider Participation
No interlocking relationship exists between any member of the Companys Compensation Committee
or any of its executive officers and any member of any other companys board of directors or
compensation committee (or equivalent), nor has any such relationship existed in the past. No
member of the Compensation Committee was, during fiscal 2006 or prior thereto, an officer or
employee of the Company or any of its subsidiaries.
Compensation of Directors
The following table sets forth the cash compensation as well as certain other compensation
paid to the Companys directors during the year ended December 31, 2006:
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Change in Pension |
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Value and Non- |
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Non-Equity |
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qualified Deferred |
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Fees Earned or |
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Option |
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Incentive Plan |
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Compensation |
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All Other |
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Name |
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Paid in Cash |
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Stock Awards |
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Awards (4) |
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Compensation |
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Earnings |
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Compensation |
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Total |
William G.
Gisel, Jr. (1) |
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$20,000 |
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$0 |
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$24,052 |
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$0 |
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$0 |
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$0 |
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$44,052 |
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Daniel G. Keane (2) |
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Kevin T. Keane (3) |
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$30,000 |
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$0 |
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$24,052 |
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$0 |
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$0 |
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$0 |
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$54,052 |
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Robert J. McKenna (1) |
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$20,000 |
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$0 |
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$24,052 |
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$0 |
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$0 |
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$0 |
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$44,052 |
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Howard Zemsky (1) |
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$20,000 |
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$0 |
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$24,052 |
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$0 |
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$0 |
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$0 |
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$44,052 |
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In 2006, each of Messrs. Gisel, McKenna and Zemsky were awarded options under the 2002
Director Stock Option Plan to purchase 4,000 shares of Common Stock at an exercise price of
$10.00 per share. These options vest in full on June 13, 2007 and terminate on December 13,
2016. As of December 31, 2006, each of Messrs. Gisel, McKenna and Zemsky had outstanding (a)
options to purchase 4,000 shares of Common Stock at an exercise price of $8.44, (b) options to
purchase 2,000 shares of Common Stock at an exercise price of $15.54, and (c) options to
purchase 4,000 shares of Common Stock at an exercise price of $11.68, all of which are
exercisable within 60 days. |
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Daniel G. Keane receives no separate compensation as a director of the Company. |
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In 2006, Kevin T. Keane was awarded options under the 2002 Director Stock Option Plan to
purchase 4,000 shares of Common Stock at an exercise price of $10.00 per share. These
options vest in full on June 13, 2007 and terminate on December 13, 2016. As of December 31,
2006, Kevin T. Keane had outstanding (a) options to purchase 18,750 shares of Common Stock at
an exercise price of $8.44, (b) options to purchase 14,000 shares of Common Stock at an
exercise price of $12.80 and (c) options to purchase 4,000 shares of Common Stock at an
exercise price of $11.68, all of which are exercisable within 60 days. |
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All options issued to directors are issued pursuant to the Companys 2002 Director Stock
Option Plan. Options issued under this plan have an exercise price no less than the fair
market value of the Common Stock on the day of grant, typically vest six months after grant,
and generally expire ten years after the date of grant. |
4
Directors and Officers Indemnification Insurance
On March 1, 2007, the Company obtained a Directors and Officers Liability Insurance policy
written by Illinois National Insurance Company. The annual premium is $105,340. The policy has
limits of $10 million and provides indemnification benefits and the payment of expenses in actions
instituted against any director or officer of the Company for claimed liability arising out of
their conduct in such capacities. The Company has made no significant payments or claims of
indemnification or expenses under any such insurance policies at any time.
The Company also has entered into indemnification agreements with its executive officers and
directors. The indemnification agreements provide that the officer or director will be indemnified
for expenses, investigative costs and judgments arising from certain threatened, pending or
completed legal proceedings.
Contacting the Board of Directors
Although we do not have a formal policy regarding communications with the Board of Directors,
shareholders may communicate with the Board of Directors by writing to: Board of Directors,
MOD-PAC CORP., 1801 Elmwood Avenue, Buffalo, New York 14207. Shareholders who would like their
submission directed to a particular director may so specify and the communication will be
forwarded, as appropriate.
5
REPORT OF AUDIT COMMITTEE
The Audit Committee oversees the Companys financial reporting process on behalf of the Board
of Directors. Management has primary responsibility for the financial statements and the reporting
process including the systems of internal controls. In fulfilling its oversight responsibilities,
the Committee reviewed the audited financial statements in the Annual Report with management and
the quality, not just the acceptability, of the accounting principles, the reasonableness of
significant judgments, and the clarity of disclosures in the financial statements.
The Audit Committee is comprised of the Directors named below, each of whom is independent as
defined under Section 10A(m)(3) of the Exchange Act and under the NASDAQ Stock Market, LLC. listing
standards currently in effect. In addition, pursuant to the requirements of Section 407 of the
Sarbanes-Oxley Act of 2002, the Board of Directors has determined that each of Messrs. Gisel,
McKenna and Zemsky qualifies as an audit committee financial expert.
The Audit Committee operates under a written charter which includes provisions requiring Audit
Committee advance approval of all audit and non-audit services to be provided by independent public
accountants.
The Audit Committee reviewed with the independent auditors, who are responsible for expressing
an opinion on the conformity of those audited financial statements with generally accepted
accounting principles, their judgments as to the quality, not just the acceptability, of the
Companys accounting principles and such other matters as are required to be discussed with the
Committee under generally accepted auditing standards. In addition, the Committee has discussed
with the independent auditors the auditors independence from management and the Company including
the matters in the written disclosures required by the Independence Standards Board and considered
the compatibility of non-audit services with the auditors independence.
The Audit Committee also discussed with the Companys independent auditors the overall scope
and plans for their audit, and met with the independent auditors, with and without management
present, to discuss the results of their examinations, their evaluations of the Companys internal
controls, and the overall quality of the Companys financial reporting.
The Audit Committee has reviewed and discussed the Companys audited financial statements for
the year ended December, 2006 with management. The Audit Committee has also discussed with Ernst &
Young LLP, the Companys independent auditors, the matters required to be discussed by Statement on
Auditing Standards No. 61, Communication with Audit Committees.
The Audit Committee has also received and reviewed the written disclosures and the letter from
Ernst & Young LLP required by Independence Standards Board Standard No. 1, Independence Discussion
with Audit Committees, and has discussed the independence of Ernst & Young LLP with that firm.
Based on the review and the discussions noted above, the Audit Committee recommended to the
Board of Directors that the Companys audited financial statements be included in its Annual Report
on Form 10-K for the year ended December 31, 2006 for filing with the Securities and Exchange
Commission.
The Board of Directors has determined that Messrs. Gisel, McKenna and Zemsky, independent
directors, are each audit committee financial expert, as defined in the regulations.
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March 7, 2007
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William G. Gisel, Jr., Chairman |
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Robert J McKenna |
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Howard Zemsky |
6
EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
The Companys compensation philosophy and program objectives are directed by two primary
guiding principles. First, the program is intended to provide levels of compensation sufficient to
attract, motivate and retain talented executives. Second, the program is intended to create an
alignment of interests between the Companys executives and shareholders such that a portion of
each executives compensation is directly linked to maximizing stockholder value.
The Companys goals are to outperform its industry , in terms of growth, financial
performance, and innovation. In support of these goals, the executive compensation program is
designed to energize its executive officers to outperform its industry and to reward performance
that is directly relevant to the Companys short-term and long-term success. As such, the Company
provides both short-term and long-term incentives. The Committee has structured the executive
compensation program with three primary underlying components: base salary, annual incentives, and
long-term incentives. The Companys compensation philosophy is to (i) compensate its executive
officers at a base level that is competitive with salaries near the average salaries paid by
companies of similar size and nature; (ii) provide the opportunity for its executive officers to
earn additional compensation in the form of annual bonuses if individual and business performance
goals are met; and (iii) design long-term incentive plans to focus executive efforts on the
long-term goals of the Company and to maximize total return to the Companys shareholders, while
taking into account the Companys relative performance and strategic goals.
Base Salary
The Compensation Committee utilizes market compensation data that is reflective of the
markets in which the Company competes for employees. The Compensation Committee generally approves
the salaries paid to the Companys executive officers and as part of its responsibilities, the
Compensation Committee reviews these salaries annually. Individual salary changes are based on a
combination of factors such as the performance of the executive, salary level relative to the
competitive market, level of responsibility, growth of Company operations, experience of the
executive and the recommendation of the Chief Executive Officer. In appropriate circumstances, the
Compensation Committee considers the recommendations of Daniel G. Keane, the Companys Chief
Executive Officer. The Compensation Committee, consistent with the views of Daniel G. Keane,
acknowledged the Companys comparatively weak results during 2006 vs. 2005. The Compensation
Committee also recognized that 2006 was a difficult transition year subsequent to the contract
buy-out by a major customer in 2005, resulting in dramatically reduced revenue from no longer
selling to this customer in 2006. To incentivize management for 2007, as this difficult
transition continues, salary adjustments were made in December 2006, effective January 1, 2007, for
Messrs. Lupp, Kessler, Rechin and Geary for a new annual rate of $200,000, $171,000, $150,000 and
$135,000, respectively. The Compensation Committee, with Daniel G. Keanes active concurrence,
determined to forego a base salary increase for 2007 for Daniel G. Keane.
Annual Bonus
The Compensation Committee has the authority to award discretionary annual bonuses to the
Companys executive officers. The annual incentive bonuses are intended to compensate officers for
achieving both short-term and long-term financial and operational goals such as sales growth,
earnings after tax, return on equity, investment in resources necessary to grow the business and
expense management.
The discretionary annual bonus is paid in cash in an amount reviewed and approved by the
Compensation Committee and ordinarily is paid in a single installment in the first quarter
following the completion of a given fiscal year. The discretionary annual bonus is not
benchmarked to a percentage of base salary, but is determined following a review of each
executives individual performance and contribution to the Companys tactical and strategic plans.
In appropriate circumstances, the Compensation Committee considers the recommendations of Daniel G.
Keane, the Companys Chief Executive Officer. The Compensation Committee has not fixed a maximum
payout for any officers annual discretionary bonus. For 2006, discretionary annual bonuses were
awarded to Messrs. Lupp, Kessler, Rechin and Geary in the amount of $64,000, $31,000, $52,000, and
$26,000, respectively. For the reasons set forth above, Daniel G. Keane did not receive a bonus
for 2006.
Long-Term Incentives
The Company believes that long-term performance is achieved through an ownership culture
that incentivizes its executive officers through the use of stock-based awards. The Companys
stock option plans have been established to provide certain of its employees, including its
executive officers, with incentives to help align those employees interests with the interests of
the Companys shareholders. The Compensation Committee believes that the use of stock-based awards
offers the best approach to achieving its compensation goals. The Company has not adopted stock
ownership guidelines, and, other than the Companys broad-based Employee Stock Purchase Plan, its
stock option plans have provided the principal method for its executive officers to acquire equity
or equity-linked interests in the Company.
7
Options
The Companys 2002 Stock Option Plan authorizes it to grant options to purchase shares of
common stock to its employees. The Compensation Committee is the administrator of the 2002 Stock
Option Plan. Stock option grants generally are made annually or at the commencement of employment.
The Compensation Committee reviews and approves stock option awards to executive officers based
upon a review of competitive compensation data, its assessment of individual performance, a review
of each executives existing long-term incentives and retention considerations. Periodic stock
option grants are made at the discretion of the compensation committee to eligible employees and,
in appropriate circumstances, the Compensation Committee considers the recommendations of Daniel G.
Keane, the Companys Chief Executive Officer. In 2006, certain named executive officers were
awarded stock options in the amounts indicated in the section entitled Grants of Plan Based
Awards. Stock options granted by the Company have an exercise price equal to the fair market
value of the Common Stock on the day of grant, typically vest 20% per annum based upon continued
employment over a 5-year period, and generally expire ten years after the date of grant. Incentive
stock options also include certain other terms necessary to assure compliance with the Internal
Revenue Code of 1986, as amended.
The Companys 2002 Director Stock Option Plan authorizes it to grant options to purchase
shares of common stock to its directors who are not executive officers or employees. Daniel G.
Keane is the sole member of the Stock Option Committee that administers the 2002 Director Stock
Option Plan. Stock option grants generally are made during the 30-day period commencing one week
after the issuance of a press release announcing the Companys quarterly or annual results of
operations. The Stock Option Committee reviews and approves stock option awards to directors based
upon a review of competitive compensation data, its assessment of individual performance and
retention considerations. In 2006, each of Messrs. Gisel, Kevin T. Keane, McKenna and Zemsky were
awarded options under the 2002 Director Stock Option Plan to purchase 4,000 shares of Common Stock
at an exercise price of $10.00 per share. These options vest in full on June 13, 2007 and
terminate on December 13, 2016.
Employment Agreements
The Company generally has not entered into employment agreements with its executive officers.
In January 2006, the Company did enter into an employment agreement with Mr. Lupp. A description
of this employment agreement is set forth in footnote (2) to the Summary Compensation Table. A
copy of Mr. Lupps employment agreement has been filed as exhibit 10.1 to the Companys Current
report on Form 8-K filed with the Securities and Exchange Commission on January 31, 2006.
Compensation Committee Report on Executive Compensation
The Compensation Committee of the Board of Directors (the Committee) determines the
compensation of the Chief Executive Officer and other executive officers of the Company. The
Committee is composed entirely of directors who are neither executive officers nor employees of the
Company. In addition to determining the salary and bonus compensation for the Companys executive
officers, the Committee determines the grants under the Companys Incentive Stock Option Plan and
oversees the administration of other compensation plans and programs.
The Committee has reviewed the Compensation Discussion and Analysis contained elsewhere in
this proxy statement and has discussed it with management. In reliance on the reviews and
discussions referred to above, the Committee recommended to the Board of Directors (and the Board
has approved) that the Compensation Discussion and Analysis be included in this proxy statement and
in the Annual Report on Form 10-K for the year ended December 31, 2006 for filing with the
Securities and Exchange Commission.
|
|
|
March 7, 2007
|
|
Howard Zemsky, Chairman |
|
|
William G. Gisel, Jr. |
|
|
Robert J. McKenna |
8
Summary Compensation Table
The following table sets forth the cash compensation as well as certain other compensation
paid during the years ended December 31, 2006, for the Companys Chief Executive Officer, Chief
Financial Officer and each of its three other most highly compensated executive officers who
received annual compensation in excess of $100,000:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity |
|
Change in Pension Value and |
|
|
|
|
Name and Principal |
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
|
|
|
|
Incentive Plan |
|
Non-Qualified Deferred |
|
All Other |
|
|
Position |
|
Year |
|
Salary |
|
Bonus |
|
Award |
|
Option Awards |
|
Compensation |
|
Compensation Earnings |
|
Compensation |
|
Total |
Daniel G. Keane,
|
|
|
2006 |
|
|
$ |
274,000 |
|
|
|
$0 |
|
|
$ |
0 |
|
|
$ |
126,029 |
|
|
$0 |
|
$ |
0 |
|
|
$ |
38,380 |
(1) |
|
$ |
438,409 |
|
President and Chief
Executive Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David B. Lupp,
|
|
|
2006 |
|
|
$ |
175,385 |
|
|
$ |
64,000 |
|
|
$ |
0 |
|
|
$ |
14,763 |
|
|
$0 |
|
$ |
0 |
|
|
$ |
90,139 |
(3) |
|
$ |
344,287 |
|
Vice President
Finance and Chief
Financial Officer(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry N. Kessler,
|
|
|
2006 |
|
|
$ |
167,000 |
|
|
$ |
31,000 |
|
|
$ |
0 |
|
|
$ |
15,493 |
|
|
$0 |
|
$ |
0 |
|
|
$ |
23,738 |
(4) |
|
$ |
237,231 |
|
Vice President
Operations(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Philip C. Rechin,
|
|
|
2006 |
|
|
$ |
145,482 |
|
|
$ |
52,000 |
|
|
$ |
0 |
|
|
$ |
13,207 |
|
|
$0 |
|
$ |
0 |
|
|
$ |
12,492 |
(5) |
|
$ |
223,181 |
|
Vice President
Sales(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel J. Geary,
|
|
|
2006 |
|
|
$ |
129,327 |
|
|
$ |
26,000 |
|
|
$ |
0 |
|
|
$ |
3,684 |
|
|
$0 |
|
$ |
0 |
|
|
$ |
5,032 |
(6) |
|
$ |
164,043 |
|
Corporate
Controller(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents club fees and dues of $10,415, gross up for income taxes related to club fees and
dues of $8,232, personal use of company automobile of $2,041, gross up for income taxes
related to personal use of company automobile of $1,614, medical and dependent expenses of
$5,000, life insurance premiums of $494, gross up for income taxes related to life insurance
premiums of $214, long term care insurance premiums of $1,118, personal financial planning and
tax return preparation expense of $2,425, gross up for income taxes related to personal
financial planning and tax return preparation expense of $1,917, and the contribution to the
Companys Profit Share / 401K Plan made by the Company of $4,910. |
|
(2) |
|
David B. Lupp joined the Company on January 30, 2006. He entered into an employment
agreement with the Company to serve as the Vice President Finance and Chief Financial
Officer of the Company. Pursuant to the terms of the employment agreement, Mr. Lupps
employment is at will and continues until terminated by either party. The employment
agreement provides for base compensation of $190,000 per year, subject to annual upward
adjustment in the sole discretion of the Compensation Committee, annual performance bonus
compensation and long term incentives in the sole discretion of the Compensation Committee and
is entitled to participate in the Companys standard benefit programs. If Mr. Lupp is
terminated by the Company without cause or if he terminates his employment for good
reason, the Company will be obligated to pay Mr. Lupp severance in the amount of his then
base salary for a period of eight months from the date of termination plus an additional one
month thereafter for every full year he has been employed by the Company through the date of
termination. In no event shall such severance period exceed twelve months from the date of
termination. If Mr. Lupp is terminated without cause within 18 months of a change in
control, the Company will be obligated to pay Mr. Lupp as severance 140% of his then current
base salary (grossed up for perquisites) for a period of one year from the date of
termination. A copy of Mr. Lupps employment agreement has been filed as exhibit 10.1 to the
Companys Current report on Form 8-K filed with the Securities and Exchange Commission on
January 31, 2006. |
|
(3) |
|
Represents club fees and dues of $37,778, gross up for income taxes related to club fees and
dues of $29,864, automobile allowance of $10,262, medical expenses of $5,000, life insurance
premiums of $1,484, gross up for income taxes related to life insurance premiums of $1,173,
long term care insurance premiums of $518, personal financial planning and tax return
preparation expense of $2,268, and gross up for income taxes related to personal financial
planning and tax return preparation expense of $1,792. |
|
(4) |
|
Represents medical and dependent expenses of $10,000, automobile allowance of $6,500, life
insurance premiums of $511, and the contribution to the Companys Profit Share / 401K Plan
made by the Company of $6,727. |
|
(5) |
|
Represents automobile allowance of $6,500, life insurance premiums of $172, and the
contribution to the Companys Profit Share / 401K Plan made by the Company of $5,820. |
|
(6) |
|
Represents life insurance premiums of $49, and the contribution to the Companys Profit Share
/ 401K Plan made by the Company of $4,983. |
|
(7) |
|
Named Executive Officer beginning in 2006. |
9
Grants of Plan-Based Awards
The following table sets forth information with respect to plan-based awards granted in 2006
to the executives named in the summary compensation table. All options were granted pursuant to
the Companys 2002 Stock Option Plan.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other |
|
All Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
Option |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
Awards: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Number of |
|
Exercise or |
|
|
|
|
|
|
Estimated Future Payouts Under Non- |
|
Estimated Future Payouts Under |
|
Shares of |
|
Securities |
|
Base Price of |
|
|
|
|
|
|
Equity Incentive Plan Awards |
|
Equity Incentive Plan Awards |
|
Stock or |
|
Underlying |
|
Option Awards |
Name |
|
Grant Date |
|
Threshold |
|
Target |
|
Maximum |
|
Threshold |
|
Target |
|
Maximum |
|
Units |
|
Options |
|
per share |
Daniel G. Keane,
|
|
December 13, 2006 |
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
|
0 |
|
|
|
22,300 |
(1) |
|
$ |
10.00 |
|
President and Chief
Executive
Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David B. Lupp, Vice
|
|
March 8, 2006 |
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
|
0 |
|
|
|
15,000 |
(2) |
|
$ |
11.73 |
|
President Finance
|
|
December 13, 2006 |
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
15,000 |
(3) |
|
$ |
10.00 |
|
and Chief Financial
Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry N. Kessler,
|
|
December 13, 2006 |
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
|
0 |
|
|
|
3,000 |
(3) |
|
$ |
10.00 |
|
Vice President
Operations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Philip C. Rechin,
|
|
December 13, 2006 |
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
|
0 |
|
|
|
3,000 |
(3) |
|
$ |
10.00 |
|
Vice President
Sales |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel J. Geary,
|
|
December 13, 2006 |
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
|
0 |
|
|
|
3,000 |
(3) |
|
$ |
10.00 |
|
Corporate
Controller |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The options vest: 4,200 on June 13, 2007, 6,500 on June 13, 2008, 10,000 on June 13, 2009,
1,600 on June 13, 2010, and expire ten years after the date of grant. |
|
(2) |
|
Issued pursuant to Mr. Lupps employment agreement. The options vest at the rate of 20% per
year commencing on March 8, 2007, and expire ten years after the date of grant. |
|
(3) |
|
The options vest at the rate of 20% per year commencing on December 13, 2007, and expire
ten years after the date of grant. |
10
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth information with respect to the executives named in the summary
compensation table relating to unexercised stock options, stock that has not vested, and equity
incentive plan awards outstanding as of December 31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
|
|
|
|
|
Stock Awards |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive |
|
|
|
|
|
|
|
|
|
|
Equity Incentive |
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive |
|
Plan Awards: Market |
|
|
Number of |
|
Number of |
|
Plan Awards: Number |
|
|
|
|
|
|
|
|
|
|
|
Plan Awards: Number |
|
or Payout Value of |
|
|
Securities |
|
Securities |
|
of Securities |
|
|
|
|
|
|
|
|
|
Market Value of |
|
of Unearned Shares, |
|
Unearned Shares, |
|
|
Underlying |
|
Underlying |
|
Underlying |
|
|
|
|
|
|
|
Number of Shares or |
|
Shares or Units of |
|
Units or Other |
|
Units or Other |
|
|
Unexercised Options |
|
Unexercised Options |
|
Unexercised |
|
Option Exercise |
|
Option Expiration |
|
Units of Stock That |
|
Stock That Have Not |
|
Rights That Have |
|
Rights That Have |
Name |
|
Exercisable |
|
Unexercisable |
|
Unearned Options |
|
Price |
|
Date |
|
Have Not Vested |
|
Vested |
|
Not Vested |
|
Not Vested |
Daniel G. Keane, |
|
|
14,180 |
|
|
|
|
|
|
|
|
|
$5.221 |
|
|
January 18, 2009 |
|
|
|
$0 |
|
|
|
$0 |
President and Chief |
|
|
13,673 |
|
|
|
|
|
|
|
|
|
6.22 |
|
|
January 18, 2010 |
|
|
|
|
|
|
|
|
Executive Officer |
|
|
12,277 |
|
|
|
|
|
|
|
|
|
12.413 |
|
|
April 26, 2011 |
|
|
|
|
|
|
|
|
|
|
|
8,936 |
|
|
|
|
|
|
|
|
|
10.344 |
|
|
January 25, 2012 |
|
|
|
|
|
|
|
|
|
|
|
19,152 |
|
|
|
2,236 |
|
|
|
|
|
5.392 |
|
|
January 24, 2013 |
|
|
|
|
|
|
|
|
|
|
|
28,000 |
|
|
|
12,769 |
|
|
|
|
|
8.44 |
|
|
February 20, 2014 |
|
|
|
|
|
|
|
|
|
|
|
22,300 |
|
|
|
|
|
|
|
|
|
12.80 |
|
|
January 6, 2015 |
|
|
|
|
|
|
|
|
|
|
|
22,300 |
|
|
|
|
|
|
|
|
|
11.68 |
|
|
December 21, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,300 |
|
|
|
|
|
10.00 |
|
|
December 13, 2016 |
|
|
|
|
|
|
|
|
|
David B. Lupp, |
|
|
|
|
|
|
15,000 |
|
|
|
|
|
$11.73 |
|
|
March 8, 2016 |
|
|
|
$0 |
|
|
|
$0 |
Vice
President Finance |
|
|
|
|
|
|
15,000 |
|
|
|
|
|
10.00 |
|
|
December 13, 2016 |
|
|
|
|
|
|
|
|
and Chief
Financial Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry
N. Kessler, |
|
|
|
|
|
|
1,720 |
|
|
|
|
|
$5.392 |
|
|
January 24, 2013 |
|
|
|
$0 |
|
|
|
$0 |
Vice
President Operations |
|
|
1,700 |
|
|
|
5,100 |
|
|
|
|
|
8.44 |
|
|
February 20, 2014 |
|
|
|
|
|
|
|
|
|
|
|
500 |
|
|
|
2,000 |
|
|
|
|
|
12.80 |
|
|
January 6, 2015 |
|
|
|
|
|
|
|
|
|
|
|
600 |
|
|
|
2,400 |
|
|
|
|
|
11.68 |
|
|
December 21, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,000 |
|
|
|
|
|
10.00 |
|
|
December 13, 2016 |
|
|
|
|
|
|
|
|
|
Philip C. Rechin, |
|
|
1,688 |
|
|
|
|
|
|
|
|
|
$6.22 |
|
|
January 18, 2010 |
|
|
|
$0 |
|
|
|
$0 |
Vice President Sales |
|
|
1,535 |
|
|
|
|
|
|
|
|
|
7.738 |
|
|
January 19, 2011 |
|
|
|
|
|
|
|
|
|
|
|
984 |
|
|
|
244 |
|
|
|
|
|
10.344 |
|
|
January 25, 2012 |
|
|
|
|
|
|
|
|
|
|
|
2,577 |
|
|
|
1,720 |
|
|
|
|
|
5.392 |
|
|
January 24, 2013 |
|
|
|
|
|
|
|
|
|
|
|
1,760 |
|
|
|
2,640 |
|
|
|
|
|
8.44 |
|
|
February 20, 2014 |
|
|
|
|
|
|
|
|
|
|
|
440 |
|
|
|
1,760 |
|
|
|
|
|
12.80 |
|
|
January 6, 2015 |
|
|
|
|
|
|
|
|
|
|
|
600 |
|
|
|
2,400 |
|
|
|
|
|
11.68 |
|
|
December 21, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,000 |
|
|
|
|
|
10.00 |
|
|
December 13, 2016 |
|
|
|
|
|
|
|
|
|
Daniel J. Geary, |
|
|
600 |
|
|
|
2,400 |
|
|
|
|
|
$11.68 |
|
|
December 21, 2015 |
|
|
|
$0 |
|
|
|
$0 |
Corporate Controller |
|
|
|
|
|
|
3,000 |
|
|
|
|
|
10.00 |
|
|
December 13, 2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11
Options Exercised and Stock Vested
The following table sets forth information with respect to the executives named in the summary
compensation table relating to the exercise of stock options, stock appreciation rights and similar
rights, and the vesting of stock in connection therewith, in 2006:
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
Stock Awards |
|
|
Number of Shares Acquired |
|
Value Realized on |
|
Number of Shares Acquired |
|
|
Name |
|
on Exercise |
|
Exercise |
|
on Vesting |
|
Value Realized on Vesting |
Daniel G. Keane,
President and Chief
Executive Officer |
|
(2) |
|
(2) |
|
|
|
$0 |
David B. Lupp, Vice
President Finance
and Chief Financial
Officer |
|
(2) |
|
(2) |
|
|
|
$0 |
Larry N. Kessler,
Vice President
Operations |
|
4,277(1) |
|
$23,295 |
|
|
|
$0 |
Philip C. Rechin,
Vice President
Sales |
|
(2) |
|
(2) |
|
|
|
$0 |
Daniel J. Geary,
Corporate
Controller |
|
(2) |
|
(2) |
|
|
|
$0 |
|
|
|
(1) |
|
2,577 options were exercised from the option award granted January 24, 2003; and 1,700
options were exercised from the option award granted February 20, 2004. The value realized
was based on the difference between the closing price of the stock on the day of exercise and
the option exercise price. |
|
(2) |
|
No options exercised in 2006. |
Non-Qualified Deferred Compensation
The Company does not have any defined contribution or other plan that provides for the
deferral of compensation.
Other Potential Post-Employment Payments
Except with respect to Mr. Lupp, the Company does not have any contracts, agreements, plans or
arrangements, whether unwritten or written, that provide for payments to the executives named in
the summary compensation table at, following, or in connection with any termination, including,
without limitation, payments resulting from resignation, severance, retirement, termination or
change in control. As set forth in footnote (2) to the Summary Compensation Table, the Company has
entered into an employment agreement with Mr. Lupp. Pursuant to his employment agreement, if Mr.
Lupp is terminated by the Company without cause or if he terminates his employment for good
reason, the Company will be obligated to pay him severance in the amount of his then base salary
for a period of eight months from the date of termination plus an additional one month thereafter
for every full year he has been employed by the Company through the date of termination. In no
event shall such severance period exceed twelve months from the date of termination. If Mr. Lupp
is terminated without cause within 18 months of a change in control, the Company will be
obligated to pay Mr. Lupp as severance 140% of his then current base salary (grossed up for
perquisites) for a period of one year from the date of termination.
In the past, the Company has also paid severance benefits to salaried employees upon
termination of employment. The eligibility for such payments, and the amount thereof, has been
determined by the Company on a case by case basis.
12
Equity Compensation Plan Information
The following table sets forth the aggregate information of the Companys equity compensation
plans in effect as of December 31, 2006.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Securities |
|
|
|
|
|
|
|
|
|
|
Rem aining for Future |
|
|
Number of Securities to be |
|
Weighted Average |
|
Issuance under Equity |
|
|
Issued upon Exercise of |
|
Exercise Price of |
|
Compensation Plans |
|
|
Outstanding Options, |
|
Outstanding Options, |
|
(excluding securities |
Plan Category |
|
Warrants and Rights |
|
Warrants and Rights |
|
reflected in column (a)) |
|
|
(a) |
|
(b) |
|
(c) |
Equity compensation
plans approved by
security holders |
|
|
379, 135 |
|
|
|
$ 9.43 |
|
|
|
733,708 |
|
Equity compensation
plans not approved
by security holders |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
379,135 |
|
|
|
$ 9.43 |
|
|
|
733,708 |
|
13
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information concerning persons known to the Company to own more
than 5% of the outstanding shares of Common Stock or Class B Stock and the number of shares and
percentage of each class beneficially owned by each director, each executive officer named in the
summary compensation table and by all directors and executive officers as a group as of February
28, 2007 (an asterisk indicates less than 1% beneficial ownership of the class):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name and Address |
|
Shares of Common Stock |
|
Shares of Class B Stock |
of Owner (1) |
|
Number |
|
Percentage |
|
Number |
|
Percentage |
William G. Gisel, Jr.(2)
|
|
|
12,110 |
|
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel J. Geary (3)
|
|
|
600 |
|
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel G. Keane (4)
|
|
|
206,071 |
|
|
|
7.1 |
% |
|
|
226,283 |
|
|
|
32.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin T. Keane (5)
|
|
|
169,734 |
|
|
|
6.1 |
% |
|
|
75,650 |
|
|
|
11.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry N. Kessler (3)
|
|
|
5,859 |
|
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David B. Lupp (3)
|
|
|
3,000 |
|
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert J. McKenna (2)
|
|
|
10,550 |
|
|
|
|
* |
|
|
206 |
|
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Philip C. Rechin (6)
|
|
|
12,571 |
|
|
|
|
* |
|
|
767 |
|
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Howard Zemsky (2)
|
|
|
54,880 |
|
|
|
2.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John H. Lewis (7)
|
|
|
336,259 |
|
|
|
12.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arbiter Partners, L.P. (8)
|
|
|
139,900 |
|
|
|
5.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All directors and executive officers as a
group (9) persons) (9)
|
|
|
475,375 |
|
|
|
15.9 |
% |
|
|
302,906 |
|
|
|
43.5 |
% |
|
|
|
(1) |
|
The address for all directors and officers listed is: 1801 Elmwood Avenue, Buffalo, New York 14207. |
|
(2) |
|
Includes 10,000 shares of Common Stock subject to options exercisable within 60 days. |
|
(3) |
|
All of such shares are subject to options exercisable within 60 days. |
|
(4) |
|
Includes 139,387 shares of Common Stock and 10,051 shares of Class B Stock subject to options exercisable within 60 days, 6,435 shares of
Common Stock and 14,995 shares of Class B Stock owned by Mr. Daniel G. Keanes wife, and 25,000 shares of Common Stock owned by Mr. Daniel G.
Keanes children. |
|
(5) |
|
Includes 36,750 shares of Common Stock subject to options exercisable within 60 days and 29,439 shares of Common Stock and 12,414 shares of
Class B Stock owned by Mr. Kevin Keanes wife or held in trust for the benefit of Mr. Keanes wife. |
|
(6) |
|
Includes 11,241 shares of Common Stock and 767 shares of Class B Stock subject to options exercisable within 60 days. |
14
|
|
|
(7) |
|
Information with respect to John H. Lewis and his holdings of common stock is based on Schedule 13D/A filed with the SEC on January 16, 2007
and a Form 4 filed with the SEC on January 16, 2007. The holdings described above include 324,486 shares held by Osmium Capital, LP and 9,600
shares held by Osmium Spartan, LP. The holdings also include 2,173 shares held by accounts individually managed by Osmium Partners, LLC. Mr.
Lewis is the controlling member of Osmium Partners, LLC, which serves as the general partner of Osmium Capital, LP and Osmium Spartan, LP. The
stated address for John H. Lewis is 388 Market St., Suite 920, San Francisco, CA. 94111. |
|
(8) |
|
Information with respect to Arbiter Partners, L.P. is based on Schedule 13D filed with the SEC on August 23, 2006. The stated address for
Arbiter Partners, L.P. is 149 Fifth Avenue, Fifteenth, Floor, New York, NY 10010. |
|
(9) |
|
Includes an aggregate of 226,837 shares of Common Stock and 10,818 shares of Class B Stock subject to options exercisable within 60 days. |
15
PROPOSAL 2
APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee, with the approval of the Board of Directors, has selected Ernst & Young
LLP as the independent registered public accounting firm, to act as auditors of MOD-PAC Corp. for
2007. All services provided on the Companys behalf by Ernst & Young LLP during fiscal 2005 and
2006 were approved in advance by the Audit Committee. Representatives of Ernst & Young LLP are
expected to attend the meeting and will have the opportunity to make a statement if they desire and
will be available to respond to appropriate questions.
Auditor Fees. The following table sets forth the fees billed to the Company for the last
fiscal year by the Companys independent auditors, Ernst & Young LLP:
|
|
|
|
|
|
|
|
|
|
|
2006 |
|
2005 |
Audit |
|
$ |
177,500 |
|
|
$ |
179,400 |
|
Audit-related |
|
|
0 |
|
|
|
0 |
|
Tax |
|
|
17,600 |
|
|
|
1,650 |
|
All Other |
|
|
0 |
|
|
|
0 |
|
The Audit Committee has adopted a policy that requires advance approval of all audit,
audit-related, tax services, and other services performed by the independent auditor. The policy
provides for pre-approval by the Audit Committee of specifically defined audit and non-audit
services. Unless the specific service has been previously pre-approved with respect to that year,
the Audit Committee must approve the permitted service before the independent auditor is engaged to
perform it. The Audit Committee may delegate to an Audit Committee member the authority to approve
permitted services provided that the delegated member reports any decisions to the committee at its
next scheduled meeting.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE PROPOSAL TO RATIFY THE APPOINTMENT
OF ERNST & YOUNG LLP AS THE COMPANYS INDEPENDENT AUDITORS.
PROPOSAL 3
SHAREHOLDER PROPOSAL TO RECOMMEND THAT THE BOARD OF DIRECTORS TAKE ACTION TO CONVERT ALL CLASS B
SHARES (CURRENTLY 10 VOTES PER SHARE) TO CLASS A SHARES (CURRENTLY ONE VOTE PER SHARE)
Donald R. McIntyre and Alexandria J. McIntyre, 8 Sunrise Terrace, West Seneca, New York 14224,
who own over 5,000 shares of the Companys stock, have advised that they intend to present the
following resolution at the Annual Meeting. In accordance with the applicable proxy statement
regulations, the proposed resolution and supporting statement, for which the Board of Directors and
the Company accept no responsibility, are set forth below. Approval of the proposal would require
a majority of the Class B shares and the Class A shares, voting together as a single class, cast in
person or by proxy at the Annual Meeting.
Shareholder Resolution
This is to recommend that the Board of Directors take action to convert all Class B shares
(currently 10 votes per share) into Class A shares (currently one vote per share).
Proponents Supporting Statement
Rationale for above proposal: Tierd [sic] classes of stock, which give select
investors namely top executives and members of the Board of Directors, super-sized voting
privileges that far outweigh the influence that is given to common shareholders. An example would
be Alberto-Culver Co. who had supervoting shares that gave its founders 27 percent of the vote even
though they only held 19 percent of the equity. Mod-Pacs situation is even worse. Top executives
and members of the Board of Directors controlled approximately 32 percent of the vote even though
they held only approximately 17 percent of the equity at the end of 2005. Alberto-Culver, however,
in 2005 got rid of its supervoting shares puting [sic] all shareholders on an equal footing.
Mod-Pac should follow suit. These tierd [sic] classes also have the effect of putting downward
pressure on the stock of price as some mutual funds, for instance, wont buy shares in companies
with different classes of stock, because of the lack of voting power.
16
Response of the Board of Directors
In March 2003, the Company became a fully separate, publicly traded company upon its spin-off
from Astronics Corporation, a publicly traded company. In connection with the spin-off, the
Companys equity capitalization was structured to mirror that of Astronics Corporation, with Class
B Stock (ten votes per share) and Common Stock (one vote per share). This capital structure had
been approved by an amendment to the Astronics certificate of incorporation adopted by its
shareholders. In the spin-off, the holders of Astronics Corporation Class B shares received shares
of the Companys Class B shares and the holders of Astronics Corporation Common Stock received
shares of the Companys Common Stock. As a result, many of the Companys shareholders through
their ownership of Astronics Corporation stock (both prior to the spin-off and thereafter) are
aware of and accustomed to the Companys capital structure and are attracted to the Company by the
long-term stability provided by the Class B shareholders.
For the sake of clarity, it should be pointed out that all the authorized shares of the
Company are common stock, designated Common Stock and Class B Stock in the Companys
Certificate of Incorporation. The Company does not currently have, nor has it ever had, a class or
series of capital stock denominated as Class A Stock. As a result, unless the Company were to
create a new class or series of capital stock, it would not be possible to convert the Class B
Stock to Class A Stock.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE AGAINST THE SHAREHOLDER PROPOSAL TO
RECOMMEND THAT THE BOARD OF DIRECTORS TAKE ACTION TO CONVERT ALL CLASS B SHARES (CURRENTLY 10 VOTES
PER SHARE) TO CLASS A SHARES (CURRENTLY ONE VOTE PER SHARE)
17
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
During 2006, all executive officers and directors of the Company timely filed with the
Securities Exchange Commission all required reports with respect to beneficial ownership of the
Companys securities.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The Company does not have written policies or procedures relating to the review, approval or
ratification of related person transactions. Any such proposed transaction is submitted to the
Board of Directors for approval. In 2006, the Company did not engage in any transaction with a
related person in which the amount involved exceeded $120,000.
PROPOSALS OF SHAREHOLDERS FOR 2008 ANNUAL MEETING
To be considered for inclusion in the proxy materials for the 2008 Annual Meeting of
Shareholders, shareholder proposals must be received by the Company no later than December 5, 2007.
If a shareholder wishes to present a proposal at the Companys 2008 Annual Meeting of
Shareholders or to nominate one or more directors, and the proposal is not intended to be included
in the Companys proxy materials relating to that meeting, such proposal or nomination(s) must
comply with the applicable provisions of the Companys by-laws and applicable law. In general, the
Companys by-laws provide that with respect to a shareholder nomination for director, written
notice must be addressed to the Secretary and be received by the Company no less than 60 nor more
than 90 days prior to the first anniversary of the preceding years annual meeting. For purposes
of the Companys 2008 Annual Meeting of Shareholders, such notice must be received not later than
March 9, 2008 and not earlier than February 7, 2008. The Companys by-laws set out specific
requirements that such written notices must satisfy.
With respect to shareholder proposals (other than nominations for directors) that are not
intended to be included in the Companys proxy materials relating to the 2008 Annual Meeting of
Shareholders, such proposals are subject to the rules adopted by the SEC relating to the exercise
of discretionary voting authority unless notice of such a proposal is received by the Company no
later than February 20, 2008.
OTHER BUSINESS
The Board of Directors knows of no other matters to be voted upon at the Annual Meeting. If
any other matters properly come before the Annual Meeting, it is the intention of the persons named
in the enclosed proxy to vote on such matters in accordance with their judgment.
Copies of the 2006 Annual Report to Shareholders of MOD-PAC have been mailed to shareholders.
Additional copies of the Annual Report, as well as this Proxy Statement, Proxy Card(s), and Notice
of Annual Meeting of Shareholders, may be obtained from MOD-PAC CORP., 1801 Elmwood Avenue,
Buffalo, NY 14207.
A COPY OF THE COMPANYS ANNUAL REPORT ON FORM 10-K, FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION, WILL BE FURNISHED WITHOUT CHARGE TO SHAREHOLDERS, BENEFICIALLY OR OF RECORD ON MARCH
21, 2007, ON REQUEST TO SHAREHOLDER RELATIONS, MOD-PAC CORP., 1801 ELMWOOD AVENUE, BUFFALO, NEW
YORK 14207.
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BY ORDER OF THE BOARD OF DIRECTORS |
Buffalo, New York
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April 4, 2007
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/s/ John B. Drenning, Secretary |
18
ANNUAL MEETING OF SHAREHOLDERS OF
MOD-PAC CORP.
May 8,
2007
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
ê Please detach along perforated line and mail
in the envelope provided. ê
n 20530300000000000000
1
050807
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF DIRECTORS, FOR PROPOSAL 2, AND AGAINST
PROPOSAL 3. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE x
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FOR |
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AGAINST |
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ABSTAIN |
1. Election of
Directors: |
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Ratify the appointment of Ernst & Young LLP as the independent registered
public accounting firm for the Company for the current fiscal
year. |
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NOMINEES: |
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FOR ALL NOMINEES |
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William G. Gisel, Jr. |
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¡ |
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Daniel
G. Keane |
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WITHHOLD AUTHORITY FOR ALL NOMINEES |
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Kevin T.
Keane
Robert J. McKenna
Howard Zemsky |
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3. |
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To consider and vote upon a shareholder proposal
recommending the Board of Directors take action to convert all of the Companys shares of Class B Stock
into shares of Class A Stock. |
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FOR ALL
EXCEPT
(See Instructions below) |
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4. |
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In
their discretion, upon such other business as may properly come
before the Annual Meeting or any adjournments.
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INSTRUCTION:
To withhold authority to vote for any individual nominee(s),
mark FOR ALL
EXCEPT and fill in the circle next to each nominee you wish to
withhold, as shown here: l
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To change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that
changes to the registered name(s) on the account may not be submitted
via this method.
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Signature
of Shareholder
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Date:
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Signature
of Shareholder
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Date:
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Note:
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Please sign exactly as your name or names appear on
this Proxy. When shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please give full title
as such. If the signer is a corporation, please sign full corporate name by duly
authorized officer, giving full title as such. If signer is a partnership, please
sign in partnership name by authorized person.
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o n
MOD-PAC CORP.
1801 Elmwood Avenue
Buffalo, New York 14207
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR THE ANNUAL MEETING OF SHAREHOLDERS
ON MAY 8, 2007, AT 10:00 A.M.
The undersigned hereby appoints Kevin T. Keane and Daniel G. Keane,
and each of them, proxies with the powers the undersigned would possess if personally
present and with full power of substitution, to vote all shares of Class B and Common Stock of the undersigned at the
Annual Meeting of Shareholders of MOD-PAC CORP., to be held at the Companys headquarters, 1801 Elmwood Avenue,
Buffalo, New York 14207, on May 8, 2007, at 10:00 a.m. and at any adjournments, upon matters described in the Proxy
Statement furnished herewith and all other subjects that may properly come before the meeting.
IF NO DIRECTIONS ARE GIVEN, THE INDIVIDUALS DESIGNATED ABOVE WILL
VOTE FOR THE NOMINEES FOR DIRECTOR LISTED HEREIN AND, AT THEIR DISCRETION,
ON ANY OTHER MATTER THAT MAY PROPERLY COME BEFORE THE MEETING.
(Continued and to be signed on the reverse side.)
n
14475 n
ANNUAL MEETING OF SHAREHOLDERS OF
MOD-PAC CORP.
May 8, 2007
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PROXY VOTING INSTRUCTIONS
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MAIL - Date, sign and mail your proxy card in the
envelope provided as soon as possible.
- OR -
TELEPHONE
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Call toll-free 1-800-PROXIES
(1-800-776-9437) from
any touch-tone telephone and follow the instructions.
Have your proxy card available when you call.
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COMPANY NUMBER
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ACCOUNT NUMBER |
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You may enter your voting instructions at 1-800-PROXIES up until 11:59 PM Eastern Time the day before the cut-off or meeting date.
ê Please
detach along perforated line and mail in the envelope provided
IF you are not voting via telephone. ê
n 20530300000000000000 1
050807
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF DIRECTORS, FOR PROPOSAL 2, AND AGAINST PROPOSAL 3. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE
ý
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1.
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Election of Directors: |
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FOR
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AGAINST
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ABSTAIN |
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NOMINEES: |
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2. |
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Ratify the appointment of Ernst & Young LLP as the independent registered public accounting firm for the Company for the current fiscal year.
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FOR ALL NOMINEES |
¡ |
William G. Gisel, Jr.
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¡ |
Daniel G. Keane
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WITHHOLD AUTHORITY FOR ALL NOMINEES |
¡ |
Kevin T. Keane
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¡
¡
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Robert J. McKenna
Howard Zemsky
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3. |
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To consider and vote upon a shareholder proposal recommending the Board of Directors take action to convert all of the Companys shares of Class B Stock into shares of Class A Stock.
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o |
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o |
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FOR
ALL EXCEPT (See instructions below) |
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4. |
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In their discretion, upon such other business as may properly come before the Annual Meeting or any adjournments.
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INSTRUCTION: To withhold authority to vote for any individual nominee(s),
mark FOR ALL EXCEPT and fill in the circle next to
each nominee you wish to
withhold, as shown here: = |
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To change the address on your account, please check the
box at right and indicate your new address in the address space above.
Please note that changes to the registered name(s) on the account may not be submitted via this method.
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o |
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Signature
of Shareholder
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Date:
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Signature
of Shareholder
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Date:
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Note:
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Please sign exactly as your name or names appear on
this Proxy. When shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please give full title
as such. If the signer is a corporation, please sign full corporate name by duly
authorized officer, giving full title as such. If signer is a partnership, please
sign in partnership name by authorized person.
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n