EX-10.1



 






Exhibit 10.1




CENTERPLATE, INC.




LONG-TERM PERFORMANCE PLAN




1. Purpose




     The purpose of the Plan is to further the growth and the financial success
of the Company by offering performance incentives to those employees of the
Company whose responsibilities and decisions directly affect the Company’s
success. The Company believes that the Plan will enable the Company to remain
competitive and innovative in its ability to attract, motivate, reward and
retain the services of employees of superior ability. The Awards granted under
the Plan are intended to qualify as “qualified performance-based compensation”
under Section 162(m) of the Code.



2. Definitions




     When used herein, the following terms shall have the indicated meaning:



     “Act” means the Securities Exchange Act of 1934.



     “Award” means the designation of an Eligible Employee as a Participant in
a particular Class Awards Program.



     “Bonus Award” means the amount payable to a Participant following the
completion of a Performance Period and the satisfaction of the terms and
conditions of the applicable Class Awards, determined in accordance with the
terms of this Plan.



     “Change-in-Control” means: (i) any “person” (as such term is used in
Section 3(a)(9) and 13(d)(3) of the Act) is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 51% or more
of the combined voting power of the then outstanding securities of the Company;
(ii) a change in the composition of a majority of the Board of Directors of the
Company within twelve months after any person is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 25% of
the combined voting power of the then outstanding securities of the Company; or
(iii) the sale of substantially all the assets of the Company and/or its
operating subsidiaries.



     “Change-in-Control Benefits” and “Change-in-Control Bonus Awards” have the
meanings set forth in Section 5(f).



     “Class Awards Program” or “Class Awards” mean all of the terms and
conditions applicable to the payment of a Bonus Award in respect of a given
Performance Period, as determined by the Committee under Section 4 and
otherwise under this Plan.



     “Code” means the Internal Revenue Code of 1986, as amended.



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     “Committee” means the Compensation Committee of the Board of Directors of
the Company or such other committee as may be designated by the Board of
Directors to administer the Plan.



     “Company” means Centerplate, Inc. and its successors and assigns.



     “Covered Executive” means an officer of the Company for whom compensation
is required to be reported in the Company’s proxy statement pursuant to Item
402 of Regulation S-K of the Act and whose compensation is subject to Section
162(m) of the Code.



     “Designated Participant” means a Participant specifically designated by
the Committee to receive Change-in-Control benefits pursuant to Section 5(f) of
the Plan.



     “Eligible Persons” means all Covered Executives, provided that the Board
may determine that the Plan may also include any other members of senior
management of the Company or other executive or key employee selected by the
Committee or the Board to be included under this Plan and so designated by
name, title, salary class or such other identifying characteristic determined
by the Committee, up to a limit of 50 employees who may have outstanding Awards
at any time.



     “Participant” means, with respect to any applicable Class Awards, those
Eligible Persons designated by the Committee to receive an Award, which persons
may be designated by name, title, salary grade or such other identifying
characteristic determined by the Committee for the particular Class Awards.



     “Performance Goals” mean any goals relating to one or more of the
following business criteria as selected by the Committee:




	(i)	 	distributable cash;
	 
	(ii)	 	operating cash flow;
	 
	(iii)	 	adjusted earnings before interest, taxes, depreciation and amortization;
	 
	(iv)	 	operating margins;
	 
	(v)	 	reductions in operating expenses;
	 
	(vi)	 	return on invested capital;
	 
	(vii)	 	return on assets;
	 
	(viii)	 	average remaining contract life;
	 
	(ix)	 	economic value added;
	 
	(x)	 	cost reductions and savings;
	 
	(xi)	 	productivity improvements.





As well as, with respect to any Participant, the attainment by such Participant
of personal objectives designated by the Committee with respect to any of the
foregoing criteria or other criteria such as growth and profitability, customer
satisfaction, leadership effectiveness, business



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development, negotiating transactions and sales or developing long-term
business goals identified by the Committee. For purposes of this definition,
any business criteria may include or exclude: (i) extraordinary, unusual and/or
non-recurring items of gain or loss: (ii) gains or losses on the disposition of
a business: (iii) changes in tax or accounting regulations or laws; or (iv) the
effect of a merger or acquisition, as identified in the Company’s quarterly and
annual earnings releases.



     “Performance Objective” means the level or levels of performance required
to be attained with respect to specified Performance Goals in order that a
Participant shall become entitled to specified rights in connection with a
Class Awards Program.



     “Performance Objectives Factor” means the weighting to be applied to the
Performance Goals identified for a particular Class Awards Program so as to
reflect the Performance Objectives under the Plan by the conclusion of the
applicable Performance Period.



     “Performance Period” means the three-year period, or such other shorter or
longer period that may be designated by the Committee, during which the
Performance Goals and Performance Objectives for the particular Class Awards
Program will be measured to determine a Participant’s entitlement to receive
payment of a Bonus Award.



     “Plan” means this Long-Term Performance Plan, as the same may be amended,
administered and interpreted from time to time.



     “Preliminary Bonus Award” means the initial amount of a Bonus Award that
would be payable to a Participant in respect of an Award at the conclusion of
the applicable Performance Period after applying the criteria established for
the applicable Class Award Program.



     “Target Award” means with respect to any Participant, the amount
designated by the Committee as the target amount of the Bonus Award that would
become payable to such Participant following the close of the Performance
Period if the criteria established by the Committee are satisfied for the
applicable Class Awards Program and may be expressed as the amount of the
Participant’s Preliminary Bonus Award if the Performance Objectives Factor
established by the Committee for the Performance Period is 100%, which in turn
may be expressed as a percentage of the Participant’s year-end base salary and
bonus in the final year of the Performance Period or in such other manner as
designated by the Committee consistent with the terms of this Plan.



3. Administration




     (a) The Plan shall be administered by the Committee. Each member of the
Committee shall be a member of the Board of Directors of the Company, a
“non-employee director” within the meaning of Rule 16b-3(b)(3)(i) under the Act
or successor rule or regulation and an “outside director” within the meaning of
Section 162(m) of the Code.



     (b) All decisions, determinations or actions of the Committee made or
taken pursuant to grants of authority under the Plan shall be made or taken in
the sole discretion of the Committee and shall be final, conclusive and binding
on all persons for all purposes.



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     (c) The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof, and its
interpretations and constructions thereof and actions taken thereunder shall
be, except as otherwise determined by the Board, final, conclusive and binding
on all persons for all purposes.



     (d) The Committee’s decisions and determinations under the Plan need not
be uniform and may be made selectively among Participants, whether or not such
Participants are similarly situated.



4. Terms and Conditions of Class Awards Program




     Subject to the provisions of this Plan, the Committee shall determine the
terms and conditions of the Class Awards for each Performance Period in respect
of which the Committee elects to make Awards hereunder, with each Class Awards
Program identified by reference to the first year in the applicable Performance
Period (e.g., the “2004 Class Awards”) or as otherwise determined by the
Committee. The Committee may permit overlapping or consecutive Performance
Periods. The Committee shall follow the procedure set forth in this Section 4
with respect to each Class Awards Program, and shall select from the design
features set forth in Section 5 in formulating the program.



     (a) Maximum Bonus Awards for Class Awards in a Performance Period. The
Committee shall identify the aggregate amount payable as Bonus Awards for the
Performance Period, which may be a formula based on a percentage of the Target
Bonus Awards for all designated Participants or as a percentage of net income
or on such other basis as the Committee may determine, provided, that the
maximum Bonus Award for any Participant in any one-year period shall not exceed
200% of such Participant’s total compensation in the year the Bonus Award is
paid.



     (b) Set Performance Goals, Performance Objectives and Target Awards. Not
later than the end of the first third of the Performance Period (or by such
earlier time as may be required in the future by the applicable provisions of
the Code in the case of Covered Executives), the Committee shall:




     (i) Determine from the Eligible Persons who will be Participants for
Class Awards in respect of the Performance Period and designate the Target
Awards for such Participants;




     (ii) Determine the parameters of the Performance Goals and the
Performance Objectives applicable thereto for the Performance Period, which
may be set as a Performance Objectives Factor (described in Section 5(a))
aggregating performance over a number of Performance Goals, with such
weighting or other features as the Committee may establish, and




     (iii) Establish the maximum and minimum parameters, if any, to be
applied to Target Awards for the Participants covered by the Class Awards,
including for each Covered Executive, relative to the achievement of the
applicable Performance Objectives, which threshold for credit shall be 80% or
such other percentage established by the Committee and which maximum credit
percentage shall be 150% or such other percentage established by the
Committee.



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     (c) Review Performance Objective Factors and Finalize Bonus Awards. With
respect to each Class Awards Program, at the end of each Performance Period the
Committee shall:




     (i) Review the calculation of the Preliminary Bonus Award for
Participants in the Class Awards Program, with specific review of the
Preliminary Bonus Awards for the Covered Executives, including the Chief
Executive Officer, and for such other Participants identified by the
Committee, which may include the direct reports to the Chief Executive
Officer whether or not they are Covered Executives.




     (ii) Make such adjustments to increase the amount of the Preliminary
Bonus Award for any Participant, following such factors as the Committee in
its discretion shall determine appropriate to establish the final amount, if
any, of the Bonus Award for such Participant; provided that, the Preliminary
Bonus Award for any Covered Executive may not be increased, and following all
such adjustments the sum of all Bonus Awards payable in respect of the Class
Awards for the Performance Period shall not exceed the amount determined in
accordance with Section 4(a); and




     (iii) Establish the form of payment and the payment date for Bonus
Awards and complete the certification process, all as provided in Section 6.



5. Performance Goals and Performance Objectives — Class Awards Design




     (a) Selection of Performance Goals. In designing a particular Class Awards
Program, the Committee may select one or more business criteria permitted as
Performance Goals and one or more levels of performance with respect to each
such criteria, as selected by the Committee for the specified Class Awards. The
Committee may provide that a Performance Goal is to be measured over a
Performance Period on a periodic, annual, cumulative or average basis, and the
Committee may apply a weighting of Performance Goals to determine a
“Performance Objectives Factor” to be applied to the Participant’s Target Award
payable at the end of the Performance Period. Performance Goals and Performance
Objectives may be established on a Company-wide basis or established with
respect to one or more operating units, divisions, subsidiaries, acquired
businesses, minority investments, partnerships or joint ventures.



     (b) Use of GAAP. Unless otherwise determined by the Committee, Performance
Objectives will be determined using U.S. Generally Accepted Accounting
Principles consistently applied during a Performance Period by no later than
the date on which one-third of the Performance Period has elapsed.



     (c) Changes in Performance Goals. The selection and weighting of
Performance Goals and the features of the Performance Objectives Factor may be
changed from time to time by the Committee (though in a manner consistent with
the provisions of Section 4 of the Plan in respect of Covered Executives);
provided that, with respect to a particular Performance Period, the Performance
Objectives Factor shall generally be established prior to the commencement of
such Performance Period and in all events not later than the end of the first
third of any Performance Period and provided further that no further changes
will occur once an Award is made.



     (d) Use of Multiple Performance Goals. More than one Performance Goal may
be incorporated in a Performance Objective, in which case achievement with
respect to each



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Performance Goal may be assessed individually or in combination with each
other. The Committee may, in connection with the establishment of Performance
Objectives for a Performance Period, establish a matrix setting forth the
relationship between performance on two or more Performance Goals and the
amount of the Award payable for that Performance Period. The level or levels of
performance specified with respect to a Performance Goal may be established in
absolute terms, as objectives relative to performance in prior periods, as an
objective compared to the performance of one or more comparable companies or an
index covering multiple companies, or otherwise as the Committee may determine.



     (e) Objective Goals. With respect to Covered Executives, Performance
Objectives shall be objective and shall otherwise meet the requirements of
Section 162(m) of the Code. Performance Objectives may differ for Awards
granted to any one Participant or to different Participants.



     (f) Change-in-Control Benefits of a Designated Participant. The Committee
has sole discretion to determine those Participants, if any, who shall be named
as Designated Participants eligible to receive Change-in-Control Benefits
pursuant to this subsection (f). Only those Participants specifically named as
Designated Participants by the Committee are eligible to receive
Change-in-Control Benefits pursuant to this subsection (f). If a Participant
has been specifically named by the Committee in writing at the time of an Award
or at any time thereafter as a Designated Participant, then in the event of a
Change-in-Control, the Designated Participant shall be entitled to the benefits
identified by the Committee in writing from time to time with respect to Awards
hereunder (the “Change-in-Control Benefits”); provided that, the Committee may
not decrease the Change-in-Control Benefits for any Designated Participant (x)
following the occurrence of a Change-in-Control or (y) prior to a
Change-in-Control if the Designated Participant remains an employee of the
Company or if the Designated Participant’s employment with the Company has been
terminated due to death or disability or in connection with such
Change-in-Control. If the Committee has not otherwise identified
Change-in-Control Benefits for a Designated Participant, that Designated
Participant’s Change-in-Control Benefits shall be as follows upon the
occurrence of a Change-in-Control:




     (i) All Performance Goals and Performance Objectives in respect of all
such Designated Participant’s outstanding Class Awards shall be deemed to
have been achieved (including any Performance Objectives Factor at 100%).




     (ii) Without regard to the Designated Participant’s employment status
with the Company, for each outstanding Class Award the Designated Participant
shall be entitled to receive the greater of (A) the applicable Target Award
of such Participant for each such Class Award in light of the deemed
achievement specified in subsection (f)(i) above, and (B) the actual amount
of the individual’s Preliminary Bonus Award for each such Class Award (each
such amount referred to herein as a “Change-in-Control Bonus Award”).




     (iii) The sum of all of a Designated Participant’s Change-in-Control
Bonus Awards shall be paid in a lump sum at the earlier of (A) the time of a
termination of the employment of the Designated Participant within two years
following the Change-in-Control, and (B) the time that the Bonus Awards under
such Class Awards would otherwise have been payable where the Designated
Participant’s employment with the Company has not terminated.



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     (iv) If a Designated Participant’s employment is terminated by the
Company within two years from the date of a Change-in-Control or, if within
two years from the date of a Change-in-Control, a Designated Participant’s
employment is terminated for “good reason,” such Designated Participant shall
receive: (A) the Change-in-Control Bonus Award payable pursuant to
subsection(f)(ii), to the extent not already paid, plus (B) an additional
payment equal to such Change-in-Control Bonus Award. All amounts payable
pursuant to this subsection (f)(iv) shall be paid as a lump sum at the time
of such termination of employment. For purposes of this subsection (f)(iv),
termination for “good reason” means a voluntary termination by the Designated
Participant that otherwise entitles the Designated Participant to severance
benefits pursuant to the terms of an employment agreement between the
Designated Participant and the Company. The limitation on the maximum Bonus
Award set forth in Section 4(a) shall not apply to payments made under this
Section 5(f)(iv).



     (v) By agreement with a Designated Participant, the Committee in its
discretion may provide for an adjustment of the amounts payable in respect of
a Change-in-Control under this Plan to take account of Sections 280G and 4999
of the Code to the extent that they may become applicable.



6. Payment of Awards.




     (a) Form of Payment. Bonus Awards shall be paid in cash.



     (b) Entitlement to Payments. Subject to Section 5(f) and Section 6(d),
Bonus Awards shall be paid at such time as designated by the Committee
following the closing of a Performance Period for the applicable Class Awards
to Participants who are employed by the Company on the payment date or whose
employment terminated as a result of death, retirement or resignation for
disability (provided such resignation has been approved by the Board of
Directors of the Company). Except as provided in the previous sentence, the
Committee shall determine in its sole discretion if Awards shall be paid to any
Participant who is not employed by the Company on the payment date.



     (c) Employment After Commencement of a Performance Period. Participants
who commence employment after the beginning of a Performance Period, but prior
to the end of the first half thereof, may be granted an Award, to be determined
in the sole discretion of the Committee on a pro-rata basis for the term of
such Participant’s employment during the Performance Period.



     (d) Certification. Following the completion of each Performance Period,
the Committee shall certify in writing, in accordance with the requirements of
Section 162(m) of the Code, whether the Performance Objectives Factor and other
material terms for paying amounts in respect of each Bonus Award related to
that Performance Period have been achieved or met in respect of Participants
who are Covered Executives. Unless the Committee determines otherwise, Bonus
Awards shall not be paid until the Committee has made the certification
specified under this Section 6(d). It is anticipated that for Participants
other than Covered Executives, if authorized by the Committee, payment of Bonus
Awards can be based on preliminary data available in the last month of the
Performance Period and made shortly after the end of the Performance Period,
subject to confirmation following the close of the Performance Period.



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     (e) Deferral of Payments. Subject to such terms, conditions and
administrative guidelines as the Committee shall specify from time to time, if
the Company has established a deferred compensation plan or similar
arrangement, a Participant shall have the right to elect to defer receipt of
part or all of any payment due with respect to an Bonus Award.



7. Amendment and Termination of Plan




     The Board may, at any time, amend, suspend or terminate the Plan and,
specifically, may make such modifications to the Plan as it deems necessary or
appropriate to avoid the application of Section 162(m) of the Code and the
Treasury regulations issued thereunder. Any such amendment will be contingent
on the approval of stockholders to the extent required by the Board or
applicable law, provided that the Committee may amend the Plan without
stockholder approval under the circumstances described in Section 8(f). Without
the consent of the Participant, no amendment, suspension or termination of the
Plan shall affect any Award made prior to the date of such amendment,
suspension or termination of the Plan (except as contemplated by Section 8(f)
or any Change-in-Control Benefit.



8. Miscellaneous




     (a) No Rights Conferred. Nothing in this Plan or any Award granted
hereunder shall confer upon any employee any right to continue in the employ of
the Company or interfere in any way with the right of the Company to terminate
his or her employment at any time. No Bonus Award payable under the Plan shall
be deemed salary or compensation for the purpose of computing benefits under
any employee benefit plan or other arrangement of the Company for the benefit
of its employees unless the Company shall determine otherwise. No Participant
shall have any claim to a Bonus Award until it is actually granted and paid
under the Plan. To the extent that any person acquires a right to receive
payments from the Company under this Plan, such right shall be no greater than
the right of an unsecured general creditor of the Company. All payments to be
made hereunder shall be paid from the general funds of the Company and no
special or separate fund shall be established and no segregation of assets
shall be made to assure payment of such amounts.



     (b) Withholding. The Committee may cause to be made, as a condition
precedent to the payment of any Bonus Award, or otherwise, appropriate
arrangements with the Participant for the withholding of any federal, state,
local or foreign taxes.



     (c) Applicable Laws. The Plan, the grant of Awards and the payment of
Bonus Awards shall be subject to all applicable federal and state laws, rules,
and regulations and to such approvals by any government or regulatory agency as
may be required.



     (d) Binding Effect. The terms of the Plan shall be binding upon the
Company and its successors and assigns.



     (e) Captions. Captions of Sections hereof or included within the
subsections are inserted solely as a matter of convenience and in no way define
or limit the scope or intent of any provision hereof.



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     (f) Section 162(m). To the extent Bonus Awards issued under the Plan are
intended to be exempt from the application of Section 162(m) of the Code, which
restricts under certain circumstances the Federal income tax deduction for
compensation paid by a public company to named executives in excess of $1
million per year, the Committee may, without stockholder approval, amend the
Plan retroactively or prospectively to the extent it determines necessary in
order to comply with any subsequent clarification of Section 162(m) of the Code
required to preserve the Company’s Federal income tax deduction for
compensation paid pursuant to the Plan.



9. Effective Date, Term of Plan and Shareholder Approval




     Subject to stockholder approval at the Company’s 2004 Special Meeting of
Security Holders, this Plan shall become effective as of October 13, 2004 and
shall terminate on December 31, 2014. The Plan will continue in effect for
existing Class Awards as long as any such Class Award Program is outstanding.



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