Exhibit (10)k
KIMBERLY-CLARK CORPORATION
1999 RESTRICTED STOCK PLAN
(AMENDED AS OF NOVEMBER 14, 2000)
1. PURPOSE
This Restricted Stock Plan (the "Plan") of Kimberly-Clark Corporation
(the "Corporation") is intended to aid in retaining highly qualified personnel
and to encourage those employees who materially contribute, by managerial,
scientific or other innovative means, to the success of the Corporation or of
an Affiliate, to acquire an ownership interest in the Corporation, and to
provide such employees with this incentive and reward opportunity and thereby
increase their motivation to continue to make such contributions in the future.
2. EFFECTIVE DATE
The Plan is effective as of January 1, 1999.
3. DEFINITIONS
"Affiliate" means any company in which the Corporation owns 20% or more
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of the equity interest (collectively, the Affiliates").
"Award" has the meaning set forth in section 6 of this Plan.
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"Board" means the Board of Directors of the Corporation.
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"Cause" means any of the following: (i) the commission by the
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Participant of a felony; (ii) the Participant's dishonesty, habitual neglect
or incompetence in the management of the affairs of the Corporation; or (iii)
the refusal or failure by the Participant to act in accordance with any lawful
directive or order of the Corporation, or an act or failure to act by the
Participant which is in bad faith and which is detrimental to the Corporation.
"Change of Control" means an event deemed to have taken place if: (i) a
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third person, including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, acquires shares of the Corporation having 20%
or more of the total number of votes that may be cast for the election of
Directors of the Corporation; or (ii) as the result of any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Corporation before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Corporation or any successor to the Corporation.
"Code" means the Internal Revenue Code of 1986 and the regulations
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thereunder, as amended from time to time.
"Committee" means the Compensation Committee of the Board, provided that
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if the requisite number of members of the Compensation Committee are not
Disinterested Persons, the Plan shall be administered by a committee, all of
whom are Disinterested Persons, appointed by the Board and consisting of two
or more directors with full authority to act in the matter. The term
"Committee" shall mean the Compensation Committee or the committee appointed
by the Board, as the case may be.
"Committee Rules" means the interpretative guidelines, if any, approved
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by the Committee providing the foundation for administration of this Plan.
"Common Stock" means the common stock, par value $1.25 per share, of the
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Corporation and shall include both treasury shares and authorized but unissued
shares and shall also include any security of the Corporation issued in
substitution, in exchange for, or in lieu of the Common Stock.
"Disinterested Person" means a person who is a "Non-Employee Director"
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for purposes of rule 16b-3 under the Exchange Act, or any successor provision,
and who is also an "outside director" for purposes of section 162(m) of the
Code or any successor section.
"Exchange Act" means the Securities Exchange Act of 1934 and the rules
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and regulations thereunder, as amended from time to time.
"Fair Market Value" means the reported closing price of the Common Stock,
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on the relevant date as reported on the composite list used by The Wall Street
Journal for reporting stock prices, or if no such sale shall have been made on
that day, on the last preceding day on which there was such a sale.
"Participant" means an employee who the Committee selects to participate
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in and receive Awards under the Plan (collectively, the "Participants").
"Qualified Termination of Employment" means the termination of a
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Participant's employment with the Corporation and/or its Affiliates within the
two (2) year period following a Change of Control of the Corporation for any
reason (whether voluntary or involuntary) unless such termination is by reason
of death or disability or unless such termination is (i) by the Corporation
for Cause or (ii) by the Participant without Good Reason. Subject to the
definition of "Termination by the Participant for Good Reason," transfers of
employment for administrative purposes among the Corporation and its
Affiliates shall not be deemed a Qualified Termination of mployment.
"Restricted Period" shall mean the period of time during which the
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Transferability Restrictions applicable to Awards will be inforce.
"Restricted Share" shall mean a share of Common Stock which may not be
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traded or sold, until the date the Transferability Restrictions expire.
"Restricted Share Unit" means the right, as described in section 8, to
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receive an amount, payable in either cash or shares of Common Stock, equal to
the value of a specified number of shares of Common Stock. No certificates
shall be issued with respect to such Restricted Share Unit, except as provided
in subsection 8(d), and the Corporation shall maintain a bookkeeping account
in the name of the Participant to which the Restricted Share Unit shall
relate.
"Termination by the Participant for Good Reason" shall mean the
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occurrence (without the Participant's express written consent) of any one of
the following acts by the Corporation, or failures by the Corporation to act,
unless, in the case of any act or failure to act described below, such act or
failure to act is corrected prior to the Participant's termination date:
(i) the assignment to the Participant of any duties inconsistent with
the Participant's status with the corporation or a substantial adverse
alteration in the nature or status of the Participant's responsibilities from
those in effect immediately prior to the Change of Control other than such
alteration primarily attributable to the fact that the Corporation may no
longer be a public company;
(ii) a reduction by the Corporation of the Participant's annual base
salary by five percent or more as in effect immediately prior to the Change of
Control, except for across-the-board salary reductions similarly affecting all
similarly situated employees of the Corporation;
(iii) the Corporation requiring the Participant to be based at a
location more than 50 miles from the location of the Participant's office as
of the date of the Change of Control except for required travel on the
Corporation's business to an extent substantially consistent with the
Participant's business travel obligations as of the date of the Change of
Control;
(iv) the failure of the Corporation to pay as soon as
administratively feasible, after notice from the Participant, any portion of
the Participant's current compensation;
(v) the failure of the Corporation to continue in effect any
compensation plan in which the Participant participates immediately prior to
the Change of Control which is material to the Participant's total
compensation, including but not limited to the Corporation's stock option,
incentive compensation, and bonus plans, or any substitute plans adopted prior
to the Change of Control, unless an equitable arrangement (which is embodied
in an ongoing substitute or alternative plan but which need not provide the
Participant with equity-based incentives) has been made with respect to such
plan, or the failure by the Corporation to continue the Participant's
participation therein (or in such substitute or alternative plan) on a basis
not materially less favorable than the benefits provided to other
participants; or
(vi) the failure by the Corporation to continue to provide the
Participant with benefits substantially similar to those enjoyed by the
Participant under any of the Corporation's pension, life insurance, medical,
health and accident, or disability plans in which the Participant was
participating at the time of the Change of Control, the taking of any action
by the Corporation which would directly or indirectly materially reduce any of
such benefits or deprive the Participant of any material fringe benefit
enjoyed by the Participant at the time of the Change of Control, or the
failure by the Corporation to provide the Participant with the number of paid
vacation days to which the Participant is entitled on the basis of years of
service with the Corporation in accordance with the Corporation's normal
vacation policy in effect at the time of the Change of Control.
The Participant's right to terminate the Participant's employment for
Good Reason shall not be affected by the Participant's incapacity due to
physical or mental illness. The Participant's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
"Total and Permanent Disability" means Totally and Permanently Disabled
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as defined in the Kimberly-Clark Corporation Salaried Employees' Retirement
Plan.
"Transferability Restrictions" means the restrictions on transferability
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imposed on Awards of Restricted Shares or Restricted Share Units.
4. ADMINISTRATION
The Plan and all Awards granted pursuant thereto shall be administered by
the Committee. The Committee, in its absolute discretion, shall have the power
to interpret and construe the Plan. Any interpretation or construction of any
provisions of this Plan by the Committee shall be final and conclusive upon
all persons. No member of the Board or the Committee shall be liable for any
action or determination made in good faith.
Within 60 days following the close of each calendar year that the Plan is
in operation, the Committee shall make a report to the Board. The report
shall specify the employees who received Awards under the Plan during the
prior year, the form and size of the Awards to the individual employees, and
the status of prior Awards.
The Committee shall have the power to promulgate Committee Rules and
other guidelines in connection with the performance of its obligations, powers
and duties under the Plan, including its duty to administer and construe the
Plan.
The Committee may authorize persons other than its members to carry out
its policies and directives subject to the limitations and guidelines set by
the Committee, except that: (a) the authority to grant Awards, the selection
of officers and directors for participation and decisions concerning the
timing, pricing and amount of a grant or Award shall not be delegated by the
Committee; (b) the authority to administer Awards with respect to persons who
are subject to section 16 of the Exchange Act shall not be delegated by the
Committee; and (c) any delegation shall satisfy all applicable requirements of
rule 16b-3 of the Exchange Act, or any successor provision. Any person to
whom such authority is granted shall continue to be eligible to receive Awards
under the Plan.
5. ELIGIBILITY
The Committee shall from time to time select the Plan Participants from
those employees whom the Committee determines either to be in a position to
contribute materially to the success of the Corporation or Affiliate, or to
have in the past so contributed, and it is desired to motivate them to
continue to make such contributions in the future. Only employees (including
officers and directors who are employees) of the Corporation and its
Affiliates are eligible to participate in the Plan.
6. FORMS OF AWARDS
All Awards under the Plan shall be made in the form of Restricted Shares
or Restricted Share Units. The Committee may make Awards solely in Restricted
Shares or Restricted Share Units, or in any combination of the two.
Notwithstanding anything in this Plan to the contrary, any Restricted Shares
shall contain the restriction on assignability in subsection 14(f) of this
Plan to the extent required under rule 16b-3 of the Exchange Act.
7. RESTRICTED SHARES
The Committee may from time to time designate those Participants who
shall receive Restricted Share Awards. Each grant of Restricted Shares under
the Plan shall be evidenced by an agreement which shall be executed by the
Corporation and the Grantee. The agreement shall contain such terms and
conditions, not inconsistent with the Plan, as shall be determined by the
Committee and shall indicate the number of Restricted Shares awarded and the
following terms and conditions of the award.
(a) Grant of Restricted Shares. The Committee shall determine the
number of Restricted Shares to be included in the grant and the period or
periods during which the Transferability Restrictions applicable to the
Restricted Shares will be in force (the "Restricted Period"). The Restricted
Period shall be for a minimum of three years and shall not exceed ten years
from the date of grants, as determined by the Committee at the time of grant.
The Restricted Period may be the same for all Restricted Shares granted at a
particular time or to any one Grantee or may be different with respect to
different Grantees or with respect to various of the Restricted Shares granted
to the same Grantee, all as determined by the Committee at the time of grant.
(b) Transferability Restrictions. During the Restricted Period,
Restricted Shares may not be sold, assigned, transferred or otherwise disposed
of, or mortgaged, pledged or otherwise encumbered. Furthermore, a Grantee's
right, if any, to receive Shares upon termination of the Restricted Period may
not be assigned or transferred except by will or by the laws of decent and
distribution. In order to enforce the limitations imposed upon the Restricted
Shares the Committee may (i) cause a legend or legends to be placed on any
such certificates, and/or (ii) issue "stop transfer" instructions as it deems
necessary or appropriate. Holders of Restricted Shares limited as to sale
under this subsection 7(b) shall have rights as a shareholder with respect to
such shares to receive dividends in cash or other property or other
distribution or rights in respect of such shares, and to vote such shares as
the record owner thereof. With respect to each grant of Restricted Shares,
the Committee shall determine the Transferability Restrictions which will
apply to the Restricted Shares for all or part of the Restricted Period. By
way of illustration but not by way of limitation, the Committee may provide
(i) that the Grantee will not be entitled to receive any Shares unless he or
she is still employed by the Corporation or its Subsidiaries at the end of the
Restricted Period, (ii) that the Grantee will become vested in Restricted
Shares according to a schedule determined by the Committee, or under other
terms and conditions determined by the Committee, and (iii) how any
Transferability Restrictions will be applied, modified or accelerated in the
case of the Grantee's death or Total and Permanent Disability.
(c) Manner of Holding and Delivering Restricted Shares. Each certificate
issued for Restricted Shares shall be registered in the name of the Grantee
and deposited with the Corporation or its designee. These certificates shall
remain in the possession of the Corporation or its designee until the end of
the applicable Restricted Period or, if the Committee has provided for earlier
termination of the Transferability Restrictions following a Grantee's death,
Total and Permanent Disability or earlier vesting of the Shares, such earlier
termination of the Transferability Restrictions. At whichever time is
applicable, certificates representing the number of Shares to which the
Grantee is then entitled shall be delivered to the Grantee free and clear of
the Transferability Restrictions; provided that in the case of a Grantee who
is not entitled to receive the full number of Shares evidenced by the
certificates then being released from escrow because of the application of the
Transferability Restrictions, those certificates shall be returned to the
Corporation and canceled and a new certificate representing the Shares, if
any, to which the Grantee is entitled pursuant to the Transferability
Restrictions shall be issued and delivered to the Grantee, free and clear of
the Transferability Restrictions.
8. RESTRICTED SHARE UNITS
The Committee shall from time to time designate those Participants who
shall receive Awards. The Committee shall advise such Participants of their
Awards by a letter indicating the number of Restricted Share Units awarded and
the following terms and conditions of the award.
(a) Restricted Share Units may be granted to Participants as of
the first day of a Restricted Period. The number of Restricted Share Units to
be granted to each Participant and the Restricted Period shall be determined
by the Committee in its sole discretion.
(b) Transferability Restrictions. With respect to each grant of
Restricted Share Units, the Committee shall determine the Transferability
Restrictions which will apply to the Restricted Share Units for all or part of
the Restricted Period. By way of illustration but not by way of limitation,
the Committee may provide (i) that the Grantee will forfeit any Restricted
Share Units unless he or she is still employed by the Corporation or its
Subsidiaries at the end of the Restricted Period, (ii) that the Grantee will
become vested in Restricted Share Units according to a schedule determined by
the Committee, or under other terms and conditions determined by the
Committee, and (iii) how any Transferability Restrictions will be applied,
modified or accelerated in the case of the Grantee's death or Total and
Permanent Disability.
(c) During the Restricted Period, Participants will be credited
with dividends, equivalent in value to those declared and paid on shares of
Common Stock, on all Restricted Share Units granted to them. These dividends
will be regarded as having been reinvested in Restricted Share Units on the date
of the Common Stock dividend payments based on the then Fair Market Value of the
Common Stock thereby increasing the number of Restricted Share Units held by a
Participant. Holders of Restricted Share Units under this subsection 8(c)
shall have none of the rights of a shareholder with respect to such shares.
Holders of Restricted Share Units are not entitled to receive dividends in
cash or other property, nor other distribution of rights in respect of such
shares, nor to vote such shares as the record owner thereof.
(d) Payment of Restricted Share Units. The payment of Restricted
Share Units shall be made in cash or shares of Common Stock, or a combination
of both, as determined by the Committee at the time of grant. The payment of
Restricted Share Units shall be made within 90 days following the end of the
Restricted Period.
9. LEAVES OF ABSENCE AND OTHER TERMINATIONS
(a) In the event the Participant's employment with the Corporation
or an Affiliate is terminated by reason of a shutdown or divestiture of all or
a portion of the Corporation's or its Affiliate's business, a proportion of the
Restricted Share or Restricted Share Unit Award shall be considered to vest as
of the close of the fiscal year of the Participant's termination of
employment. The number of shares that shall vest shall be prorated for the
number of full years of employment during the Restricted Period prior to the
Participant's termination of employment.
(b) In the event of a Qualified Termination of Employment of a
Participant, all of the Restricted Shares or Restricted Share Unit Awards
shall be considered to vest immediately.
(c) An authorized leave of absence, or qualified military leave in
accordance with section 414(u) of the Code, shall not be deemed to be a
termination of employment for purposes of the Plan. A termination of
employment with the Corporation or an Affiliate to accept immediate
reemployment with the Corporation or an Affiliate likewise shall not be deemed
to be a termination of employment for purposes of the Plan.
10. SHARES SUBJECT TO THE PLAN
The number of shares of Common Stock available with respect to all Awards
granted under this Plan shall not exceed 2,500,000 in the aggregate, subject
to the adjustment provision set forth in section 11 hereof. The shares of
Common Stock subject to the Plan shall consist only of treasury shares.
Restricted Share Units which are retired through forfeiture or maturity, other
than those Restricted Share Units which are retired through the payment of
Common Stock, and Restricted Shares which are forfeited during the Restricted
Period due to any applicable Transferability Restrictions will be available
for Awards under the Plan to the extent permitted by section 16 of the
Exchange Act (or the rules and regulations promulgated thereunder) and to the
extent determined appropriate by the Committee. Shares of Common Stock which
are distributed through the payment of Restricted Share Units pursuant to
subsection 8(d) will not be available for Awards under the Plan.
11. CHANGES IN CAPITALIZATION
In the event there are any changes in the Common Stock or the
capitalization of the Corporation through a corporate transaction, such as any
merger, any acquisition through the issuance of capital stock of the
Corporation, any consolidation, any separation of the Corporation (including a
spin-off or other distribution of stock of the Corporation), any
reorganization of the Corporation (whether or not such reorganization comes
within the definition of such term in section 368 of the Code), or any partial
or complete liquidation by the Corporation, recapitalization, stock dividend,
stock split or other change in the corporate structure, appropriate
adjustments and changes shall be made by the Committee, to the extent
necessary to preserve the benefit to the Participant contemplated hereby, to
reflect such changes in (a) the aggregate number of shares subject to the
Plan, (b) the maximum number of shares subject to the Plan, (c) the number of
Restricted Shares and Restricted Share Units awarded to Participants, and (d)
such other provisions of the Plan as may be necessary and equitable to carry
out the foregoing purposes.
12. EFFECT ON OTHER PLANS
All payments and benefits under the Plan shall constitute special
compensation and shall not affect the level of benefits provided to or
received by any Participant (or the Participant's estate or beneficiaries) as
part of any employee benefit plan of the Corporation or an Affiliate. The
Plan shall not be construed to affect in any way a Participant's rights and
obligations under any other plan maintained by the Corporation or an Affiliate
on behalf of employees.
13. TERM OF THE PLAN
The term of the Plan shall be four years, beginning January 1, 1999, and
ending December 31, 2002, unless the Plan is terminated prior thereto by the
Committee. No Restricted Shares or Restricted Share Units may be awarded
after the termination date of the Plan, but Restricted Shares and Restricted
Share Units theretofore granted or awarded shall continue in force beyond that
date pursuant to their terms.
14. GENERAL PROVISIONS
(a) Designated Beneficiary. Each Participant who shall be
granted Restricted Shares and Restricted Share Units under the Plan may
designate a beneficiary or beneficiaries with the Committee; provided that no
such designation shall be effective unless so filed prior to the death of such
Participant.
(b) No Right of Continued Employment. Neither the establishment
of the Plan nor the payment of any benefits hereunder nor any action of the
Corporation, its Affiliates, the Board of Directors of the Corporation or its
Affiliates, or the Committee shall be held or construed to confer upon any
person any legal right to be continued in the employ of the Corporation or its
Affiliates, and the Corporation and its Affiliates expressly reserve the right
to discharge any Participant without liability to the Corporation, its
Affiliates, the Board of Directors of the Corporation or its Affiliates or the
Committee, except as to any rights which may be expressly conferred upon a
Participant under the Plan.
(c) Binding Effect. Any decision made or action taken by the
Corporation, the Board or by the Committee arising out of or in connection
with the construction, administration, interpretation and effect of the Plan
shall be conclusive and binding upon all persons.
(d) Modification of Awards. The Committee may in its sole and
absolute discretion, by written notice to a Participant, accelerate the
Restricted Period with respect to the Awards granted under this Plan. In the
case of any Award granted to a Participant who is not a resident of the United
States or who is employed by an Affiliate other than an Affiliate that is
incorporated, or whose place of business is, in a State of the United States,
the Committee may (i) determine which Participants, countries and Affiliates
are eligible to participate in the Plan, (ii) modify the terms and conditions
of any Awards granted to Participants who are employed outside the United
States, (iii) establish subplans, each of which shall be attached as an
appendix hereto, modify Award exercise procedures and other terms and
procedures to the extent such actions may be necessary or advisable, and (iv)
take any action, either before or after the Award is made, which it deems
advisable to obtain approval of such Award by an appropriate governmental
entity; provided, however, that no action may be taken hereunder if such
action would (1) materially increase any benefits accruing to any Participants
under the Plan, (2) increase the number of securities which may be issued
under the Plan, or (3) result in a failure to comply with applicable
provisions of the Securities Act of 1933, the Exchange Act or the Code.
(e) No Segregation of Cash or Stock. The Restricted Share Unit
accounts established for Participants are merely a bookkeeping convenience and
neither the Corporation nor its Affiliates shall be required to segregate any
cash or stock which may at any time be represented by Awards. Nor shall
anything provided herein be construed as providing for such segregation.
Neither the Corporation, its Affiliates, the Board nor the Committee shall, by
any provisions of the Plan, be deemed to be a trustee of any property, and the
liability of the Corporation or its Affiliates to any Participant pursuant to
the Plan shall be those of a debtor pursuant to such contract obligations as
are created by the Plan, and no such obligation of the Corporation or its
Affiliates shall be deemed to be secured by any pledge or other encumbrance on
any property of the Corporation or its Affiliates.
(f) Inalienability of Benefits and Interest. Except as provided
in subsection 14(a), no benefit payable under or interest in the Plan shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any such attempted action shall be void and
no such benefit or interest shall be in any manner liable for or subject to
debts, contracts, liabilities, engagements, or torts of any Participant or
beneficiary.
(g) Delaware Law to Govern. All questions pertaining to the
construction, interpretation, regulation, validity and effect of the
provisions of the Plan shall be determined in accordance with the laws of the
State of Delaware.
(h) Purchase of Common Stock. The Corporation and its
Affiliates may purchase from time to time shares of Common Stock in such
amounts as they may determine for purposes of the Plan. The Corporation and
its Affiliates shall have no obligation to retain, and shall have the
unlimited right to sell or otherwise deal with for their own account, any
shares of Common Stock purchased pursuant to this paragraph.
(i) Withholding. The Committee shall require the withholding of
all taxes as required by law. Notwithstanding any other provision of the
Plan, the number of shares of Common Stock or the amount of cash to be
delivered may, in the discretion of the Corporation, be net of the number of
shares of Common Stock or the amount of cash required to be withheld to meet
all applicable tax withholding requirements.
(j) Amendments. The Committee may at any time amend, suspend,
or discontinue the Plan or alter or amend any or all Awards under the Plan to
the extent (1) permitted by law, (2) permitted by the rules of any stock
exchange on which the Common Stock or any other security of the Corporation is
listed, (3) permitted under applicable provisions of the Securities Act of
1933, as amended, the Exchange Act (including rule 16b-3 thereof) and (4) that
such action would not result in the disallowance of a deduction to the
Corporation under section 162(m) of the Code or any successor section
(including the rules and regulations promulgated thereunder); provided,
however, that if any of the foregoing requires the approval by stockholders of
any such amendment, suspension or discontinuance, then the Committee may take
such action subject to the approval of the stockholders. Except as provided
in subsection 14(d) no such amendment, suspension, or termination of the Plan
shall, without the consent of the Participant, adversely alter or change any
of the rights or obligations under any Awards or other rights previously
granted the Participant under the Plan.