Exhibit 10(r)(r)
AMENDED AND RESTATED
RESTRICTED STOCK PLAN
FOR OUTSIDE DIRECTORS
OF RGC RESOURCES, INC.
1. Assumption of Plan by RGC Resources, Inc.; Purpose
This Amended and Restated Restricted Stock Plan for Outside Directors of
RGC Resources, Inc. (as successor to Roanoke Gas Company) (the "Plan") amends
and restates the Roanoke Gas Company Restricted Stock Plan for Outside Directors
(the "Original Plan"), which was adopted by the Board of Directors of Roanoke
Gas Company ("Roanoke Gas") on September 23, 1996, and became effective as of
such date upon approval of the Original Plan by the shareholders of Roanoke Gas
Company on Juanuary 27th, 1997. The amendment and restatement of the Original
Plan and the assumption of liabilities hereunder are undertaken by RGC
Resources, Inc. (the "Company"), as successor to Roanoke Gas, in connection with
the reorganization of Roanoke Gas into a holding company structure (the
"Reorganization") as part of which Roanoke Gas became a wholly-owned subsidiary
of RGC Resources as of July 1, 1999. The Reorganization is being effected
pursuant to an Agreement and Plan of Merger dated as of September 28, 1998 (the
"Merger Agreement"), which was approved by the stockholders of Roanoke Gas on
March 31, 1999, and pursuant to which Roanoke Gas and RGC Resources agreed that
from and after the effective date of the Merger provided for therein, this Plan
would utilize RGC Resources common stock instead of Roanoke Gas common stock.
Accordingly, as of the effective date hereof, RGC Resources assumes the
obligations of Roanoke Gas under the Original Plan and undertakes to carry out
all responsibilities of the Company specified herein. Roanoke Gas consents and
agrees to the assumption by RGC Resources of the Roanoke Gas' responsibilities
under this Plan.
The Amended and Restated Restricted Stock Plan for Outside Directors of
RGC Resources, Inc. is intended to advance the interests of RGC Resources, Inc.,
its shareholders, and its affiliates by encouraging and enabling outside
directors upon whose judgment, initiative and effort the Company relies for the
successful conduct of its business, to acquire and retain a proprietary interest
in the Company by ownership of its stock.
2. Definitions
The following definitions apply to this Plan and to the Election Forms:
(a) Beneficiary or Beneficiaries means a person or persons or other
entity designated on a Beneficiary Designation Form by a
Participant to receive Company Stock under this Plan if the
Participant dies. If there is no valid designation by the
Participant, or if the designated Beneficiary or Beneficiaries
fail to survive the Participant, the Participant's Beneficiary is
the first of the following who survives
the Participant: the Participant's spouse (the person legally
married to the Participant when the Participant dies); the
Participant's children in equal shares; the Participant's other
surviving issue, per stirpes; the Participant's parents; and the
Participant's estate.
(b) Beneficiary Designation Form means a form acceptable to the
Chairman of the Committee or his designee used by a Participant
according to this Plan to name the Beneficiary or Beneficiaries
who will receive all the Company Stock under this Plan if the
Participant dies.
(c) Board means the Board of Directors of the Company.
(d) Change in Control means a change in control of a nature that
would be required to be reported (assuming such event has not
been "previously reported") in response to Item 1(a) of the
Current Report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended ("Exchange Act"); provided that, notwithstanding
the foregoing and without limitation, such a change in control
shall be deemed to have occurred at such time as (i) any Person
is or becomes the "beneficial owner" (as defined in Rule 13d-3 or
Rule 13d-5 under the Exchange Act as in effect on the date
hereof), directly or indirectly, of 20% or more of the combined
voting power of the Company's voting securities; (ii) the
incumbent Board ceases for any reason to constitute at least the
majority of the Board, provided that any person becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was
approved by a vote of at least 75% of the directors comprising
the incumbent Board (either by a specific vote or by approval of
the proxy statement of the Company in which such person is named
as a nominee for director, without objection to such nomination)
shall be, for purposes of this clause (ii), considered as though
such person were a member of the incumbent Board; (iii) all or
substantially all of the assets of the Company are sold,
transferred or conveyed by any means, including, but not limited
to, direct purchase or merger, if the transferee is not
controlled by the Company, control meaning the ownership of more
than 50% of the combined voting power of such entity's voting
securities; or (iv) the Company is merged or consolidated with
another corporation or entity and as a result of such merger or
consolidation less than 75% of the outstanding voting securities
of the surviving or resulting corporation or entity shall be
owned in the aggregate by the former shareholders of the Company.
Notwithstanding anything in the foregoing to the contrary, no
Change in Control shall be deemed to have occurred for purposes
of the Plan by virtue of any transaction (i) which results in a
Participant or a group of Persons which includes the Participant,
acquiring, directly or indirectly, 20% or more of the combined
voting power of the Company's voting securities; or (ii) which
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results in the Company, any affiliate of the Company or any
profit-sharing plan, employee stock ownership plan or employee
benefit plan of the Company or any of its affiliates (or any
trustee of or fiduciary with respect to any such plan acting in
such capacity) acquiring, directly or indirectly, 20% or more of
the combined voting power of the Company's voting securities.
(e) Committee means the Compensation Committee of the Board.
(f) Company means RGC Resources, Inc.
(g) Company Stock means the common stock, $5 par value of the
Company.
(h) Compensation means a Member's Retainer Fee for the Deferral Year.
(i) Election Form means a document governed by the provisions of
Section 4 of this Plan, including the portion that is the related
Beneficiary Designation Form, that applies to all of that
Participant's shares of Restricted Stock under the Plan.
(j) Directors means those duly named members of the Board.
(k) Election Date means the date established by this Plan as the date
before which a Member must submit a valid Election Form to the
Committee. For each Plan Year, the Election Date is July 31.
However, for an individual who becomes a Member during a Plan
Year, the Election Date is the thirtieth day following the date
that he becomes a Member. Despite the two preceding sentences,
the Committee may set an earlier date as the Election Date for
any Plan Year.
(l) Employee means an individual with whom either the Company or its
affiliates has an employer-employee relationship as determined
for Federal Insurance Contribution Act purposes and Federal
Unemployment Tax Act purposes, including subsection 3401(c) of
the Internal Revenue Code and regulations promulgated under that
subsection.
(m) Members means Directors who are not simultaneously Employees.
(n) Participant means a Member during the Plan Year.
(o) Plan means the Company's Restricted Stock Plan for Outside
Directors.
(p) Plan Year means a fiscal year ending September 30 during which
the Plan is in effect and during which a Member receives a
portion or all of his Compensation in Restricted Stock hereunder.
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(q) Person means person within the meaning of Sections 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934.
(r) Restricted Stock means Company Stock issued to Participants under
the Plan and subject to the vesting and nontransferability
provision of the Plan.
(s) Retainer Fee means that portion of a Director's Compensation that
is fixed and paid without regard to his attendance at meetings.
3. Restricted Stock Payments
On the first day of each month during each Plan Year, forty percent
(40%) of a Participant's Compensation for the month shall be paid in shares of
Restricted Stock of the Company. In determining the number of shares to be
issued pursuant to the preceding sentence, the Fair Market Value of the
Restricted Stock under the Plan shall, for each calendar month, be calculated
based on the closing sales price of the Company's common stock on the Nasdaq-NMS
on the first day of the month, if the first day of the month is a trading day,
or if not, the first trading day prior to the first day of the month.
4. Additional Restricted Stock Election
(a) Before each Plan Year's Election Date, each Member will be
provided with an Election Form and a Beneficiary Designation
Form. Subject to approval of the Board or the Committee, a Member
may elect to receive up to 100% of his Compensation for the Plan
Year in Restricted Stock.
(b) An additional Restricted Stock election is valid when an Election
Form is completed, signed by the electing Member, received by the
Committee Chairman and approved by the Board or the Committee on
or before the Election Date.
(c) A Member may not revoke or amend an Election Form after the
Election Date for the Plan Year. Any revocation before an
Election Date is the same as a failure to submit an Election
Form. Any writing signed by a Member expressing an intention to
revoke his Election Form and delivered to a member of the
Committee before the close of business on the relevant Election
Date is a revocation.
5. Vesting
The shares of Restricted Stock of the Company issued under Section 3 and
Section 4 of this Plan shall vest only in the case of a Participant's death,
disability, retirement (including not standing for reelection to the Board), or
in the event of a Change in Control of the Company. There shall be no option to
take cash in lieu of stock upon vesting of shares under this Plan.
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6. Nontransferability
No share of Restricted Stock issued hereunder may be sold, transferred,
assigned, or pledged by the Participant until such share has vested in
accordance of the terms of this Plan. At the time the Restricted Stock vests,
and, if the Participant has been issued legended certificates of Restricted
Stock, upon the return of such certificates to the Company, a certificate for
such vested shares shall be delivered to the Participant (or the Beneficiary
designated by the Participant in the event of death), free of restrictive legend
(other than any required by applicable securities laws). Notwithstanding the
foregoing, no vested shares may be sold, transferred, assigned or pledged by the
Participant (or the Beneficiary) unless six months have elapsed between the date
of grant of the shares of Restricted Stock which have vested and the date of the
sale, transfer, assignment or pledge of such vested shares.
7. Forfeiture
The shares of Restricted Stock issued under Section 3 and Section 4 of
this Plan shall be forfeited to the Company upon a Member's voluntary
resignation during his term on the Board, or removal for cause as a Director.
8. Stock Certificates
Stock certificates representing the Restricted Stock, together with
stock powers or other instruments of assignment, each endorsed in blank, which
will permit transfer to the Company of all or any portion of the Restricted
Stock evidenced by such certificate in the event it is forfeited, shall be
deposited by the recipient with the Company.
9. Rights as Shareholder
Subject to the terms of this Plan, the Participant, as the owner of the
Restricted Stock, shall have all rights of a shareholder including, but not
limited to, voting rights, the right to receive cash or stock dividends thereon,
and the right to participate in any capital adjustment of the Company. Any
distribution with the respect to shares of Restricted Stock other than in the
form of cash shall be held by the Company, and shall be subject to the same
restrictions as the shares with respect to which such distributions were made.
The Committee may require that any or all dividends or other distributions paid
on shares of Restricted Stock shall be automatically sequestered and may be
reinvested on an immediate or deferred basis in additional shares of Company
stock, which may be subject to the same restrictions as the Restricted Stock or
such other restrictions as the Committee may determine.
10. Claims against Participant's Restricted Stock
The shares of Restricted Stock issued pursuant to this Plan are not
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge, and any attempt to do so is void. Moreover, the
shares are not subject to attachment or legal process for a
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Participant's debts or other obligations. Nothing contained in this Plan gives
any Participant any interest, lien, or claim against any specific asset of the
Company.
11. Amendment or Termination
The Board may at any time suspend or terminate the Plan or may amend it
from time to time in such respects as the Board may deem advisable in order that
the Restricted Stock issued hereunder may conform to any changes in the law or
any other respect with which the Board may deem to be in the best interests of
the Company. No such suspension, termination or amendment of the Plan shall
require approval of the shareholders unless shareholder approval is required by
applicable law or stock exchange requirements.
12. Notices
Notices and elections under this Plan must be in writing. A notice or
election is deemed delivered if it is delivered personally or if it is mailed by
registered or certified mail to the person at his last known business address.
13. Waiver
The waiver of a breach of any provision in this Plan does not operate as
and may not be construed as a waiver of any later breach.
14. Construction
This Plan is created, adopted, and maintained according to the laws of
the Commonwealth of Virginia (except its choice-of-law rules). It is governed by
those laws in all respects. Headings and captions are only for convenience; they
do not have substantive meaning. If a provision of this Plan is not valid or not
enforceable, that fact in no way affects the validity or enforceability of any
other provision. Use of the one gender includes all, and the singular and plural
include each other.
15. Adjustments For Changes in Capitalization
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, rights offer, liquidation, dissolution, merger,
consolidation, spin off, sale of assets, payment of an extraordinary cash
dividend, or any other change in or affecting the corporate structure or
capitalization of the Company, the Committee shall make appropriate adjustments
in the number, price or kind of shares of Restricted Stock authorized to be
issued under this Plan, and in any outstanding shares of Restricted Stock issued
hereunder.
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16. Withholding Taxes
Whenever the Company is required to issue or transfer shares of
Restricted Stock under this Plan, the Company shall have the right to require
the recipient of such Restricted Stock to remit to the Company an amount
sufficient to satisfy any federal, state or local withholding tax liability
prior to the delivery of any certificate for such shares. Whenever under the
Plan payments are to be made in cash, such payments shall be net of an amount
sufficient to satisfy any federal, state or local withholding tax liability.
17. Indemnification
The Company shall indemnify and hold harmless each person who is or has
been a member of the Committee, or of the Board of Directors, against and from
any and all loss, expense, liability, or costs (including reasonable attorneys'
fees) that may be imposed upon or reasonably incurred by him in connection with
or resulting from any claim, action, suit or proceedings to which he may be a
party or in which he may be involved by reason of any action taken or failure to
act under the Plan, and against and from any and all amounts paid by him in
settlement thereof with the Company's approval or paid by him in satisfaction of
a final judgment against him in such action, suit, or proceedings, provided he
shall give the Company an opportunity, at its own expense to handle and defend
the same before he undertakes to handle defense on his own behalf. The right of
indemnification herein set forth shall not be exclusive of any other rights of
indemnification to which such person may be entitled under the Company's
Articles of Incorporation, or code or regulations, as a matter of law, or
otherwise, or any power that the Company may have to indemnify him or to hold
him harmless. It is the Company's intention that all expenses incurred in
connection with the administration of the Plan shall be borne by the Company
rather than by any member of the Committee or the Board of Directors.
18. Effective Date of the Plan
The Plan is subject to approval by the shareholders of the Company. The
Plan will become effective on the date so approved.
19. Shares Subject to the Plan
The aggregate number of shares of Company Stock which may be issued in
respect to Restricted Stock shall not exceed 50,000 shares. All shares
distributed pursuant to the Plan shall consist of authorized but unissued shares
of the Company.
20. Power of the Committee
The Committee shall have authority to interpret conclusively the
provisions of the Plan, to adopt such rules and regulations for carrying out the
Plan as it may deem advisable, to decide conclusively all questions of fact
arising in the application of the Plan, and to make all other
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determinations necessary or advisable for the administration of the Plan. All
decisions and acts of the Committee shall be final and binding upon all affected
Plan Participants.
21. Miscellaneous
Transactions under this Plan are intended to comply with Rule 16b-3 (or
its successor), as amended from time to time, promulgated pursuant to the
Securities Exchange Act of 1934. Therefore, to the extent any provision of the
Plan or action by a person administering the Plan fails to so comply, it shall
be deemed null and void ab initio to the extent permitted by law and deemed
advisable by the Committee.
As evidence of its adoption and approval of this Plan and approval of
the terms and conditions of each Participant transaction hereunder, the Board
has caused this document to be executed on its behalf, and on behalf of the
Company, this 2nd day of July, 1999.
By s/John B. Williamson, III
President and CEO of RGC
Resources, Inc.
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