EXHIBIT 10.13
AQUILA, INC.
2001 OMNIBUS INCENTIVE COMPENSATION PLAN
Article 1. PURPOSE OF THE PLAN
The purpose of the Aquila, Inc. 2001 Omnibus Incentive Compensation Plan is
to promote the interests of the Corporation and its stockholders by
strengthening the Corporation's ability to attract, motivate and retain
employees, consultants, advisors and directors of the Corporation upon whose
judgment, initiative and efforts the financial success and growth of the
business of the Corporation largely depend, and to provide an additional
incentive for such individuals through stock ownership and other rights that
promote and recognize the financial success and growth of the Corporation.
Article 2. DEFINITIONS
Wherever the following capitalized terms are used in this Plan they shall
have the meanings specified below:
(A) "Affiliate" means an entity that is wholly owned, directly or
indirectly, by the Corporation, or any other affiliate of the Corporation
that is so designated, from time to time, by the Committee; provided,
however, that with respect to Incentive Stock Options, the term "Affiliate"
shall not include any entity that does not qualify within the meaning of
Section 424(f) of the Code as a "subsidiary corporation" with respect to
the Corporation.
(B) "Award" means any of the following awards granted under the Plan:
an Option, Restricted Stock, Stock Appreciation Right, Performance Award or
Director Share Payment.
(C) "Award Agreement" means an agreement entered into between the
Corporation and a Participant setting forth the terms and conditions of an
Award granted to a Participant.
(D) "Board" means the Board of Directors of the Corporation.
(E) "Change in Control" shall have the meaning specified in Article
12 hereof.
(F) "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code herein shall include that section and
any comparable section or sections of any future legislation that amends,
supplements or supercedes said section.
(G) "Committee" means the Compensation Committee of the Board, or
such other committee or subcommittee of the Board appointed by the Board to
administer the Plan from time to time.
(H) "Common Stock" means the class A common stock of the Corporation.
(I) "Corporation" means Aquila, Inc., a Delaware corporation.
(J) "Date of Grant" means the date on which an Award under the Plan
is made by the Committee, or such later date as the Committee may specify
that the Award becomes effective.
(K) "Director Share Payment" means an Award of Common Stock granted
under Article 11 to a person serving as an Independent Director.
(L) "Effective Date" means the Effective Date of this Plan, as
defined in Section 15.1 hereof.
(M) "Eligible Person" means any person who is employed as an
employee, consultant or advisor of the Corporation or any Affiliate or an
Independent Director; provided, however, that with respect to Incentive
Stock Options, "Eligible Person" means any person who is considered an
employee of the Corporation or any Affiliate for purposes of Treasury
Regulation Section 1.421-7(h).
(N) "Exchange Act" means the Securities Exchange Act of 1934, as
amended. Any reference to a section of the Exchange Act herein shall
include that section and any comparable section or sections of any future
legislation that amends, supplements or supercedes said section
(O) "Fair Market Value" means, with respect to a share of Common
Stock as of a given date, the closing sales price of the Common Stock on
the New York Stock Exchange - Composite Transactions reporting system (or
other national securities exchange with respect to respect such Common
Stock is listed) on the trading day immediately preceding the date as of
which Fair Market Value is to be determined or, in the absence of any
reported sales of Common Stock on such date, on the first preceding date on
which any such sale shall have been reported. If Common Stock is not listed
on the New York Stock Exchange (or other national securities exchange) on
the date as of which Fair Market Value is to be determined, the Committee
shall determine in good faith the Fair Market Value in whatever manner it
considers appropriate.
(P) "Independent Director" means a member of the Board who is not an
employee of the Corporation or any Affiliate.
(Q) "Incentive Stock Option" means an option to purchase Common Stock
that is intended to qualify as an incentive stock option under Section 422
of the Code and the Treasury Regulations thereunder.
(R) "Nonqualified Stock Option" means an option to purchase Common
Stock that is not an Incentive Stock Option.
(S) "Option" means an Incentive Stock Option or a Nonqualified Stock
Option granted under Section 6 hereof.
(T) "Participant" means any Eligible Person who holds an outstanding
Award under the Plan.
(U) "Plan" means the Aquila, Inc. 2001 Omnibus Incentive Compensation
Plan as set forth herein, as it may be amended from time to time.
(V) "Performance Award" means an Award made under Section 9 hereof
entitling a Participant to a payment based on the Fair Market Value of
Common Stock (a "Share-Based Performance Award") or other specified dollar
unit (a "Unit-Based Performance Award"), or any other measurable business
criteria specified by Committee in its discretion (a "Cash-Based
Performance Award"), at the end of a performance period if certain
conditions established by the Committee are satisfied.
(W) "Restricted Stock" means an Award under Section 8 hereof
entitling a Participant to shares of Common Stock that are subject to such
restrictions on transfer and other incidents of ownership as the Committee
shall specify.
(X) "Section 162(m) Participant" means any Participant who, in the
sole judgment of the Committee, could be treated as a "covered employee"
under Section 162(m) of the Code at the time income may be recognized by
such Participant in connection with an Award that is intended to qualify
for exemption under said Section.
(Y) "Stock Appreciation Right" or "SAR" means an Award under Section
7 hereof entitling a Participant to receive an amount, representing the
difference between the base price per share of the right and the Fair
Market Value of a share of Common Stock on the date of exercise.
(Z) "UCU" means UtiliCorp United Inc., a Delaware corporation.
Article 3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
3.1. NUMBER OF SHARES. Subject to the following provisions of this Section
3, the aggregate number of shares of Common Stock that may be issued pursuant to
all Awards under the Plan is 16,500,000 shares of Common Stock. The shares of
Common Stock to be delivered under the Plan will be made available from
authorized but unissued shares of Common Stock. If any share of Common Stock
that is the subject of an Award is not issued and ceases to be issuable for any
reason, or is forfeited, cancelled or returned to the Corporation for failure to
satisfy vesting requirements or upon the occurrence of other forfeiture events,
such share of Common Stock will no longer be charged against the foregoing
maximum share limitations and may again be made subject to Award under the Plan
pursuant to such limitations.
3.2. ADJUSTMENTS. If there shall occur any recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
distribution with respect to the shares of Common Stock, or any similar
corporate transaction or event in respect of the Common Stock, then the
Committee shall, in the manner and to the extent that it deems appropriate and
equitable to the Participants and consistent with the terms of this Plan, cause
a proportionate adjustment to be made in (i) the maximum numbers and kind of
shares provided in Section 3.1 hereof, (ii) the maximum numbers and kind of
shares set forth in Sections 6.1, 7.1, 8.1 and 9.1 hereof, (iii) the number and
kind of shares of Common Stock, share units, or other rights subject to the
then-outstanding Awards, (iv) the price for each share or unit or other right
subject to then outstanding Awards without change in the aggregate purchase
price or value as to which such Awards remain exercisable or subject to
restrictions, (v) the performance targets or goals appropriate to any
outstanding Awards (subject to such limitations as appropriate for Awards
intended to qualify for exemption under Section 162(m) of the Code), or (vi) any
other terms of an Award that are affected by the event. Notwithstanding the
foregoing, in the case of Incentive Stock Options, any such adjustments shall be
made in a manner consistent with the requirements of Section 424(a) of the Code.
Article 4. ADMINISTRATION OF THE PLAN
4.1. COMMITTEE MEMBERS. Except as provided in Sections 4.4 and 4.5 hereof,
the Plan will be administered by the Committee which, to the extent deemed
necessary or appropriate by the Board, will consist of two or more persons who
satisfy the requirements for a "non-employee director" under Rule 16b-3
promulgated under the Exchange Act and/or the requirements for an "outside
director" under Section 162(m) of the Code. The Committee may exercise such
powers and authority as may be necessary or appropriate for the Committee to
carry out its functions as described in the Plan. No member of the Committee
will be liable for any action or determination made in good faith by the
Committee with respect to the Plan or any Award under it.
4.2. DISCRETIONARY AUTHORITY. The Committee shall have the exclusive
discretionary authority to interpret the Plan, to make all factual
determinations under the Plan, and to determine the terms and provisions of the
respective Award Agreements and to make all other determinations necessary or
advisable for Plan administration. The Committee has authority to prescribe,
amend, and rescind rules and regulations relating to the Plan. All
interpretations, determinations, and actions by the Committee will be final,
conclusive, and binding upon all parties.
4.3. CHANGES TO AWARDS. The Committee shall have the authority to effect,
at any time and from time to time, with the consent of the affected
Participants, (i) the cancellation of any or all outstanding Awards and the
grant in substitution therefor of new Awards covering the same or different
numbers of shares of Common Stock and having an exercise or base price which may
be the same as or different than the exercise or base price of the cancelled
Awards or (ii) the amendment of the terms of any and all outstanding Awards;
provided, however, that the Committee shall not have the authority to reduce the
exercise or base price of an Award by amendment or cancellation and substitution
of an existing Award without the approval of the
Corporation's stockholders. The Committee may in its discretion accelerate the
vesting or exercisability of an Award at any time or on the basis of any
specified event.
4.4. DELEGATION OF AUTHORITY. The Committee shall have the right, from time
to time, to delegate to one or more officers of the Corporation the authority of
the Committee to grant and determine the terms and conditions of Awards under
the Plan, subject to such limitations as the Committee shall determine;
provided, however, that no such authority may be delegated with respect to
Awards made to any member of the Board or any Section 162 (m) Participant.
4.5. AWARDS TO INDEPENDENT DIRECTORS. An Award to an Independent Director
under the Plan shall be approved by the Board. With respect to Awards to
Independent Directors, all rights, powers and authorities vested in the
Committee under the Plan shall instead be exercised by the Board, and all
provisions of the Plan relating to the Committee shall be interpreted in a
manner consistent with the foregoing by treating any such reference as a
reference to the Board for such purpose.
Article 5. ELIGIBILITY AND AWARDS
All Eligible Persons are eligible to be designated by the Committee to
receive an Award under the Plan. Subject to the express limitations of the Plan,
the Committee has authority, in its sole discretion, to determine and designate
from time to time those Eligible Persons who are to be granted Awards, the types
of Awards to be granted, the number of shares or units subject to the Awards
that are granted under the Plan, whether or not any such Awards are intended to
qualify for exemption under Section 162(m) of the Code, and any and all such
other terms and conditions the Committee deems appropriate. Each Award will be
evidenced by an Award Agreement as described in Section 13 hereof between the
Corporation and the Participant that shall include the terms and conditions
consistent with the Plan as the Committee may determine.
Article 6. STOCK OPTIONS
6.1. GRANT OF OPTION. An Option may be granted to any Eligible Person
selected by the Committee; provided, however, that only "employees" within the
meaning of Treasury Regulation Section 1.421-7(h) shall be eligible for Awards
of Incentive Stock Options. Each Option shall be designated, at the discretion
of the Committee, as an Incentive Stock Option or a Nonqualified Stock Option.
The maximum number of shares of Common Stock that may be granted under Options
to an Eligible Person during any one calendar year shall be limited to 500,000
shares (subject to adjustment as provided in Section 3.2 hereof).
6.2. EXERCISE PRICE. The exercise price of the Option shall be determined
by the Committee; provided, however, that the exercise price per share of an
Option shall not be less than 100 percent of the Fair Market Value per share of
the Common Stock on the Date of Grant.
6.3. VESTING; TERM OF OPTION. The Committee, in its sole discretion, shall
prescribe in the Award Agreement the time or times at which, or the conditions
upon which, an Option or
portion thereof shall become vested and exercisable, and may accelerate the
exercisability of any Option at any time. An Option may become vested and
exercisable upon a Participant's retirement, death, disability, Change in
Control or other event, to the extent provided in an Award Agreement. The period
during which a vested Option may be exercised shall be ten years from the Date
of Grant, unless a shorter exercise period is specified by the Committee in an
Award Agreement, and subject to such limitations as may apply under an Award
Agreement relating to the termination of a Participant's employment or other
service with the Corporation or any Affiliate.
6.4. OPTION EXERCISE; WITHHOLDING. Subject to such terms and conditions as
shall be specified in an Award Agreement, an Option may be exercised in whole or
in part at any time during the term thereof by written notice to the Corporation
together with payment of the aggregate exercise price therefor. Payment of the
exercise price shall be made in the discretion of the Committee, either (i) in
cash or by cash equivalent, (ii) in shares of Common Stock acceptable to the
Committee, valued at the Fair Market Value of such shares on the date of
exercise, (iii) by a delivery of a notice that the Participant has placed a
market sell order (or similar instruction) with a broker with respect to shares
of Common Stock then issuable upon exercise of the Option, and that the broker
has been directed to pay a sufficient portion of the net proceeds of the sale to
the Corporation in satisfaction of the Option exercise price, (iv) by a
combination of the methods described above, or (v) by such other method as may
be approved by the Committee and set forth in the Award Agreement. In addition
to and at the time of payment of the exercise price, the Participant shall pay
to the Corporation the full amount of any and all applicable income tax and
employment tax amounts required to be withheld in connection with such exercise,
payable under one or more of the methods described above for the payment of the
exercise price of the Options as may be approved by the Committee.
6.5. LIMITED TRANSFERABILITY. Solely to the extent permitted by the
Committee and subject to such terms and conditions as the Committee shall
specify, a Nonqualified Stock Option (but not an Incentive Stock Option) may be
transferred to members of the Participant's immediate family (as determined by
the Committee) or to trusts, partnerships or corporations whose beneficiaries,
members or owners are members of the Participant's immediate family, and/or to
such other persons or entities as may be approved by the Committee in advance,
in each case subject to the condition that the Committee be satisfied that such
transfer is being made for estate or tax planning purposes, or for gratuitous or
donative purposes without consideration (other than nominal consideration)
being received therefor, or pursuant to a domestic relations order. Except to
the extent permitted by the Committee in accordance with the foregoing, an
Option shall be nontransferable otherwise than by will or by the laws of descent
and distribution, and shall be exercisable during the lifetime of a Participant
only by such Participant.
6.6. ADDITIONAL RULES FOR INCENTIVE STOCK OPTIONS.
(a) ANNUAL LIMITS. No Incentive Stock Option shall be granted to a
Participant as a result of which the aggregate fair market value
(determined as of the Date of Grant) of the stock with respect to which
Incentive Stock Options are exercisable for the first
time in any calendar year under the Plan, and any other stock option plans
of the Corporation, any Affiliate or any parent corporation, would exceed
$100,000, determined in accordance with Section 422(d) of the Code. This
limitation shall be applied by taking options into account in the order in
which granted.
(b) TERMINATION OF EMPLOYMENT. An Award Agreement for an Incentive
Stock Option may provide that such Option may be exercised not later than
three months following termination of employment of the Participant with
the Corporation and all Affiliates, subject to special rules relating to
death and disability, as and to the extent determined by the Committee to
be appropriate with regard to the requirements of Section 422 of the Code
and Treasury Regulations thereunder.
(c) OTHER TERMS AND CONDITIONS; NONTRANSFERABILITY. Any Incentive
Stock Option granted hereunder shall contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as are deemed
necessary or desirable by the Committee, which terms, together with the
terms of this Plan, shall be intended and interpreted to cause such
Incentive Stock Option to qualify as an "incentive stock option" under
Section 422 of the Code. Such terms shall include, if applicable,
limitations on Incentive Stock Options granted to ten-percent owners of the
Corporation. An Award Agreement for an Incentive Stock Option may provide
that such Option shall be treated as a Nonqualified Stock Option to the
extent that certain requirements applicable to "incentive stock options"
under the Code shall not be satisfied. An Incentive Stock Option shall by
its terms be nontransferable otherwise than by will or by the laws of
descent and distribution, and shall be exercisable during the lifetime of a
Participant only by such Participant.
(d) DISQUALIFYING DISPOSITIONS. If shares of Common Stock acquired by
exercise of an Incentive Stock Option are disposed of within two years
following the Date of Grant or one year following the transfer of such
shares to the Participant upon exercise, the Participant shall, promptly
following such disposition, notify the Corporation in writing of the date
and terms of such disposition and provide such other information regarding
the disposition as the Committee may reasonably require.
Article 7. STOCK APPRECIATION RIGHTS
7.1. GRANT OF SARS. An SAR granted to a Participant is an Award in the form
of a right to receive, upon surrender of the right, but without other payment,
an amount based on appreciation in the Fair Market Value of the Common Stock
over a base price established for the Award, exercisable at such time or times
and upon conditions as may be approved by the Committee. The maximum number of
shares of Common Stock that may be subject to SARs granted to an Eligible Person
during any one calendar year shall be limited to 500,000 shares (subject to
adjustment as provided in Section 3.2 hereof).
7.2. TANDEM SARS. An SAR may be granted in connection with an Option,
either at the time of grant or at any time thereafter during the term of the
Option. An SAR granted in
connection with an Option will entitle the holder, upon exercise, to surrender
such Option or any portion thereof to the extent unexercised, with respect to
the number of shares as to which such SAR is exercised, and to receive payment
of an amount computed as described in Section 7.4 hereof. Such Option will, to
the extent and when surrendered, cease to be exercisable. An SAR granted in
connection with an Option hereunder will have a base price per share equal to
the per share exercise price of the Option, will be exercisable at such time or
times, and only to the extent, that a related Option is exercisable, and will
expire no later than the related Option expires.
7.3. FREESTANDING SARS. An SAR may be granted without relationship to an
Option and, in such case, will be exercisable as determined by the Committee,
but in no event after ten years from the Date of Grant. The base price of an SAR
granted without relationship to an Option shall be determined by the Committee
in its sole discretion; provided, however, that the base price per share of a
freestanding SAR shall not be less than 100 percent of the Fair Market Value of
the Common Stock on the Date of Grant.
7.4. PAYMENT OF SARS. An SAR will entitle the holder, upon exercise of the
SAR, to receive payment of an amount determined by multiplying: (i) the excess
of the Fair Market Value of a share of Common Stock on the date of exercise of
the SAR over the base price of such SAR, by (ii) the number of shares as to
which such SAR will have been exercised. Payment of the amount determined under
the foregoing may be made, in the discretion of the Committee, in cash, in
shares of Common Stock valued at their Fair Market Value on the date of
exercise, or in a combination of cash and shares of Common Stock.
7.5. DIVIDEND EQUIVALENTS. Except as otherwise determined by the Committee
and as set forth in the applicable Award Agreement, a holder of an SAR shall not
have the right to receive any payment determined by reference to dividends or
other distributions declared on Common Stock from time to time during the term
an SAR is outstanding.
Article 8. RESTRICTED STOCK
8.1. GRANTS OF RESTRICTED STOCK. An Award of Restricted Stock to a
Participant represents shares of Common Stock that are issued subject to such
restrictions on transfer and other incidents of ownership and such forfeiture
conditions as the Committee may determine. The Committee may, in connection with
an Award of Restricted Stock, require the payment of a specified purchase price.
The maximum number of shares of Common Stock that may be subject to an Award of
Restricted Stock granted to an Eligible Person during any one calendar year
shall be limited to 500,000 shares (subject to adjustment as provided in Section
3.2 hereof).
8.2. VESTING REQUIREMENTS. The restrictions imposed on an Award of
Restricted Stock shall lapse in accordance with the vesting requirements
specified by the Committee in the Award Agreement. Such vesting requirements may
be based on the continued employment of the Participant with the Corporation or
its Affiliates for a specified time period or periods. Such vesting requirements
may also be based on the attainment of specified business goals or measures
established by the Committee in its sole discretion. In the case of any Award of
Restricted Stock that is intended to qualify for exemption under Section 162(m)
of the Code, the terms of such Award shall comply with the requirements
described in Sections 10.1 and 10.2.
8.3. LIMITED TRANSFERABILITY. Solely to the extent permitted by the
Committee and subject to such terms and conditions as the Committee shall
specify, Restricted Stock may be transferred to members of the Participant's
immediate family (as determined by the Committee) or to trusts, partnerships or
corporations whose beneficiaries, members or owners are members of the
Participant's immediate family, and/or to such other persons or entities as may
be approved by the Committee in advance, in each case subject to the condition
that the Committee be satisfied that such transfer is being made for estate or
tax planning purposes, or for gratuitous or donative purposes without
consideration (other than nominal consideration) being received therefor, or
pursuant to a domestic relations order. Except to the extent permitted by the
Committee in accordance with the foregoing, Restricted Stock shall not otherwise
be transferable, assigned or subject to encumbrance, pledge or charge until all
restrictions are removed or expire or unless otherwise allowed by the Committee.
The Committee may require that certificates representing Restricted Stock
granted under the Plan bear a legend making appropriate reference to the
restrictions imposed.
8.4. RIGHTS AS STOCKHOLDER. Subject to the provisions of this Article 8 and
the applicable Award Agreement, the Participant will have all rights of a
stockholder with respect to shares of Restricted Stock granted to him, including
the right to vote the shares and receive all dividends and other distributions
paid or made with respect thereto, unless the Committee determines otherwise at
the time the Restricted Stock is granted, as set forth in the Award Agreement.
8.5. SECTION 83(b) ELECTION. The Committee may provide in an Award
Agreement that the Award of Restricted Stock is conditioned upon the Participant
making or refraining from making an election with respect to the Award under
Section 83(b) of the Code. Irrespective of whether an Award is so conditioned,
if a Participant makes an election pursuant to Section 83(b) of the Code with
respect to an Award of Restricted Stock, the Participant shall be required to
promptly file a copy of such election with the Corporation.
Article 9. PERFORMANCE AWARDS
9.1. GRANT OF PERFORMANCE AWARDS. A Share-Based Performance Award,
Unit-Based Performance Award, and/or Cash-Based Performance Award may be granted
to any Eligible Person selected by the Committee; subject to the following:
(i) Each such Performance Award shall be assessed an initial value at
the Date of Grant as determined by the Committee in its
discretion;
(ii) The maximum number of Common Stock units that may be subject to a
Share-Based Performance Award granted to an Eligible Person
during any one calendar year shall be 500,000 share units
(subject to adjustment as provided in Section 3.2 hereof);
(iii) The maximum dollar amount that may be payable to an
Eligible Person during any one calendar year under a
Unit-Based Performance Award shall be $2,500,000; and
(iv) The maximum dollar amount that may be payable to an Eligible
Person during any one calendar year under a Cash-Based
Performance Award shall be $2,500,000.
9.2. PERFORMANCE OBJECTIVES. At the time a Performance Award is granted,
the Committee shall determine, in its sole discretion, one or more performance
periods and performance goals to be achieved during the applicable performance
periods, as well as such other restrictions and conditions as the Committee
deems appropriate. In the case of a Performance Award that is intended to
qualify for exemption under Section 162(m) of the Code, the terms of such Award
shall comply with the requirements described in Sections 10.1 and 10.2. In the
case of Performance Award that is not intended to qualify for exemption under
Section 162(m) of the Code, the Committee shall designate performance criteria
from among such business criteria as it shall determine in its sole discretion.
No performance period shall exceed ten years from the Date of Grant. The
performance goals applicable to a Performance Award grant may be subject to such
later revisions as the Committee shall deem appropriate to reflect significant
unforeseen events such as changes in law, accounting practices or unusual or
nonrecurring items or occurrences. Any such adjustments shall be subject to such
limitations as the Committee deems appropriate in the case of a Performance
Award granted to a Section 162(m) Participant that is intended to qualify for
exemption under Section 162(m) of the Code.
9.3. PAYMENT OF PERFORMANCE AWARDS. At the end of the performance period,
the Committee, in its sole discretion, shall determine the extent to which
performance goals have been attained or a degree of achievement between minimum
and maximum levels in order to establish the level of payment to be made, if
any. In making such determination, the Committee may reduce the amount of any
Performance Award to reflect the Committee's assessment of the Participant's
individual performance, to reflect the failure of the Participant to remain
employed by the Corporation or its Affiliates throughout the applicable
performance period, or for any other reason. The payment of a Performance Award
shall be made in the discretion of the Committee in cash, shares of Common Stock
(valued at their Fair Market Value at the time of payment), or a combination of
cash and shares of Common Stock, and shall be generally paid as soon as
practicable following the end of the applicable performance period.
9.4. DIVIDENDS; VOTING RIGHTS. Except as otherwise determined by the
Committee and as set forth in the applicable Award Agreement, a Participant
shall not be entitled to receive any dividends or other distributions, or to
exercise voting rights, with respect to shares of Common Stock earned, but not
yet distributed, in connection with a grant of a Share-Based Performance Award
or Unit-Based Performance Award.
Article 10. PERFORMANCE MEASURES
10.1. PERFORMANCE CRITERIA. Unless and until the Committee proposes for
stockholder vote and the stockholders approve a change in the general
performance measure set forth under this Article 10, the performance criteria
upon which the payment or vesting of a Performance Award or Restricted Stock
Award intended to qualify for exemption under Section 162(m) of the Code may be
based shall be limited to the following business measures, which may be applied
with respect to the Corporation, any Affiliate or any business unit, and which
may be measured on an absolute or relative to peer-group basis: (i) total
shareholder return; (ii) stock price increase; (iii) return on equity; (iv)
return on capital; (v) return on net assets (vi) earnings per share; (vii) net
income; (viii) EBIT (earnings before interest and taxes); (ix) EBITDA (earnings
before interest, taxes, depreciation and amortization); (xi) cash flow
(including operating cash flow, free cash flow, discounted cash flow return on
investment, and cash flow in excess of costs of capital); (x) gross margin; (xi)
gross margin minus expenses; or (xii) gross revenues or sales.
10.2. SECTION 162(m) REQUIREMENTS. In the case of a Performance Award or
Restricted Stock Award granted to a Section 162(m) Participant that is intended
to comply with the requirements for exemption under Section 162(m) of the Code,
the Committee shall make all determinations necessary to establish such Award
within 90 days of the beginning of the performance period (or such other time
period required under Section 162(m) of the Code), including, without
limitation, the designation of the Section 162(m) Participants to whom such
Awards are made, the performance criteria or criterion applicable to the Award
and the performance goals that relate to such criteria, and the dollar amounts
or number of shares of Common Stock payable upon achieving the applicable
performance goals. As and to the extent required by Section 162(m) of the Code,
the terms of a Performance Award or Restricted Stock Award granted to a Section
162(m) Participant must state, in terms of an objective formula or standard, the
method of computing the amount of compensation payable to the Section 162(m)
Participant, and must preclude discretion to increase the amount of compensation
payable that would otherwise be due under the terms of the Award.
Article 11. DIRECTOR OPTION PAYMENT
As of each March 31, June 30, September 30 and December 31 (hereinafter
referred to as a "Quarterly Payment Date"), the Corporation, without further
action of the Committee, shall issue to each Independent Director a specified
number of Nonqualified Stock Options equal to $35,000 divided by the Fair
Market Value per share on the Quarterly Payment Date for service performed
during the preceding calendar quarter. Any fractional share of Common Stock
shall be paid or payable to such Independent Director in cash. With respect
to the initial calendar year in which this Plan is approved by the
Corporation's stockholders or in the event a person is elected or otherwise
becomes an Independent Director at any time other than the first day of a
calendar quarter, such person shall be entitled to a Director Share Payment
beginning with the first full calendar quarter next following the date of
such stockholder approval or becoming an Independent Director, as the case
may be.
Article 12. CHANGE IN CONTROL
12.1 EFFECT OF CHANGE IN CONTROL. The Committee may provide for the effect
of a Change in Control on an Award by including any one or more of the following
in an Award Agreement: (i) the acceleration or extension of time periods for
purposes of exercising, vesting in, or realizing gain from any Award; (ii) the
waiver or modification of performance or other conditions related to the payment
or other rights under an Award; (iii) provision for the cash settlement of an
Award for an equivalent cash value, as determined by the Committee; or (iv) such
other modification or adjustment to an Award as the Committee deems appropriate
to maintain and protect the rights and interests of Participants upon or
following a Change in Control. Notwithstanding the foregoing or any provision in
an Award Agreement to the contrary, the Committee, to the extent it deems
advisable, shall have the right to declare any such Change in Control provision
included in an Award Agreement as being inoperable if the Committee is advised
by the Corporation's independent auditors that the effect of any such provision
precludes the ability of the Corporation to account for an acquisition or merger
transaction as a pooling of interests.
12.2 DEFINITION OF CHANGE IN CONTROL.
(a) Subject to Section 12.2(c) below, a "Change in Control" shall be
deemed to have occurred following the Effective Date hereof if:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Corporation or its affiliates, other than in
connection with the acquisition by the Corporation or its affiliates
of a business) representing 20% or more of either the then outstanding
shares of Common Stock or the combined voting power of the
Corporation's then outstanding securities; or
(ii) the following individuals cease for any reason to constitute
at least two-thirds (2/3) of the number of directors then serving:
individuals who, on the Effective Date hereof, constituted the Board
of the Corporation and any new director (other than a director whose
initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Corporation
(as such terms are used in Rule 14A-11 of Regulation 14A under the
Exchange Act)) whose appointment or election by the Board of the
Corporation or nomination of election by the Corporation's
stockholders was approved by a vote of at least two-thirds (2/3) of
the Corporation's directors then still in office who either were
directors on the Effective Date of the Plan, or whose appointment,
election or nomination for election was previously approved; or
(iii) the consummation of an agreement in which the Corporation
agrees to merge or consolidate with any other entity, OTHER THAN (I) a
merger or consolidation which would result in (A) the voting
securities of the Corporation outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation,
greater than 50% of the combined voting power of the voting securities
of the Corporation or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation and (B)
individuals described in paragraph (a)(ii) above constitute more than
one-half of the members of the board of directors of the surviving
entity or ultimate parent thereof; or (II) a merger or consolidation
effected to implement a recapitalization of the Corporation (or
similar transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Corporation (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Corporation or its affiliates,
other than in connection with the acquisition by the Corporation or
its affiliates of a business) representing 20% or more of either the
then outstanding shares of Common Stock of the Corporation or the
combined voting power of the Corporation's then outstanding
securities; or
(iv) the consummation of (I) a plan of complete liquidation or
dissolution of the Corporation or (II) an agreement for the sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets, OTHER THAN a sale or disposition by the
Corporation of all or substantially all of the Corporation's assets to
an entity, greater than 50% of the combined voting power of the voting
securities of which is owned by Persons in substantially the same
proportions as their ownership of the Corporation immediately prior to
such sale or disposition; or
(v) the occurrence of a UCU Change in Control (as defined in
Section 12.2(b) below) prior to a distribution of the voting
securities of the Corporation to the stockholders of UCU; or
(vi) the adoption of a resolution by the Board to the effect that
any Person has acquired effective control of the business and affairs
of the Corporation.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred if there is consummated any transaction or series
of integrated transactions immediately following which the record holders
of the voting securities of the Corporation immediately prior to such
transaction or series of transactions continue to have substantially the
same proportionate ownership in an entity which owns all or substantially
all of the assets of the Corporation immediately following such transaction
or series of transactions.
(b) A "UCU Change in Control" shall be deemed to have occurred if:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of UCU (not including in the securities
beneficially owned
by such Person any securities acquired directly from UCU or its
affiliates, other than in connection with the acquisition by UCU or
its affiliates of a business) representing 20% or more of either the
then outstanding shares of common stock of UCU or the combined voting
power of the Company's then outstanding securities; or
(ii) the following individuals cease for any reason to constitute
at least two-thirds (2/3) of the number of directors then serving:
individuals who, on August 4, 1998, constituted the board of directors
of UCU and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation,
relating to the election of directors of UCU (as such terms are used
in Rule 14A-11 of Regulation 14A under the Exchange Act)) whose
appointment or election by the board of directors of UCU or nomination
of election by UCU's stockholders was approved by a vote of at least
two-thirds (2/3) of the UCU directors then still in office who either
were directors on August 4, 1998, or whose appointment, election or
nomination for election was previously approved; or
(iii) the execution of an agreement in which UCU agrees to merge
or consolidate with any other entity, other than (I) a merger or
consolidation which would result in (A) the voting securities of the
Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of UCU,
greater than 50% of the combined voting power of the voting securities
of UCU or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, (B) such of Richard C.
Green, Jr. and Robert K. Green continuing as members of the board of
directors of the surviving entity or ultimate parent thereof as were
members of the board of directors of UCU immediately prior to such
transaction, and (C) individuals described in paragraph (b)(ii) above
constitute more than one-half of the members of the board of directors
of the surviving entity or ultimate parent thereof, or (II) a merger
or consolidation effected to implement a recapitalization of UCU (or
similar transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of UCU (not including in
the securities beneficially owned by such Person any securities
acquired directly from UCU or its affiliates, other than in connection
with the acquisition by UCU or its affiliates of a business)
representing 20% or more of either the then outstanding shares of
common stock of UCU or the combined voting power of UCU's then
outstanding securities; or
(iv) the stockholders of UCU approve a plan of complete
liquidation or dissolution of UCU or an agreement for the sale or
disposition by UCU of all or substantially all of UCU's assets, other
than a sale or disposition by UCU of all or
substantially all of UCU's assets to an entity, greater than 50% of
the combined voting power of the voting securities of which is owned
by Persons in substantially the same proportions as their ownership of
UCU immediately prior to such sale.
Notwithstanding the foregoing, a "UCU Change in Control" shall not be
deemed to have occurred if there is consummated any transaction or series
of integrated transactions immediately following which the record holders
of the voting securities of UCU immediately prior to such transaction or
series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or substantially all of
the assets of UCU immediately following such transaction or series of
transactions.
(c) Notwithstanding the preceding provisions of this Section 12.2 or
any other provision in this Plan to the contrary, a "Change of Control"
shall not be deemed to have occurred by reason of a distribution of the
voting securities of the Corporation to the stockholders of UCU or by means
of a public offering of such securities.
(ii) For purposes of this Section 12.2, the following definitions shall
apply:
(ii) "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
(ii) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof.
Article 13. AWARD AGREEMENTS
13.1 FORM OF AGREEMENT. Each Award under this Plan shall be evidenced by an
Award Agreement in a form approved by the Committee setting forth the number of
shares of Common Stock, units or other rights (as applicable) subject to the
Award, the exercise, base or purchase price (if any) of the Award, the time or
times at which an Award will become vested, exercisable or payable, the duration
of the Award, and any applicable performance criteria and goals. The Award
Agreement shall also set forth other material terms and conditions applicable to
the Award as determined by the Committee consistent with the limitations of this
Plan. Award Agreements evidencing Awards intended to qualify for exemption under
Section 162(m) of the Code shall contain such terms and conditions as may be
necessary to meet the applicable requirements of Section 162(m) of the Code.
Award Agreements evidencing Incentive Stock Options shall contain such terms and
conditions as may be necessary to meet the applicable provisions of Section 422
of the Code.
13.2 TERMINATION OF SERVICE. The Award Agreements may include provisions
describing the treatment of an Award in the event of the retirement, disability,
death or other termination of a Participant's employment with or other services
to the Corporation and its
Affiliates (or former Affiliates), such as provisions relating to the vesting,
exercisability, acceleration, forfeiture or cancellation of the Award in these
circumstances, including any such provisions as may be appropriate for Incentive
Stock Options as described in Section 6.6(b) hereof.
13.3 FORFEITURE EVENTS. The Committee may specify in an Award Agreement
that the Participant's rights, payments and benefits with respect to an Award
shall be subject to reduction, cancellation, forfeiture or recoupment upon the
occurrence of certain specified events, in addition to any otherwise applicable
vesting or performance conditions of an Award. Such events shall include, but
shall not be limited to, termination of employment for cause, violation of
material Corporation or Affiliate policies, breach of noncompetition,
confidentiality or other restrictive covenants that may apply to the
Participant, or other conduct by the Participant that is detrimental to the
business or reputation of the Corporation or any Affiliate.
13.4 CONTRACT RIGHTS; AMENDMENT. Any obligation of the Corporation to any
Participant with respect to an Award shall be based solely upon contractual
obligations created by an Award Agreement. No Award shall be enforceable until
the Award Agreement has been signed on behalf of the Corporation by its
authorized representative and signed by the Participant and returned to the
Corporation. By executing the Award Agreement, a Participant shall be deemed to
have accepted and consented to the terms of this Plan and any action taken in
good faith under this Plan by and within the discretion of the Committee, the
Board or their delegates. Award Agreements covering outstanding Awards may be
amended or modified by the Committee in any manner that may be permitted for the
grant of Awards under the Plan, subject to the consent of the Participant to the
extent provided in the Award Agreement.
Article 14. GENERAL PROVISIONS
14.1 NO ASSIGNMENT OR TRANSFER; BENEFICIARIES. Except as provided in
Sections 6.5 and 8.3, and subject to Section 6.6(c) in the case of Incentive
Stock Options, Awards under the Plan shall not be assignable or transferable,
except by will or by the laws of descent and distribution, and during the
lifetime of a Participant the Award shall be exercised only by such Participant
or by his guardian or legal representative. Notwithstanding the foregoing, the
Committee may provide in the terms of an Award Agreement that the Participant
shall have the right to designate a beneficiary or beneficiaries who shall be
entitled to any rights, payments or other specified under an Award following the
Participant's death.
14.2 DEFERRALS OF PAYMENT. The Committee may permit a Participant to defer
the receipt of payment of cash or delivery of shares of Common Stock that would
otherwise be due to the Participant by virtue of the exercise of a right or the
satisfaction of vesting or other conditions with respect to an Award. If any
such deferral is to be permitted by the Committee, the Committee shall establish
the rules and procedures relating to such deferral, including, without
limitation, the period of time in advance of payment when an election to defer
may be made, the time period of the deferral and the events that would result in
payment of the deferred amount, the interest or other earnings attributable to
the deferral and the method of funding, if any, attributable to the deferred
amount.
14.3 RIGHTS AS STOCKHOLDER. A Participant shall have no rights as a holder
of Common Stock with respect to any unissued securities covered by an Award
until the date the Participant becomes the holder of record of these securities.
Except as provided in Section 3.2 hereof, no adjustment or other provision shall
be made for dividends or other stockholder rights, except to the extent that the
Award Agreement provides for dividend payments or similar economic benefits.
14.4 EMPLOYMENT OR SERVICE. Nothing in the Plan, in the grant of any Award
or in any Award Agreement shall confer upon any Eligible Person the right to
continue in the capacity in which he is employed by or otherwise serves the
Corporation or any Affiliate.
14.5 SECURITIES AND OTHER APPLICABLE LAWS. No Awards shall be granted, and
no shares of Common Stock will be issued or transferred pursuant to an Award,
unless and until all then applicable requirements imposed by federal and state
securities and other laws, rules and regulations and by any regulatory agencies
having jurisdiction, and by any stock exchanges upon which the Common Stock may
be listed, have been fully met. As a condition precedent to the issuance of
shares pursuant to the grant or exercise of an Award, the Corporation may
require the Participant to take any reasonable action to meet such requirements.
The Committee may impose such conditions on any shares of Common Stock issuable
under the Plan as it may deem advisable, including, without limitation,
restrictions under the Securities Act of 1933, as amended, under the
requirements of any stock exchange upon which such shares of the same class are
then listed, and under any blue sky or other securities laws applicable to such
shares.
14.6 COMPLIANCE WITH SECTION 162(m). At all times when Section 162(m) of
the Code is applicable, all Awards granted under this Plan to Eligible Persons
who are or could reasonably become Section 162(m) Participants as determined by
the Committee shall comply with the requirements of Section 162(m) of the Code;
provided, however, that in the event the Committee determines that such
compliance is not desired with respect to any Award available for grant under
the Plan, then compliance with Section 162(m) of the Code will not be required.
In addition, in the event that changes are made to Section 162(m) of the Code to
permit greater flexibility with respect to any Award available under the Plan,
the Board or Committee may, subject to any limitations set forth elsewhere in
this Plan, make any adjustments it deems appropriate.
14.7 TAX WITHHOLDING. Each Participant shall be responsible for payment of
any taxes or similar charges required by law to be withheld from an Award or an
amount paid in satisfaction of an Award, which shall be paid by the Participant
on or prior to the payment or other event that results in taxable income in
respect of an Award. The Award Agreement shall specify the manner in which the
withholding obligation shall be satisfied with respect to the particular type of
Award.
14.8 UNFUNDED PLAN. The adoption of this Plan and any setting aside of cash
amounts or shares of Common Stock by the Corporation with which to discharge its
obligations hereunder shall not be deemed to create a trust or other funded
arrangement. The benefits provided under this Plan shall be a general, unsecured
obligation of the Corporation payable solely from the general assets of the
Corporation, and neither a Participant nor the Participant's permitted
transferees or estate shall have any interest in any assets of the Corporation
by virtue of this Plan, except as a general unsecured creditor of the
Corporation. Notwithstanding the foregoing, the Corporation shall have the right
to implement or set aside funds in a grantor trust subject to the claims of the
Corporation's creditors to discharge its obligations under the Plan.
14.9 OTHER COMPENSATION AND BENEFIT PLANS. The adoption of the Plan shall
not affect any other stock incentive or other compensation plans in effect for
the Corporation or any Affiliate, nor shall the Plan preclude the Corporation
from establishing any other forms of stock incentive or other compensation for
employees of the Corporation or any Affiliate. The amount of any compensation
deemed to be received by Participant pursuant to an Award shall not constitute
compensation with respect to which any other employee benefits of such
Participant are determined, including, without limitation, benefits under any
bonus, pension, profit sharing, life insurance or salary continuation plan,
except as otherwise specifically provided by the terms of such plan.
14.10 EMPLOYEES BASED OUTSIDE OF THE UNITED STATES. Notwithstanding any
provision of the Plan to the contrary, in order to comply with the provisions of
laws in other countries which the Corporation or its Affiliates operate or have
employees, the Board or Committee, in their discretion, shall have the power and
authority to (i) determine which individuals employed outside the United States
are eligible to participate in the Plan; (ii) modify the terms and conditions of
any Award granted to individuals who are employed outside the United States; and
(iii) establish sub-plans, modified exercise procedures, and other terms and
procedures to the extent such actions may be necessary or advisable.
14.11 PLAN BINDING ON SUCCESSORS. The Plan shall be binding upon the
Corporation, its successors and assigns, and the Participant, his executor,
administrator and permitted transferees and beneficiaries.
14.12 CONSTRUCTION AND INTERPRETATION. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender. Headings of Articles and Sections hereof are inserted for
convenience and reference and constitute no part of the Plan.
14.13 SEVERABILITY. If any provision of the Plan or any Award Agreement
shall be determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
14.14 GOVERNING LAW. The validity and construction of this Plan and of the
Award Agreements shall be governed by the laws of the State of Missouri.
Article 15. EFFECTIVE DATE, TERMINATION AND AMENDMENT
15.1 EFFECTIVE DATE; STOCKHOLDER APPROVAL. The Effective Date of the Plan
shall be the date following adoption of the Plan by the Board on which the Plan
is approved by the
stockholders of the Corporation. At the sole discretion of the Board, in order
to comply with the requirements of Section 162(m) of the Code for certain types
of Awards under the Plan, the performance criteria set forth in Section 10.1
shall be reapproved by the stockholders of the Corporation no later than the
first stockholder meeting that occurs in the fifth calendar year following the
calendar year of the initial stockholder approval of such performance criteria.
15.2 TERMINATION. The Plan shall terminate on the date immediately
preceding the tenth anniversary of the date the Plan is adopted by the Board.
The Committee may, in its sole discretion and at any earlier date, terminate the
Plan. Notwithstanding the foregoing, no termination of the Plan shall in any
manner affect any Award theretofore granted without the consent of the
Participant or the permitted transferee of the Award.
15.3 AMENDMENT. The Committee may at any time and from time to time and in
any respect, amend or modify the Plan; provided, however, that no amendment or
modification of the Plan shall be effective without the consent of the Board and
the Corporation's stockholders that would (i) change the class of Eligible
Persons under the Plan, (ii) increase the number of shares of Common Stock
reserved for issuance under the Plan or for certain types of Awards under
Section 3.1 hereof, or (iii) allow the grant of Options at an exercise price
below Fair Market Value, or allow the repricing of Options without stockholder
approval. In addition, the Committee may seek the approval of any amendment or
modification by the Corporation's stockholders to the extent it deems necessary
or advisable in its sole discretion for purposes of compliance with Section
162(m) of the Code or Section 422 of the Code, the listing requirements of the
New York Stock Exchange (or other national securities exchange) or for any other
purpose. No amendment or modification of the Plan shall in any manner affect any
Award theretofore granted without the consent of the Participant or the
permitted transferee of the Award.