Exhibit 10.17
TUPPERWARE CORPORATION
2002 INCENTIVE PLAN
Article 1. Establishment, Purpose, and Duration
1.1 Establishment of the Plan. Tupperware Corporation, a Delaware
corporation (hereinafter referred to as the "Company"), hereby establishes an
incentive compensation plan to be known as the "Tupperware Corporation 2002
Incentive Plan" (hereinafter referred to as the "Plan"), as set forth in this
document. The Plan permits the grant of Non-Qualified Stock Options, Incentive
Stock Options, Stock Appreciation Rights, Restricted Stock, and Performance
Awards. The Plan shall become effective as of the Effective Date, and shall
remain in effect as provided in Section 1.3 herein.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the success
and enhance the value of the Company by linking the personal interests of
Participants to those of the Company's stockholders and by providing
Participants with an incentive for outstanding performance. The Plan is further
intended to provide flexibility to the Company in its ability to motivate,
attract, and retain the services of Participants upon whose judgment, interest,
and special efforts the successful conduct of its operations largely is
dependent.
1.3 Duration of the Plan. The Plan shall commence on the Effective Date and
shall remain in effect, subject to the right of the Board of Directors to
terminate, amend or modify the Plan at any time pursuant to Article 14 herein,
until all Shares subject to it shall have been purchased or acquired according
to the Plan's provisions.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have the meanings set
forth below and, when the meaning is intended, the initial letter of the word is
capitalized:
(a) "Award" means, individually or collectively, a grant under this Plan of
Non-Qualified Stock Options, Incentive Stock Options, SARs, Restricted
Stock, or Performance Awards.
(b) "Award Agreement" means an agreement entered into by each Participant
and the Company, setting forth the terms and provisions applicable to
Awards granted to Participants under this Plan, including without
limitation, stock option agreements, SAR agreements and restricted stock
agreements.
(c) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations under the Exchange Act.
(d) "Beneficiary" means a person who may be designated by a Participant
pursuant to Article 10 and to whom any benefit under the Plan is to be paid
in case of the Participant's death or physical or mental incapacity, as
determined by the Committee, before he or she receives any or all of such
benefit.
(e) "Board" or "Board of Directors" means the Board of Directors of the
Company.
(f) "Cause" means (i) conviction of a Participant for committing a felony
under federal law or the laws of the state in which such action occurred,
(ii) dishonesty in the course of fulfilling a Participant's employment
duties (iii) willful and deliberate failure on the part of a Participant to
perform his employment duties in any material respect, including compliance
with the Company's Code of
1
Conduct, or (iv) such other events as shall be determined by the Committee.
The Committee shall have the sole discretion to determine whether "Cause"
exists, and its determination shall be final.
(g) "Change of Control" of the Company means:
i. An acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20 percent
or more of either (1) the then outstanding Shares (the "Outstanding
Company Common Stock") or (2) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally
in the election of Directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (1) any acquisition
directly from the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so
converted was itself acquired from the Company, (2) any acquisition by
the Company, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (4) any acquisition by any
Person pursuant to a transaction which complies with clauses (1), (2)
and (3) of subsection (iii) of this definition; or
ii. A change in the composition of the Board such that the individuals
who, as of the Effective Date of the Plan, constitute the Board (such
Board shall be hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this definition, that any individual
who becomes a member of the Board subsequent to such Effective Date,
whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of
the Incumbent Board (or deemed to be such pursuant to this proviso)
shall be considered as though such individual were a member of the
Incumbent Board; but, provided further, that any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
person or legal entity other than the Board shall not be so considered
as a member of the Incumbent Board; or
iii. The consummation of a reorganization, merger, statutory share
exchange or consolidation or sale or other disposition of all or
substantially all of the assets of the Company or the acquisition of
assets or stock of another entity by the Company or any of its
subsidiaries ("Corporate Transaction"), in each case unless, following
such Corporate Transaction, (1) all or substantially all of the
individuals and entities who were the Beneficial Owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Corporate Transaction beneficially
own, directly or indirectly, more than 60 percent of, respectively, the
common stock and the combined voting power of the then-outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the entity resulting from such
Corporate Transaction (including, without limitation, an entity which
as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Corporate Transaction, of
the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (2) no Person (other than the Company,
any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company or such entity
resulting from such Corporate Transaction) beneficially owns, directly
or indirectly, 20 percent or more of, respectively, the outstanding
shares of Common Stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding voting
securities of such corporation entitled to vote generally in the
election of Directors except to the extent that such
2
ownership existed with respect to the Company prior to the Corporate
Transaction and (3) individuals who were members of the Incumbent Board
at the time of the execution of the initial agreement or of the action
of the Board providing for such Corporate Transaction constitute at
least a majority of the Board of Directors of the corporation resulting
from such Corporate Transaction; or
iv. The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
(h) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(i) "Commission" means the Securities and Exchange Commission or any
successor agency.
(j) "Committee" means the committee described in Article 3 or (unless
otherwise stated) its designee pursuant to a delegation by the Committee as
contemplated by Section 3.3.
(k) "Common Stock" shall mean the common stock of the Company, par value
$.01 per share.
(l) "Company" means Tupperware Corporation, a Delaware corporation, or any
successor thereto as provided in Article 16 herein.
(m) "Covered Employee" has the meaning ascribed thereto in Section 162(m)
of the Code and the regulations thereunder.
(n) "Director" means any individual who is a member of the Board of
Directors of the Company.
(o) "Disability" means the inability of an Employee to perform the material
duties of his or her occupation as determined by the Committee.
(p) "Effective Date" means May 15, 2002.
(q) "Employee" means any nonunion employee of the Company or of the
Company's Subsidiaries or affiliates. Directors who are not otherwise
employed by the Company shall not be considered Employees under this Plan.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act thereto.
(s) "Fair Market Value" means, except as expressly provided otherwise, as
of any given date, the mean between the highest and lowest reported sales
prices of the Common Stock during normal business hours on the New York
Stock Exchange Composite Tape or, if not listed on such exchange, on any
other national securities exchange on which the Common Stock is listed or
on NASDAQ. If there is no regular public trading market for such Common
Stock, the Fair Market Value of the Common Stock shall be determined by the
Committee in good faith.
(t) "Freestanding SAR" means a SAR that is granted independently of any
Options pursuant to Section 7.1 herein.
(u) "Incentive Stock Option" or "ISO" means an option to purchase Shares,
granted under Article 6 herein, which is designated as an Incentive Stock
Option and is intended to meet the requirements of Section 422 of the Code.
3
(v) "Insider" shall mean an Employee who is, on the relevant date, an
officer, Director, or more than ten percent (10 percent) Beneficial Owner
of the Company.
(x) "Non-Qualified Stock Option" or "NQSO" means an option to purchase
Shares, granted under Article 6 herein, which is not intended to be an
Incentive Stock Option.
(y) "Option" or "Stock Option" means an Incentive Stock Option or a
Non-Qualified Stock Option.
(z) "Option Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option, as determined by the Committee.
(aa) "Outside Director" means a member of the Board who qualifies as an
outside director as defined in Rule 162(m) of the Code, as promulgated by
the Internal Revenue Service (the "Service") under the Code, or any
implementing or interpretive regulations from time to time, or any
successor definition adopted by the Service.
(ab) "Participant" means an Employee of or a consultant to the Company or
any of its Subsidiaries or affiliates who has been granted an Award under
the Plan.
(ac) "Performance Award" means an Award granted to a Participant, as
described in Article 9 herein, including Performance Units and Performance
Shares.
(ad) "Performance Goals" means the performance goals established by the
Committee prior to the grant of Performance Awards that are based on the
attainment of one or any combination of the following: specified levels of
net income or earnings per share from continuing operations, operating
income, revenues, return on operating assets, return on equity, stockholder
return (measured in terms of stock price appreciation) and/or total
stockholder return (measured in terms of stock price appreciation plus cash
dividends), achievement of cost control, working capital turns, cash flow,
net income, economic value added, segment profit, sales force growth, or
stock price of the Company or such Subsidiary, division or department of
the Company for or within which the Participant primarily renders services
and that are intended to qualify under Section 162(m) (4) (c) of the Code.
Such Performance Goals also may be based upon the attaining of specified
levels of Company performance under one or more of the measures described
above relative to the performance of other corporations. Such Performance
Goals shall be set by the Committee within the time period prescribed by
Section 162(m) of the Code and related regulations.
(ae) "Performance Period" means a time period during which Performance
Goals established in connection with Performance Awards must be met.
(af) "Performance Unit" means an Award granted to a Participant, as
described in Article 9 herein.
(ag) "Performance Share" means an Award granted to a Participant, as
described in Article 9 herein.
(ah) "Restriction Period" or "Period" means the period or periods during
which the transfer of Shares of Restricted Stock is limited based on the
passage of time and the continuation of service with the Company and the
Shares are subject to a substantial risk of forfeiture, as provided in
Article 8 herein.
(ai) "Person" shall have the meaning ascribed to such term in Section 3(a)
(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d).
4
(aj) "Restricted Stock" means an Award granted to a Participant pursuant to
Article 8 herein.
(ak) "Share" means a share of common stock of the Company.
(al) "Subsidiary" or "Subsidiaries" means any corporation or corporations
in which the Company owns directly, or indirectly through Subsidiaries, at
least twenty-five percent (25 percent) of the total combined voting power
of all classes of stock, or any other entity (including, but not limited
to, partnerships and joint ventures) in which the Company owns at least
twenty-five percent (25 percent) of the combined equity thereof.
(am) "Stock Appreciation Right" or "SAR" means an Award, granted alone
(Freestanding SAR) or in connection with a related Option (Tandem SAR),
designated as a SAR, pursuant to the terms of Article 7 herein.
(an) "Tandem SAR" means a SAR that is granted in connection with a related
Option pursuant to Section 7.1 herein, the exercise of which shall require
forfeiture of the right to purchase a Share under the related Option (and
when a Share is purchased under the Option, the Tandem SAR shall similarly
be cancelled).
Article 3. Administration
3.1 The Committee. The Plan shall be administered by the Compensation and
Directors Committee or such other committee of the Board as the Board may from
time to time designate, which shall be composed solely of not less than two
Outside Directors, and shall be appointed by and serve at the pleasure of the
Board.
3.2 Authority of the Committee. The Committee shall have plenary authority
to grant Awards pursuant to the terms of the Plan to Employees of and to
consultants to the Company and its Subsidiaries and affiliates.
Among other things, the Committee shall have the authority, subject to the
terms of the Plan:
(a) To select the Employees and consultants to whom Awards may from time to
time be granted;
(b) To determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, SARs, Restricted Stock and Performance Awards
or any combination thereof are to be granted hereunder;
(c) To determine the number of Shares to be covered by each Award granted
hereunder;
(d) To determine (by approving the forms of Award Agreements or otherwise
by resolution) the terms and conditions of any Award granted hereunder
(including, but not limited to, the Option Price (subject to Section 6.4
(a)) the duration, any vesting condition, restriction or limitation (which
may be related to the performance of the Participant, the Company or any
Subsidiary or affiliate), any vesting acceleration or forfeiture waiver
regarding any Award and the Shares relating thereto, and the impact on any
Award from termination of employment (whether as a consequence of death,
Disability, retirement, action by the Company, action by the Employee or
Change of Control) of an Employee, or the termination of services of a
consultant, based on such factors as the Committee shall determine;
(e) To determine the methodology of counting Shares available for grant
under the terms of the Plan.
(f) To modify, amend or adjust the terms and conditions of any Award, at
any time or from time to time, including but not limited to Performance
Goals, unless at the time of establishment of goals the
5
Committee shall have precluded its authority to make such adjustments; and
(g) To determine to what extent and under what circumstances Shares and
other amounts payable with respect to an Award shall be deferred.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
from time to time deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any Award Agreement relating
thereto) and to otherwise supervise the administration of the Plan.
3.3 Action of the Committee. The Committee may, to the fullest extent
permitted by law and subject to such limitations and procedures as may be
required by law or as the Committee may deem appropriate, (i) delegate to an
officer of the Company the authority to take actions or make decisions pursuant
to Section 2(f), Section 3.2, Section 5.2, and Section 6.4, provided that no
such delegation may be made that would cause Awards or other transactions under
the Plan to cease either to be exempt from Section 16(b) of the Exchange Act or
to qualify as "qualified performance-based compensation" as such term is defined
in the regulations promulgated under Section 162(m) of the Code, and (ii)
authorize any one or more of their members or any officer of the Company to
execute and deliver documents on behalf of the Committee.
3.4 Decisions Binding. Any determination made by the Committee or pursuant
to delegated authority pursuant to the provisions of the Plan with respect to
any Award shall be made in the sole discretion of the Committee or such delegate
at the time of the grant of the Award or, unless in contravention of any express
term of the Plan, at any time thereafter. All decisions made by the Committee or
any appropriately delegated officer pursuant to the provisions of the Plan shall
be final and binding on all persons, including the Company and Plan
Participants.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3
herein, the total number of Shares available for grant under the Plan shall be
two million eight hundred fifty thousand (2,850,000); provided, however, the
total number of available Shares that may be used for Restricted Stock Awards
under the Plan shall be limited to two hundred thousand (200,000) and the total
amount of available Shares that may be used for Performance Awards under the
Plan shall be limited to four hundred thousand (400,000) Shares. No Participant
may be granted (i) Stock Options and Freestanding SARs in any one year covering,
in the aggregate, in excess of 600,000 Shares, or (ii) Performance Share Awards
in any one year in excess of 100,000 Shares. Shares subject to an Award under
the Plan may be authorized and unissued Shares or may be treasury Shares.
4.2 Lapsed Awards. If any Award granted under this Plan is cancelled,
forfeited, terminates, expires, or lapses for any reason (with the exception of
the termination of a Tandem SAR upon exercise of the related Option or the
termination of a related Option upon exercise of the corresponding Tandem SAR),
any Shares subject to such Award again shall be available for the grant of an
Award under the Plan.
4.3 Adjustments in Authorized Shares and Prices. In the event of any change
in corporate capitalization, such as a stock split, or a corporate transaction,
such as any merger, consolidation, separation, including a spin-off, or other
distribution of stock or property of the Company, any reorganization (whether or
not such reorganization comes within the definition of such term in Section 368
of the Code) or any partial or complete liquidation of the Company, the
Committee or Board may make such substitution or adjustments in the aggregate
number and class of Shares reserved for issuance under the Plan, in the number,
kind and Option Price of Shares subject to outstanding Stock Options or SARs, in
the number and kind of Shares subject to other outstanding Awards granted under
the Plan or subject to limitations such as Restricted Stock Awards or
per-Participant maximum awards and/or such other equitable substitution or
adjustments as it may determine to be
6
appropriate in its sole discretion; provided, however, that the number of Shares
subject to any Award shall always be a whole number. Such adjusted Option Price
shall also be used to determine the amount payable by the Company upon the
exercise of any Tandem SAR. Such substitutions and adjustments may include,
without limitation, canceling any and all Awards in exchange for cash payments
based upon the value realized by shareholders generally with respect to Shares
in connection with such a corporate transaction.
Article 5. Eligibility and Participation
5.1 Eligibility. Persons eligible to be granted Awards under this Plan
include all Employees of and all consultants to the Company or any of its
Subsidiaries or affiliates, as determined by the Committee, including Employees
who are members of the Board, but excluding Directors who are not Employees.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all eligible Employees and
consultants, those to whom Awards shall be granted and shall determine the
nature and amount of each Award.
Article 6. Stock Options
6.1 Grant of Options. Stock Options may be granted alone or in addition to
other Awards granted under the Plan and may be of two types: Incentive Stock
Options and Non-Qualified Stock Options. Any Stock Option granted under the Plan
shall be in such form as the Committee may from time to time approve. The
Committee shall have the authority to grant any optionee Incentive Stock
Options, Non-Qualified Stock Options or both types of Stock Options (in each
case with or without Stock Appreciation Rights); provided, however, that grants
hereunder are subject to the aggregate limit on grants to individual
Participants set forth in Article 4. Incentive Stock Options may be granted only
to employees of the Company and any "subsidiary corporation" (as such term is
defined in Section 424(f) of the Code). To the extent that any Stock Option is
not designated as an Incentive Stock Option or even if so designated does not
qualify as an Incentive Stock Option, it shall constitute a Non-Qualified Stock
Option.
6.2 Award Agreement. Stock Options shall be evidenced by Award Agreements,
the terms and provisions of which may differ. An Award Agreement shall indicate
on its face whether it is intended to be an agreement for an Incentive Stock
Option or a Non-Qualified Stock Option. The grant of a Stock Option shall occur
on the date the Committee by resolution selects an individual to be a
Participant in any grant of a Stock Option, determines the number of Shares to
be subject to such Stock Option to be granted to such individual and specifies
the terms and provisions of the Stock Option, or such later date as the
Committee designates. The Company shall notify a Participant of any grant of a
Stock Option, and a written Award Agreement or agreements shall be duly executed
and delivered by the Company to the Participant. Such agreement or agreements
shall become effective upon execution by the Company and the Participant.
6.3 Incentive Stock Options. Notwithstanding any other provision of the
Plan, no Incentive Stock Option may be granted under the Plan on or after
November 13, 2011.
6.4 Terms and Conditions. Stock Options granted under the Plan shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions as the Committee shall deem desirable:
(a) Stock Option Price. The Option Price per Share purchasable under a
Stock Option shall be determined by the Committee and set forth in the
Award Agreement, and shall not be less than the Fair Market Value of
the Common Stock subject to the Stock Option on the date of grant.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than
10 years after the date the Stock Option is granted.
7
(c) Exercisability. Except as otherwise provided herein, Stock
Options shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Committee. If
the Committee provides that any Stock Option is exercisable only in
installments, the Committee may at any time waive such installment
exercise provisions, in whole or in part, based on such factors as
the Committee may determine. In addition, the Committee may at any
time accelerate the exercisability of any Stock Option.
(d) Method of Exercise. Subject to the provisions of this Article 6,
Stock Options may be exercised, in whole or in part, at any time
during the term of the Stock Option by giving written notice of
exercise to the Company specifying the number of Shares subject to
the Stock Option to be purchased.
Such notice shall be accompanied by payment in full of the Option
Price by certified or bank check or such other instrument as the
Company may accept. Payment, in full or in part, may also be made in
the form of delivery of unrestricted Shares already owned by the
optionee of the same class as the Shares subject to the Stock Option
(based on the Fair Market Value of the Shares on the date the Stock
Option is exercised) and, unless such Shares were acquired in the
open market, held for a period of not less than 6 months prior to the
exercise of the Stock Option, or by certifying ownership of such
Shares by the Participant to the satisfaction of the Company for
later delivery to the Company as specified by the Committee;
provided, however, that, in the case of an Incentive Stock Option the
right to make a payment in the form of already owned Shares of the
same class as the Shares subject to the Stock Option may be
authorized only at the time the Stock Option is granted.
In the discretion of the Committee, payment for any Shares
subject to a Stock Option may also be made pursuant to a "cashless
exercise" by delivering a properly executed exercise notice to the
Company, together with a copy of irrevocable instructions to a broker
to deliver promptly to the Company the amount of sale or loan
proceeds to pay the purchase price, and, if requested, the amount of
any federal, state, local or foreign withholding taxes. To facilitate
the foregoing, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms.
No Shares shall be issued until full payment therefor has been
made. An optionee shall have all of the rights of a stockholder of
the Company holding the class or series of Shares that is subject to
such Stock Option (including, if applicable, the right to vote the
Shares and the right to receive dividends), when the optionee has
given written notice of exercise and has paid in full for such
Shares.
(e) Restrictions on Share Transferability. The Committee may impose
such restrictions on any Shares acquired pursuant to the exercise of
a Stock Option under the Plan as it may deem advisable, including,
without limitation, restrictions under applicable federal securities
laws, under the requirements of any stock exchange or market upon
which such Shares are then listed and/or traded, and under any blue
sky or state securities laws applicable to such Shares.
Article 7. Stock Appreciation Rights
7.1 Grant of SARs. Subject to the terms and conditions of the Plan, a
SAR may be granted to an Employee or consultant at any time and from time to
time as shall be determined by the Committee. The Committee may grant
Freestanding SARs, Tandem SARs, or any combination of these forms of SAR. In the
case of a Non-Qualified Stock Option, Tandem SARs may be granted either at or
after the time of grant of such Stock Option. In the case of an Incentive Stock
Option, Tandem SARs may be granted only at the time of grant of such Stock
Option.
8
The Committee shall have complete discretion in determining the number of
SARs granted to each Participant (subject to the aggregate limit on grants to
individual Participants set forth in Article 4) and, consistent with the
provisions of the Plan, in determining the terms and conditions pertaining to
such SARs. However, the grant price of a Freestanding SAR shall be at least
equal to the Fair Market Value of a Share on the date of grant of the SAR. The
grant price of Tandem SARs shall equal the Option Price of the related Option.
SARs may not be repriced without stockholder approval.
7.2 Exercise of Tandem SARs. Tandem SARs may be exercised for all or part
of the Shares subject to the related Option upon the surrender of the right to
exercise the equivalent portion of the related Option. A Tandem SAR shall
terminate and no longer be exercisable upon the termination or exercise of the
related Stock Option. A Tandem SAR may be exercised only with respect to the
Shares for which its related Option is then exercisable.
Notwithstanding any other provision of this Plan to the contrary, with
respect to a Tandem SAR granted in connection with an ISO; (i) the Tandem SAR
will expire no later than the expiration of the underlying ISO; (ii) the value
of the payout with respect to the Tandem SAR may be for no more than one hundred
percent (100 percent) of the difference between the Option Price of the
underlying ISO and the Fair Market Value of the Shares subject to the underlying
ISO at the time the Tandem SAR is exercised; and (iii) the Tandem SAR may be
exercised only when the Fair Market Value of the Shares subject to the ISO
exceeds the Option Price of the ISO.
7.3 Exercise of Freestanding SARs. Subject to the other provisions of this
Article 7, Freestanding SARs may be exercised upon whatever terms and conditions
the Committee, at its sole discretion, imposes upon them.
7.4 SAR Agreement. Each SAR grant shall be evidenced by an Award Agreement
that shall specify the grant price, the term of the SAR, and such other
provisions as the Committee shall determine.
7.5 Term of SARs. The term of a SAR granted under the Plan shall be
determined by the Committee, at its sole discretion; provided, however, that
such term shall not exceed ten (10) years.
7.6 Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be
entitled to receive payment from the Company in an amount determined by
multiplying:
(a) The excess of the Fair Market Value of a Share on the date of
exercise over the grant price of the SAR; by
(b) The number of Shares with respect to which the SAR is exercised.
At the discretion of the Committee, the payment upon SAR exercise may be in
cash, in Shares of equivalent value, or in some combination thereof.
7.7 Rule 16-3 Requirements. Notwithstanding any other provision of the
Plan, the Committee may impose such conditions on exercise of a SAR (including,
without limitation, the right of the Committee to limit the time of exercise to
specified periods) as may be required to satisfy the requirements of any rule or
interpretation promulgated under Section 16 (or any successor rule) of the
Exchange Act.
Article 8. Restricted Stock
8.1 Administration. Shares of Restricted Stock may be awarded either alone
or in addition to other Awards granted under the Plan. The Committee shall
determine the Employees and consultants to whom and the time or times at which
grants of Restricted Stock will be awarded, the number of Shares to be awarded
to any Participant (subject to the aggregate limit on grants to individual
Participants set forth in Article 4), the conditions
9
for vesting, the time or times within which such Awards may be subject to
forfeiture and any other terms and conditions of the Awards, in addition to
those contained in Section 8.3.
The Committee may, prior to grant, condition the vesting of Restricted
Stock upon continued service of the Participant. The provisions of Restricted
Stock Awards need not be the same with respect to each recipient.
8.2 Awards and Certificates. Shares of Restricted Stock shall be evidenced
in such manner as the Committee may deem appropriate, including book-entry
registration or issuance of one or more stock certificates. Any certificate
issued in respect of Shares of Restricted Stock shall be registered in the name
of such Participant and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Award, substantially in the
following form:
"The sale or other transfer of the Shares of stock represented by this
certificate, whether voluntary, involuntary, or by operation of law,
is subject to certain restrictions on transfer as set forth in the
Tupperware Corporation 2000 Incentive Plan, and in an Award Agreement.
A copy of the Plan and such Award Agreement may be obtained from
Tupperware Corporation."
The Committee may require that the certificates evidencing such Shares be
held in custody by the Company until the restrictions thereon shall have lapsed
and that, as a condition of any Award of Restricted Stock, the Participant shall
have delivered a stock power, endorsed in blank, relating to the Common Stock
covered by such Award.
8.3 Terms and Conditions. Shares of Restricted Stock shall be subject to
the following terms and conditions:
(a) Subject to the provisions of the Plan and the Award Agreement
referred to in Section 8.3(d), during the Restricted Period, the
Participant shall not be permitted to sell, assign, transfer, pledge
or otherwise encumber Shares of Restricted Stock. Within these limits,
the Committee may provide for the lapse of restrictions based upon
period of service in installments or otherwise and may accelerate or
waive, in whole or in part, restrictions based upon period of service.
Notwithstanding the foregoing, any Restricted Stock Award granted
hereunder shall have a Restriction Period of not less than three
years, except that an aggregate amount of Restricted Stock Awards not
exceeding one-third of the Shares available for use as Restricted
Stock Awards pursuant to Section 4.1 of the Plan may be issued without
a minimum Restriction Period.
(b) Except as provided in this paragraph (b) and paragraph (a), above,
and the Award Agreement, the Participant shall have, with respect to
the shares of Restricted Stock, all of the rights of a stockholder of
the Company holding the class or series of Shares that is the subject
of the Restricted Stock, including, if applicable, the right to vote
the Shares and the right to receive any cash dividends. Dividends
payable in Shares and other non-cash dividends and distributions shall
be held subject to the vesting of the underlying Restricted Stock,
unless the Committee determines otherwise in the applicable Award
Agreement or makes an adjustment or substitution to the Restricted
Stock pursuant to Section 4.3 in connection with such dividend or
distribution. In the event that any dividend constitutes a "derivative
security" or an "equity security" pursuant to Rule 16(a) under the
Exchange Act, such dividend shall be subject to a vesting period equal
to the longer of: (i) the remaining vesting period of the Shares of
Restricted Stock with respect to which the dividend is paid; or (ii)
six months. The Committee shall establish procedures for the
application of this provision.
(c) If and when any applicable Restriction Period expires without a
prior forfeiture of the Restricted Stock, unlegended certificates for
such Shares shall be delivered to the Participant upon surrender of
the legended certificates.
10
(d) Each Award shall be confirmed by, and be subject to, the terms of
an Award Agreement.
Article 9. Performance Awards
9.1 Grant of Performance Awards. Subject to the terms of the Plan,
Performance Awards may be granted to eligible Employees and consultants at any
time and from time to time, as shall be determined by the Committee, and may be
granted either alone or in addition to other Awards granted under the Plan. The
Committee shall have complete discretion in determining the number, amount and
timing of Awards granted to each Participant. Such Performance Awards may take
the form determined by the Committee, including without limitation, cash,
Shares, Performance Units and Performance Shares, or any combination thereof.
Performance Awards may be awarded as short-term or long-term incentives.
9.2 Performance Goals.
(a) The Committee shall set Performance Goals at its discretion which,
depending on the extent to which they are met, will determine the
number and/or value of Performance Awards that will be paid out to the
Participants, and may attach to such Performance Awards one or more
restrictions, including, without limitation, a requirement that
Participants pay a stipulated purchase price for each Performance
Share, or restrictions which are necessary or desirable as a result of
applicable laws or regulations. Each Performance Award may be
confirmed by, and be subject to, an Award Agreement.
(b) The Committee shall have the authority at any time to make
adjustments to Performance Goals for any outstanding Performance
Awards which the Committee deems necessary or desirable unless at the
time of establishment of goals the Committee shall have precluded its
authority to make such adjustments.
9.3 Value of Performance Units/Shares.
(a) Each Performance Unit shall have an initial value that is
established by the Committee at the time of grant.
(b) Each Performance Share shall have an initial value equal to the
Fair Market Value of a Share on the date of grant.
9.4 Earning of Performance Awards. After the applicable Performance Period
has ended, the holder of any Performance Award shall be entitled to receive the
payout earned by the Participant over the Performance Period, to be determined
as a function of the extent to which the corresponding Performance Goals have
been achieved, except as adjusted pursuant to Section 9.2(b) or as deferred
pursuant to Article 11.
9.5 Timing of Payment of Performance Awards. Payment of earned Performance
Awards shall be made in accordance with terms and conditions prescribed or
authorized by the Committee. The Committee may permit the Participants to elect
to defer or the Committee may require the deferral of, the receipt of
Performance Awards upon such terms as the Committee deems appropriate.
Article 10. Beneficiary
10.1 Designation. Each Participant under the Plan may, from time to time,
name any Beneficiary or Beneficiaries (who may be named contingently or
successively). Each such designation shall revoke all prior designations by the
same Participant, shall be in a form prescribed by the Company, and shall be
effective only when filed by the Participant in writing with the Company during
the Participant's lifetime. Any such designation
11
shall control over any inconsistent testamentary or inter vivos transfer by a
Participant, and any benefit of a Participant under the Plan shall pass
automatically to a Participant's Beneficiary pursuant to a proper designation
pursuant to this Section 10.1 without administration under any statute or rule
of law governing the transfer of property by will, trust, gift or intestacy.
10.2 Absence of Designation. In the absence of any such designation
contemplated by Section 10.1, benefits remaining unpaid at the Participant's
death shall be paid pursuant to the Participant's will or pursuant to the laws
of descent and distribution.
Article 11. Deferrals
The Committee may permit a Participant to elect, or the Committee may
require at its sole discretion subject to the proviso set forth below, any one
or more of the following: (i) the deferral of the Participant's receipt of cash,
(ii) a delay in the exercise of an Option or SAR, (iii) a delay in the lapse or
waiver of restrictions with respect to Restricted Stock, or (iv) a delay of the
satisfaction of any requirements or goals with respect to Performance Awards;
provided, however, the Committee's authority to take such actions hereunder
shall exist only to the extent necessary to reduce or eliminate a limitation on
the deductibility of compensation paid to the Participant pursuant to (and so
long as such action in and of itself does not constitute the exercise of
impermissible discretion under) Section 162(m) of the Code, or any successor
provision thereunder. If any such deferral is required or permitted, the
Committee shall establish rules and procedures for such deferrals, including
provisions relating to periods of deferral, the terms of payment following the
expiration of the deferral periods, and the rate of earnings, if any, to be
credited to any amounts deferred thereunder.
Article 12. Rights of Employees and Consultants
12.1 Employment. Nothing in the Plan shall interfere with or limit in any
way the right of the Company to terminate any Participant's employment or status
as a consultant at any time, nor confer upon any Participant any right to
continue in the employ of the Company or any of its Subsidiaries or affiliates
or to continue as a consultant. For purposes of the Plan, transfer of employment
of a Participant between the Company and any one of its Subsidiaries and
affiliates (or between Subsidiaries and affiliates) shall not be deemed a
termination of employment. However, if a Subsidiary or affiliate of the Company
ceases to be a Subsidiary or affiliate, any Participant who is no longer
employed by or a consultant to the Company or one of its remaining Subsidiaries
and affiliates following such event shall be considered to have terminated his
or her employment or consultancy, notwithstanding any continued employment or
consultancy with such former Subsidiary or affiliate.
12.2 Participation. No Employee or consultant shall have the right to be
selected to receive an Award under this Plan, or, having been so selected, to be
selected to receive a future Award.
Article 13. Change of Control
13.1 Treatment of Outstanding Awards. Upon the occurrence of a Change of
Control, unless otherwise specifically prohibited under applicable laws, or by
the rules and regulations of any governing governmental agencies or national
security exchanges, or unless the Committee shall determine otherwise in the
applicable Award Agreement:
(a) Any and all Options and SARs granted hereunder shall become
immediately exercisable, and shall remain exercisable throughout their
entire original term, without regard to any subsequent termination of
employment or consulting agreement;
(b) Any restriction periods and restrictions imposed on Restricted
Shares that are not performance-based shall lapse; and
12
(c) The maximum payout opportunities attainable under all outstanding
Awards of performance-based Restricted Stock, Performance Units,
Performance Shares, and cash-based Awards shall be deemed to have been
fully earned for the entire Performance Period(s) as of the effective
date of the Change of Control. The vesting of all Awards denominated
in Shares shall be accelerated as of the effective date of the Change
of Control, and there shall be paid out to Participants within thirty
(30) days following the effective date of the Change of Control the
number of shares based upon an assumed achievement of all relevant
maximum performance goals. Awards denominated in cash shall be paid to
Participants in cash within thirty (30) days following the effective
date of the Change of Control based upon assumed achievement of all
relevant maximum performance goals.
13.2 Termination, Amendment, and Modifications of Change-of-Control
Provisions. Notwithstanding any other provision of this Plan or any Award
Agreement provision, the provisions of this Article 13 may not be terminated,
amended, or modified in any manner that adversely affects any then-outstanding
Award without the prior written consent of the Participant if such action is
taken (a) on or after the date of a Change of Control or (b) at the request of a
party seeking to effectuate a Change of Control or otherwise in anticipation of
a Change of Control.
Article 14. Amendment, Modification, and Termination
14.1 Amendment, Modification, and Termination. Except as specifically
provided in Section 13.2, at any time and from time to time, the Board may
terminate, amend, or modify the Plan. However, without the approval of the
stockholders of the Company, no such amendment or modification may:
(a) Increase the total number of Shares which may be issued under this
Plan, except as provided in Article 4 hereof; or
(b) Modify the eligibility requirements; or
(c) Materially increase the benefits accruing under the Plan.
14.2 Awards Previously Granted. Notwithstanding the foregoing, the
Committee shall have the right to replace any previously granted Award under the
Plan with an Award equal to the value of the replaced Award at the time of
replacement, as determined by the Committee in its sole discretion, without
obtaining the consent of the Participant holding such Award; provided, however,
that notwithstanding the foregoing or the terms of any Award Agreement
provision, the Committee shall not modify the Option Price of an Award (reprice
a Stock Option) or issue new Options in exchange for the surrender of
outstanding Options without shareholder approval; and provided, further, that no
such replacement shall deprive the Participant of any rights he or she may have
pursuant to Article 13, which shall apply to the replacement Award to the same
extent as to the replaced Award.
Subject to the above provisions, the Board shall have authority to amend
the Plan to take into account changes in law and tax and accounting rules as
well as other developments, and to grant Awards which qualify for beneficial
treatment under such rules without stockholder approval.
Article 15. Withholding
15.1 Tax Withholding. The Company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy federal, state, and local taxes (including the
Participant's FICA obligation) required by law to be withheld with respect to
any taxable event arising under or as a result of this Plan.
13
15.2 Share Withholding. With respect to withholding required and/or
permitted upon the exercise of Options or SARs, upon the lapse of restrictions
on Restricted Stock, or upon any other taxable event hereunder, Participants may
elect, subject to the approval of the Committee, to satisfy the withholding
requirement, in whole or in part, by having the Company withhold Shares (or by
surrendering Shares previously owned which have been held for longer than six
months or purchased in the open market) having a Fair Market Value on the date
the tax is to be determined equal to the minimum statutory total tax which could
be imposed on the transaction. All elections shall be irrevocable, made in
writing, signed by the Participant, and elections by Insiders shall additionally
comply with the requirements established by the Committee.
Article 16. Successors
All obligations of the Company under the Plan, with respect to Awards
granted hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, spin-off, or otherwise, of all or substantially all of
the business and/or assets of the Company.
Article 17. Nontransferability of Awards.
Unless otherwise determined by the Committee, no Award shall be
transferable (either by sale, pledge, assignment, gift, or other alienation or
hypothecation) by a Participant other than by will or by application of the laws
of descent and distribution.
Article 18. Legal Construction
18.1 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
18.2 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
18.3 Requirements of Law. The granting of Awards and the issuance of Shares
under the Plan shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national securities
exchanges as may be required. With respect to Insiders, transactions under this
Plan are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
action by the Committee fails to comply with Section 18.3, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
Notwithstanding any other provision of the Plan or agreements made pursuant
thereto, the Company shall not be required to issue or deliver any certificate
or certificates for Shares under the Plan prior to fulfillment of all of the
following conditions:
(a) Listing or approval for listing upon notice of issuance, of such
Shares on the New York Stock Exchange, Inc., or such other securities
exchange as may at the time be the principal market for the Shares;
(b) Any registration or other qualification of such Shares under any
state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Committee
shall, in its absolute discretion upon the advice of counsel, deem
necessary or advisable; and
14
(c) Obtaining any other consent, approval, or permit from any state or
federal governmental agency which the Committee shall, in its absolute
discretion after receiving the advice of counsel, determine to be
necessary or advisable.
18.4 Governing Law. To the extent not preempted by federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and governed
by the laws of the State of Delaware.
15