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THE EARTHGRAINS COMPANY
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTOR STOCK PLAN
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1. Definitions
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(a) "Annual Meeting" - the Company's annual meeting of
Stockholders in any year.
(b) "Board" - the Board of Directors of the Company.
(c) "Change of Control Date" - the earliest date on
which any of the following occurs:
(i) Any person (as defined herein) becomes the
beneficial owner directly or indirectly (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934 as
amended ("Act")) of more than 50% of the Company's then
outstanding voting securities (measured on the basis of
voting power);
(ii) The stockholders of the Company approve a
definitive agreement to merge or consolidate the Company with
any other entity, other than an agreement providing for (A)
a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving
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entity), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan
of the Company, at least 50% of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or
(B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which
no Person acquires more than 50% of the combined voting power of
the Company's then outstanding securities;
(iii) A change occurs in the composition of the
Board of Directors of the Company during any period of
twenty-four consecutive months such that individuals who at
the beginning of such period were members of the Board of
Directors cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company's stockholders, of each new director
was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at
the beginning of the period or whose election or nomination
for election was previously so approved; or
(iv) The stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or
substantially all the Company's assets.
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For purposes of this Section, "Person" shall
have the meaning given in Section 3(a)(9) of the Act, as
modified and used in Sections 13(d) and 14(d) thereof;
however, a Person shall not include (A) the Company or any of
its Subsidiaries, (B) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any of its Subsidiaries, (C) an underwriter temporarily
holding securities pursuant to an offering of such
securities, or (D) a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of
Company stock.
(d) "Company" - The Earthgrains Company
(e) "Fees" - any annual fee, fees for attending
meetings of the Board or committees thereof, fees for
meetings at which less than a quorum is present, committee
chairmanship fees and any other fees as in effect from time
to time which become payable to a Non-Employee Director.
(f) "Issue Date" - each of (i) the first business day
which is more than six months after the date of the Annual
Meeting and (ii) the date of the Annual Meeting.
(g) "Non-Employee Director" - any duly elected or
appointed member of the Board who is not an employee of the
Company or of any Subsidiary.
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(h) "Plan" - the Earthgrains Company Non-Employee
Director Stock Plan.
(i) "Secretary" - the duly elected Secretary of the
Company.
(j) "Share" - a share of the Company's Common Stock which is
authorized and unissued or was reacquired by the Company and is
held in treasury.
(k) "Subsidiary" - an entity of which the Company (directly
or through one or more Subsidiaries) is the beneficial owner of
more than 50% of the entity's outstanding voting securities
(measured on the basis of voting power).
2. Administration
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The Plan shall be administered by the Secretary who shall
have the authority to construe and interpret the Plan, and to
establish or adopt rules, regulations and forms relating to the
administration of the Plan. The Secretary shall have no authority
to add to, delete from or modify the terms of the Plan, as the
Plan shall be nondiscretionary as to the eligibility of
participants and the timing and amounts of the grants. Neither
the Secretary nor any member of the Board shall be liable for any
act or determination made in good faith.
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3. Purpose
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The Plan is intended to assist in attracting, retaining and
motivating Non-Employee Directors of outstanding ability and to
promote identification of their interests with those of the
stockholders of the Company.
4. Eligibility
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All Non-Employee Directors shall be eligible to participate
in the Plan. Subject to the terms and conditions of the Plan,
Non-Employee Directors shall be entitled to receive Shares
pursuant to each of Sections 6, 7, and 8 of the Plan.
5. Shares Subject to the Plan
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The maximum number of Shares that may be issued under the
Plan is 50,000.
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6. Payment of Fees in Shares
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(a) Each Non-Employee Director shall receive at least 25% of
his or her Fees in Shares in lieu of cash. A Non-Employee
Director may elect to receive up to 100% of his or her Fees in
Shares. Any election, or amendment to a prior election, shall be
in writing on a form prescribed by the Company, shall take effect
commencing with Fees which become payable after the first Issue
Date which occurs after the date of such election or amendment,
shall specify the percentage of Fees to be paid in Shares which
shall be no less than 25%, and shall remain in effect until
further amendment in accordance with this section. The Secretary
shall have the authority to further regulate the timing and amount
of the elections and amendments thereto.
(b) As Fees are earned by the Non-Employee Director, the
percentage of Fees to be paid in Shares shall not be paid in cash,
but in lieu thereof shall be accrued by the Company for his or her
account without interest pending transfer of such Shares to such
Non-Employee Director. On each Issue Date, each Non-Employee
Director for whose account Fees have been accrued pursuant to the
terms of this section since the prior Issue Date shall
automatically and without necessity of any action by the Company,
be entitled to receive Shares for the amount of such accrued Fees
pursuant to the terms and conditions of the Plan. For purposes of
the Plan, the number of Shares shall be determined by dividing (A)
the amount of accrued Fees by (B) the mean of the high and low
sale prices per share of the Company's Common Stock on the New
York Stock Exchange on the Issue Date (provided that, if the Issue
Date is
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not a trading day on the New York Stock Exchange, then on the
preceding such trading day), rounding to the nearest whole
number. If on any Issue Date the number of Shares otherwise
issuable to the Non-Employee Directors shall exceed the number of
Shares then remaining available under the Plan, the available
Shares shall be allocated among the Non-Employee Directors in
proportion to the number of Shares they would otherwise be
entitled to receive, and the remainder of the accrued Fees shall
be payable in cash.
7. One Time Grant
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Upon the effective date of the Plan, each person who is a
Non-Employee Director on the effective date shall, automatically
and without necessity of any action by the Company, be entitled to
receive 500 Shares pursuant to the terms and conditions of the
Plan. Each Non-Employee Director elected or appointed after the
effective date of the Plan shall, automatically and without
necessity of any action by the Company, be entitled to receive 500
Shares pursuant to the terms and conditions of the Plan upon the
date of such election or appointment, subject to availability of
Shares under Section 5.
8. Annual Grant
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On the date of the Annual Meeting in each year and subject to
availability of Shares under Section 5, each person who is a Non-
Employee Director upon the completion of the Annual Meeting shall,
automatically and without necessity of any action by the Company,
be entitled to receive 100 Shares pursuant to the terms and
conditions of the Plan. If on any such date, the number of Shares
otherwise issuable to the Non-Employee Directors shall exceed the
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number of Shares then remaining available under the Plan, the
available Shares shall be allocated among the Non-Employee
Directors in proportion to the number of Shares they would
otherwise be entitled to receive.
9. Capital Adjustments
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The maximum number of Shares subject to the Plan pursuant to
Section 5 and the number of Shares to be received under Sections
7 and 8 shall be proportionately adjusted to reflect any dividend
or other distribution on the Company's outstanding Common Stock
payable in shares of the Company's Common Stock or any split or
consolidation of the outstanding shares of the Company's Common
Stock. If the Company's outstanding Common Stock shall, in whole
or in part, be changed into or exchangeable for a different class
or classes of securities of the Company or securities of another
corporation, whether through recapitalization, merger,
consolidation, reorganization or otherwise, then (subject to the
powers of the Board to amend the Plan in whole or in part as
provided in Section 14(a)) the Shares which each Non-Employee
Director is entitled to receive shall thereafter be paid in the
class, or proportionately in the classes, of securities into which
the outstanding shares of the Company's Common Stock shall have
been converted or for which they are exchangeable, and the maximum
number of securities issuable under the Plan under Section 5 and
the number of securities to be received under Sections 7 and 8
shall be the number of securities into or for which such
respective number of Shares would be changed or exchangeable.
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10. Rights as a Stockholder; Termination of Non-Employee Director
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Status
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Prior to the Issue Date, the Non-Employee Director shall have
no rights as a stockholder with respect to Shares to be issued
under Section 6 for accrued Fees. If any participant in the Plan
ceases to be a Non-Employee Director prior to an Issue Date, then
any Fees accrued for his or her account shall be payable in cash
to such Non-Employee Director as soon as practicable, and he or
she shall not be entitled to any additional Shares. Subject to
the forfeiture provisions of Section 11 and the custody provisions
of Section 12, the Non-Employee Director shall have the rights as
a stockholder with respect to Shares issued under Sections 7 or 8
prior to vesting under Section 11.
11. Vesting
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Shares received under Section 6 shall be fully vested on
the Issue Date. Shares granted under Sections 7 or 8 shall
vest on the earlier of the tenth anniversary of the date of
grant and the Non-Employee Director's cessation as a director
of the Company for any reason other than removal by the vote
of the stockholders of the Company, in which case such Shares
shall be forfeited. Notwithstanding the foregoing, Shares
granted to a Non-Employee Director under Sections 7 or 8
shall vest and shall not be forfeited upon his or her removal
as a director by the vote of the stockholders of the Company
if such vote occurs after a Change of Control Date.
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In addition to any restrictions on transfer imposed by
applicable law or regulation, including without limitation,
federal or state securities laws, or stock exchange rules, the
Shares received by a Non-Employee Director shall not be in any
manner transferable or subject to encumbrance until vesting.
12. Issuance of Certificates, Payment of Cash Fees and
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Withholding
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(a) As promptly as practicable following each Issue Date,
the Company shall issue stock certificates registered in the name
of each Non-Employee Director representing the number of Shares
determined pursuant to Section 6, and shall deliver such
certificates to the Non-Employee Director or his or her
beneficiary.
(b) As promptly as practicable following the date of grant
under Section 7 or 8, the Company shall issue stock certificates
registered in the name of each Non-Employee Director receiving a
grant representing the number of Shares so granted. The Company
shall maintain custody of such certificates (together with the
certificates representing any securities distributed in respect of
such Shares) until the date of vesting under Section 11. The
certificates shall be delivered to the Non-Employee Director or
his or her beneficiary or successor within 30 days following the
vesting.
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In the event of forfeiture of Shares, the stock certificates
representing the forfeited Shares shall be transferred to the
Company. Each recipient of Shares by accepting such Shares
irrevocably grants the Secretary or the designee of the Secretary
power of attorney to effect such transfer.
(c) The portion of the Fees not paid in Shares shall be
payable in cash pursuant to the policies of the Company as in
effect from time to time.
(d) The Company may make such provisions as it may deem
appropriate for the withholding of any federal, state or
local taxes which the Company determines it is required to
withhold attributable to the grant or lapse of restrictions
with respect to the Shares issued under the Plan.
13. Compliance with the Securities Act of 1933
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The Company may, but has no obligation to, register the
Shares under the Securities Act of 1933. Each recipient of Shares
by accepting such Shares acknowledges that he or she is acquiring
the Shares for investment and not with a view to distribution and,
in addition to any other restriction on transfer provided
hereunder, the Shares may not be transferred except
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pursuant to the requirements of Rule 144 including the holding
period thereunder to the extent applicable, another available
exemption from registration, or an effective registration
statement.
14. Miscellaneous
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(a) The Board may amend this Plan at any time provided,
however, that (i) any amendment shall not affect the rights
of participants or beneficiaries to Shares or accrued Fees
held for the account of Non-Employee Directors, (ii) the Plan
may not be amended to the extent that such amendment would
have the effect of disqualifying the participants from
administering any other stock plan of the Company for
purposes of complying with the terms of Rule 16b-3 under the
Securities Exchange Act of 1934 or any successor rule ("Rule
16b-3"), or Section 162(m) of the Internal Revenue Code or
regulations thereunder, and (iii) on or following the Change
of Control Date, the Plan may not be amended to affect the
rights of any participants.
(b) No right or benefit under this Plan shall be
subject to anticipation, alienation, sale, assignment,
pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, assign, pledge, encumber or charge the same
shall be void. The rights or interests under the Plan are
not subject to the claims of creditors provided, however,
that the Company may apply any Shares held in custody or Fees
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held on account to satisfy, in whole or in part, any
indebtedness of a participant to the Company.
(c) Each participant shall designate any person or
persons (who may be designated contingently or successively
and who may be an entity other than a natural person) as his
or her beneficiary or beneficiaries to whom his or her Shares
are paid if the Non-Employee Director dies before receipt
thereof. Each beneficiary designation filed with the
Secretary shall cancel all beneficiary designations
previously filed. The revocation of beneficiary designation,
no matter how effected, shall not require the consent of any
designated beneficiary.
If any participant fails to designate a beneficiary
in the manner provided above, or if the beneficiary
designated by a deceased participant dies before the
participant or before complete distribution of the Shares,
the Secretary shall direct the Company to deliver
certificates representing such Shares (or the balance
thereof) to the participant's estate.
In the event that all, or any portion, of the
Shares payable to a beneficiary hereunder shall remain
undistributed solely by reason of the inability of the
Secretary, after sending a registered letter, return receipt
requested, to the last known address, and after further
diligent effort, to ascertain the whereabouts of such
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beneficiary, the amount so distributable shall be treated as
a forfeiture pursuant to the Plan.
(d) Construction of the Plan shall be governed by the
laws of Delaware.
(e) The terms of the Plan shall be binding upon the
heirs, executors, administrators, personal representatives,
successors and assigns of all parties in interest.
(f) The headings have been inserted for convenience
only and shall not affect the meaning or interpretation of
the Plan.
(g) Each participant shall submit to the Secretary, his
or her current mailing address. It shall be the duty of each
participant to notify the Secretary of any change of address.
In the absence of such notice, the Secretary shall be
entitled for all purposes to rely on the last address of the
participant in the Company's records.
(h) Any Shares to be delivered to or for the benefit of
a minor, an incompetent person or other person incapable of
receipting therefor shall be deemed delivered when delivered
to such person's guardian or to the party providing or
reasonably appearing to provide for the care of such person,
and such delivery shall fully discharge the Company and the
Board with respect thereto.
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(i) Nothing in this Plan or any amendment thereto shall
give a participant, or any beneficiary of a participant, a
right not specifically provided therein. Nothing in this
Plan or any amendment thereto shall be construed as giving a
participant the right to be retained as a member of the Board
or otherwise in service to the Company.
(j) This Plan is intended to comply with all applicable
conditions of Rule 16b-3, all transactions under this Plan are
subject to such conditions regardless of whether the conditions
are expressly set forth herein, and any provision of this Plan
that is contrary to a condition of Rule 16b-3 shall be deemed
inoperative to the extent it conflicts with the condition of Rule
16b-3.
(k) The Plan shall become effective commencing March
26, 1996, and amended and restated effective March 21, 1997.