EXHIBIT 10.35
AMENDED AND RESTATED
ONEIDA LTD.
RESTRICTED STOCK AWARD PLAN
Effective as of February 1, 2000
Amended and Restated as of July 28, 2004
1. Purpose. The Amended and Restated Oneida Ltd. Restricted Stock
Award Plan, (effective as of February 1, 2000) (the "Plan") is intended to
attract, retain and motivate officers and key employees of Oneida Ltd., a New
York corporation, or any successor corporation thereto (the "Company") and its
Subsidiaries (as hereinafter defined), to compensate them for their
contributions to the growth and profits of the Company and its Subsidiaries and
to encourage ownership by them of stock of the Company.
2. Definitions. For purposes of the Plan, the following terms shall be
defined as follows:
"Board of Directors" or "Board" shall mean the Board of Directors of
Oneida Ltd.
"Cause" shall mean (i) the willful failure of a Recipient to
satisfactorily perform the duties consistent with his title and position;
(ii) the commission by a Recipient of a felony, or the perpetration by a
Recipient of a dishonest act or common law fraud against the Company or any
of its Subsidiaries; or (iii) any other willful act or omission which is
materially injurious to the financial condition or business reputation of
the Company or any of its Subsidiaries and failure of such Recipient to
correct such act or omission within ten business days after notice by the
Company of such act or omission.
"Change in Control" shall mean a change in control of the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether
or not the Company is then subject to such reporting requirement; provided,
however, that, anything in this Plan to the contrary notwithstanding, a
Change in Control shall be deemed to have occurred if:
(a) any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity or person, or any
syndicate or group deemed to be a person under Section 14(d)(2) of the
Exchange Act is or becomes the "beneficial owner" (as defined in Rule
13d-3 of the General Rules and Regulations under the Exchange Act),
directly or indirectly, of securities of the Company representing 20%
or more of the combined voting power of the Company's then outstanding
securities entitled to vote in the election of directors of the
Company, provided, however, that for purposes of this clause (a), any
person who becomes the direct or indirect beneficial owner of
securities representing 20% or more of the combined voting power of
the Company's then outstanding securities in connection with an
exchange, conversion or discharge of the debt or equity securities or
other indebtedness of the Company in a transaction or series of
transactions pursuant to the recapitalization plan of the Company,
dated as of June 26, 2004 (the "Recapitalization"), shall be
disregarded;
(b) during any period of two consecutive years (not including any
period prior to the effective date of this Plan), individuals who at
the beginning of such period constituted the Board and any new
directors, whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least
three-fourths 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, cease for any
reason to constitute a majority thereof, provided however, that the
replacement of any director of the Company serving as of July 12, 2004
with a director designated by a person who has entered into an
agreement to effect the Recapitalization will not be taken into
account for purposes of this clause (b);
(c) there occurs a reorganization, merger, consolidation or other
corporate transaction involving the Company (a "Business
Combination"), in each case with respect to which the stockholders of
the Company immediately prior to such transaction do not, immediately
after such transaction, own directly or indirectly more than 50% of
the combined voting power of the Company or other corporation
resulting from such Business Combination in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the voting securities of the Company;
(d) all or substantially all of the assets of the Company are
sold, liquidated or distributed; or
(e) there occurs a transaction that constitutes a change in the
(i) ownership of the Company, (ii) effective control of the Company or
(iii) effective ownership of a substantial portion of the assets of
the Company, as determined pursuant to Code Section 280G and the
regulations promulgated thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the applicable rulings and regulations thereunder.
"Committee" shall mean the Compensation Committee, any successor
committee thereto or any other committee appointed by the Board to
administer the Plan.
"Common Stock" shall mean the Company's $1.00 par value common stock.
"Company" shall mean Oneida Ltd., a New York corporation, and any
successor to all or substantially all of the business or assets thereof.
"Disability" shall mean any physical or mental injury or disorder of a
Recipient which precludes the continued active employment of a Recipient
and which is evidenced by the Recipient's eligibility to receive disability
benefits under the Company Long-Term Disability Plan (or a determination by
the Committee that such Recipient would be eligible to receive disability
benefits if then participating in such plan).
"Effective Date" shall mean February 1, 2000, subject to approval by
the Company's shareholders at the annual meeting of shareholders in 2000.
"Eligible Individuals" shall mean officers or key employees of the
Company or a Subsidiary, as determined by the Committee in its sole
discretion.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder and any
successor provisions thereto.
"Good Reason" shall mean, with respect to any Recipient and without
such Recipient's consent, (i) failure to elect or reelect or to appoint or
reappoint such a Recipient to, or removal of such Recipient from, the
position such Recipient holds with the Company at the commencement of the
Restriction Period or a superior position; (ii) relocation of the office of
the Company where such Recipient is employed to a location more than 50
miles from Oneida, New York; or (iii) a material reduction in such
Recipient's total annual cash compensation.
"Plan" shall mean the Amended and Restated Oneida Ltd. Restricted
Stock Award Plan, as may be amended and restated from time to time.
"Prior Plan" shall mean the Oneida Ltd. Restricted Stock Award Plan,
effective as of February 1, 1990, as amended from time to time.
"Recipient" shall mean any Eligible Individual to whom an award of
Restricted Stock is made.
"Restricted Stock" shall mean a share of Common Stock granted to a
Recipient subject to the restrictions hereof.
"Restricted Stock Agreement" shall mean the written agreement between
the Company and a Recipient setting forth the terms and conditions of an
award of Restricted Stock under the Plan.
"Restriction Period" shall mean, with respect to any Restricted Stock
award, the period of time during which such Restricted Stock award is
subject to the restrictions hereof. The duration of the Restriction Period
shall be determined by the Committee in its sole discretion and set forth
in the applicable Restricted Stock Agreement.
"Retirement" shall mean a Recipient's termination or resignation of
employment with the Company on or after "normal retirement age," as such
term or a similar term is defined in the Company's qualified defined
benefit retirement plan.
"Special Circumstances" shall mean such events as the Committee may,
in its sole discretion, and from time to time, determine to warrant the
full or partial vesting of previously unvested Restricted Stock, provided,
however, that Special Circumstances shall not include termination of a
Recipient's employment for Cause.
"Subsidiary" means any corporation of which the Company directly or
indirectly controls 50% or more of the total combined voting power entitled
to vote in the election of directors.
3. Duration of the Plan. The Plan shall be amended and restated
effective as of the Effective Date. The Plan shall remain in effect until
terminated by the Board and thereafter until all Restricted Stock awards granted
under the Plan either vest or are terminated under the terms of the Plan or
under the applicable Restricted Stock Agreement. Notwithstanding the foregoing,
Restricted Stock may not be granted under the Plan after the tenth anniversary
of the Effective Date.
4. Administration of the Plan.
(a) The Plan shall be administered by the Committee, and the Committee
shall make the determinations set forth in this Section 4(a), based on the
recommendations of the Company's management. The Committee shall have full power
and authority, subject to the express provisions of the Plan, (i) to select
Recipients from among the Eligible Individuals, (ii) to make Restricted Stock
awards in accordance with the Plan, (iii) to determine the number of shares of
Restricted Stock subject to each Restricted Stock Agreement, (iv) to determine
the terms and conditions of each award of Restricted Stock, including the
authority to amend and modify the terms and conditions of an award of Restricted
Stock after the granting thereof to a Recipient, (v) to specify and approve the
provisions of the Restricted Stock Agreements delivered to Recipients in
connection with their award of Restricted Stock, (vi) to construe and interpret
any Restricted Stock Agreement delivered under the Plan, (vii) to prescribe,
amend and rescind rules and procedures relating to the Plan, (viii) to make all
factual determinations with respect to the Plan and (ix) to make all other
determinations and to formulate such procedures as may be necessary or advisable
for the administration of the Plan.
(b) The Committee shall have full power and authority, subject to the
express provisions hereof, to construe and interpret the Plan.
(c) All determinations by the Committee in carrying out and
administering the Plan and in construing and interpreting the Plan shall be
final, binding and conclusive for all purposes and upon all persons interested
herein.
(d) No member of the Committee shall be liable for anything whatsoever
in connection with the administration of the Plan, except such person's own
willful misconduct. Under no circumstances shall any member of the Committee be
liable for any act or omission of any other member of the Committee. In the
performance of its functions with respect to the Plan, the Committee shall be
entitled to rely upon information and
advice furnished by the Company's officers, the Company's accountants, the
Company's counsel and any other party the Committee deems necessary, and no
member of the Committee shall be liable for any action taken or not taken in
reliance upon any such advice.
5. Shares of Common Stock Subject to the Plan. Subject to Section 10,
the total number of shares of Common Stock which may be issued under the Plan,
shall be 100,000 shares, less any awards of Restricted Stock granted under the
Prior Plan. Restricted Stock issued under the Plan or the Prior Plan which is
forfeited by a Recipient under the terms of the Plan or the Restricted Stock
Agreement shall again be eligible for future awards under the Plan.
6. Eligibility. The Committee shall determine, in its sole discretion,
which Eligible Individuals may participate in the Plan. Restricted Stock awards
shall not be affected by any change of the Recipient's duties or positions so
long as he or she continues to be an employee of the Company or a Subsidiary.
7. Restricted Stock Awards. The Committee shall have the authority to
grant Restricted Stock under the Plan to a Recipient. Restricted Stock awards
shall be subject to the following terms and conditions and shall contain such
additional terms and conditions as the Committee shall in its discretion deem
appropriate and that are not inconsistent with the Plan:
(a) Restricted Stock Agreement. Each Recipient receiving an award of
Restricted Stock shall enter into a Restricted Stock Agreement in such form and
containing such restrictions, terms and conditions as the Committee, in its sole
discretion, deems appropriate, including, without limitation, restrictions on
the sale, assignment, transfer or other disposition of such shares. In the event
of any conflict or inconsistency between the Plan and any such Restricted Stock
Agreement, the Plan shall govern, and the Restricted Stock Agreement shall be
interpreted to minimize or eliminate any such conflict or inconsistency.
(b) Terms of Restricted Stock Awards Generally. Subject to the terms
of the Plan, an award of Restricted Stock may be granted in such manner as the
Committee may from time to time approve. Subject to the terms of the Plan, the
Committee shall determine the number of shares of Restricted Stock subject to
each Restricted Stock award granted to a Recipient, and the Committee may impose
different terms and conditions on any particular Restricted Stock award granted
to any Recipient.
(c) Vesting. Notwithstanding any provision in the Plan to the
contrary, shares of Restricted Stock awarded to a Recipient shall vest in
accordance with the schedule set forth in each Recipient's Restricted Stock
Agreement, provided the Recipient is employed by the Company at the end of each
vesting period or otherwise meets the conditions set forth in such applicable
Restricted Stock Agreement.
(d) Restricted Period. The Restriction Period of a Restricted Stock
award shall commence on the date such award is made and shall expire in
accordance with the schedule established by the Committee and set forth in the
Restricted Stock Agreement.
(e) Evidence of Ownership. Each Recipient receiving a Restricted Stock
award shall be issued a certificate or certificates in respect of such
Restricted Stock award at the time of grant. Such certificate or certificates
shall be registered in the name of such Recipient, and shall bear an appropriate
legend referring to the terms, conditions and restrictions applicable to such
award of Restricted Stock. The Committee may require, as a condition of any
award of Restricted Stock, that the Recipient deliver a stock power, endorsed in
blank, relating to the Restricted Stock covered by such award. Physical
possession or custody of the certificates will be retained by the Company until
such time as the Restricted Stock has vested.
(f) Rights as Shareholder. During the Restriction Period, the
Recipient will be entitled to all rights of a stockholder of the Company,
including the right to vote the Restricted Stock and receive dividends declared
on such shares of Restricted Stock. However, any shares of Common Stock received
as a result of a stock distribution to holders of nonvested Restricted Stock or
any dividend or stock split in respect of shares of Restricted Stock that are
not vested as of the date thereof shall be treated as additional shares under
the Restricted Stock award and shall be subject to the same restrictions and
other terms and conditions as such shares of nonvested Restricted Stock.
8. Termination of Employment. If a Recipient's employment terminates
during the Restriction Period (i) due to death, Retirement, Disability,
termination of employment without Cause or termination of employment by the
Recipient for Good Reason, or (ii) for any reason other than termination for
Cause following a Change in Control, the portion of the Restricted Stock award
then outstanding and not vested shall fully vest as of the date of termination.
If a Recipient's employment terminates due to Special Circumstances, the
Committee, in its sole discretion, may provide that some or all of the nonvested
portion of a Recipient's Restricted Stock award shall vest as of the date of
such termination; provided, however, that any such determination by the
Committee shall apply only to the affected Recipient and shall not govern or
control the Committee's decision with respect to any other Recipient whose
employment terminates under the same or similar circumstances. Termination of
employment for any reason other than the foregoing will result in the immediate
forfeiture of all nonvested Restricted Stock then held by the terminated
Recipient.
9. Nontransferability. Restricted Stock or any rights or interests
therein shall not be sold, transferred, assigned, pledged or otherwise
encumbered or disposed of except by will or by the laws of descent and
distribution or pursuant to a "qualified domestic relations order" as defined in
the Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations thereunder until such time as it vests,
subject to further restrictions on transfer as may be applicable under Federal
or state securities laws of the rules and regulations or any exchange or
automated quotation system on which the Common Stock is listed.
10. Adjustment Upon Changes in Capital Structure.
Notwithstanding any other provisions of the Plan, the Committee may at
any time make or provide for such adjustments to the Plan, to the number, kind
and class of shares available thereunder or to any outstanding award of
Restricted Stock as it shall deem appropriate to prevent dilution or enlargement
of rights, including adjustments in the event of changes in the shares of
outstanding Common Stock by reason of stock dividends, split-ups,
recapitalizations, mergers, consolidations, combinations or exchanges of shares,
separations, reorganizations, liquidations or any similar corporate action or
proceeding.
11. Amendment of the Plan. The Board or Committee may at any time and
from time to time terminate, modify, suspend or amend the Plan in whole or in
part. No termination, modification, suspension or amendment of the Plan shall,
without the written consent of a Recipient to whom any Restricted Stock awards
shall previously have been granted, adversely affect his or her rights under
such Restricted Stock awards. Notwithstanding any provision herein to the
contrary, the Board or Committee shall have broad authority to amend the Plan or
any Restricted Stock award to take into account changes in applicable tax laws,
securities laws, accounting rules and other applicable state and Federal laws.
12. Miscellaneous.
(a) Tax Withholding. No later than the date as of which an amount
first becomes includable in the gross income of the Recipient for applicable
income tax purposes with respect to any Restricted Stock award under the Plan,
the Recipient shall pay to the Company or make arrangements satisfactory to the
Committee regarding the payment of any Federal, state or local taxes of any kind
required by law to be withheld with respect to such amount. The obligations of
the Company under the Plan shall be conditioned upon such payment or
arrangements and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Recipient.
(b) No Right to Grants or Employment. No Eligible Individual or
Recipient shall have any claim or right to receive grants of Restricted Stock
awards under the Plan. Nothing in the Plan or in any Restricted Stock award or
Restricted Stock Agreement shall confer upon any employee of the Company or any
Subsidiary any right to continued employment with the Company or any Subsidiary,
as the case may be, or interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of any of its employees at any time, with
or without Cause.
(c) Unfunded Plan. The Plan is intended to constitute an unfunded plan
for incentive compensation. With respect to any payments not yet made to a
Recipient by the Company, nothing contained herein
shall give any such Recipient any rights that are greater than those of a
general creditor of the Company. In its sole discretion, the Committee may
authorize the creation of trusts or other arrangements to meet the obligations
created under the Plan to deliver Restricted Stock hereunder.
(d) Other Employee Benefit Plans. Payments received by a Recipient
under any Restricted Stock award made pursuant to the provisions of the Plan
shall not be included in, or have any effect on, the determination of benefits
under any other employee benefit plan or similar arrangement provided by the
Company or any Subsidiary.
(e) Securities Law Restrictions. The Committee may require each
Recipient to represent to and agree with the Company in writing that such
Recipient is acquiring the Restricted Stock for investment and not with a view
to the distribution thereof. All certificates for shares of Restricted Stock
delivered under the Plan shall be subject to such stock-transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange Commission
and any exchange upon which the Common Stock is then listed, and any applicable
Federal or state securities law, and the Committee may cause a legend or legends
to be put on any such certificates to make appropriate reference to such
restrictions. No shares of Common Stock shall be issued hereunder unless the
Company shall have determined that such issuance is in compliance with, or
pursuant to an exemption from, all applicable Federal and state securities laws.
(f) Liability Under the Exchange Act. Notwithstanding anything
contained in the Plan or any Restricted Stock Agreement to the contrary, if the
consummation of any transaction under the Plan would result in the possible
imposition of liability on a Recipient pursuant to Section 16(b) of the Exchange
Act, the Committee shall have the right, in its sole discretion, but shall not
be obligated, to defer such transaction to the extent necessary to avoid such
liability, but in no event for a period in excess of 180 days.
(g) Expenses. The costs and expenses of administering the Plan shall
be borne by the Company.
(h) Applicable Law. The validity of the Plan and the construction and
interpretation of the Plan shall be determined in accordance with and governed
by the laws of the State of New York.