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EXHIBIT 10.01
KELLOGG COMPANY
KEY EMPLOYEE LONG TERM INCENTIVE PLAN
ARTICLE I
Purpose
The purpose of this Key Employee Long Term Incentive Plan (the "Plan")
is to enable Kellogg Company (the "Company") to offer key employees of the
Company and Designated Subsidiaries (defined below) performance-based stock
incentives and other equity interests in the Company and other incentive
awards, thereby attracting, retaining and rewarding such key employees, and
strengthening the mutuality of interests between key employees and the
Company's shareholders.
ARTICLE II
Definitions
For purposes of this Plan, the following terms shall have the
following meanings:
2.1 "Award" shall mean any award under this Plan of any Stock Option,
Reload Option, Restricted Stock, Performance Shares, Performance Units or Other
Stock-Based Award.
2.2 "Board" shall mean the Board of Directors of the Company.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.4 "Committee" shall mean the Compensation Committee of the Board
consisting of three or more Directors, none of whom shall be eligible to
receive any Award pursuant to this Plan.
2.5 "Common Stock" means the Common Stock, $0.25 par value per share,
of the Company.
2.6 "Designated Subsidiary" shall mean one of such subsidiaries of
the Company, 80 percent or more of the voting capital stock of which is owned,
directly or indirectly, by the Company, which is designated from time to time
by the Board.
2.7 "Disability" shall mean Total Disability as defined in the
Company's Long Term Disability Plan.
2.8 "Disinterested Person" shall have the meaning set forth in Rule
16b-3(d)(3) as promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, or any successor definition adopted by the
Commission.
2.9 "Fair Market Value" for purposes of this Plan, unless otherwise
required by any applicable provision of the Code or any regulations issued
thereunder, shall mean, as of any date,
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the mean between the high and low sales prices of a share of Common Stock as
reported for exchange, quoted on an automated quotation system sponsored by a
national securities association.
2.10 "Incentive Stock Option" shall mean any Stock Option awarded
under this Plan intended to be and designated as an "Incentive Stock Option"
within the meaning of Section 422 of the Code.
2.11 "Non-Qualified Stock Option" shall mean any Stock Option awarded
under this Plan that is not an Incentive Stock Option.
2.12 "Other Stock-Based Award" shall mean an Award under Article 11
of this Plan that is valued in whole or in part by reference to, or is payable
in or otherwise based on, Common Stock.
2.13 "Participant" shall mean an employee to whom an Award has been
made pursuant to this Plan.
2.14 "Performance Cycle" shall have the meaning set forth in Section
10.1.
2.15 "Performance Period" shall have the meaning set forth in Section
9.1.
2.16 "Performance Share" shall mean an Award made pursuant to Article
9 of this Plan of the right to receive Common Stock or cash of an equivalent
value at the end of a specified performance period.
2.17 "Performance Unit" shall mean an Award made pursuant to Article
10 of this Plan of the right to receive a fixed dollar amount, payable in cash
or Common Stock or a combination of both.
2.18 "Reload Option" shall have the meaning set forth in Section 6.5.
2.19 "Restricted Stock" shall mean an Award of shares of Common Stock
under this Plan that is subject to restrictions under Article 7.
2.20 "Restriction Period" shall have the meaning set forth in
Subsection 7.3(a).
2.21 "Retirement" shall mean termination of employment by an employee
who is at least 55 years of age after at least 5 years of employment by the
Company and/or a Designated Subsidiary.
2.22 "Stock Option" or "Option" shall mean any option to purchase
shares of Common Stock (including Restricted Stock and Performance Share, if
the Committee so determines) granted pursuant to Article 6.
2.23 "Termination of employment" shall mean a termination of service
for reasons other than a military or personal leave of absence granted by the
Company.
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2.24 "Withholding Election" shall have the meaning set forth in
Section 13.4.
ARTICLE III
Administration
3.1 The Committee. The Plan shall be administered and interpreted by
the Committee.
3.2 Awards. The Committee shall have full authority to grant,
pursuant to the terms of this Plan, to officers and other key employees
eligible under Article 5: (i) Stock Options, (ii) Restricted Stock, (iii)
Performance Shares, (iv) Performance Units, and (v) Other Stock-Based Awards.
In particular, the Committee shall have the authority:
(a) to select the officers and other key employees of the
Company to whom Stock Options, Restricted Stock, Performance Shares,
Performance Units and Other Stock-Based Awards may from time to time be granted
hereunder;
(b) to determine whether and to what extent Incentive
Stock Options, Non-Qualified Stock Options, Restricted Stock, Performance
Shares, Performance Units and Other Stock-Based Awards, or any combination
thereof, are to be granted hereunder to one or more eligible employees;
provided, however, that the maximum number of Incentive Stock Options,
Non-Qualified Stock Options, Restricted Stock, Performance Shares, Performance
Units, and Other Stock-Based Awards that may be granted to any one individual
in any fiscal year shall not exceed, individually or in the aggregate, Awards
to purchase or receive more than one million (1,000,000) shares of common
stock;
(c) to determine the number of shares of Common Stock to
be covered by each such Award granted hereunder;
(d) to determine the terms and conditions, not
inconsistent with the terms of this Plan, of any Award granted hereunder
(including, but not limited to, the share price, any restriction or limitation,
any vesting schedule or acceleration thereof, or any forfeiture restrictions or
waiver thereof, regarding any Stock Option or other Award and the shares of
Common Stock relating thereto, based on such factors as the Committee shall
determine, in its sole discretion);
(e) to determine whether, to what extent and under what
circumstances grants of Options and other Awards under this Plan are to operate
on a tandem basis and/or in conjunction with or apart from other cash awards
made by the Company outside of this Plan;
(f) to determine whether and under what circumstances a
Stock Option may be settled in cash, Stock, and/or Restricted Stock under
Subsection 6.4(k); and
(g) to determine whether, to what extent and under what
circumstances Common Stock and other amounts payable with respect to an Award
under this Plan shall be deferred either automatically or at the election of
the Participant.
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3.3 Guidelines. Subject to Article 11 hereof, the Committee shall
have the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing this Plan as it shall, from time to time,
deem advisable; to interpret the terms and provisions of this Plan and any
Award issued under this Plan (and any agreements relating thereto); and to
otherwise supervise the administration of this Plan. The Committee may correct
any defect, supply any omission or reconcile any inconsistency in this Plan or
in any Award granted in the manner and to the extent it shall deem necessary to
carry this Plan into effect. Notwithstanding the foregoing, no action of the
Committee under this Section 3.3 shall impair the rights of any Participant
without the Participant's consent.
3.4 Decisions Final. Any decision, interpretation or other action
made or taken in good faith by the Committee arising out of or in connection
with the Plan shall be final, binding and conclusive on the Company and all
employees and their respective heirs, executors, administrators, successors and
assigns.
ARTICLE IV
Share Limitation
4.1 Shares. The maximum aggregate number of shares of Common Stock
which may be issued under this Plan shall not exceed six million (6,000,000)
shares (subject to any increase or decrease pursuant to Section 4.2) which may
be either authorized and unissued Common Stock or issued Common Stock
reacquired by the Company. If any Option granted under this Plan shall expire,
terminate or be cancelled for any reason without having been exercised in full,
the number of unpurchased shares shall again be available for the purposes of
the Plan; provided, however, that if such expired, terminated or cancelled
Option shall have been issued in conjunction with another Award, none of such
unpurchased shares shall again become available for purposes of this Plan to
the extent that the related Award granted under this Plan is exercised. If an
Option is exercised using Common Stock already owned by the Participant
exercising the Option, the number of shares that shall be treated as issued
under the Plan shall be (i) the number of shares issued minus (ii) the number
of shares exchanged in satisfaction of the Option Price and the number of
shares so exchanged shall be added to the total number of shares of Common
Stock available under the Plan. Further, if any shares of Common Stock granted
hereunder are forfeited or such Award otherwise terminates without the delivery
of such shares upon the lapse of restrictions, the shares subject to such
grant, to the extent of such forfeiture or termination, shall again be
available under this Plan.
4.2 Changes. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than a dividend or its
equivalent which is credited to a Plan Participant or a regular cash dividend),
Stock split, or other change in corporate structure affecting the Common Stock,
such substitution or adjustment shall be made in the maximum aggregate number
of shares which may be issued under this Plan, in the number and option price
of shares subject to outstanding Options granted under this Plan, and in the
number of shares subject to other outstanding Awards (including but not limited
to Awards of Restricted Stock, Performance Shares, Performance Units and Other
Stock-Based Awards) granted under this Plan, as may be determined
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to be appropriate by the Committee, in its sole discretion, provided that the
number of shares subject to any Award shall always be a whole number.
ARTICLE V
Eligibility
5.1 Senior officers, senior management, and key employees of the
Company and its Designated Subsidiaries are eligible to be granted Options and
other Awards under this Plan. Eligibility under this Plan shall be determined
by the Committee.
ARTICLE VI
Stock Options
6.1 Options. Stock Options may be granted alone or in addition to
other Awards granted under this Plan. Each Stock Option granted under this Plan
shall be of one of two types: (i) an Incentive Stock Option or (ii) a
Non-Qualified Stock Option.
6.2 Grants. The Committee shall have the authority to grant to any
Participant one or more Incentive Stock Options, Non-Qualified Stock Options,
or both types of Stock Options. To the extent that any Stock Option does not
qualify as an Incentive Stock Option (whether because of its provisions or the
time or manner of its exercise or otherwise), such Stock Option or the portion
thereof which does not qualify shall constitute a separate Non-Qualified Stock
Option.
6.3 Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term of this Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be so exercised, so as to disqualify the Plan under
Section 422 of the Code, or, without the consent of the Participants affected,
to disqualify any Incentive Stock Option under such Section 422.
6.4 Terms of Options. Options granted under this Plan shall be
subject to the following terms and conditions and shall be in such form and
contain such additional terms and conditions, not inconsistent with the terms
of this Plan, as the Committee shall deem desirable:
(a) Option Price. The option price per share of Common
Stock purchasable under a Stock Option shall be determined by the Committee at
the time of grant but shall be not less than 100% of the Fair Market Value of
the Common Stock at grant if the Stock Option is intended to be an Incentive
Stock Option and shall not be less than 85% of the Fair Market Value of the
Common Stock at grant if the Stock Option is intended to be a Non-Qualified
Stock Option.
(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 ten years after the date the Option is granted, and no Non-Qualified Stock
Option shall be exercisable more than ten years and one day after the date the
Option is granted.
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(c) Exercisability. Stock Options shall be exercisable
at such time or times and subject to such terms and conditions as shall be
determined by the Committee at grant; provided, however, that, except as
provided in subsections (f) and (g) below and Article 3, unless otherwise
determined by the Committee and the Committee may waive such installment
exercise provisions at any time at or after grant in whole or in part, based on
such factors as the Committee shall determine, in its sole discretion.
(d) Method of Exercise. Subject to whatever installment
exercise and waiting period provisions apply under subsection (c) above, Stock
Options may be exercised in whole or in part at any time during the option
term, by giving written notice of exercise to the Company specifying the number
of shares to be purchased. Such notice shall be accompanied by payment in full
of the purchase price in such form as the Committee may accept. If and to the
extent determined by the Committee in its sole discretion at or after grant,
payment in full or in part may also be made in the form of Common Stock duly
owned by the Participant (and for which the Participant has good title free and
clear of any liens and encumbrances) or Restricted Stock, or by reduction in
the number of shares issuable upon such exercise based, in each case, on the
Fair Market Value of the Stock on the last trading date preceding payment as
determined by the Committee (without regard to any forfeiture restrictions
applicable to Restricted Stock). No shares of Stock shall be issued until
payment, as provided herein, therefor has been made. A Participant shall
generally have the rights to dividends or other rights of a shareholder with
respect to shares subject to the Option when the optionee has given written
notice of exercise, has paid for such shares as provided herein, and, if
requested, has given the representation described in Section 14.1.
Notwithstanding the foregoing, if payment in full or in part has been made in
the form of Restricted Stock, an equivalent number of shares of Common Stock
issued on exercise of the Option shall be subject to the same restrictions and
conditions, and during the remainder of the Restriction Period, applicable to
the shares of Restricted Stock surrendered therefor.
(e) Non-Transferability of Options. No Stock Option
shall be transferable by the Participant otherwise than by will or by the laws
of descent and distribution, and all Stock Options shall be exercisable, during
the Participant's lifetime, only by the Participant.
(f) Termination by Death. Except for Incentive Stock
Options subject to subsection (j) below, if a Participant's employment by the
Company or a Designated Subsidiary terminates by reason of death, any Stock
Option held by such Participant, unless otherwise determined by the Committee
at grant, shall be fully vested and may thereafter be exercised by the legal
representative of the estate, for a period of one year (or such other period as
the Committee may specify at grant) from the date of such death or until the
expiration of the option term of such Stock Option, whichever period is the
shorter.
(g) Termination by Reason of Disability. Except for
Incentive Stock Options subject to subsection (j) below, if a Participant's
employment by the Company or a Designated Subsidiary terminates by reason of
Disability, any Stock Option held by such Participant, unless otherwise
determined by the Committee at grant, shall be fully vested and may thereafter
be exercised by the Participant for a period of five years (or such other
period as the Committee may specify at grant) from the date of such termination
of employment or until the expiration of the
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stated term of such Stock Option, whichever period is the shorter; provided,
however, that, if the Participant dies within such five-year period (or such
other period as the Committee shall specify at grant), any unexercised Stock
Option held by such Participant shall thereafter be exercisable to the extent
to which it was exercisable at the time of death for a period of twelve months
from the date of such death or until the expiration of the option term of such
Stock Option, whichever period is the shorter. In the event of termination of
employment by reason of Disability, if an Incentive Stock Option is exercised
after the expiration of the exercise periods that apply for purposes of Section
422 of the Code, such Stock Option will thereafter be treated as a
Non-Qualified Stock Option.
(h) Termination by Reason of Retirement. Except for
Incentive Stock Options subject to subsection (j) below, if a Participant's
employment by the Company or a Designated Subsidiary terminates by reason of
Retirement, any Stock Option held by such Participant, unless otherwise
determined by the Committee at grant, shall be fully vested and may thereafter
be exercised by the Participant for a period of five years (or such other
period as the Committee may specify at grant) from the date of such termination
of employment or the expiration of the stated term of such Stock Option,
whichever period is the shorter; provided, however, that, if the Participant
dies within such five-year period, any unexercised Stock Option held by such
Participant shall thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for a period of twelve months from the date
of such death or until the expiration of the option term of such Stock Option,
whichever period is the shorter. In the event of termination of employment by
reason of Retirement, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of Section 422 of
the Code, such Stock Option will thereafter be treated as a Non-Qualified Stock
Option.
(i) Other Termination. Unless otherwise determined by
the Committee at or after grant, if a Participant's employment by the Company
terminates for any reason other than death, Disability or Retirement, the Stock
Option shall thereupon terminate, except that such Stock Option may be
exercised for the lesser of three months or the balance of such Stock Option's
term if the Participant is involuntarily terminated by the Company without
cause.
(j) Incentive Stock Option Limitations. To the extent
that the aggregate Fair Market Value (determined as of the time of grant) of
the Common Stock with respect to which Incentive Stock Options are exercisable
for the first time by the Participant during any calendar year under the Plan
and/or any other stock option plan of the Company or any subsidiary or parent
corporation (within the meaning of Section 425 of the Code) exceeds $100,000,
such Options shall be treated as Options which are not Incentive Stock Options.
To the extent (if any) permitted under Section 422 of
the Code, or the applicable regulations thereunder or any applicable Internal
Revenue Service pronouncement, if (i) a Participant's employment with the
Company or a Designated Subsidiary is terminated by reason of death, Disability
or Retirement and (ii) the portion of any Incentive Stock Option that is
otherwise exercisable during the post-termination period specified under
subsections (f), (g) or (h) above, applied without regard to the $100,000
limitation currently contained in Section 422(d) of the Code, is greater than
the portion of such Stock Option that is immediately exercisable as
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an "incentive stock option" during such post-termination period under Section
422, such excess shall be treated as a Non-Qualified Stock Option.
Should any of the foregoing provisions not be
necessary in order for the Stock Options to qualify as Incentive Stock Options,
or should any additional provisions be required, the Committee may amend the
Plan accordingly, without the necessity of obtaining the approval of the
shareholders of the Company.
(k) Buyout and Settlement Provisions. The Committee may
at any time offer to buy out an Option previously granted, based on such terms
and conditions as the Committee shall establish and communicate to the
Participant at the time that such offer is made.
In addition, if the Option agreement so provides at
grant or is amended after grant and prior to exercise to so provide (with the
Participant's consent), the Committee may require that all or part of the
shares to be issued with respect to the spread value of an exercised Option
take the form of Performance Shares or Restricted Stock, which shall be valued
on the date of exercise on the basis of the Fair Market Value of such
Performance Shares or Restricted Stock determined without regard to the
deferral limitations and/or forfeiture restrictions involved.
6.5 Reload Options. Without in any way limiting the authority of the
Committee to make grants hereunder, and in order to induce officers and other
key employees to retain ownership of shares in the Company, the Committee shall
have the authority (but not an obligation) to include within any option
agreement a provision entitling the optionee to a further option (a "Reload
Option") in the event the optionee exercises the option evidenced by the option
agreement, in whole or in part, by surrendering other shares of the Company in
accordance with this Plan and the terms and conditions of the option agreement.
Any such Reload Option shall be for a number of shares equal to the number of
surrendered shares, shall become exercisable in the event the purchased shares
are held for a minimum period of time established by the Committee, and shall
be subject to such other terms and conditions as the Committee may determine.
ARTICLE VII
Restricted Stock
7.1 Awards of Restricted Stock. Shares of Restricted Stock may be
issued either alone or in addition to other Awards granted under the Plan. The
Committee shall determine the eligible persons to whom, and the time or times
at which, grants of Restricted Stock will be made, the number of shares to be
awarded, the price (if any) to be paid by the recipient (subject to Section
7.2), the time or times within which such Awards may be subject to forfeiture,
the vesting schedule and rights to acceleration thereof, and all other terms
and conditions of the Awards.
The Committee may condition the grant of Restricted Stock upon the
attainment of specified performance goals or such other factors as the
Committee may determine, in its sole discretion.
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The provisions of Restricted Stock awards need not be the same with
respect to each Participant, and such Awards to individual Participants need
not be the same in subsequent years.
7.2 Awards and Certificates. The prospective Participant selected to
receive a Restricted Stock Award shall not have any rights with respect to such
Award, unless and until such Participant has executed an agreement evidencing
the Award and has delivered a fully executed copy thereof to the Company, and
has otherwise complied with the applicable terms and conditions of such Award.
Further, such Award shall be subject to the following conditions:
(a) Purchase Price. The purchase price for shares of
Restricted Stock shall be equal to or less than their par value and may be
zero.
(b) Acceptance. Awards of Restricted Stock must be
accepted within a period of 60 days (or such shorter period as the Committee
may specify at grant) after the Award date, by executing a Restricted Stock
Award agreement and by paying whatever price (if any) the Committee has
designated hereunder.
(c) Legend. Each Participant receiving a Restricted
Stock Award shall be issued a stock certificate in respect of such shares of
Restricted Stock. Such certificate 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 transferability of this certificate and the
shares of stock represented hereby are subject to the terms and conditions
(including forfeiture) of Kellogg Company (the "Company") Key Employee Long
Term Incentive Plan and an Agreement entered into between the registered owner
and the Company dated __________. Copies of such Plan and Agreement are on
file in the offices of the Company, One Kellogg Square, Battle Creek, Michigan
49016-3599".
(d) Custody. The Committee may require that the stock
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
Restricted Stock Award, the Participant shall have delivered a duly signed
stock power, endorsed in blank, relating to the Stock covered by such Award.
7.3 Restrictions and Conditions. The shares of Restricted Stock
awarded pursuant to this Plan shall be subject to the following restrictions
and conditions:
(a) Restriction Period. Subject to the provisions of this
Plan and the Award agreement, during a period set by the Committee commencing
with the date of such Award (the "Restriction Period"), the Participant shall
not be permitted to sell, transfer, pledge or assign shares of Restricted Stock
awarded under this Plan. Within these limits, the Committee, in its sole
discretion, may provide for the lapse of such restrictions in installments and
may accelerate or waive such restrictions in whole or in part, based on
service, performance and/or such other factors or criteria as the Committee may
determine in its sole discretion.
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(b) Rights as Shareholder. Except as provided in this
subsection (b) and subsection (a) above, the Participant shall have, with
respect to the shares of Restricted Stock, all of the rights of a holder of
shares of Common Stock of the Company including the right to receive any
dividends. The Committee, in its sole discretion, as determined at the time of
Award, may permit or require the payment of dividends to be deferred.
(c) Termination of Employment. Subject to the applicable
provisions of the Award agreement and this Article 7, upon termination of a
Participant's employment with the Company for any reason during the Restriction
Period, all Restricted Shares still subject to restriction will vest or be
forfeited in accordance with the terms and conditions established by the
Committee at or after grant.
(d) Hardship. In the event of hardship or other special
circumstances of a Participant whose employment with the Company or a
Designated Subsidiary is involuntarily terminated (other than for cause), the
Committee may, in its sole discretion, waive in whole or in part any or all
remaining restrictions with respect to such Participant's shares of Restricted
Stock, based on such factors as the Committee may deem appropriate.
(e) Lapse of Restrictions. If and when the Restriction
Period expires without a prior forfeiture of the Restricted Stock subject to
such Restriction Period, the certificates for such shares shall be delivered to
the Participant. All legends shall be removed from said certificates at the
time of delivery to the Participant.
ARTICLE VIII
Performance Shares
8.1 Award of Performance Shares. Performance Shares may be awarded
either alone or in addition to other Awards granted under this Plan. The
Committee shall determine the eligible persons to whom and the time or times at
which Performance Shares shall be awarded, the number of Performance Shares to
be awarded to any person, the duration of the period (the "Performance Period")
during which, and the conditions under which, receipt of the Shares will be
deferred, and the other terms and conditions of the Award in addition to those
set forth in Section 8.2.
The Committee may condition the grant of Performance Shares upon the
attainment of specified performance goals or such other factors or criteria as
the Committee shall determine, in its sole discretion.
The provisions of Performance Share Awards need not be the same with
respect to each Participant, and such Awards to individual Participants need
not be the same in subsequent years.
8.2 Terms and Conditions. Performance Shares awarded pursuant to
this Article 8 shall be subject to the following terms and conditions:
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(a) Non-Transferability. Subject to the provisions of
this Plan and the Award agreement referred to in subsection (g) below,
Performance Share Awards may not be sold, assigned, transferred, pledged or
otherwise encumbered during the Performance Period. At the expiration of the
Performance Period, share certificates or cash of an equivalent value (as the
Committee may determine in its sole discretion) shall be delivered to the
Participant, or his legal representative, in a number equal to the shares
covered by the Performance Share Award.
(b) Dividends. Unless otherwise determined by the
Committee at the time of Award, amounts equal to any dividends declared during
the Performance Period with respect to the number of shares of Common Stock
covered by a Performance Share Award will not be paid to the Participant.
(c) Termination of Employment. Subject to the provisions
of the Award agreement and this Article 8, upon termination of a Participant's
employment with the Company for any reason during the Performance Period for a
given Award, the Performance Shares in question will vest or be forfeited in
accordance with the terms and conditions established by the Committee at or
after grant.
(d) Accelerated Vesting. Based on service, performance
and/or such other factors or criteria as the Committee may determine, the
Committee may, at or after grant, accelerate the vesting of all or any part of
any Performance Share Award and/or waive the deferral limitations for all or
any part of such Award.
(e) Hardship. In the event of hardship or other special
circumstances of a Participant whose employment with the Company or a
Designated Subsidiary is involuntarily terminated other than for cause, the
Committee may, in its sole discretion, based on such factors as the Committee
may deem appropriate, waive in whole or in part any or all of the remaining
deferral limitations imposed hereunder with respect to any or all of the
Participant's Performance Shares, based on such factors as the Committee deems
appropriate.
(f) Agreement. Each Award shall be confirmed by, and
subject to the terms of, a Performance Share agreement executed by the Company
and the Participant.
ARTICLE IX
Performance Units
9.1 Award of Performance Units. Performance Units may be awarded
either alone or in addition to other Awards granted under this Plan. The
Committee shall determine the eligible persons to whom and the time or times at
which Performance Units shall be awarded, the number of Performance Units to be
awarded to any person, the duration of the period (the "Performance Cycle")
during which, and the conditions under which, a Participant's right to
Performance Units will be vested, the ability of Participants to defer the
receipt of payment of such Units, and the other terms and conditions of the
Award in addition to those set forth in Section 9.2.
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A Performance Unit shall have a fixed dollar value.
The Committee may condition the vesting of Performance Units upon the
attainment of specified performance goals or such other factors or criteria as
the Committee shall determine, in its sole discretion.
The provisions of Performance Unit Awards need not be the same with
respect to each Participant, and such Awards to individual Participants need
not be the same in subsequent years.
9.2 Terms and Conditions. The Performance Units awarded pursuant to
this Article 10 shall be subject to the following terms and conditions:
(a) Non-Transferability. Subject to the provisions of
this Plan and the Award agreement referred to in subsection (g) below,
Performance Unit Awards may not be sold, assigned, transferred, pledged or
otherwise encumbered.
(b) Vesting. At the expiration of the Performance Cycle,
the Committee shall determine the extent to which the performance goals have
been achieved, and the percentage of the Performance Units of each Participant
that have vested.
(c) Payment. Subject to the provisions of this Plan and
the Award agreement referred to in subsection (g) below, the vested Performance
Units shall be paid to the Participant or his legal representative as soon as
practicable after the end of a Performance Cycle. Payment may be made in cash,
shares of Common Stock or a combination of both, as determined by the
Committee, in its sole discretion.
(d) Termination of Employment. Subject to the provisions
of the Award agreement and this Article 9, upon termination of a Participant's
employment with the Company for any reason during the Performance Cycle for a
given Award, the Performance Units in question will vest or be forfeited in
accordance with the terms and conditions established by the Committee at or
after grant.
(e) Accelerated Vesting. Based on service, performance
and/or such other factors or criteria as the Committee may determine, the
Committee may, at or after grant, accelerate the vesting of all or any part of
any Performance Unit Award and/or waive the deferral limitations for all or any
part of such Award.
(f) Hardship. In the event of hardship or other special
circumstances of a Participant whose employment with the Company or a
Designated Subsidiary is involuntarily terminated (other than for cause), the
Committee may, in its sole discretion, based on such factors as the Committee
may deem appropriate, waive in whole or in part any or all of the remaining
deferral limitations imposed hereunder with respect to any or all of the
Participant's Performance Units, based on such factors as the Committee deems
appropriate.
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(g) Agreement. Each Award shall be confirmed by, and
subject to the terms of, a Performance Unit agreement executed by the Company
and the Participant.
ARTICLE X
Other Stock-Based Awards
10.1 Other Awards. Other Awards of Common Stock and other Awards
that are valued in whole or in part by reference to, or are payable in or
otherwise based on, Common Stock ("Other Stock-Based Awards"), including,
without limitation, Awards valued by reference to subsidiary performance, may
be granted either alone or in addition to or in tandem with Stock Options,
Restricted Stock, Performance Shares or Performance Units.
Subject to the provisions of this Plan, the Committee shall have
authority to determine the persons to whom and the time or times at which such
Awards shall be made, the number of shares of Common Stock to be awarded
pursuant to such Awards, and all other conditions of the Awards. The Committee
may also provide for the grant of Common Stock under such Awards upon the
completion of a specified performance period.
The provisions of Other Stock-Based Awards need not be the same with
respect to each Participant and such Awards to individual Participants need not
be the same in subsequent years.
10.2 Terms and Conditions. Other Stock-Based Awards made pursuant to
this Article 10 shall be subject to the following terms and conditions:
(a) Non-Transferability. Subject to the provisions of
this Plan and the Award agreement referred to in subsection (e) below, shares
of Common Stock subject to Awards made under this Article 10 may not be sold,
assigned, transferred, pledged or otherwise encumbered prior to the date on
which the shares are issued, or, if later, the date on which any applicable
restriction, performance or deferral period lapses.
(b) Dividends. Unless otherwise determined by the
Committee at the time of Award, subject to the provisions of this Plan and the
Award agreement, the recipient of an Award under this Article 10 shall be
entitled to receive, currently or on a deferred basis, dividends or dividend
equivalents with respect to the number of shares of Common Stock covered by the
Award, as determined at the time of the Award by the Committee, in its sole
discretion.
(c) Vesting. Any Award under this Article 10 and any
Common Stock covered by any such Award shall vest or be forfeited to the extent
so provided in the Award agreement, as determined by the Committee, in its sole
discretion.
(d) Waiver of Limitation. In the event of the
Participant's Retirement, Disability or death, or in cases of special
circumstances, the Committee may, in its sole discretion, waive in whole or in
part any or all of the limitations imposed hereunder (if any) with respect to
any or all of an Award under this Article 10.
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(e) Agreement. Each Award under this Article 10 shall be
confirmed by, and subject to the terms of, an agreement or other instrument
executed by the Company and the Participant.
(f) Price. Common Stock issued on a bonus basis under
this Article 10 may be issued for no cash consideration; Common Stock purchased
pursuant to a purchase right awarded under this Article 10 shall be priced as
determined by the Committee.
ARTICLE XI
Termination or Amendment of the Plan
11.1 Termination or Amendment. The Board may at any time amend,
discontinue or terminate this Plan or any part thereof (including any amendment
deemed necessary to ensure that the Company may comply with any regulatory
requirement referred to in Article 13); provided, however, that, unless
otherwise required by law, the rights of a Participant with respect to Options
or other Awards granted prior to such amendment, discontinuance or termination,
may not be impaired without the consent of such Participant and, provided
further, without the approval of the Company's stockholders, no amendment may
be made which would (i) increase the aggregate number of shares of Common Stock
that may be issued under this Plan (except by operation of Section 4.2); (ii)
change the definition of employees eligible to receive Stock Awards under this
Plan; (iii) decrease the option price of any Stock Option to less than 100% of
the Fair Market Value on the date of grant for a Stock Option intended to be an
Incentive Stock Option or to 85% of the Fair Market Value on the date of grant
for a Stock Option intended to be a Non-Qualified Stock Option; or (iv) extend
the maximum option period under Section 6.4 of the Plan.
The Committee may amend the terms of any Stock Option or other Award
theretofore granted, prospectively or retroactively, but, subject to Article 4
above, no such amendment or other action by the Committee shall impair the
rights of any holder without the holder's consent. The Committee may also
substitute new Stock Options for previously granted Stock Options having higher
option exercise prices.
ARTICLE XII
Unfunded Plan
12.1 Unfunded Status of Plan. This Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any rights that are greater than those of a
general creditor of the Company.
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ARTICLE XIII
General Provisions
13.1 Legend. The Committee may require each person purchasing shares
pursuant to a Stock Option or other Award under the Plan to represent to and
agree with the Company in writing that the Participant is acquiring the shares
without a view to distribution thereof. In addition to any legend required by
this Plan, the certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Common 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, any stock exchange upon
which the Stock is then listed, any applicable Federal or state securities law,
and any applicable corporate law, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to
such restrictions.
13.2 Other Plans. Nothing contained in this Plan shall prevent the
Board from adopting other or additional compensation arrangements, subject to
shareholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
13.3 No Right to Employment. Neither this Plan nor the grant of any
Option or other Award hereunder shall give any Participant or other employee
any right with respect to continuance of employment by the Company or any
subsidiary, nor shall there be a limitation in any way on the right of the
Company or any subsidiary by which an employee is employed to terminate his
employment at any time.
13.4 Withholding of Taxes. The Company shall have the right to deduct
from any payment to be made pursuant to this Plan, or to otherwise require,
prior to the issuance or delivery of any shares of Common Stock or the payment
of any cash hereunder, payment by the Participant of, any Federal, state or
local taxes required by law to be withheld.
The Committee may permit any such withholding obligation to be
satisfied by reducing the number of shares of Common Stock otherwise
deliverable. A person required to file reports under Section 16(a) of the
Securities Act of 1933 with respect to securities of the Company may elect to
have a sufficient number of shares of Common Stock withheld to fulfill such tax
obligations (hereinafter a "Withholding Election") only if the election
complies with the following conditions: (x) the Withholding Election shall be
subject to the disapproval of the Committee and (y) the Withholding Election is
made (i) during the period beginning on the third business day following the
date of release for publication of the quarterly or annual summary statements
of sales and earnings of the Company and ending on the twelfth business day
following such date, (ii) six months before the Stock Award becomes taxable, or
(iii) during any other period in which a Withholding Election may be made under
the provisions of Rule 16b-3 promulgated pursuant to the Act. Any fraction of a
share of Common Stock required to satisfy such tax obligations shall be
disregarded and the amount due shall be paid instead in cash by the
Participant.
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13.5 No Assignment of Benefits. No Option, Award or other benefit
payable under this Plan shall, except as otherwise specifically provided by
law, be subject in any manner to anticipation, alienation, attachment, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, attach, sell, transfer, assign, pledge, encumber or
charge any such benefit shall be void, and any such benefit shall not in any
manner be liable for or subject to the debts, contracts, liabilities,
engagements or torts of any person who shall be entitled to such benefit, nor
shall it be subject to attachment or legal process for or against such person.
13.6 Listing and Other Conditions.
(a) As long as the Common Stock is listed the on New York
Stock Exchange or a national securities exchange or system sponsored by a
national securities association, the issue of any shares of Common Stock
pursuant to an Option or other Award shall be conditioned upon such shares
being listed on such exchange or system. The Company shall have no obligation
to issue such shares unless and until such shares are so listed, and the right
to exercise any Option or other Award with respect to such shares shall be
suspended until such listing has been effected.
(b) If at any time counsel to the Company shall be of the
opinion that any sale or delivery of shares of Common Stock pursuant to an
Option or other Award is or may in the circumstances be unlawful or result in
the imposition of excise taxes under the statutes, rules or regulations of any
applicable jurisdiction, the Company shall have no obligation to make such sale
or delivery, or to make any application or to effect or to maintain any
qualification or registration under the Securities Act of 1933, as amended, or
otherwise with respect to shares of Common Stock or Awards, and the right to
exercise any Option or other Award shall be suspended until, in the opinion of
said counsel, such sale or delivery shall be lawful.
(c) Upon termination of any period of suspension under
this Section 13.6, any Award affected by such suspension which shall not then
have expired or terminated shall be reinstated as to all shares available
before such suspension and as to shares which would otherwise have become
available during the period of such suspension, but no such suspension shall
extend the term of any Option.
13.7 Governing Law. This Plan and actions taken in connection
herewith shall be governed and construed in accordance with the laws of the
State of Delaware (regardless of the law that might otherwise govern under
applicable Delaware principles of conflict of laws).
13.8 Construction. Wherever any words are used in this Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they
were also used in the plural form in all cases where they would so apply.
13.9 Liability of Committee. No member of the Board of Directors, no
employee of the Company nor the Committee (nor its members) shall be liable for
any act or action hereunder, whether of omission or commission, by any other
member or employee or by any agent to whom duties in connection with the
administration of the Plan have been delegated or, except in
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circumstances involving his bad faith, gross negligence or fraud, for anything
done or omitted to be done by himself.
13.10 Other Benefits. No Award payment under this Plan shall be
deemed compensation for purposes of computing benefits under any retirement
plan of the Company or its subsidiaries nor affect any benefits under any other
benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation.
13.11 Costs. The Company shall bear all expenses incurred in
administering this Plan, including expenses of issuing Common Stock pursuant to
any Awards hereunder.
ARTICLE XIV
Effective Date of Plan
The Plan shall be effective as of its approval by the Company's shareholders.
ARTICLE XV
Term of Plan
No Stock Option, Restricted Stock, Performance Shares, Performance
Unit or Other Stock-Based Award shall be granted pursuant to the Plan on or
after the tenth anniversary of its approval, but Awards granted prior to such
tenth anniversary may extend beyond that date.
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