Exhibit 10.27
VALASSIS COMMUNICATIONS, INC.
Broad-Based Incentive Plan
1. Purpose. The purpose of the Broad-Based Incentive Plan (the "Plan") is
to advance the interests of Valassis Communications, Inc. (the "Company") and
its shareholders by providing incentives to employees of the Company and its
affiliates and to certain other individuals who perform services for these
entities.
2. Administration. The Plan shall be administered solely by the
Compensation/Stock Option Committee (the "Committee") of the Board of Directors
(the "Board") of the Company, as such Committee is from time to time
constituted, or any successor committee the Board may designate to administer
the Plan; provided that the Committee may delegate the administration of the
Plan in whole or in part, on such terms and conditions, and to such person or
persons as it may determine in its discretion.
The Committee has all the powers vested in it by the terms of the Plan set
forth herein, such powers to include exclusive authority (except as may be
delegated as permitted herein and described in the foregoing paragraph) to
select the employees and other individuals to be granted options under the Plan
("Option"), to determine the type, size and terms of the grant of Options to be
made to each individual selected, to modify the terms of any Option that has
been granted, to determine the time when Options will be granted, to make any
adjustments necessary or desirable as a result of the granting of Options to
eligible individuals located outside the United States and to prescribe the form
of the instruments embodying Option Agreements (as hereinafter defined) made
under the Plan. The Committee is authorized to interpret the Plan and the
Options granted under the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determination, which it
deems necessary or desirable for the administration of the Plan. The Committee
(or its delegate as permitted herein) may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any Option in the
manner and to the extent the Committee deems necessary or desirable to carry it
into effect. Any decision of the Committee (or its delegate as permitted herein)
in the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. The Committee may act only by a majority of
its members in office, except that the members thereof may authorize any one or
more of their members or any officer of the Company or its Affiliates (as
hereinafter defined) to execute and deliver documents or to take any other
ministerial action on behalf of the Committee with respect to Options granted or
to be granted to Plan participants. No member of the Committee and no officer of
the Company or its Affiliates shall be liable for anything done or omitted to be
done by him or her, by any other member of the Committee or by any officer of
the Company or its Affiliates in connection with the performance of duties under
the Plan, except for his or her own willful misconduct or as expressly provided
by statute.
3. Participation.
(a) Affiliates. If an Affiliate of the Company wishes to participate in the
Plan and its
participation shall have been approved by the Board upon the recommendation of
the Committee, the board of directors or other governing body of the Affiliate
shall adopt a resolution in form and substance satisfactory to the Committee
authorizing participation by the Affiliate in the Plan with respect to its
employees or other individuals performing services for it. As used herein, the
term "Affiliate" means any entity that directly or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
the Company as determined by the Committee in its discretion. Notwithstanding
the foregoing, all of the Company's wholly-owned subsidiaries are deemed to be
Affiliates entitled to participate in the Plan, subject to any additional
conditions as may be required by any applicable foreign laws.
An Affiliate participating in the Plan may cease to be a participating
company at any time by action of the Board or by action of the board of
directors or other governing body of such Affiliate, which latter action shall
be effective not earlier than the date of delivery to the Secretary of the
Company of a certified copy of a resolution of the Affiliate's board of
directors or other governing body taking such action. If the participation in
the Plan of an Affiliate shall terminate, such termination shall not relieve it
of any obligations theretofore incurred by it, except as may be approved by the
Committee in its discretion.
(b) Participants. All employees and independent contractors of both the
Company and participating Affiliates are eligible to participate in the Plan,
provided they are not (i) officers (as defined by Rule 16a-1(f) under the
Securities Exchange Act of 1934, as amended, (the "Exchange Act")) or directors
of the Company, (ii) an owner of at least 5% of the outstanding Common Shares,
or (iii) a closely related person of any person described in (i) or (ii) of this
paragraph. Consistent with the purposes of the Plan, the Committee shall have
exclusive power (except as may be delegated as permitted herein) to select the
eligible employees and other individuals performing services for the Company,
including consultants or independent contractors and others who perform services
for the Company and its Affiliates, who may be granted Options under the Plan.
Eligible individuals may be selected individually or by groups or categories, as
determined by the Committee in its discretion.
The intent of the Company is that the Plan be exempt from the shareholder
approval requirements of the New York Stock Exchange (the "Exchange"), as
provided in the Exchange's Listed Company Manual, and the Plan and all Option
Agreements (as defined in Section 5) shall be so interpreted and supplemented,
with contrary provisions disregarded or modified, as determined by the
Committee.
4. Options under the Plan.
(a) Options. Options are rights to purchase common shares of the Company,
par value $0.01 per share (the "Common Shares"), and they are not to be treated
as "incentive stock options" within the meaning of Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"). Options are subject to
the terms, conditions and restrictions specified in Paragraph 5.
(b) Options that May Be Issued. There may be issued under the Plan an
aggregate of not more than 2,165,000 Common Shares, subject to adjustment as
provided in Paragraph 8.
(c) Rights with respect to Common Shares and Other Securities. Unless
otherwise
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determined by the Committee in its discretion, a participant to whom a grant of
an Option is made (and any person succeeding to such a participant's rights
pursuant to the Plan) shall have no rights as a stockholder with respect to any
Common Shares or as a holder with respect to other securities, if any, issuable
pursuant to any such Option until the date of the issuance of a stock
certificate to him or her for such Common Shares or other instrument of
ownership, if any. Except as provided in Paragraph 8, no adjustment shall be
made for dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities, other property or other forms of
consideration, or any combination thereof) for which the record date is prior to
the date such stock certificate or other instrument of ownership, if any, is
issued.
5. Conditions and Restrictions. Each Option granted under the Plan shall be
evidenced by an instrument ("Option Agreement") in such form as the Committee
shall prescribe from time to time in accordance with the Plan and shall comply
with the following terms and conditions, and with such other terms and
conditions, including, but not limited to, restrictions upon the Option or the
Common Shares issuable upon exercise thereof, as the Committee, in its
discretion, shall establish:
(a) The Option exercise price may be equal to, or greater than, the Fair
Market Value (as hereinafter defined) of the Common Shares subject to such
Option at the time the Option is granted;
(b) The Committee shall determine the number of Common Shares to be subject
to each Option. Options shall become exercisable in installments, if any, as
provided by the Committee.
(c) Any Option offered pursuant to the Plan shall not be transferable other
than by will or the laws of descent and distribution and shall be exercisable
during the participant's lifetime only by him or her, and a participant's rights
and interest under the Plan may not be assigned or transferred, hypothecated or
encumbered in whole or in part either directly or by operation of law or
otherwise (except in the event of a participants death) including, but not by
way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy
or in any other manner.
(d) The Option shall not be exercisable:
(i) other than during such period, at such time or times and in such
installments, as the Committee may establish;
(ii) unless payment in full is made for the shares being acquired
thereunder at the time of exercise. Such payment shall be made in such form
(including, but not limited to, cash, Common Shares owned by the
participant for at least six months, or any combination thereof) as the
Committee may determine in its discretion; and
(iii) unless the person exercising the Option has been, at all times
during the period beginning with the date of the grant of the Option and
ending on the date of such exercise, employed by or otherwise performing
services for the Company or an Affiliate, or a corporation, or a parent or
subsidiary of a corporation, substituting or assuming the Option, except
that, in the discretion of the Committee:
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(A) if such person shall cease such employment or performance of
services by reason of his Disability (as defined in Paragraph 7) or
early, normal or deferred retirement under an approved retirement
program of the Company or an Affiliate (or such other plan or
arrangement as may be approved by the Committee, in its discretion,
for this purpose) while holding an Option which has not expired and
has not been fully exercised, such person may exercise the Option with
respect to any Common Shares as to which he or she could have
exercised the Option on the date he ceased such employment or
performance of services (and, if the Committee so determines, with
respect to any or all Common Shares under such Option as to which he
could not then have otherwise exercised such Option) for an additional
period of up to three years after the date he or she ceased such
employment or performance of services (but in no event after the
expiration date of the Option); or
(B) if such person shall cease such employment or performance of
services by reason of death while holding an Option that has not
expired and has not been fully exercised, his or her executors,
administrators, heirs or distributees, as the case may be, may, at any
time within one year (or such other period determined by the
Committee) after the date of death (but in no event after the
expiration date of the Option), exercise the Option with respect to
any Common Shares as to which the decedent could have exercised the
Option at the time of his or her death (and if the Committee so
determines, with respect to any or all Common Shares subject to such
Option as to which the decedent could not then have otherwise
exercised such Option); and
(C) if such person shall cease such employment or performance of
services for any reason other than Disability, early, normal or
deferred retirement or death, while holding an Option which has not
expired and has not been fully exercised, such person may exercise the
Option with respect to any Common Shares as to which he or she could
have exercised the Option on the date he or she ceased such employment
or performance of services (and, if the Committee so determines, with
respect to any or all Common Shares under the Option as to which he or
she could not then have otherwise exercised the Option) for such
additional period, if any, following the date he or she ceased such
employment or performance of services, that the Committee may
determine (but in no event after the expiration date of the Option).
(e) For purposes of this Plan, "Fair Market Value" per Common Share as of a
particular date shall mean (i) the closing sales price per Common Share on a
national securities exchange for the last preceding date on which there was a
sale of such Common Shares on such exchange, or (ii) if Common Shares are then
traded on an over-the-counter market, the average of the closing bid and asked
prices for the Common Shares in such over-the-counter market for the last
preceding date on which there was a sale of such Common Shares in such market,
or (iii) if the shares of Common Shares are not then listed on a national
securities exchange or traded in an over-the-counter market, such value as the
Committee in its discretion may determine.
(f) The Option Agreements shall provide that Options are not "incentive
stock
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options" for purposes of Section 422 of the Code. Furthermore, the intent of the
Company is that all Options granted under this Plan shall have fixed and
determinable terms, and not options with variable terms, within the meaning of
Accounting Principles Board Opinion No. 25; all ambiguities in construction of
Option Agreements shall be so interpreted, and all Option Agreements shall be
deemed supplemented to the extent necessary to effectuate this intent and
contrary provisions disregarded.
6. Amendment or Substitution of Options under the Plan. The terms of any
outstanding Option under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate (including,
but not limited to, acceleration of the date of exercise of any Option) provided
that no such amendment shall adversely affect in a material manner any right of
a participant under the Option without his or her written consent, unless the
Committee determines in its discretion that there have occurred or are about to
occur significant changes in the participant's position, duties or
responsibilities, or significant changes in economic, legislative, regulatory,
tax, accounting or cost/benefit conditions which are determined by the Committee
in its discretion to have or to be expected to have a substantial effect on the
performance of the Company, Affiliate, division or department thereof, on the
Plan or on any Option under the Plan. The Committee may, in its discretion,
permit holders of Options under the Plan to exchange outstanding Options for the
grant of new Options, or require holders of Options to surrender outstanding
Options as a condition precedent to the grant of new Options under the Plan.
7. Disability. For the purposes of this Plan, a participant shall be deemed
to have terminated his employment or performance of services for the Company and
its Affiliates by reason of Disability, if the participant is absent from his or
her duties with the Company or an Affiliate for a period of at least 180 days
during any 12 month period as a result of incapacity due to a mental or physical
illness. The method of establishing Disability shall be a good faith
determination by the Committee.
8. Dilution and Other Adjustments. In the event of any change in the
outstanding Common Shares of the Company by reason of any stock split, stock
dividend, split-up, split-off, spin-off, recapitalization, merger,
consolidation, rights offering, share offering, reorganization, combination or
exchange of shares, a sale by the Company of all or part of its assets, or in
the event of any distribution to stockholders other than a normal cash dividend,
or other extraordinary or unusual event, if the Committee shall determine, in
its discretion, that such change equitably requires an adjustment in the terms
of any Option or the number of Common Shares available for Options, such
adjustment may be made by the Committee and shall be final, conclusive and
binding for all purposes of the Plan.
9. Designation of Beneficiary by Participant. A participant may name a
beneficiary to receive any payment to which he or she may be entitled in respect
of any Option under the Plan in the event of his or her death, on a written form
to be provided by and filed with the Committee, and in a manner determined by
the Committee in its discretion. The Committee reserves the right to review and
approve beneficiary designations. A participant may change his or her
beneficiary from time to time in the same manner, unless such participant has
made an irrevocable designation. Any designation of beneficiary under the Plan
(to the extent it is valid and enforceable under applicable law) shall be
controlling over any other disposition,
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testamentary or otherwise, as determined by the Committee in its discretion. If
no designated beneficiary survives the participant and is living on the date on
which any amount becomes payable to such participant's beneficiary, such payment
will be made to the legal representatives of the participants estate, and the
term "beneficiary" as used in the Plan shall be deemed to include such person or
persons. If there is any question as to the legal right of any beneficiary to
receive a distribution under the Plan, the Committee in its discretion may
determine that the amount in question be paid to the legal representatives of
the estate of the participant, in which event the Company, the Board and the
Committee and the members thereof will have no further liability to anyone with
respect to such amount.
10. Change in Control.
(a) Upon the occurrence of a Change in Control (as hereinafter defined),
each Option that is outstanding on the date of such Change in Control shall be
exercisable in full immediately (whether or not then exercisable).
(b) For this purpose, a Change in Control shall be deemed to have occurred
if:
(i) any Person (as defined below) is or becomes the beneficial owner,
as defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of
securities of the Company (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or
its Affiliates) representing more than 50% of the combined voting power of
the Company's then outstanding securities; or
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board and any new director
(other than a director designated by a Person who has entered into an
agreement with the Company to effect a transaction described in clause (i),
(iii) or (iv) of this paragraph) whose election by the Board or nomination
for election by the Company's shareholders was approved by a vote of a
majority 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, or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, which merger or
consolidation is consummated, other than (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
entity), in combination with newly acquired ownership acquired in such
transaction by any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or an Affiliate, 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; or
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(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company to any Person of all or substantially all the Company's assets,
which liquidation, sale or disposition is consummated.
For purposes of this subsection 10(b), Person shall have the meaning given
in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof, however, a Person shall not include (1) the Company or any of
its Affiliates; (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates; (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities; or (4) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportion as their
ownership of stock of the Company.
11. Miscellaneous Provisions.
(a) No employee or other person shall have any claim or right to be granted
an Option under the Plan. Determinations made by the Committee under the Plan
need not be uniform and may be made selectively among eligible individuals under
the Plan, whether or not such eligible individuals are similarly situated.
Neither the Plan nor any action taken hereunder shall be construed as giving any
employee or other person any right to continue to be employed by or perform
services for the Company or any Affiliate, and the right to terminate the
employment of or performance of services by any participant at any time and for
any reason is specifically reserved.
(b) No participant or other person shall have any right with respect to the
Plan, the Common Shares reserved for issuance under the Plan or in any Option,
contingent or otherwise, until written evidence of the Option shall have been
delivered to the recipient and all the terms, conditions and provisions of the
Plan and the Option applicable to such recipient (and each person claiming under
or through him or her) have been met.
(c) No Common Shares, other Company securities or property, or other forms
of payment shall be issued hereunder with respect to any Option unless counsel
for the Company shall be satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign legal, securities exchange and
other applicable requirements.
(d) The Company and its Affiliates shall have the right to deduct from any
payment made under the Plan any federal, state, local or foreign income or other
taxes required by law to be withheld with respect to such payment. It shall be a
condition to the obligation of the Company to issue Common Shares, other
securities or property, or other forms of payment, or any combination thereof,
upon exercise of any Option under the Plan, that the participant (or any
beneficiary or person entitled to act) pay to the Company, upon its demand, such
amount as may be requested by the Company for the purpose of satisfying any
liability to withhold federal, state, local or foreign income or other taxes. If
the amount requested is not paid, the Company may refuse to issue Common Shares,
other securities or property, or other forms of payment, or any combination
thereof. Notwithstanding anything in the Plan to the contrary, the Committee
may, in its discretion, permit a participant (or any beneficiary or person
entitled to act) to elect to pay a portion or all of the amount requested by the
Company for such taxes with respect to such
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Option, at such time and in such manner as the Committee shall deem to be
appropriate, including, but not limited to, by authorizing the Company to
withhold, or agreeing to surrender to the Company on or about the date such tax
liability is determinable, Common Shares, other Company securities or property,
or other forms of payment, or any combination thereof, owned by such person or a
portion of such forms of payment that would otherwise be distributed, or have
been distributed, as the case may be, pursuant to such Option to such person,
having a fair market value equal to the amount of such taxes.
(e) The expenses of the Plan shall be borne by the Company.
(f) By accepting any Option under the Plan, each participant and each
person claiming under or through him or her shall be conclusively deemed to have
indicated his or her acceptance and ratification of, and consent to, any action
taken by the Company, the Board or the Committee or its delegates.
(g) Fair market value in relation to securities (other than Common Shares)
or property or other forms of payment of Options under the Plan, or any
combination thereof, as of any specific time shall mean such value as determined
by the Committee in accordance with applicable law.
(h) The masculine pronoun includes the feminine and the singular includes
the plural wherever appropriate.
(i) The appropriate officers of the Company shall cause to be filed any
reports, returns or other information regarding Options hereunder or any Common
Shares issued pursuant hereto as may be required by Section 13 or 15(d) of the
Exchange Act (or any successor provision) or any other applicable statute, rule
or regulation.
(j) The validity, construction, interpretation, administration and effect
of the Plan, and of its rules and regulations, and rights relating to the Plan
and to Options granted under the Plan, shall be governed by the substantive
laws, but not the choice of law rules, of the State of Delaware.
12. Plan Amendment or Suspension. The Plan may be amended or suspended in
whole or in part at any time and from time to time by the Board. No amendment or
suspension of the Plan shall adversely affect in a material manner any right of
any participant with respect to any Option theretofore granted without such
participant's written consent, except as permitted under Paragraph 8.
13. Effective Date and Duration of Plan.
(a) This Plan shall be effective as of March 14, 2000.
(b) This Plan shall terminate upon the earlier of the following dates or
event to occur:
(i) upon the adoption of a resolution of the Board terminating the Plan;
or
(ii) ten years from the effective date of the Plan, provided, however,
that the
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Board may, prior to the expiration of such ten-year period, extend the term
of the Plan for an additional period of up to five years. No termination of
the Plan shall materially alter or impair any of the rights or obligations
of any person, without his or her consent, under any Option theretofore
granted under the Plan except that subsequent to termination of the Plan,
the Committee may make amendments permitted under Paragraph 8.
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