Exhibit 10(p)
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H.B. FULLER COMPANY
1995 PERFORMANCE UNIT PLAN
(December 1, 1994 through November 30, 1997)
Section 1. General.
This Plan is adopted pursuant to the H.B. Fuller Company 1992 Stock Incentive
Plan (the "Stock Incentive Plan") and is subject to its terms. This Plan shall
be known as the "H.B. Fuller Company Performance Unit Plan" and is hereinafter
referred to as the "Performance Unit Plan."
Section 2. Definitions.
As used in this Performance Unit Plan, the following terms shall have the
meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or indirectly through
one or more intermediaries, is controlled by the Company and (ii) any entity in
which the Company has a significant equity interest, as determined by the
Committee.
"Award" shall mean any right granted under this Performance Unit Plan.
"Award Agreement" shall mean any written agreement contract or other
instrument or document evidencing any Award granted under the Performance Unit
Plan.
"Change in Control" shall mean:
(a) a change in control 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;
(b) the public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to Section
13(d) of the Exchange Act) by the Company or any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) that
such person has become the "beneficial owner" (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing 15% or more of the combined
voting power of the Company's then outstanding securities;
(c) the Continuing Directors cease to constitute a majority of the
Company's Board of Directors;
(d) the shareholders of the Company approve (A) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of Company stock
would be converted into cash, securities or other property, other than
a merger of the Company in which shareholders immediately prior to the
merger have the same proportionate ownership of stock of the surviving
corporation immediately after the merger; (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Company; or (C) any plan of liquidation or dissolution of the Company;
or
(e) the majority of the Continuing Directors determine in their sole
and absolute discretion that there has been a change in control of the
Company;
provided, however, that within ten business days following the date of the
Change in Control, a majority of the Continuing Directors, if any, determines
that there shall be no acceleration of vesting with respect to such Change in
Control, then the acceleration provisions will not apply.
"Continuing Director" shall mean any person who is a member of the Board
of Directors of the Company, while such person is a member of the Board of
Directors, who is not an Acquiring Person (as defined below) or an Affiliate or
Associate (as defined below) of an Acquiring Person, or a representative of an
Acquiring Person or any such Affiliate or Associate, and who (A) was a member of
the Board of Directors on the date of this Agreement as first written above or
(B) subsequently becomes a member of the Board of Directors, if such person's
initial nomination for election or initial election to the Board of Directors is
recommended or approved by a majority of the Continuing Directors. For purposes
of this subparagraph (e), "Acquiring Person" shall mean any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) who or which,
together with all Affiliates and Associates of such person, is the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company representing 15% or more of the
combined voting power of the Company's then outstanding securities, but shall
not include the Company, any subsidiary of the Company or any employee benefit
plan of the Company or of any subsidiary of the Company or any entity holding
shares of the Common Stock organized, appointed or established for, or pursuant
to the terms of, any such plan, Elmer L. Andersen, alone or together with any of
his Affiliates, or Anthony L. Andersen, alone or together with any of his
Affiliates; and "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and any regulations promulgated thereunder.
"Committee" shall mean a committee of the Board of Directors of the Company
designated by such Board to administer this Performance Unit Plan and comprised
of not less than such number of directors as shall be required to permit this
Performance Unit Plan to satisfy the requirements of Rule 16b-3. Each member of
the Committee shall be a "disinterested person" within the meaning of Rule
16b-3.
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"Eligible Person" shall mean any employee or officer of the Company or any
Affiliate who the Committee determines to be an Eligible Person.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean, with respect to any property (including,
without limitation, any Shares or other securities), the fair market value of
such property determined by such methods or procedures as shall be established
from time to time by the Committee. Notwithstanding the foregoing, for purposes
of this Performance Unit Plan, the Fair Market Value of Shares on a given date
shall be (i) the last sale price of the Shares as reported on the NASDAQ
National Market System on such date, if the Shares are then quoted on the NASDAQ
National Market System or (ii) the closing price of the Shares on such date on a
national securities exchange, if the Shares are then being traded on a national
securities exchange.
"Participant" shall mean an Eligible Person designated to be granted a
Performance Award under this Performance Unit Plan.
"Performance Unit" shall mean any unit granted under this Performance Unit
Plan evidencing the right to receive Restricted Stock or Restricted Stock Units
at some future date.
"Person" shall mean any individual, corporation, partnership, association
or trust.
"Restricted Stock" shall mean any Share into which a Performance Unit is
convertible under the Performance Unit Plan.
"Restricted Stock Unit" shall mean a unit evidencing the right to receive
one Share (subject to adjustment pursuant to Section 4.3 hereof) at some future
date.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act or any successor rule or regulation.
"Shares" shall mean shares of Common Stock, $1.00 par value, of the Company
or such other securities or property as may become subject to Awards pursuant to
an adjustment made under Section 4.3 of this Performance Unit Plan.
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Section 3. Administration.
Section 3.1. Power and Authority of the Committee. This Performance Unit
Plan shall be administered by the Committee. Subject to the terms of this
Performance Unit Plan and applicable law, the Committee shall have full power
and authority to: (i) designate Participants; (ii) determine the number of
Performance Units to be granted to each Participant under this Performance Unit
Plan; (iii) determine the number of Shares with respect to which payments,
rights or other matters are to be calculated in connection with each Award; (iv)
determine the terms and conditions of any Award or Award Agreement; (v) amend
the terms and conditions of any Award or Award Agreement and accelerate the
lapse of restrictions relating to Restricted Stock; (vi) determine whether, to
what extent and under what circumstances Awards may be canceled, forfeited or
suspended; (vii) interpret and administer this Performance Unit Plan and any
instrument or agreement relating to, or Award made under, this Performance Unit
Plan; (viii) establish, amend, suspend or waive such rules and regulations and
appoint such agents as it shall deem appropriate for the proper administration
of this Performance Unit Plan; and (ix) make any other determination and take
any other action that the Committee deems necessary or desirable for the
administration of this Performance Unit Plan. Unless otherwise expressly
provided in this Performance Unit Plan, all designations, determinations,
interpretations and other decisions under or with respect to this Performance
Unit Plan or any Award shall be within the sole discretion of the Committee, may
be made at any time and shall be final, conclusive and binding upon any
Participant, any holder or beneficiary of any Award and any employee of the
Company or any Affiliate.
Section 3.2. Meetings of the Committee. The Committee shall select one of
its members as its chairman and shall hold its meetings at such times and places
as the Committee may determine. A majority of the Committee's members shall
constitute a quorum. All determinations of the Committee shall be made by not
less than a majority of its members. Any decision or determination reduced to
writing and signed by all of the members of the Committee shall be fully
effective as if it had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a secretary and may make such rules and
regulations for the conduct of its business as it shall deem advisable.
Section 3.3. Delegation. The Committee may delegate to one or more
officers of the Company or any Affiliate or a committee of such officers the
authority, subject to such terms and limitations as the Committee shall
determine, to grant Awards to Eligible Persons who are not officers or directors
of the Company or Affiliate for purposes of Section 16 of the Exchange Act. Only
the Committee is permitted to grant Awards to Eligible Persons who are officers
or directors of the Company for purposes of Section 16 of the Exchange Act.
Section 4. Shares Available for Awards.
Section 4.1. Shares Available. Subject to adjustment as provided in
Section 4(c), the number of Shares with respect to which Awards may be granted
under this Performance Unit Plan shall not exceed the maximum number of Shares
available for issuance under the Stock Incentive Plan less the number of Shares
available for issuance under any other plan adopted
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pursuant to the Stock Incentive Plan. Shares issued pursuant to the Performance
Unit Plan may be either from the authorized but unissued shares of the Company's
Common Stock or from shares of Common Stock reacquired by the Company, including
shares purchased in the open market. If any shares of Restricted Stock or any
Restricted Stock Units to which an Award relates are forfeited, or if an Award
otherwise terminates without delivery of any Shares, then the number of Shares
counted against the aggregate number of Shares available under this Performance
Unit Plan with respect to such Award, to the extent of any such forfeiture or
termination, shall again be available for granting Awards under the Performance
Unit Plan.
Section 4.2. Accounting for Awards. For purposes of this Section 4, the
number of Shares to which such Award relates shall be counted on the date of
grant of such Award against the aggregate number of Shares available for
granting Awards under this Performance Unit Plan.
Section 4.3. Adjustments. In the event that the Committee shall determine
that any dividend or other distribution (whether in the form of cash, Shares,
other securities or other property), recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under this Performance Unit
Plan, then the Committee shall, in such manner as it may deem equitable, adjust
any or all of the number and type of Shares (or other securities or other
property) which thereafter may be made the subject of Awards and the number and
type of Shares (or other securities or other property) subject to outstanding
Awards.
Section 5. Eligibility.
Any Eligible Person, including any Eligible Person who is an officer or
director of the Company or any Affiliate, shall be eligible to be designated a
Participant.
Section 6. Performance Units.
The Committee is hereby authorized to grant Performance Units to
Participants subject to the terms of this Performance Unit Plan and any
applicable Award Agreement. A Performance Unit granted under this Performance
Unit Plan (a) shall be denominated in cash and payable in Restricted Stock or
Restricted Stock Units, as applicable, and (b) shall confer on the holder
thereof the right to receive a payment, in whole but not in part, upon the
achievement of the performance goals set forth in Schedule I hereto during the
performance three-year period ending November 30, 1997 as set forth in such
schedule or the Award Agreement (the "Performance Period"). Subject to the
terms of this Performance Unit Plan and any applicable Award Agreement, the
number of any Performance Units granted and the value of any Performance Unit
shall be determined by the Committee.
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Section 6.1. Number of Performance Units. Performance Units may be
granted in the sole discretion of the Committee to the Participant for any
fiscal year (a "Performance Year") in the Performance Period. Following any
such grant the Participant will be notified of the number of Performance Units,
if any, granted to the Participant by the Committee. The Participant may or may
not receive a grant in any given Performance Year during the Performance Period.
Section 6.2. Payment of Performance Units. If Performance Units are
granted to the Participant for a Performance Period, such Performance Units will
be credited to the Participant during such Performance Period; however, such
Performance Units shall be paid only at the end of the Performance Period upon
the attainment of the cumulative Performance Objectives for the Performance
Period established by the Committee. The Performance Objectives for the
Performance Year ending November 30, 1995 are set forth in Schedule I hereto.
Prior to the beginning of each successive Performance Year during the
Performance Period, the Committee shall establish Performance Objectives for
each such successive Performance Year during the Performance Period. The value
of each Performance Unit shall be based on cumulative Performance Objectives
established by the Committee for the entire Performance Period and shall have
the value set forth in the matrix contained in the Schedule I hereto.
Section 6.3. Payment of Performance Units. Performance Units shall be
credited to a Participant annually following the end of the Company's fiscal
year; however, Performance Units shall be paid only upon the attainment of the
performance goals set forth in Schedule I hereto.
Section 6.4. Restrictions. Performance Units shall be subject to such
restrictions as the Committee may impose, which restrictions may lapse
separately or in combination at such time or times, in such installments or
otherwise as the Committee may deem appropriate.
Section 6.5. Forfeiture Prior to Conversion to Restricted Stock or
Restricted Stock Units. Except as otherwise determined by the Committee, upon
termination of employment during the Performance Period, all Performance Units
credited to the terminating Participant at such time which have not yet been
converted to Restricted Stock or Restricted Stock Units, as applicable, shall be
forfeited.
Section 6.6. Limits on Transfer of Awards. No Award and no right under
any such Award shall be transferable by a Participant otherwise than by will or
by the laws of descent and distribution; provided, however, that, if so
determined by the Committee, a Participant may, in the manner established by the
Committee, designate a beneficiary or beneficiaries to exercise the rights of
the Participant and receive any property distributable with respect to any Award
upon the death of the Participant. Each right under any Award shall be
exercisable during the Participant's lifetime only by the Participant or, if
permissible under applicable law, by the Participant's guardian or legal
representative. No Award or right under any such Award may be pledged,
alienated, attached or otherwise encumbered, and any purported pledge,
alienation,
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attachment or encumbrance thereof shall be void and unenforceable against the
Company or any Affiliate.
Section 7. Conversion of Performance Units to Restricted Stock or Restricted
Stock Units.
As of the last day of the Performance Period, the Participant's Performance
Units will be converted to the largest number of whole shares of Restricted
Stock or Restricted Sock Units as specified in the Award Agreement that equals
the aggregate value of Performance Units earned during such Performance Period
divided by the Fair Market Value of the Shares as of such day. No fractional
Shares shall be issued or converted pursuant to this Performance Unit Plan or
any Award, and the Committee shall determine whether cash shall be paid in lieu
of any fractional Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated or otherwise eliminated.
Section 7.1. Forfeiture After Conversion to Restricted Stock or Restricted
Stock Units. Except as provided in Section 7.5 hereof or as otherwise determined
by the Committee, all Restricted Stock or Restricted Stock Units, as applicable,
shall be forfeited and reacquired by the Company and all rights of the
Participant in such Restricted Stock or Restricted Stock Units, as applicable,
thereto shall terminate unless the Participant remains in the continuous
employment of the Company or any Affiliate for a period (the "Restricted
Period"), of three years from the date of the conversion of the Performance
Units to Restricted Stock or Restricted Stock Units, as applicable; provided,
however, that the Committee may, when it finds that a waiver would be in the
best interest of the Company, waive in whole or in part any or all remaining
restrictions with respect to Restricted Stock or Restricted Stock Units, as
applicable. Shares of Restricted Stock or Shares representing the equivalent of
whole Restricted Stock Units that are no longer subject to restrictions shall be
delivered to the holder thereof promptly after the applicable Restricted Period
lapses or is waived.
Section 7.2. Stock Certificates Representing Restricted Stock. At the
time that the Participant's Performance Units are converted to Restricted Stock,
such Restricted Stock shall be issued and held by the Company or held in nominee
name by the stock transfer agent or brokerage service selected by the Company to
provide such services for the Performance Unit Plan. No stock certificates
evidencing such shares of Restricted Stock shall be issued to the Participant
prior to the lapse or waiver of restrictions applicable to such Restricted
Stock. Neither this Section 7(b) nor any action taken pursuant to nor in
accordance with this Section 7(b) shall be construed to create a trust of any
kind. At the end of the Restricted Period, certificates for the shares of
Restricted Stock issued upon the conversion of Performance Units awarded to the
Participant shall be delivered to the Participant within 30 days following the
end of the Restricted Period subject only to such restrictive legend, if any, as
may be required under the then applicable securities laws.
Section 7.3. Conversion of Restricted Stock Units. On the first business
day subsequent to the termination of the Restricted Period, each Restricted
Stock Unit shall, automatically and
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without further action of the Company, be converted to one Share (subject to
adjustment pursuant to Section 4(c) hereof) and the Participant shall thereupon
become a record holder of each such Share for all purposes. No fractional
Shares shall be issued or delivered pursuant to this Restricted Stock Unit Plan
or any Award, and the Committee shall determine whether cash shall be paid in
lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated or otherwise eliminated.
Section 7.4. Special Provisions Upon a Change in Control. Notwithstanding
any other provision in this Performance Unit Plan to the contrary, the
Restricted Period pertaining to any Restricted Stock or Restricted Stock Units
issued upon the conversion of Performance Units awarded under this Performance
Unit Plan will immediately lapse upon the occurrence of a Change in Control.
Section 7.5. Termination of Employment by Reason of Death, Disability or
Retirement. In the event that a Participant shall cease to be employed by the
Company or its subsidiaries due to death, permanent disability, normal
retirement at age 65 or older, or early retirement with the consent of the
Compensation Committee of the Board of Directors, the Restricted Period with
respect to the Restricted Stock or Restricted Stock Unit, as applicable, held by
such Participant shall be deemed to have ended on the date of such termination
of employment.
Section 7.6. Prohibition on Transfer of Restricted Stock. Shares of
Restricted Stock or Restricted Stock Units may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of during the
Restricted Period.
Section 7.7. Leave of Absence. The Committee may make such provision as
it deems equitable respecting the continuance of the restrictions contained
herein on any Restricted Stock held by a Participant during an approved leave of
absence.
Section 8. Rights as a Shareholder.
Section 8.1. Voting Rights. Upon the issuance of Restricted Stock upon
conversion of Performance Units awarded to a Participant, such Participant shall
be entitled to voting rights with respect to such Shares of Restricted Stock.
At no time prior to the conversion of Restricted Stock Units into Shares shall a
participant be entitled to voting rights with respect to such Shares or the
Restricted Stock Units.
Section 8.2. Dividends on Restricted Stock. As a condition to receiving
an Award under the Performance Unit Plan, each Participant shall be required to
elect in writing to defer the receipt of dividends paid on shares of Restricted
Stock issued upon conversion of Performance Units awarded to such Participant.
All cash dividends otherwise payable on and with respect to Restricted Stock
shall be reinvested in additional shares of Restricted Stock at the Fair Market
Value of the Shares. All Restricted Stock issued pursuant to this Section
7(g)(ii) shall be held in nominee name by the stock transfer agent or brokerage
service selected by the Company to provide such services for the Plan. A report
showing the number of shares of Restricted Stock so purchased with reinvested
dividends shall be sent to the Participant within 30
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days following the applicable dividend payment date. No stock certificates
evidencing such Restricted Stock shall be issued to the Participant prior to the
lapse or waiver of restrictions applicable to the shares of Restricted Stock
with respect to which the reinvested dividends were paid. Shares of Restricted
Stock resulting from the reinvestment of dividends shall be forfeited in the
event that the shares of Restricted Stock with respect to which the reinvested
dividends were paid are forfeited. Stock certificates registered in the name of
the Participant shall be delivered to the Participant within 30 days after such
restrictions lapse or are waived. Only whole Shares shall be issued to the
Participant following the lapse or waiver of such restrictions; the value of any
fractional Shares shall be paid in cash at the time such Shares are issued to
the Participant.
Section 8.3. Dividend Equivalents. As long as a Participant holds
outstanding Restricted Stock Units, the Company shall credit to such
Participant, on each date that the Company pays a cash dividend to holders of
Shares generally, a number of Restricted Stock Units equal to the total number
of whole Restricted Stock Units previously credited to such Participant
multiplied by the cash dividend per Share paid on such date to such holders,
divided by the Fair Market Value of a Share on such date. Any fractional
Restricted Stock Units resulting from such calculation shall be carried over and
added to any additional Restricted Stock Units as may be credited to the
Participant in connection with similar calculations in the future. A report
showing the number of Shares so credited shall be sent to the Participant
periodically, as determined by the Committee. Restricted Stock Units credited
pursuant to this Section 8.3 will be forfeited if and when the Restricted Stock
Units to which such dividend equivalents were paid are forfeited.
Section 9. Payment of Cash Value of Award.
The Committee, in its sole discretion, may elect to cause a
Participant to be paid the cash value of Performance Units, Restricted Stock or
Restricted Stock Units held by such Participant prior to the expiration of the
applicable Performance Period or Restricted Period and terminate such
Participant's rights with respect to such Performance Units or Restricted Stock.
Section 10. Securities Matters.
No shares of Restricted Stock shall be issued hereunder prior to such
time as counsel to the Company shall have determined that the issuance and
delivery of such Restricted Stock will not violate any federal or state
securities or other laws. The Participant may be required by the Company, as a
condition to the Award granted hereunder, to agree in writing that all
Restricted Stock to be acquired pursuant to this Performance Unit Plan shall be
held for his or her own account without a view to any further distribution
thereof, that the certificates for such shares of Restricted Stock shall bear an
appropriate legend to that effect, and that such shares of Restricted Stock will
not be transferred or disposed of except in compliance with applicable federal
and state laws. The Company may, in its sole discretion, defer the
effectiveness of any Award or the conversion of Performance Units to Restricted
Stock
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hereunder in order to allow the issuance of Restricted Stock pursuant thereto to
be made pursuant to registration or an exemption from registration or other
methods for compliance available under federal or state securities laws. The
Company shall be under no obligation to effect the registration pursuant to the
Securities Act of 1933 of any Restricted Stock to be issued hereunder or to
effect similar compliance under any state laws. If Shares are traded on a
securities exchange, the Company shall not be required to deliver to the
Participant certificates representing any shares of Restricted Stock unless and
until such shares of Restricted Stock have been admitted for trading on such
securities exchange. The Company shall inform the Participant in writing of its
decision to defer the effectiveness of any award of Restricted Stock hereunder.
Section 11. Amendment and Termination; Adjustments.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement, the Stock Incentive Plan or in this
Performance Unit Plan:
Section 11.1. Amendments to Performance Unit Plan. The Committee may
amend, alter, suspend, discontinue or terminate this Performance Unit Plan;
provided, however, that, notwithstanding any other provision of this Performance
Unit Plan or any Award Agreement, without the approval of the shareholders of
the Company, no such amendment, alteration, suspension, discontinuation or
termination shall be made that, absent such approval, (i) would cause Rule 16b-3
to become unavailable with respect to this Performance Unit Plan, and/or (ii)
would violate the rules or regulations of the National Association of Securities
Dealers, Inc. or any securities exchange that are applicable to the Company.
Section 11.2. Amendments to Awards. The Committee may waive any
conditions of or rights of the Company under any outstanding Award,
prospectively or retroactively. The Committee may not amend, alter, suspend,
discontinue or terminate any outstanding Award, prospectively or retroactively,
without the consent of the Participant or holder or beneficiary thereof, except
as otherwise herein provided.
Section 11.3. Correction of Defects, Omissions and Inconsistencies. The
Committee may correct any defect, supply any omission or reconcile any
inconsistency in this Performance Unit Plan or any Award in the manner and to
the extent it shall deem desirable to carry this Performance Unit Plan into
effect.
Section 12. General Provisions.
Section 12.1. Income Tax Withholding. In order to comply with all
applicable income, social, payroll or other tax laws or regulations, the Company
may take such action as it deems appropriate to ensure that all applicable
income, social, payroll or other taxes, which are the sole and absolute
responsibility of a Participant, are withheld or collected from such
Participant.
Section 12.2. No Rights to Awards. No Eligible Person, Participant or
other Person shall have any claim to be granted any Award under this Performance
Unit Plan, and there is no
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obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Awards under this Performance Unit Plan. The terms
and conditions of Awards need not be the same with respect to different
Participants.
Section 12.3. No Cash Consideration for Awards. Awards shall be granted
for no cash consideration.
Section 12.4. Awards May Be Granted Separately or Together. Awards may,
in the discretion of the Committee, be granted either alone or in addition to,
in tandem with or in substitution for any award granted under any plan of the
Company or any Affiliate other than this Performance Unit Plan. Awards granted
in addition to or in tandem with awards granted under any such other plan of the
Company or any Affiliate may be granted either at the same time as or at a
different time from the grant of such other Awards or awards.
Section 12.5. Award Agreements. No Participant will have rights under an
Award granted to such Participant unless and until an Award Agreement shall have
been duly executed on behalf of the Company.
Section 12.6. No Limit on Other Compensation Arrangements. Nothing
contained in this Performance Unit Plan shall prevent the Company or any
Affiliate from adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
Section 12.7. No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Affiliate. In addition, the Company or an Affiliate may at any
time dismiss a Participant from employment, free from any liability or any claim
under this Performance Unit Plan, unless otherwise expressly provided in this
Performance Unit Plan or in any Award Agreement.
Section 12.8. Governing Law. The internal law, and not the law of
conflicts, of the State of Minnesota will govern all questions concerning the
validity, construction and effect of this Performance Unit Plan and any rules
and regulations relating to this Performance Unit Plan.
Section 12.9. Severability. If any provision of this Performance Unit
Plan or any Award is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction or would disqualify this Performance Unit Plan
or any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to applicable laws, or if it
cannot be so construed or deemed amended without, in the determination of the
Committee, materially altering the purpose or intent of this Performance Unit
Plan or the Award, such provision shall be stricken as to such jurisdiction or
Award, and the remainder of this Performance Unit Plan or any such Award shall
remain in full force and effect.
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Section 12.10. No Trust or Fund Created. Neither this Performance Unit
Plan nor any Award shall create or be construed to create a trust or separate
fund of any kind or a fiduciary relationship between the Company or any
Affiliate and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company or any Affiliate pursuant
to an Award, such right shall be no greater than the right of any unsecured
general creditor of the Company or any Affiliate.
Section 12.11. Headings. Headings are given to the Sections and
subsections of this Performance Unit Plan solely as a convenience to facilitate
reference. Such headings shall not be deemed in any way material or relevant to
the construction or interpretation of this Performance Unit Plan or any
provision thereof.
Section 12.12. Effective Date of Performance Unit Plan. This Performance
Unit Plan shall be effective as of the later of the date of its adoption by the
Committee or the date of the approval of the Stock Incentive Plan by the
shareholders of the Company.
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