EXHIBIT 10.3
UNIFAB INTERNATIONAL, INC.
EMPLOYEE LONG-TERM INCENTIVE PLAN
1. PURPOSE. The purpose of the Employee Long-Term Incentive Plan (the
"Plan") of UNIFAB International, Inc. ("UNIFAB") is to increase shareholder
value and to advance the interests of UNIFAB and its subsidiaries (collectively,
the "Company") by furnishing a variety of economic incentives (the "Incentives")
designed to attract, retain and motivate key employees, consultants, and
advisors of the Company and to strengthen the mutuality of interests between the
shareholders of UNIFAB and such employees, consultants, and advisors. Incentives
consist of opportunities to purchase or to receive shares of UNIFAB common
stock, $.01 par value per share (the "Common Stock"), on terms determined under
the Plan. As used in the Plan, the term "subsidiary" means any corporation or
other entity of which UNIFAB owns (directly or indirectly) 50% or more of the
total ordinary voting power or 50% or more of the total value of all classes of
equity interests of such corporation or other entity.
2. ADMINISTRATION.
2.1. COMPOSITION. Except as otherwise provided in Sections
9.11 and 9.12 of the Plan, the Plan shall be administered by the
Chairman of the Board and Chief Executive Officer of the Company (the
"Administrator"), who, in that position and capacity, shall constitute
the "Employee Long-Term Incentive Plan Committee" of the UNIFAB Board
of Directors for purposes of the Louisiana Business Corporation Law.
2.2. AUTHORITY. The Administrator shall have plenary authority
to award Incentives under the Plan, to interpret the Plan, to establish
any rules or regulations relating to the Plan that he determines to be
appropriate, to enter into agreements with participants as to the terms
of the Incentives (the "Incentive Agreements") and to make any other
determination that he believes necessary or advisable for the proper
administration of the Plan. His decisions in matters relating to the
Plan shall be final and conclusive on the Company and participants.
3. ELIGIBLE PARTICIPANTS. Except as provided in the last sentence of
this Section 3, key employees, consultants, and advisors of the Company
(collectively, "Eligible Participants") are eligible, but are not required, to
receive Incentives under the Plan. Participants may be designated individually
or by groups or categories, as the Administrator deems appropriate. Directors
and officers of UNIFAB and any person who is deemed to be a "director" or an
"officer" of UNIFAB for purposes of Section 16 of the Securities Exchange Act of
1934 (the "1934 Act") are not eligible to receive Incentives under the Plan.
4. TYPES OF INCENTIVES. Incentives may be granted under the Plan to
Eligible Participants in any of the following forms, either individually or in
combination, (a) incentive stock
options and non-qualified stock options; (b) restricted stock; and (c) other
stock-based awards ("Other Stock-Based Awards").
5. SHARES SUBJECT TO THE PLAN.
5.1. NUMBER OF SHARES. Subject to adjustment as provided in
Section 9.5, a total of 565,000 shares of Common Stock are authorized
to be issued under the Plan. In the event that an Incentive granted
hereunder expires or is terminated or cancelled prior to exercise or
payment, any shares of Common Stock that were issuable thereunder may
again be issued under the Plan. In the event that shares of Common
Stock are issued as Incentives under the Plan and thereafter are
forfeited or reacquired by the Company pursuant to rights reserved upon
issuance thereof, such forfeited and reacquired shares may again be
issued under the Plan. If an Other Stock-Based Award is to be paid in
cash by its terms, the Administrator need not make a deduction from the
shares of Common Stock issuable under the Plan with respect thereto. If
and to the extent that an Other Stock-Based Award may be paid in cash
or shares of Common Stock, the total number of shares available for
issuance hereunder shall be debited by the number of shares payable
under such Incentive, provided that upon any payment of all or part of
such Incentive in cash, the total number of shares available for
issuance hereunder shall be credited with the appropriate number of
shares represented by the cash payment, as determined in the sole
discretion of the Administrator. Additional rules for determining the
number of shares granted under the Plan may be made by the
Administrator, as he deems necessary or appropriate.
5.2. TYPE OF COMMON STOCK. Common Stock issued under the Plan
may be authorized and unissued shares or issued shares held as treasury
shares.
6. STOCK OPTIONS. A stock option is a right to purchase shares of
Common Stock from UNIFAB. Stock options granted under this Plan may be incentive
stock options or non-qualified stock options. Any option that is designated as a
non-qualified stock option shall not be treated as an incentive stock option.
Each stock option granted by the Administrator under this Plan shall be subject
to the following terms and conditions:
6.1. PRICE. The exercise price per share shall be determined
by the Administrator, subject to adjustment under Section 9.5;
provided, in no event shall the exercise price be less than the Fair
Market Value of a share of Common Stock on the date of grant, except
that in connection with an acquisition, consolidation, merger or other
extraordinary transaction, options may be granted at less than the then
Fair Market Value to replace options previously granted by one or more
parties to such transaction (or their affiliates) so long as the
aggregate spread on such replacement options for any recipient of such
options is equal to or less than the aggregate spread on the options
being replaced.
6.2. NUMBER. The number of shares of Common Stock subject to
the option shall be determined by the Administrator, subject to Section
5.1 and subject to adjustment as provided in Section 9.5.
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6.3. DURATION AND TIME FOR EXERCISE. The term of each stock
option shall be determined by the Administrator. Each stock option
shall become exercisable at such time or times during its term as shall
be determined by the Administrator. Notwithstanding the foregoing, the
Administrator may accelerate the exercisability of any stock option at
any time, in addition to the automatic acceleration of stock options
under Section 9.11.
6.4. MANNER OF EXERCISE. A stock option may be exercised, in
whole or in part, by giving written notice to the Company, specifying
the number of shares of Common Stock to be purchased. The exercise
notice shall be accompanied by the full purchase price for such shares.
The option price shall be payable in United States dollars and may be
paid by (a) cash; (b) uncertified or certified check; (c) unless
otherwise determined by the Administrator, by delivery of shares of
Common Stock held by the optionee for at least six months, which shares
shall be valued for this purpose at the Fair Market Value on the
business day immediately preceding the date such option is exercised;
(d) unless otherwise determined by the Administrator, by delivering a
properly executed exercise notice together with irrevocable
instructions to a broker approved by UNIFAB (with a copy to UNIFAB) to
deliver promptly to UNIFAB the amount of sale or loan proceeds to pay
the exercise price; or (e) in such other manner as may be authorized
from time to time by the Administrator.
6.5. INCENTIVE STOCK OPTIONS. Notwithstanding anything in the
Plan to the contrary, the following additional provisions shall apply
to the grant of stock options that are intended to qualify as Incentive
Stock Options, as that term is defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"):
A. Any Incentive Stock Option agreement authorized
under the Plan shall contain such other provisions as the
Administrator shall deem advisable, but shall in all events be
consistent with and contain or be deemed to contain all
provisions required to qualify the options as Incentive Stock
Options.
B. All Incentive Stock Options must be granted within
ten years from the date on which this Plan is adopted by the
UNIFAB Board of Directors.
C. Unless sooner exercised, all Incentive Stock
Options shall expire no later than ten years after the date of
grant.
D. No Incentive Stock Options shall be granted to any
participant who, at the time such option is granted, would own
(within the meaning of Section 422 of the Code) stock
possessing more than 10% of the total combined voting power of
all classes of stock of the employer corporation or of its
parent or subsidiary corporation.
E. The aggregate Fair Market Value (determined with
respect to each Incentive Stock Option as of the time such
Incentive Stock Option is granted) of the Common Stock with
respect to which Incentive Stock Options are exercisable for
the
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first time by a participant during any calendar year (under
the Plan or any other plan of UNIFAB or any of its
subsidiaries) shall not exceed $100,000. To the extent that
such limitation is exceeded, such options shall not be
treated, for federal income tax purposes, as Incentive Stock
Options.
7. RESTRICTED STOCK.
7.1. GRANT OF RESTRICTED STOCK. The Administrator may award
shares of restricted stock to such Eligible Participants as the
Administrator determines pursuant to the terms of Section 3. An award
of restricted stock shall be subject to such restrictions on transfer
and forfeitability provisions and such other terms and conditions as
the Administrator may determine, subject to the provisions of the Plan.
7.2. THE RESTRICTED PERIOD. At the time an award of restricted
stock is made, the Administrator shall establish a period of time
during which the transfer of the shares of restricted stock shall be
restricted (the "Restricted Period"). The Restricted Period shall be a
minimum of three years. Each award of restricted stock may have a
different Restricted Period. The expiration of the Restricted Period
shall also occur as provided under Section 9.3 and under the conditions
described in Section 9.11 hereof.
7.3. ESCROW. The participant receiving restricted stock shall
enter into an Incentive Agreement with the Company setting forth the
conditions of the grant. Certificates representing shares of restricted
stock shall be registered in the name of the participant and deposited
with the Company, together with a stock power endorsed in blank by the
participant. Each such certificate shall bear a legend in substantially
the following form:
The transferability of this certificate and the shares of
Common Stock represented by it are subject to the terms and
conditions (including conditions of forfeiture) contained in
the UNIFAB International, Inc. Employee Long-Term Incentive
Plan (the "Plan") and an agreement entered into between the
registered owner and UNIFAB International, Inc. thereunder.
Copies of the Plan and the agreement are on file at the
principal office of UNIFAB International, Inc.
7.4. DIVIDENDS ON RESTRICTED STOCK. Any and all cash and stock
dividends paid with respect to the shares of restricted stock shall be
subject to any restrictions on transfer, forfeitability provisions or
reinvestment requirements as the Administrator may, in his discretion,
prescribe in the Incentive Agreement.
7.5. FORFEITURE. In the event of the forfeiture of any shares
of restricted stock under the terms provided in the Incentive Agreement
(including any additional shares of restricted stock that may result
from the reinvestment of cash and stock dividends, if so provided in
the Incentive Agreement), such forfeited shares shall be surrendered
and the certificates cancelled. The participants shall have the same
rights and privileges, and be
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subject to the same forfeiture provisions, with respect to any
additional shares received pursuant to Section 9.5 due to a
recapitalization, merger or other change in capitalization.
7.6. EXPIRATION OF RESTRICTED PERIOD. Upon the expiration or
termination of the Restricted Period and the satisfaction of any other
conditions prescribed by the Administrator, the restrictions applicable
to the restricted stock shall lapse and a stock certificate for the
number of shares of restricted stock with respect to which the
restrictions have lapsed shall be delivered, free of all such
restrictions and legends, except any that may be imposed by law, to the
participant or the participant's estate, as the case may be.
7.7. RIGHTS AS A SHAREHOLDER. Subject to the terms and
conditions of the Plan and subject to any restrictions on the receipt
of dividends that may be imposed in the Incentive Agreement, each
participant receiving restricted stock shall have all the rights of a
shareholder with respect to shares of stock during the Restricted
Period, including without limitation, the right to vote any shares of
Common Stock.
8. OTHER STOCK-BASED AWARDS.
8.1. TERMS OF OTHER STOCK-BASED AWARDS. The Administrator is
hereby authorized to grant to Eligible Participants an "Other
Stock-Based Award," which shall consist of an award, the value of which
is based in whole or in part on the value of shares of Common Stock,
that is not an instrument or award specified in Sections 6 or 7 of the
Plan. Other Stock-Based Awards may be awards of shares of Common Stock
or may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, shares of Common
Stock (including, without limitation, securities convertible or
exchangeable into or exercisable for shares of Common Stock), as deemed
by the Administrator consistent with the purposes of the Plan. The
Administrator shall determine the terms and conditions of any such
Other Stock-Based Award and may provide that such awards would be
payable in whole or in part in cash. Except in the case of an Other
Stock-Based Award granted in assumption of or in substitution for an
outstanding award of a company acquired by the Company or with which
the Company combines, the price at which securities may be purchased
pursuant to any Other Stock-Based Award granted under this Plan, or the
provision, if any, of any such award that is analogous to the purchase
or exercise price, shall not be less than 100% of the fair market value
of the securities to which such award relates on the date of grant.
8.2. DIVIDEND EQUIVALENTS. In the sole and complete discretion
of the Administrator, an Other Stock-Based Award under this Section 8
may provide the holder thereof with dividends or dividend equivalents,
payable in cash or shares of Common Stock on a current or deferred
basis.
8.3. NOT A SHAREHOLDER. The grant of an Other Stock-Based
Award to a participant shall not create any rights in such participant
as a shareholder of the Company
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until the issuance of shares of Common Stock with respect to an award,
at which time such stock shall be considered issued and outstanding.
9. GENERAL.
9.1. DURATION. Subject to Section 9.10, the Plan shall remain
in effect until all Incentives granted under the Plan have either been
satisfied by the issuance of shares of Common Stock or the payment of
cash or been terminated under the terms of the Plan and all
restrictions imposed on shares of Common Stock in connection with their
issuance under the Plan have lapsed.
9.2. TRANSFERABILITY. No Incentives granted hereunder may be
transferred, pledged, assigned or otherwise encumbered by a participant
except: (a) by will; (b) by the laws of descent and distribution; (c)
pursuant to a domestic relations order, as defined in the Code, if
permitted by the Administrator and so provided in the Incentive
Agreement or an amendment thereto; or (d) as to options only, if
permitted by the Administrator and so provided in the Incentive
Agreement or an amendment thereto, (i) to Immediate Family Members,
(ii) to a partnership in which Immediate Family Members, or entities in
which Immediate Family Members are the sole owners, members or
beneficiaries, as appropriate, are the sole partners, (iii) to a
limited liability company in which Immediate Family Members, or
entities in which Immediate Family Members are the sole owners, members
or beneficiaries, as appropriate, are the sole members, or (iv) to a
trust for the sole benefit of Immediate Family Members. "Immediate
Family Members" shall be defined as the spouse and natural or adopted
children or grandchildren of the participant and their spouses. To the
extent that an Incentive Stock Option is permitted to be transferred
during the lifetime of the participant, it shall be treated thereafter
as a nonqualified stock option. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of Incentives or levy of
attachment or similar process upon Incentives not specifically
permitted herein shall be null and void and without effect.
9.3. EFFECT OF TERMINATION OF STATUS AS ELIGIBLE PARTICIPANT.
In the event that a participant ceases to be an Eligible Participant
for any reason, including death, disability, early retirement or normal
retirement, any Incentives may be exercised, shall vest or shall expire
at such times as may be determined by the Administrator in the
Incentive Agreement. The Administrator has complete authority to modify
the treatment of an Incentive in the event that the recipient thereof
ceases to be an Eligible Participant by means of an amendment to the
Incentive Agreement. Consent of the participant to the modification is
required only if the modification materially impairs the rights
previously provided to the participant in the Incentive Agreement.
9.4. ADDITIONAL CONDITION. Anything in this Plan to the
contrary notwithstanding: (a) the Company may, if it shall determine it
necessary or desirable for any reason, at the time of award of any
Incentive or the issuance of any shares of Common Stock pursuant to any
Incentive, require the recipient of the Incentive, as a condition to
the receipt thereof or to the
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receipt of shares of Common Stock issued pursuant thereto, to deliver
to the Company a written representation of present intention to acquire
the Incentive or the shares of Common Stock issued pursuant thereto for
his own account for investment and not for distribution; and (b) if at
any time the Company further determines, in its sole discretion, that
the listing, registration or qualification (or any updating of any such
document) of any Incentive or the shares of Common Stock issuable
pursuant thereto is necessary on any securities exchange or under any
federal or state securities or blue sky law, or that the consent or
approval of any governmental regulatory body is necessary or desirable
as a condition of or in connection with the award of any Incentive, the
issuance of shares of Common Stock pursuant thereto, or the removal of
any restrictions imposed on such shares, such Incentive shall not be
awarded or such shares of Common Stock shall not be issued or such
restrictions shall not be removed, as the case may be, in whole or in
part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions
not acceptable to the Company.
9.5. ADJUSTMENT. In the event of any merger, consolidation or
reorganization of the Company with any other corporation or
corporations, there shall be substituted for each of the shares of
Common Stock then subject to the Plan, including shares subject to
restrictions, options or achievement of performance objectives, the
number and kind of shares of stock or other securities to which the
holders of the shares of Common Stock will be entitled pursuant to the
transaction. In the event of any recapitalization, stock dividend,
stock split, combination of shares or other change in the Common Stock,
the number of shares of Common Stock then subject to the Plan,
including shares subject to outstanding Incentives, shall be adjusted
in proportion to the change in outstanding shares of Common Stock. In
the event of any such adjustments, the purchase price of any option,
the performance objectives of any Incentive, and the shares of Common
Stock issuable pursuant to any Incentive shall be adjusted as and to
the extent appropriate, in the reasonable discretion of the
Administrator, to provide participants with the same relative rights
before and after such adjustment. No substitution or adjustment shall
require the Company to issue a fractional share under this Plan and the
substitution or adjustment shall be limited by deleting any fractional
share.
9.6. INCENTIVE AGREEMENTS. An Incentive under this Plan shall
be subject to such terms and conditions, not inconsistent with this
Plan, as the Administrator may, in his sole discretion, prescribe and
set forth in the Incentive Agreement. Such terms and conditions may
provide for the forfeiture of an Incentive or the gain associated with
an Incentive under certain circumstances to be set forth in the
Incentive Agreement, including if the participant competes with the
Company or engages in other activities that are harmful to the Company.
All terms and conditions of any Incentive shall be reflected in such
form of Incentive Agreement as is determined by the Administrator. A
copy of such document shall be provided to the participant, and the
Administrator may, but need not, require that the participant sign a
copy of such document. Such document is referred to in this Plan as an
"Incentive Agreement" regardless of whether a participant's signature
is required.
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9.7. WITHHOLDING.
A. The Company shall have the right to withhold from
any payments made under the Plan or to collect as a condition
of payment any taxes required by law to be withheld. At any
time that a participant is required to pay to the Company an
amount required to be withheld under applicable income tax
laws in connection with the issuance of Common Stock, the
lapse of restrictions on Common Stock or the exercise of an
option, the participant may, subject to disapproval by the
Administrator, satisfy this obligation in whole or in part by
electing (the "Election") that the Company withhold shares of
Common Stock having a value equal to the amount required to be
withheld. The value of the shares to be withheld shall be
based on the Fair Market Value of the Common Stock on the date
that the amount of tax to be withheld shall be determined
("Tax Date").
B. Each Election must be made prior to the Tax Date.
The Administrator may disapprove of any Election, may suspend
or terminate the right to make Elections, or may provide with
respect to any Incentive that the right to make Elections
shall not apply to such Incentive. If a participant makes an
election under Section 83(b) of the Code with respect to
shares of restricted stock, an Election is not permitted to be
made.
9.8. NO CONTINUED ENGAGEMENT. No participant under the Plan
shall have any right, because of his or her participation, to continue
as an employee, consultant, or advisor of the Company for any period of
time or to any right to continue his present or any other rate of
compensation.
9.9. DEFERRAL PERMITTED. Payment of cash or distribution of
any shares of Common Stock to which a participant is entitled under any
Incentive shall be made as provided in the Incentive Agreement. Payment
may be deferred at the option of the participant if provided in the
Incentive Agreement.
9.10. AMENDMENTS TO OR TERMINATION OF THE PLAN.
A. The UNIFAB Board of Directors may amend, suspend
or terminate the Plan or any portion thereof at any time.
B. Any provision of this Plan or any Incentive
Agreement to the contrary notwithstanding, the Administrator
may cause any Incentive granted hereunder to be cancelled in
consideration of a cash payment or alternative Incentive made
to the holder of such cancelled Incentive equal in value to
such cancelled Incentive. The determinations of value under
this subparagraph shall be made by the Administrator in his
sole discretion.
9.11. CHANGE OF CONTROL.
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A. "Change of Control" shall mean:
1. the acquisition by any individual, entity
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the 1934 Act) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under
the 1934 Act) of more than 30% of the outstanding
shares of the Common Stock; provided, however, for
purposes of this subsection 1, the following shall
not constitute a Change of Control:
(a) any acquisition of Common Stock
directly from UNIFAB,
(b) any acquisition of Common Stock
by UNIFAB,
(c) any acquisition of Common Stock
by any employee benefit plan (or related
trust) sponsored or maintained by UNIFAB or
any corporation controlled by UNIFAB, or
(d) any acquisition of Common Stock
by any corporation pursuant to a transaction
that complies with clauses (a), (b) and (c)
of subsection A.3 of this Section 9.11; or
2. individuals who, as of the date of
adoption of the Plan by the UNIFAB Board of Directors
(the "Adoption Date"), constitute the UNIFAB Board of
Directors (the "Incumbent Board") cease for any
reason to constitute at least a majority of the
UNIFAB Board of Directors; provided, however, that
any individual becoming a director subsequent to the
Adoption Date whose election, or nomination for
election by the UNIFAB shareholders, was approved by
a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered a
member of the Incumbent Board, unless such
individual's initial assumption of office occurs as a
result of an actual or threatened election contest
with respect to the election or removal of directors
or other actual or threatened solicitation of proxies
or consents by or on behalf of a person other than
the Incumbent Board; or
3. consummation of a reorganization, merger
or consolidation, or sale or other disposition of all
of substantially all of the assets of the Company (a
"Business Combination"), in each case, unless,
following such Business Combination,
(a) all or substantially all of the
individuals and entities who were the
beneficial owners of UNIFAB outstanding
common stock and UNIFAB voting securities
entitled to vote generally in the
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election of directors immediately prior to
such Business Combination have direct or
indirect beneficial ownership, respectively,
of more than 50% of the then outstanding
shares of common stock, and more than 50% of
the combined voting power of the then
outstanding voting securities entitled to
vote generally in the election of directors,
of the corporation resulting from such
Business Combination (which, for purposes of
this paragraph (a) and paragraphs (b) and
(c), shall include a corporation that as a
result of such transaction controls the
Company or all or substantially all of the
Company assets either directly or through
one or more subsidiaries), and
(b) except to the extent that such
ownership existed prior to the Business
Combination, no person (excluding any
corporation resulting from such Business
Combination or any employee benefit plan or
related trust of the Company or such
corporation resulting from such Business
Combination) beneficially owns, directly or
indirectly, 30% or more of the then
outstanding shares of common stock of the
corporation resulting from such Business
Combination or 30% or more of the combined
voting power of the then outstanding voting
securities of such corporation, and
(c) at least a majority of the
members of the board of directors of the
corporation resulting from such Business
Combination were members of the Incumbent
Board at the time of the execution of the
initial agreement, or of the action of the
UNIFAB Board of Directors, providing for
such Business Combination; or
4. approval by the shareholders of the
Company of a complete liquidation or dissolution of
the Company.
B. Upon a Change of Control of the types described in
subsections A.2 and A.4 of this Section 9.11 and immediately
prior to a Change of Control of the types described in
subsections A.1 and A.3 of this Section 9.11, all outstanding
options shall automatically become fully exercisable, all
restrictions or limitations on any Incentives shall lapse and
all performance criteria and other conditions relating to the
payment of Incentives shall be deemed to be achieved or waived
by the Company, without the necessity of any action by any
person.
C. No later than 30 days after the approval by the
UNIFAB Board of Directors of a Change of Control of the types
described in subsections A.3 and A.4 of this Section 9.11, and
no later than 30 days after a Change of Control of the types
described in subsections A.1 and A.2 of this Section 9.11, the
Compensation Committee (the "Committee") of the UNIFAB Board
of Directors (as that Committee was composed immediately prior
to such Change of Control and notwithstanding any
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removal or attempted removal of some or all of the members
thereof as directors or Committee members), acting in its sole
discretion without the consent or approval of any participant,
may act to effect one or more of the alternatives listed below
and such act by the Committee may not be revoked or rescinded
by persons not members of the Committee immediately prior to
the Change of Control:
1. require that all outstanding options be
exercised on or before a specified date (before or
after such Change of Control) fixed by the Committee,
after which specified date all unexercised options
shall terminate,
2. provide for mandatory conversion of some
or all of the outstanding options held by some or all
participants as of a date, before or after such
Change of Control, specified by the Committee, in
which event such options shall be deemed
automatically cancelled and UNIFAB shall pay, or
cause to be paid, to each such participant an amount
of cash per share equal to the excess, if any, of the
Change of Control Value of the shares subject to such
option, as defined and calculated below, over the
exercise price(s) of such options, or, in lieu of
such cash payment, the issuance of Common Stock or
securities of an acquiring entity having a Fair
Market Value equal to such excess,
3. make such equitable adjustments to
Incentives then outstanding as the Committee deems
appropriate to reflect such Change of Control
(provided, however, the Committee may determine in
its sole discretion that no adjustment is necessary),
or
4. provide that thereafter upon any exercise
of an option the participant shall be entitled to
purchase under such option, in lieu of the number of
shares of Common Stock then covered by such option,
the number and class of shares of stock or other
securities or property (including, without
limitation, cash) to which the participant would have
been entitled pursuant to the terms of the agreement
providing for the merger, consolidation, asset sale,
dissolution or other Change of Control of the types
described in subsections A.3 and A.4 of this Section
9.11, if, immediately prior to such Change of
Control, the participant had been the holder of
record of the number of shares of Common Stock then
covered by such options.
D. For the purposes of paragraph 2 of subsection C of
this Section 9.11, the "Change of Control Value" shall equal
the amount determined by whichever of the following items is
applicable:
1. the per share price to be paid to UNIFAB
shareholders in any such merger, consolidation or
other reorganization,
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2. the price per share offered to UNIFAB
shareholders in any tender offer or exchange offer
whereby a Change of Control takes place,
3. in all other events, the Fair Market
Value per share of Common Stock into which such
options being converted are exercisable, as
determined by the Committee as of the date determined
by the Committee to be the date of conversion of such
options, or
4. in the event that the consideration
offered to UNIFAB shareholders in any transaction
described in this Section 9.11 consists of anything
other than cash, the Committee shall determine the
fair cash equivalent of the portion of the
consideration offered that is other than cash.
9.12. DEFINITION OF FAIR MARKET VALUE. Whenever "Fair Market
Value" of Common Stock shall be determined for purposes of this Plan,
it shall be determined as follows: (i) if the Common Stock is listed on
an established stock exchange or any automated quotation system that
provides sale quotations, the closing sale price for a share of the
Common Stock on such exchange or quotation system on the applicable
date; (ii) if the Common Stock is not listed on any exchange or
quotation system, but bid and asked prices are quoted and published,
the mean between the quoted bid and asked prices on the applicable date
or, if bid and asked prices are not available on such day, on the next
preceding day on which such prices were available; and (iii) if the
Common Stock is not regularly quoted, the fair market value of a share
of Common Stock on the applicable date as established in good faith by
the Administrator or, with respect to determinations made under Section
9.11 of the Plan only, the Committee.
9.13 LOANS. To assist a participant in acquiring shares of
Common Stock pursuant to an Incentive granted under the Plan, the
Administrator may authorize, subject to the provisions of Regulation G
of the Board of Governors of the Federal Reserve System, at either the
time of the grant of the Incentive, at the time of the acquisition of
Common Stock pursuant to the Incentive, or at the time of the lapse of
restrictions on shares of restricted stock granted under the Plan, the
extension of a loan to the participant by the Company. The terms of any
loans, including the interest rate, collateral and terms of repayment,
will be subject to the discretion of the Administrator. The maximum
credit available hereunder shall be equal to the aggregate purchase
price of the shares of Common Stock to be acquired pursuant to the
Incentive plus the maximum tax liability that may be incurred in
connection with the Incentive.
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