EXHIBIT 10.9
PREMIUM STANDARD FARMS, INC.
2005 LONG TERM INCENTIVE PLAN
PREMIUM STANDARD FARMS, INC.
2005 LONG TERM INCENTIVE PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 Establishment. The Premium Standard Farms, Inc. 2005 Long Term
Incentive Plan ("Plan") is hereby established by Premium Standard Farms, Inc.,
("Company"), effective as of the Effective Date. Subject to Section 12.1, Awards
may be granted as provided herein for the Term of the Plan. The Plan shall
continue in effect until all matters relating to the settlement of Awards and
administration of the Plan have been completed.
1.2 Purposes. The purpose of the Plan is to foster and promote the
long-term financial success of the Company and materially increase shareholder
value by motivating performance through incentive compensation. The Plan also is
intended to encourage Participant ownership in the Company, attract and retain
talent, and enable Participants to participate in the long-term growth and
financial success of the Company.
ARTICLE II
DEFINITIONS
For purposes of the Plan, the following terms are defined as set forth
below:
2.1 "Affiliate" means any individual, corporation, partnership,
association, limited liability company, joint-stock company, trust,
unincorporated association or other entity (other than the Company) that
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company.
2.2 "Agreement" means any agreement entered into pursuant to the Plan by
which an Award is granted to a Participant.
2.3 "Award" means any Stock Option, Stock Appreciation Right, Restricted
Stock, Performance Share or Performance Unit granted to a Participant under the
Plan. Awards shall be subject to the terms and conditions of the Plan and shall
be evidenced by an Agreement containing such additional terms and conditions,
not inconsistent with the provisions of the Plan, as the Committee shall deem
desirable.
2.4 "Beneficiary" means any person or other entity, which has been
designated by a Participant in his or her most recent written beneficiary
designation filed with the Committee to receive the compensation, specified
under the Plan to the extent permitted. If there is no designated beneficiary,
then the term means any person or other
entity entitled by will or the laws of descent and distribution to receive such
compensation.
2.5 "Board of Directors" or "Board" means the Board of Directors of the
Company.
2.6 "Cause" means, for purposes of determining whether and when a
Participant has incurred a Termination of Employment for Cause, any act or
omission which permits the Company to terminate the written agreement or
arrangement between the Participant and the Company or an Affiliate for "cause"
as defined in such agreement or arrangement, or in the event there is no such
agreement or arrangement or the agreement or arrangement does not define the
term "Cause," then "Cause" means (i) a Participant's conviction of any felony,
or any other crime involving misuse or misappropriation of money, or entering a
plea of no contest in a court of law to a felonious crime or other crime
involving a misuse or misappropriation of money or property, which (A) results
in material and demonstrable damage to the Company or (B) materially and
demonstrably impairs the value of the Participant's services to the Company; the
Participant's engaging in one or more acts of dishonesty which (A) result in
material and demonstrable damage to the Company or (B) materially and
demonstrably impair the value of the Participant's services to the Company; or
(ii) a Participant's engaging in one or more acts of dishonesty which (A)
results in material damage to the Company or (B) materially and demonstrably
impairs the value of the Participant's services to the Company. Notwithstanding
the foregoing, a Participant may not be terminated for Cause unless and until
there shall have been delivered to the Participant a copy of a notice specifying
the nature of the grounds for such termination. The notice also shall afford the
Participant with the opportunity, together with the Participant's counsel, to be
heard regarding the existence of Cause. The Participant shall have thirty (30)
days to correct the acts or omissions complained of, if correctable.
2.7 "Change in Control" means the first to occur of any of the following
events:
(1) any "person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act, (other than the Company, ContiGroup Companies, Inc.,
any "affiliate" or "associate" as such terms are defined in Rule 12b-2
under the Exchange Act of the foregoing persons, or any trustee, fiduciary
or other person or entity holding securities under any employee benefit
plan or trust of the Company), together with all "affiliates" and
"associates" of such person, shall become the "beneficial owner" (as such
term is defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing thirty percent (30%)
or more of the combined voting power of the Company's then outstanding
securities having the right to vote in an election of the Company's Board
of Directors ("Voting Securities") (other than as a result of an
acquisition of securities directly from the Company); or
(2) persons who, as of the Effective Date, constitute the Board (the
"Incumbent Directors") cease for any reason, including, without
limitation, as a
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result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board, provided that any person
becoming a director of the Company subsequent to such date shall be
considered an Incumbent Director if such person's election was approved by
or such person was nominated for election by either (A) a vote of at least
two-thirds of the Incumbent Directors or (B) a vote of at least a majority
of the Incumbent Directors who are members of a nominating committee
composed, in the majority, of Incumbent Directors; or
(3) a merger or consolidation of the Company with any other person
(as defined in Section 2.7(1)), other than a merger or consolidation in
which (a) no person acquires more than thirty percent (30%) of the Voting
Securities, and (b) as a result of such merger or consolidation, the
Voting Securities outstanding immediately prior thereto continue to
represent at least a majority of the Voting Securities (either by
remaining outstanding or by being converted into Voting Securities) of the
surviving entity outstanding immediately after such merger or
consolidation; or
(4) 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 of substantially all of the Company's assets (or any
transaction having a similar effect).
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to have
occurred for purposes of the foregoing Section 2.7(1) solely as the result of an
acquisition of securities by the Company which, by reducing the number of shares
of Voting Securities outstanding, increases the proportionate number of shares
of Voting Securities beneficially owned by any person (as defined in the
foregoing Section 2.7(1)) to thirty percent (30%) or more of the combined voting
power of all then outstanding Voting Securities; provided, however, that if such
person shall thereafter become the beneficial owner of any additional shares of
Voting Securities (other than pursuant to a stock split, stock dividend, or
similar transaction or as a result of an acquisition of securities directly from
the Company), then a "Change of Control" shall be deemed to have occurred for
purposes of the foregoing Section 2.7(1).
2.8 "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor, along with related rules, regulations and
interpretations of the Department of Treasury and Internal Revenue Service.
2.9 "Commission" means the Securities and Exchange Commission or any
successor thereto.
2.10 "Committee" means the committee of the Board responsible for
granting and administering Awards under the Plan, which initially shall be the
Compensation Committee of the Board, until such time as the Board may designate
another committee. The Committee shall consist solely of two or more directors.
After the Offering, each member of the Committee shall be a "non-employee
director" within the meaning of Rule 16b-3 and also an "outside director" under
Section 162(m) of the Code. In addition, each
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member of the Committee shall satisfy any independence or other corporate
governance standards imposed by the securities market on which Company Stock
shall be listed.
2.11 "Common Stock" means the Company's common stock, $0.01 par value,
whether presently or hereafter issued, and any other stock or security resulting
from adjustment thereof as described hereinafter, or the common stock of any
successor to the Company which is designated for the purpose of the Plan.
2.12 "Company" means Premium Standard Farms, Inc., a Delaware
corporation, and includes any successor or assignee corporation or corporations
into which the Company may be merged, changed or consolidated; any corporation
for whose securities the securities of the Company shall be exchanged; and any
assignee of or successor to substantially all of the assets of the Company.
Wherever the context of the Plan so admits or requires, "Company" also means
"Affiliate."
2.13 "Covered Employee" means a Participant who is a "covered employee"
within the meaning of Section 162(m) of the Code.
2.14 "Disability" means:
(1) with respect to Incentive Stock Options, as that term is
defined in Code Section 22(e)(3);
(2) with respect to an Award that is not subject to Code Section
409A (other than an Incentive Stock Option), a physical or mental
condition that, for more than six consecutive months, renders a
Participant incapable, with reasonable accommodation, of performing his or
her assigned duties on a full-time basis; or
(3) with respect to any Award (that is not an Incentive Stock
Option) that is subject to Code Section 409A, as that term is defined
under Code Section 409A.
The determination of Disability for purposes of this Plan shall not be construed
to be an admission of disability for any other purpose.
2.15 "Effective Date" means the closing date of the Company's initial
public offering.
2.16 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
2.17 "Exercise Price" means the price that a Participant must pay to
exercise an Award or the amount upon which the value of an Award is based.
Unless advance approval has been obtained from the Company's shareholders, in no
event may the Exercise Price per share of Common Stock covered by an Option, or
the Exercise Price of a Stock Appreciation Right, be reduced, directly or
indirectly, through the technique commonly known as "repricing."
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2.18 "Fair Market Value" means, the value of one share of Common Stock,
determined pursuant to the applicable method described below, without regard to
whether the Common Stock is restricted or represents a minority interest:
(1) if the Common Stock is listed on a national securities exchange
(such as the New York Stock Exchange) or quoted on The Nasdaq Stock Market
("Nasdaq"), the closing price of a share of Common Stock on the relevant
date (or, if such date is not a business day or a day on which quotations
are reported, then on the immediately preceding date on which quotations
were reported), as reported by the principal national exchange on which
such shares are traded (in the case of an exchange) or by Nasdaq, as the
case may be;
(2) if the Common Stock is not listed on a national securities
exchange or quoted on Nasdaq, but is actively traded in the
over-the-counter market, the average of the closing bid and asked prices
for a share of the Common Stock on the relevant date (or, if such date is
not a business day or a day on which quotations are reported, then on the
immediately preceding date on which quotations were reported), or the most
recent preceding date for which such quotations are reported; and
(3) if, on the relevant date, the Common Stock is not publicly
traded or reported as described in (a) or (b) above, the value determined
in good faith by the Board as of the last day of the Company's most
recently ended fiscal year (except as otherwise provided herein or in an
Agreement), based on an annual valuation of the Company from a review of
the Company's financial statements (or such other approach deemed
appropriate) prepared by an independent valuation or auditing firm
selected by the Board.
2.19 "Grant Date" means the date as of which an Award is granted pursuant
to the Plan. In no event may the Grant Date be earlier than the Effective Date.
2.20 "Incentive Stock Option" means any Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
2.21 "Non-Qualified Stock Option" means a Stock Option that is not
specifically designated as an Incentive Stock Option or an Incentive Stock
Option that ceased (for any reason other than exercise) to be an Incentive Stock
Option.
2.22 "Offering" means an initial public offering of shares of Common
Stock under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
2.23 "Option Period" means the period during which the Option shall be
exercisable in accordance with an Agreement and Article VI.
2.24 "Participant" means a person who satisfies the eligibility
conditions of Article V and to whom an Award has been granted by the Committee
under the Plan. In
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the event that a Representative is appointed for a Participant, then the term
"Participant" shall mean such appointed Representative. Notwithstanding the
appointment of a Representative, the term "Termination of Employment" shall mean
the Termination of Employment of the Participant.
2.25 "Performance Award" means an Award consisting of Performance Shares
or a Performance Units.
2.26 "Performance Unit" means a right granted to the terms and conditions
established by the Committee which is described in Section 9.1.
2.27 "Performance Share" means a right granted to the terms and
conditions established by the Committee which is described in Section 9.1.
2.28 "Plan" means the Premium Standard Farms, Inc. 2005 Long Term
Incentive Plan, as herein set forth and as may be amended from time to time.
2.29 "Representative" means (a) the person or entity acting as the
executor or administrator of a Participant's estate pursuant to the last will
and testament of a Participant or pursuant to the laws of the jurisdiction in
which the Participant had the Participant's primary residence at the date of the
Participant's death; (b) the person or entity acting as the guardian or
temporary guardian of a Participant; (c) the person or entity which is the
Beneficiary of the Participant upon or following the Participant's death; or (d)
any other person, if any, to whom an Award has been permissibly transferred
under Section 12.8; provided that only one of the foregoing shall be the
Representative at any point in time as determined under applicable law and
recognized by the Committee.
2.30 "Restricted Stock" means Common Stock granted to a Participant under
Section 8.1 hereof and which is subject to certain restrictions and to a risk of
forfeiture or repurchase by the Company.
2.31 "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to the Plan and Participants, promulgated by the Commission under
Section 16 of the Exchange Act.
2.32 "Stock Appreciation Right" means a right granted under Section 7.1.
2.33 "Stock Option" or "Option" means a right, granted to a Participant
under Section 6.1 hereof, to purchase Common Stock at a specified price during
specified time periods.
2.34 "Termination of Employment" means the occurrence of any act or event
whether pursuant to an employment agreement or otherwise that actually or
effectively causes or results in the person's ceasing, for whatever reason, to
be an officer or employee of the Company or of any Affiliate, including, without
limitation, death, Disability, dismissal, severance at the election of the
Participant, retirement, or severance as a result of the discontinuance,
liquidation, sale or transfer by the Company or its
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Affiliates of a business owned or operated by the Company or its Affiliates.
With respect to any person who is not an employee with respect to the Company or
an Affiliate (such as a non-employee member of the Board), the Agreement shall
establish what act or event shall constitute a Termination of Employment for
purposes of the Plan. A Termination of Employment shall occur with respect to an
employee who is employed by an Affiliate if the Affiliate shall cease to be an
Affiliate and the Participant shall not immediately thereafter become an
employee of the Company or an Affiliate.
In addition, certain other terms used herein have definitions given to
them in the first place in which they are used.
ARTICLE III
ADMINISTRATION
3.1 Committee Structure. The Plan shall be administered by the
Committee. A majority of the Committee shall constitute a quorum at any meeting
thereof (including telephone conference) and the acts of a majority of the
members present, or acts approved in writing by the entire Committee without a
meeting, shall be the acts of the Committee for purposes of this Plan. Any
member of the Committee may resign upon notice to the Board. The Board shall
have the authority to remove, replace or fill any vacancy of any member of the
Committee upon notice to the Committee and the affected member.
3.2 Committee Actions. The Committee may authorize any one or more of
its members or an officer of the Company to execute and deliver documents on
behalf of the Committee. The Committee may allocate among one or more of its
members, or may delegate to one or more of its agents, such duties and
responsibilities as it determines, provided that the Committee shall not
delegate the authority to grant Awards. A member of the Committee shall be
recused from Committee action regarding an Award granted or to be granted to
such member.
3.3 Committee Authority. Subject to applicable law, the Company's
certificate of incorporation and by-laws or the terms of the Plan, the Committee
shall have the authority:
(1) to select those persons to whom Awards may be granted from
time to time;
(2) to determine whether and to what extent Awards are to be
granted hereunder;
(3) to determine the number of shares of Common Stock to be
covered by each Award granted hereunder;
(4) to determine the terms and conditions of any Award granted
hereunder (including any provisions deemed necessary or appropriate for a
"nonqualified deferred compensation plan," as defined in Code section
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409A(d)(1), to avoid being subject to taxation under Code section 409A(a)(1),
provided that the Exercise Price of any Option or Stock Appreciation Right shall
not be less than the Fair Market Value per share as of the Grant Date;
(5) to adjust the terms and conditions, at any time or from time to
time, of any Award, subject to the limitations of Section 12.1;
(6) to determine to what extent and under what circumstances Common
Stock and other amounts payable with respect to an Award shall be deferred,
subject to compliance with the requirements of the Plan and Code Section 409A to
avoid the Award being subject to taxation under Code section 409A(a)(1);
(7) to provide for the forms of Agreement to be utilized in connection
with this Plan;
(8) to determine what legal requirements are applicable to the Plan,
Awards, and the issuance of Common Stock, and to require of a Participant that
appropriate action be taken with respect to such requirements;
(9) to cancel, with the consent of the Participant or as otherwise
provided in the Plan or an Agreement, outstanding Awards;
(10) to require as a condition of the exercise of an Award or the
issuance or transfer of a certificate (or other representation of title) of
Common Stock, the withholding from a Participant of the amount of any taxes as
may be necessary in order for the Company or any other employer to obtain a
deduction or as may be otherwise required by law;
(11) to determine whether and with what effect an individual has incurred
a Termination of Employment;
(12) to determine the restrictions or limitations on the transfer of
Common Stock;
(13) to determine whether an Award is to be adjusted, modified or
purchased, or is to become fully or partially exercisable, under the Plan or the
terms of an Agreement;
(14) to determine the permissible methods of Award exercise and payment
within the terms and conditions of the Plan and the particular Agreement;
(15) to adopt, amend and rescind such rules and regulations as, in its
opinion, may be advisable in the administration of this Plan;
(16) to appoint and compensate agents, counsel, auditors or other
specialists to aid it in the discharge of its duties; and
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(17) to make all other determinations which may be necessary or
advisable for the administration of the Plan.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any Agreement) and to otherwise
supervise the administration of the Plan. The Committee's policies and
procedures may differ with respect to Awards granted at different times and may
differ with respect to a Participant from time to time, or with respect to
different Participants at the same or different times.
3.4 Committee Determinations and Decisions. Any determination made by
the Committee pursuant to the provisions of the Plan shall be made in its sole
discretion, and in the case of any determination relating to an Award may be
made at the time of the grant of the Award or, unless in contravention of any
express term of the Plan or an Agreement, at any time thereafter. All decisions
made by the Committee pursuant to the provisions of the Plan shall be final and
binding on all persons, including the Company and Participants. Any
determination shall not be subject to de novo review if challenged in court.
ARTICLE IV
SHARES SUBJECT TO PLAN
4.1 Number of Shares. Subject to the adjustment under Section 4.5, the
total number of shares of Common Stock reserved and available for distribution
pursuant to Awards under the Plan shall be 2,500,000 shares which are hereby
authorized for issuance on the Effective Date, and which authorized number of
shares shall also be the maximum number of shares that may be awarded as
Incentive Stock Options during the Term of the Plan. Such shares may consist, in
whole or in part, of authorized and unissued shares or shares acquired from a
third party.
4.2 Release of Shares. Subject to Section 4.1, the Committee shall have
full authority to determine the number of shares of Common Stock available for
Awards. In its discretion the Committee may include (without limitation), as
available for distribution, (a) shares of Common Stock subject to any Award that
have been previously forfeited; (b) shares under an Award that otherwise
terminates without issuance of Common Stock being made to a Participant; or (c)
shares of Common Stock that are received by the Company in connection with the
exercise of an Award, including the satisfaction of any tax liability or tax
withholding obligation. Any shares that are available immediately prior to the
termination of the Plan, or any shares of Common Stock returned to the Company
for any reason subsequent to the termination of the Plan, may be transferred to
a successor plan.
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4.3 Restrictions on Shares. Common Stock issued upon exercise of an Award
shall be subject to the terms and conditions specified herein and to such other
terms, conditions and restrictions as the Committee in its discretion may
determine or provide in the Award Agreement, including any "lock-up"
restrictions in connection with the Offering. The Company shall not be required
to issue or deliver any certificates for Common Stock, cash or other property
prior to (i) the completion of any registration or qualification of such shares
under federal, state or other law, or any ruling or regulation of any government
body which the Committee determines to be necessary or advisable; and (ii) the
satisfaction of any applicable withholding obligation in order for the Company
or an Affiliate to obtain a deduction or discharge its legal obligation with
respect to the exercise of an Award. The Company may cause any certificate (or
other representation of title) for any shares of Common Stock to be delivered to
be properly marked with a legend or other notation reflecting the limitations on
transfer of such Common Stock as provided in this Plan or as the Committee may
otherwise require. The Committee may require any person exercising an Award to
make such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of the Common Stock in
compliance with applicable law or otherwise. Fractional shares shall not be
delivered, but shall be rounded to the next lower whole number of shares.
4.4 Shareholder Rights. No person shall have any rights of a shareholder
as to Common Stock subject to an Award until, after proper exercise of the Award
or other action required, such shares shall have been recorded on the Company's
official shareholder records as having been issued and transferred. Upon
exercise of the Award or any portion thereof, the Company will have a reasonable
period in which to issue and transfer the shares, and the Participant will not
be treated as a shareholder for any purpose whatsoever prior to such issuance
and transfer. No adjustment shall be made for cash dividends or other rights for
which the record date is prior to the date such shares are recorded as issued
and transferred in the Company's official shareholder records, except as
provided herein or in an Agreement.
4.5 Effect of Certain Corporate Changes. In the event of any Company share
dividend, share split, combination or exchange of shares, recapitalization or
other change in the capital structure of the Company, corporate separation or
division of the Company (including, but not limited to, a split-up, spin-off,
split-off or distribution to Company stockholders other than a normal cash
dividend), reorganization, rights offering, a partial or complete liquidation,
or any other corporate transaction, Company securities offering or event
involving the Company and having an effect similar to any of the foregoing, then
the Committee may make appropriate adjustments or substitutions as described
below in this Section. The adjustments or substitutions may relate to the number
of shares of Common Stock available for Awards under the Plan, the number of
shares of Common Stock covered by outstanding Awards, the exercise price per
share of outstanding Awards, and any other characteristics or terms of the
Awards as the Committee may deem necessary or appropriate to reflect equitably
the effects of such changes to the Participants; provided, however, that to the
extent that Code Section 409A shall apply to an Award, any such adjustments or
substitutions shall only be made to the extent that they comply with the
requirements of Code Section 409A to avoid being subject to
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taxation under Code Section 409A(a)(1). Notwithstanding the foregoing other than
the limitation for an Award subject to Code Section 409A, any fractional shares
resulting from such adjustment shall be eliminated by rounding down to the
nearest whole share.
ARTICLE V
ELIGIBILITY
5.1 Eligibility. Except as herein provided, the persons who shall be
eligible to participate in the Plan and be granted Awards shall be those persons
who are common law employees of the Company or any Affiliate or non-employee
members of the Board of Directors. Of those persons described in the preceding
sentence, the Committee may, from time to time, select persons to be granted
Awards and shall determine the terms and conditions with respect thereto. In
making any such selection and in determining the form of the Award, the
Committee shall give consideration to such factors deemed appropriate by the
Committee.
ARTICLE VI
STOCK OPTIONS
6.1 General. The Committee shall have authority to grant Options under
the Plan at any time or from time to time. The Committee shall consider the
potential impact of Code Section 409A on each grant of Options and, if
necessary, shall make the terms and conditions of the Options comply with the
requirements of Code Section 409A to avoid being subject to taxation under Code
Section 409A(a)(1). An Option shall entitle the Participant to receive Common
Stock upon exercise of such Option, subject to the Participant's satisfaction in
full of any conditions, restrictions or limitations imposed in accordance with
the Plan or an Agreement (the terms and provisions of which may differ from
other Agreements) including, without limitation, payment of the Exercise Price.
6.2 Grant. The grant of an Option shall occur as of the Grant Date
determined by the Committee provided that the Grant Date shall not be earlier
than the date upon which the Committee acts to grant the Option. Options may be
granted alone or in connection with other Awards. An Award of Options shall be
evidenced by, and subject to the terms of, an Agreement. Only a person who is a
common-law employee of the Company, any "parent corporation" of the Company, or
a "subsidiary corporation" of the Company ( each term as defined in Section 424
of the Code) on the date of grant shall be eligible to be granted an Incentive
Stock Option. To the extent that any Option is not designated as an Incentive
Stock Option or even if so designated does not qualify as an Incentive Stock
Option, it shall constitute a Non-Qualified Stock Option.
6.3 Terms and Conditions. Options shall be subject to such terms and
conditions as shall be determined by the Committee, including the following:
(1) Exercise Price. The Exercise Price per share shall not be less
than the Fair Market Value per share on the Grant Date. If an Option which
is
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intended to qualify as an Incentive Stock Option is granted to an individual (a
"10% Owner") who owns or who is deemed to own shares possessing more than ten
percent (10%) of the combined voting power of all classes of shares of the
Company, a corporation which is a "parent corporation" of the Company, or any
"subsidiary corporation" of the Company (each term as defined in Section 424 of
the Code), the Exercise Price per share shall not be less than one hundred ten
percent (110%) of the Fair Market Value per share on the Grant Date.
(2) Option Period. The Option Period of each Option shall be fixed by the
Committee, provided that no Option shall be exercisable more than ten (10) years
after the date the Option is granted. In the case of an Incentive Stock Option
granted to a 10% Owner, the Option Period shall not exceed five (5) years from
the date the Option is granted. No Option which is intended to be an Incentive
Stock Option shall be granted more than ten (10) years from the date the Plan is
adopted by the Company or the date the Plan is approved by the shareholders of
the Company, whichever is earlier.
(3) Exercisability. Subject to Section 10.1, an Option shall be
exercisable in whole or in such installments and at such times, as established
by the Committee in an Agreement. The Committee may provide in an Agreement for
an accelerated exercise of all or part of an Option upon such events or
standards that it may determine, including one or more performance measures. In
addition, the Committee may at any time accelerate the exercisability of all or
part of any Option. If the Committee intends that an Option be able to qualify
as an Incentive Stock Option, the aggregate Fair Market Value (determined at the
date of grant of the Option) of the Common Stock as to which such Incentive
Stock Option which is exercisable for the first time during any calendar year
(under the Plan or any other plan of the Company or any "parent corporation" or
"subsidiary corporation," each term as defined in Code Section 424) shall not
exceed $100,000.
(4) Method of Exercise. Subject to the provisions of this Article VI and
the Agreement, a Participant may exercise Options, in whole or in part, during
the Option Period by giving written notice of exercise on a form provided by the
Committee to the Company specifying the number of shares of Common Stock subject
to the Option to be purchased. Such notice shall be accompanied by payment in
full of the purchase price by cash or certified check or such other form of
payment as the Company may accept. If permitted in the applicable Agreement,
payment in full or in part may also be made by (i) delivering Common Stock
already owned by the Participant (for any minimum period required by the
Committee provided that until FASB Statement 123(R) goes into effect, such
Common Stock must have either (I) been owned by the Participant for more than
six months and have been paid for with the meaning of SEC Rule 144 or (II) been
obtained by the Participant in the public market) having a total Fair Market
Value on the date of such delivery equal to the Exercise Price; (ii) the
delivery of cash by a broker-dealer as a "cashless" exercise, provided such
method of payment may not be used by an executive officer of the Company or a
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member of the Board to the extent such payment method would violate Rule
16b-3 or the Sarbanes-Oxley Act of 2002; (iii) after FASB Statement 123(R)
goes into effect, withholding by the Company of Common Stock subject to
the Option having a total Fair Market Value as of the date of delivery
equal to the Exercise Price; or (iv) any combination of the foregoing.
(5) Conditions for Issuance of Shares. No shares of Common Stock
shall be issued until full payment therefor has been made. A Participant
shall have all of the rights of a shareholder of the Company holding the
class of shares that is subject to such Option (including, if applicable,
the right to vote the shares and the right to receive dividends) when the
Participant has given written notice of exercise, has paid in full for
such shares, and such shares have been recorded on the Company's official
shareholder records as having been issued and transferred.
(6) Non-transferability of Options. Unless otherwise specifically
provided in an Agreement, no Option shall be sold, assigned, margined,
transferred, encumbered, conveyed, gifted, alienated, hypothecated,
pledged, or otherwise disposed of, other than by will or by the laws of
descent and distribution, and all Options shall be exercisable during the
Participant's lifetime only by the Participant.
6.4 Termination by Reason of Death. Unless otherwise specifically
provided in an Agreement or determined by the Committee, any unexpired and
unexercised Options, other than Incentive Stock Options, held by a Participant
who incurs a Termination of Employment due to death shall thereafter be fully
exercisable for a period of one (1) year immediately following the date of such
death or until the expiration of the Option Period, whichever period is the
shorter. Unless otherwise specifically provided in an Agreement or determined by
the Committee, any unexpired or unexercised Incentive Stock Options held by a
Participant who incurs a termination of employment due do death shall be fully
exercisable for a period of one year immediately following such death or until
the expiration of the Option Period, whichever period is shorter.
6.5 Termination by Reason of Disability. Unless otherwise specifically
provided in an Agreement or determined by the Committee, any unexpired and
unexercised Option held by a Participant who incurs a Termination of Employment
due to Disability shall thereafter be fully exercisable by the Participant for a
period of one (1) year immediately following the date of such Termination of
Employment or until the expiration of the Option Period, whichever period is the
shorter, and the Participant's death at any time following such Termination of
Employment due to Disability shall not affect the foregoing.
6.6 Other Termination. Unless otherwise specifically provided in an
Agreement or determined by the Committee, if a Participant incurs a Termination
of Employment that is involuntary on the part of the Participant (but is not due
to death, Disability or with Cause), any Option held by such Participant shall
thereupon terminate, except that such Option, to the extent then exercisable,
may be exercised for the lesser of
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the three consecutive month period commencing with the date of such Termination
of Employment or until the expiration of the Option Period whichever period is
the shorter. Unless otherwise specifically provided in an Agreement or
determined by the Committee, if the Participant incurs a Termination of
Employment for Cause or that is voluntary on the part of the Participant, the
Option, to the extent not previously exercised, shall terminate upon such
Termination of Employment. Unless otherwise provided in an Agreement, the death
or Disability of a Participant after a Termination of Employment otherwise
provided herein shall not extend the time permitted to exercise an Option.
ARTICLE VII
STOCK APPRECIATION RIGHTS
7.1 General. The Committee shall have authority to grant Stock
Appreciation Rights under the Plan at any time or from time to time. Stock
Appreciation Rights may be awarded alone or in tandem with other Awards granted
under the Plan. The Committee shall consider the potential impact of Code
Section 409A on each grant of Stock Appreciation Rights and, if necessary, shall
make the terms of conditions of the Stock Appreciation Rights comply with the
requirements of Code Section 409A to avoid being subject to taxation under Code
Section 409A(a)(1). Subject to the Participant's satisfaction in full of any
conditions, restrictions or limitations imposed in accordance with the Plan or
an Agreement, a Stock Appreciation Right shall entitle the Participant to
surrender to the Company the Stock Appreciation Right and to receive in Common
Stock the number of shares described in Section 7.3(2).
7.2 Grant. The grant of a Stock Appreciation Right shall occur as of the
Grant Date determined by the Committee. A Stock Appreciation Right entitles a
Participant to receive Common Stock as described in Section 7.3(2). An Award of
Stock Appreciation Rights shall be evidenced by, and subject to the terms of an
Agreement, which shall become effective upon execution by the Participant.
7.3 Terms and Conditions. Stock Appreciation Rights shall be subject to
such terms and conditions as shall be determined by the Committee and set forth
in an Agreement, including (but not limited to) the following:
(1) Period and Exercise. The term of a Stock Appreciation Right
shall be established by the Committee. A Stock Appreciation Right shall be
for such period and, subject to Section 10.1, shall be exercisable in
whole or in installments and at such times as established by the Committee
in an Agreement. The Committee may provide in an Agreement for an
accelerated exercise of all or part of a Stock Appreciation Right upon
such events or standards that it may determine, including one or more
performance measures. In addition, the Committee may at any time
accelerate the exercisability of all or part of any Stock Appreciation
Right. Stock Appreciation Rights shall be exercised by the Participant's
giving written notice of exercise, on a form provided by the Committee, to
the Company specifying the portion of the Stock Appreciation Right to be
exercised.
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(2) Delivery of Common Stock. Upon the exercise of a Stock
Appreciation Right, a Participant shall receive a number of shares of
Common Stock equal in value to the excess of the Fair Market Value per
share of Common Stock over the Exercise Price per share of Common Stock
specified in the related Agreement, multiplied by the number of shares in
respect of which the Stock Appreciation Right is exercised. The Exercise
Price per share shall not be less than the Fair Market Value per share on
the Grant Date. The aggregate Fair Market Value per share of Common Stock
shall be determined as of the date of exercise of such Stock Appreciation
Right.
(3) Non-transferability of Stock Appreciation Rights. Except as
specifically provided in the Plan or in an Agreement, no Stock
Appreciation Rights shall be sold, assigned, margined, transferred,
encumbered, conveyed, gifted, alienated, hypothecated, pledged or
otherwise disposed of, other than by will or the laws of descent and
distribution, and all Stock Appreciation Rights shall be exercisable
during the Participant's life time only by the Participant.
(4) Termination. A Stock Appreciation Right shall be forfeited or
terminated at such time as an Option would be forfeited or terminated
under the Plan, unless otherwise specifically provided in an Agreement.
ARTICLE VIII
RESTRICTED STOCK
8.1 General. The Committee shall have authority to grant Restricted
Stock under the Plan at any time or from time to time. The Committee shall
consider the potential impact of Code Section 409A on each grant of Restricted
Stock and, if necessary, shall make the terms and conditions of the Restricted
Stock comply with the requirements of Code Section 409A to avoid being subject
to taxation under Code Section 409A(a)(1). The Committee shall determine the
number of shares of Restricted Stock to be awarded to any Participant, the time
or times within which such Awards may be subject to forfeiture, and any other
terms and conditions of the Awards. Each Award shall be confirmed by, and be
subject to the terms of, an Agreement which contains the applicable terms and
conditions of the Award, including the rate or times provided by the Committee
for the lapse of any forfeiture restrictions or other conditions regarding the
Award. The Committee may provide in an Agreement for an accelerated lapse of any
such restrictions upon such events or standards that it may determine, including
one or more performance measures. In addition, the Committee may at any time
accelerate the lapse of any such restrictions with respect to all or part of any
Stock Appreciation Right. Each Award of Restricted Stock shall become effective
upon execution by the Participant of an Agreement.
8.2 Grant, Awards and Certificates. The grant of an Award of Restricted
Stock shall occur as of the Grant Date determined by the Committee. Restricted
Stock may be awarded either alone or in addition to other Awards granted under
the Plan. Notwithstanding the limitations on issuance of Common Stock otherwise
provided in the
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Plan, each Participant receiving an Award of Restricted Stock shall be issued a
certificate (or other representation of title) in respect of such Restricted
Stock. Such certificate shall be registered in the name of such Participant and
shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such Award as determined by the Committee. The
Committee may require that the certificates evidencing such shares be held in
custody by the Company until the restrictions thereon shall have lapsed and
that, as a condition of any Award of Restricted Stock, the Participant shall
have delivered a share power, endorsed in blank, relating to the Common Stock
covered by such Award.
8.3 Terms and Conditions. Restricted Stock shall be subject to such
terms and conditions as shall be determined by the Committee, including the
following:
(1) Limitations on Transferability. Subject to the provisions of the
Plan and the Agreement, during a period set by the Committee, commencing
with the date of such Award (the "Restriction Period"), the Participant
shall not be permitted to sell, assign, margin, transfer, encumber,
convey, gift, alienate, hypothecate, pledge or otherwise dispose of
Restricted Stock.
(2) Rights. Except as provided in Section 8.3(1) and notwithstanding
Section 4.4, the Participant shall have, with respect to the Restricted
Stock, all of the rights of a shareholder of the Company holding the class
of Common Stock that is the subject of the Restricted Stock, including, if
applicable, the right to vote the shares and the right to receive any
dividends. If any dividends or other distributions are paid in shares of
Common Stock, all such shares shall be subject to the same restrictions on
transferability as the shares of Restricted Stock with respect to which
they were paid.
(3) Criteria. As described in Section 8.1 above, the Committee may
provide in an Agreement for the lapse of restrictions in installments and
may accelerate the vesting of all or any part of any Award and waive the
restrictions for all or any part of such Award; such provisions of an
Agreement or Committee action may be based on service, performance by the
Participant or by the Company or the Affiliate, including any division or
department for which the Participant is employed or such other factors or
criteria as the Committee may determine.
(4) Forfeiture. Unless otherwise provided in an Agreement or
determined by the Committee, if the Participant incurs a Termination of
Employment due to death or Disability during the Restriction Period, the
restrictions shall lapse and the Participant shall be fully vested in the
Restricted Stock. Except to the extent otherwise provided in the
applicable Agreement and the Plan, upon a Participant's Termination of
Employment for any reason during the Restriction Period other than a
Termination of Employment due to death or Disability, all shares of
Restricted Stock still subject to restriction shall be forfeited by the
Participant, except the Committee shall have the discretion to
- 16 -
waive in whole or in part any or all remaining restrictions with respect
to any or all of such Participant's Restricted Stock.
(5) Delivery. If a share certificate is issued in respect of
Restricted Stock, the certificate shall be registered in the name of the
Participant but shall be held by the Company for the account of the
Participant until the end of the Restriction Period. If and when the
Restriction Period expires without a prior forfeiture of the Restricted
Stock subject to such Restriction Period, unlegended certificates (or
other representation of title) for such shares shall be delivered to the
Participant.
ARTICLE IX
PERFORMANCE UNITS AND PERFORMANCE SHARES
9.1 General. The Committee shall have authority to grant Performance
Units and Performance Shares under the Plan at any time or from time to time.
The Committee shall consider the impact of Code Section 409A on each grant of
Performance Units and Performance Shares and, if necessary, shall make the terms
and conditions of the Performance Unites and Performance Shares comply with the
requirements of Code Section 409A to avoid being subject to taxation under Code
Section 409A(a)(1). A Performance Unit and a Performance Share each consist of
the right to receive shares of Common Stock or cash, as provided in the
particular Award Agreement, upon achievement of certain goals relating to
performance ("Performance Goals") and may be awarded either alone or in addition
to other Awards granted under the Plan. Performance Units shall be denominated
in units of value (including dollar value of shares of Common Stock) and
Performance Shares shall be denominated in a number of shares of Common Stock.
The Committee shall have complete discretion to determine the number of
Performance Units and Performance Shares, if any, granted to each Participant.
Each Performance Unit Award and each Performance Share Award shall be evidenced
by, and be subject to the terms of, an Agreement which will become effective
upon execution by the Participant. The time period during which a Performance
Unit Award or Performance Share Award shall be earned shall be the "Performance
Period," and shall be at least one (1) fiscal year in length. Performance Units
and Performance Shares shall be subject to Performance Goals which shall be
established by the Committee.
9.2 Earning Performance Unit and Performance Share Awards. After the
applicable Performance Period shall have ended, the Committee shall determine
the extent to which the established Performance Goals have been achieved.
9.3 Termination of Employment Due to Death or Disability. In the event
of a Termination of Employment due to death or Disability during a Performance
Period, the Participant shall receive, after the expiration of the Performance
Period, a pro rata share of the Performance Awards relating to such Performance
Period based upon the period of time he or she is employed by the Company in the
Performance Period. Unless otherwise
- 17 -
specifically provided in an Agreement or determined by the Committee, in the
event that a Participant's employment terminates for any other reason, all
Performance Awards shall be forfeited by the Participant to the Company.
Distribution of earned Performance Awards may be made at the same time payments
are made to Participants who did not incur a Termination of Employment during
the applicable Performance Period.
9.4 Nontransferability. Unless otherwise specifically provided in an
Agreement, Performance Unit and Performance Share Awards may not be sold,
assigned, margined, transferred, encumbered, conveyed, gifted, alienated,
hypothecated, pledged, or otherwise disposed of, other than by will or by the
laws of descent and distribution.
ARTICLE X
CHANGE IN CONTROL PROVISIONS
10.1 Impact of Event. Notwithstanding any other provision of the Plan to
the contrary and unless otherwise specifically provided in an Agreement, in the
event of a Change in Control:
(1) any Stock Options and Stock Appreciation Rights outstanding as
of the date of such Change in Control and not then exercisable shall
become fully exercisable to the full extent of the original grant;
(2) the restrictions applicable to any Restricted Stock Awards shall
lapse, and such Restricted Stock shall become free of all restrictions and
become fully vested and transferable to the full extent of the original
grant; and
(3) any Performance Goal or other condition with respect to any
Performance Shares and Performance Units shall be deemed to have been
satisfied in full, and such Award shall be fully distributable.
10.2 Additional Discretion. The Committee shall have full discretion,
notwithstanding anything herein or in an Agreement to the contrary, with respect
to an outstanding Award upon a Change in Control to provide that the securities
of another entity be substituted hereunder for the Common Stock and to make
equitable adjustment with respect thereto.
ARTICLE XI
PROVISIONS APPLICABLE TO SHARES ACQUIRED UNDER THIS PLAN
11.1 No Company Obligation. Except to the extent specifically required by
applicable securities laws, none of the Company, an Affiliate or the Committee
shall have any duty or obligation to affirmatively disclose material information
to a record or beneficial holder of Common Stock or an Award, and such holder
shall have no right to be advised of any material information regarding the
Company or any Affiliate at any time prior to, upon, or in connection with
receipt or the exercise or distribution of an
- 18 -
Award. The Company makes no representation or warranty as to the future value of
the Common Stock issued or acquired in accordance with the provisions of the
Plan.
ARTICLE XII
MISCELLANEOUS
12.1 Amendments and Termination. The Board may amend, alter, or
discontinue the Plan at any time, but no amendment, alteration or
discontinuation shall be made which would impair the rights of a Participant
under an Award theretofore granted without the Participant's consent.
Notwithstanding the immediately preceding sentence, an amendment may be made
without a Participant's consent to (a) cause the Plan or an Award to comply with
applicable law (including, but not limited to, any changes needed to avoid
taxation of an Award as a "nonqualified deferred compensation plan" under Code
Section 409A) or (b) permit the Company or an Affiliate a tax deduction under
applicable law. The Committee may amend, alter or discontinue the terms of any
Award theretofore granted, prospectively or retroactively, on the same
conditions and limitations (and exceptions to limitations) as apply to the
Board, and further subject to any approval or limitations the Board may impose.
Notwithstanding the foregoing, any amendments to the Plan shall require
shareholder approval to the extent required by Federal or state law or any
regulations or rules promulgated thereunder or the rules of the national
securities exchange or market on which shares of Common are listed.
12.2 Unfunded Status of Plan. It is intended that the Plan be an
"unfunded" plan for incentive compensation. The Company may create trusts or
other arrangements to meet the obligations created under the Plan to deliver
Common Stock or make payments; provided, however, that the existence of such
trusts or other arrangements is consistent with the "unfunded" status of the
Plan and all property held thereunder and income thereon shall remain solely the
property and rights of the Company (without being restricted to satisfying the
obligations created under the Plan) and shall be subject to the claims of the
Company's general creditors. The Company's obligations created under the Plan
shall constitute a general, unsecured obligation, payable solely out of its
general assets.
12.3 Provisions Relating to Internal Revenue Code Section 162(m). Once
Section 162(m) of the Code shall become applicable with respect to Awards to
Covered Employees under the Plan, the Plan shall be administered, and the
provisions of the Plan shall be interpreted, in a manner consistent with Code
Section 162(m). If any provision of the Plan or any Agreement relating to such
an Award does not comply or is inconsistent with the requirements of Code
Section 162(m), such provision shall be construed or deemed amended to the
extent necessary to conform to such applicable requirements. In addition, the
following provisions shall apply to the Plan or an Award to the extent necessary
to obtain a tax deduction for the Company or an Affiliate:
(1) Not later than the date required or permitted for "qualified
performance-based compensation" under Code Section 162(m), the Committee
shall determine the Participants who are Covered Employees who will
receive
- 19 -
Awards that are intended as qualified performance-based compensation and the
amount or method for determining the amount of such compensation.
(2) During any three-consecutive calendar year period, the maximum number
of shares of Common Stock for which Options and Stock Appreciation Rights, in
the aggregate, may be granted to any Covered Employee shall not exceed one
million (1,000,000) shares. For Performance Unit or Performance Share Awards
that are intended to be "performance-based compensation" (as that term is used
in Code Section 162(m), no more than $3,000,000 may be subject to such Awards
granted to any Covered Employee during any three-consecutive calendar year
period. Further, for any Restricted Stock Awards that are intended to be
"performance-based compensation" (as that term is used in Code Section 162(m),
no more than $3,000,000 may be subject to such Awards granted to any Covered
Employee during any three-consecutive calendar year period. The limitations on
Awards under this Section are subject to adjustment as provided in Section 4.5
to the extent that needed to obtain tax deductibility under Code Section 162(m).
(3) Performance Goals. Awards may be subject to Performance Goals (as
defined in Section 9.1) which shall be measured in a specific Performance Period
(as defined in Section 9.1) established by the Committee which shall be based on
any of the following performance criteria, either alone or in any combination,
and on either a consolidated or business unit level, as the Committee may
determine: sales; cash flow; cash flow from operations; operating profit or
income; net income; operating margin; net income margin; return on net assets;
economic value added; return on total assets; return on common equity; return on
total capital; total shareholder return; revenue; revenue growth; earnings
before interest, taxes, depreciation and amortization ("EBITDA"); EBITDA growth;
basic earnings per share; diluted earnings per share; funds from operations per
share and per share growth; cash available for distribution; cash available for
distribution per share and per share growth; share price performance on an
absolute basis and relative to an index of earnings per share or improvements in
the Company's attainment of expense levels; or implementing or completion of
critical projects. The foregoing criteria shall have any reasonable definitions
that the Committee may specify, which may include or exclude any or all of the
following items as the Committee may specify: extraordinary, unusual or
non-recurring items; effects of accounting changes; effects of financing
activities; expenses for restructuring or productivity initiatives; other
non-operating items; spending for acquisitions; effects of divestitures; and
effects of litigation activities and settlements. Any such performance criterion
or combination of such criteria may apply to the Participant's Award opportunity
in its entirety or to any designated portion or portions of the Award
opportunity, as the Committee may specify. Unless the Committee determines
otherwise for any Performance Period, extraordinary items, such as capital gains
and losses, which affect any performance criterion applicable to the Award
(including but not limited to the criterion of net income) shall be excluded or
included in determining on the extent to which the corresponding performance
goal has been achieved, whichever will
- 20 -
produce the higher Award. In the event Code Section 162(m) or applicable
tax or other laws change to permit the Committee discretion to alter the
governing performance measures without obtaining shareholder approval of
such changes, the Committee shall have sole discretion to make such
changes without obtaining shareholder approval.
(4) Earning Performance Awards. Subject to the provisions of Section
12.3(5) below, payment with respect to Performance Units and Performance
Shares for Covered Employees shall be a direct function of the extent to
which the Company's Performance Goals have been achieved. A Performance
Unit or a Performance Share Award to a Participant who is a Covered
Employee shall (unless the Committee determines otherwise) provide that in
the event of the Participant's Termination of Employment prior to the end
of the Performance Period for any reason, such Award will be payable only
(a) if the applicable Performance Goals are achieved and (b) to the
extent, if any, as the Committee shall determine.
(5) Other Section 162(m) Provisions. In the manner required by
Section 162(m) of the Code, the Committee shall, promptly after the date
on which the necessary financial and other information for a particular
Performance Period becomes available, certify the extent to which
Performance Goals have been achieved with respect to any Performance Unit,
Performance Share or Restricted Stock Award intended to qualify as
"performance-based compensation" under Section 162(m) of the Code. In
addition, the Committee may, in its discretion, reduce or eliminate the
amount of any Performance Unit or Performance Share Award payable to any
Participant, based on such factors as the Committee may deem relevant, but
the Committee may not increase the amount of any Performance Unit or
Performance Share Award payable to any Participant above the amount
established in accordance with the relevant Performance Goals with respect
to any Performance Unit or Performance Share Award intended to qualify as
"performance-based compensation" under Section 162(m) of the Code.
12.4 No Additional Obligation. Nothing contained in the Plan shall
prevent the Company or an Affiliate from adopting other or additional
compensation or benefit arrangements for its employees.
12.5 Withholding. No later than the date as of which an amount first
becomes includible in the gross income of the Participant for federal income tax
purposes with respect to any Award, the Participant shall pay to the Company (or
other entity identified by the Committee), or make arrangements satisfactory to
the Company or other entity identified by the Committee regarding the payment
of, any federal, state, or local taxes of any kind (including any employment
taxes) required by law to be withheld with respect to such income. The
obligations of the Company under the Plan shall be conditional on such payment
or arrangements, and the Company and its Affiliates shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment
otherwise due to the Participant. Subject to approval by the Committee, a
Participant may elect to have such tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the
- 21 -
Company to withhold from shares of Common Stock to be issued pursuant to any
Award a number of shares with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the required statutory minimum (but
no more than such required minimum) with respect to the Company's withholding
obligation, or (ii) transferring to the Company shares of Common Stock owned by
the Participant with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the required statutory minimum (but
no more than such required minimum) with respect to the Company's withholding
obligation.
12.6 Controlling Law. The Plan and all Awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of
Missouri (other than its law respecting choice of law). The Plan shall be
construed to comply with all applicable law and to avoid liability to the
Company, an Affiliate or a Participant. In the event of litigation arising in
connection with actions under the Plan, the parties to such litigation shall
submit to the jurisdiction of courts located in Jackson County, Missouri, or to
the federal district court that encompasses said county.
12.7 Offset. Any amounts owed to the Company or an Affiliate by the
Participant of whatever nature may be offset by the Company from the value of
any Award to be transferred to the Participant, and no Common Stock, cash or
other thing of value under this Plan or an Agreement shall be transferred unless
and until all disputes between the Company and the Participant have been fully
and finally resolved and the Participant has waived all claims to such against
the Company or an Affiliate.
12.8 Nontransferability; Beneficiaries. No Award or Common Stock subject
to an Award shall be assignable or transferable by the Participant, otherwise
than by will or the laws of descent and distribution or pursuant to a
beneficiary designation, and Awards shall be exercisable during the
Participant's lifetime only by the Participant (or by the Participant's legal
representatives in the event of the Participant's incapacity). Each Participant
may designate a Beneficiary to exercise any Option or Stock Appreciation Right
or receive any Award held by the Participant at the time of the Participant's
death or to be assigned any other Award outstanding at the time of the
Participant's death. No Award or Common Stock subject to an Award shall be
subject to the debts of a Participant or Beneficiary or subject to attachment or
execution or process in any court action or proceeding unless otherwise provided
in this Plan. If a deceased Participant has named no Beneficiary, any Award held
by the Participant at the time of death shall be transferred as provided in his
or her will or by the laws of descent and distribution. Except in the case of
the holder's incapacity, only the holder may exercise an Option or Stock
Appreciation Right.
12.9 No Rights with Respect to Continuance of Employment. Nothing
contained herein shall be deemed to alter the relationship between the Company
or an Affiliate and a Participant, or the contractual relationship between a
Participant and the Company or an Affiliate if there is a written contract
regarding such relationship. Nothing contained herein shall be construed to
constitute a contract of employment between the Company or an Affiliate and a
Participant. The Company or an Affiliate and each of the Participants continue
to have the right to terminate the employment or service
- 22 -
relationship at any time for any reason, except as provided in a written
contract. The Company or an Affiliate shall have no obligation to retain the
Participant in its employ or service as a result of this Plan. There shall be no
inference as to the length of employment or service hereby, and the Company or
an Affiliate reserves the same rights to terminate the Participant's employment
or service as existed prior to the individual becoming a Participant in this
Plan.
12.10 Awards in Substitution for Awards Granted by Other Corporations.
Awards may be granted under the Plan from time to time in substitution for
awards held by employees, directors or service providers of other corporations
who are about to become officers or employees of the Company or an Affiliate as
the result of a merger or consolidation of the employing corporation with the
Company or an Affiliate, or the acquisition by the Company or an Affiliate of
the assets of the employing corporation, or the acquisition by the Company or
Affiliate of the share of the employing corporation, as the result of which it
becomes an Affiliate. The terms and conditions of the Awards so granted may vary
from the terms and conditions set forth in this Plan at the time of such grant
as the Committee may deem appropriate to conform, in whole or in part, to the
provisions of the awards in substitution for which they are granted and to
ensure that the requirements imposed under Code Sections 409A and 424 are met.
12.11 Delivery of Stock Certificates. To the extent the Company uses
certificates to represent shares of Common Stock, certificates to be delivered
to Participants under this Plan shall be deemed delivered for all purposes when
the Company or a stock transfer agent of the Company shall have mailed such
certificates in the United States mail, addressed to the Participant, at the
Participant's last known address on file with the Company. Any reference in this
Section or elsewhere in the Plan or an Agreement to actual stock certificates
and/or the delivery of actual stock certificates shall be deemed satisfied by
the electronic record-keeping and electronic delivery of shares of Common Stock
or other mechanism then utilized by the Company and its agents for reflecting
ownership of such shares.
12.12 Indemnification. To the maximum extent permitted under the Company's
Articles of Incorporation and by-laws, each person who is or shall have been a
member of the Committee, or of the Board, shall be indemnified and held harmless
by the Company against and from (a) any loss, cost, liability or expense
(including attorneys' fees) that may be imposed upon or reasonably incurred by
him or her in connection with or resulting from any claim, action, suit or
proceeding to which he or she may be a party or in which he or she may be
involved by reason of any action taken or failure to act under this Plan or any
Award Agreement, and (b) from any and all amounts paid by him or her in
settlement thereof, with the Company's prior written approval, or paid by him or
her in satisfaction of any judgment in any such claim, action, suit or
proceeding against him or her; provided, however, that he or she shall give the
Company an opportunity, at its own expense, to handle and defend the same before
he or she undertakes to handle and defend it on his or her own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Company's
Articles of Incorporation or by-laws, by contract, as a matter of law or
- 23 -
otherwise, or under any power that the Company may have to indemnify them or
hold them harmless.
12.13 Severability. If any provision of this Plan shall for any reason be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not effect any other provision hereby, and this Plan shall be construed as if
such invalid or unenforceable provision were omitted.
12.14 Successors and Assigns. This Plan shall inure to the benefit of and
be binding upon each successor and assign of the Company. All obligations
imposed upon a Participant, and all rights granted to the Company hereunder,
shall be binding upon the Participant's heirs, legal representatives and
successors.
12.15 Entire Agreement. This Plan and the Agreement constitute the entire
agreement with respect to the subject matter hereof and thereof, provided that
in the event of any inconsistency between the Plan and the Agreement, the terms
and conditions of this Plan shall control.
12.16 Term. No Award shall be granted under the Plan after the tenth
anniversary of the Effective Date.
12.17 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine, the plural shall
include the singular, and the singular shall include the plural.
12.18 Headings. The headings contained in this Plan are for reference
purposes only and shall not affect the meaning or interpretation of this Plan.
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