EXHIBIT 10.1
GENESCO INC.
2005 EQUITY INCENTIVE PLAN
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GENESCO INC.
2005 EQUITY INCENTIVE PLAN
TABLE OF CONTENTS
Section 1. Purpose.................................................................................. 1
Section 2. Definitions.............................................................................. 1
Section 3. Administration........................................................................... 5
Section 4. Shares Available for Awards.............................................................. 7
Section 5. Eligibility.............................................................................. 8
Section 6. Stock Options and Stock Appreciation Rights.............................................. 8
Section 7. Restricted Shares and Restricted Share Units............................................. 10
Section 8. Performance Awards....................................................................... 12
Section 9. Other Stock-Based Awards................................................................. 13
Section 10. Non-Employee Director and Outside Director Awards........................................ 13
Section 11. Provisions Applicable to Covered Officers and Performance Awards......................... 13
Section 12. Termination of Employment................................................................ 15
Section 13. Change in Control and Potential Change in Control........................................ 15
Section 14. Amendment and Termination................................................................ 15
Section 15. General Provisions....................................................................... 16
Section 16. Term of the Plan......................................................................... 19
GENESCO INC.
2005 EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE
This plan shall be known as the "Genesco Inc. 2005 Equity Incentive
Plan" (the "Plan"). The purpose of the Plan is to promote the interests of
Genesco Inc., a Tennessee corporation (the "Company"), and its shareholders by
(i) attracting and retaining key officers, employees, and directors of, and
consultants to, the Company and its Subsidiaries and Affiliates; (ii) motivating
such individuals by means of performance-related incentives to achieve
long-range performance goals, (iii) enabling such individuals to participate in
the long-term growth and financial success of the Company, (iv) encouraging
ownership of stock in the Company by such individuals, and (v) linking their
compensation to the long-term interests of the Company and its shareholders.
With respect to any awards granted under the Plan that are intended to comply
with the requirements of "performance-based compensation" under Section 162(m)
of the Internal Revenue Code, the Plan shall be interpreted in a manner
consistent with such requirements.
SECTION 2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "AFFILIATE" shall mean (i) any entity that, directly
or indirectly, is controlled by the Company, (ii) any entity in which
the Company has a significant equity interest, (iii) an affiliate of
the Company, as defined in Rule 12b-2 promulgated under Section 12 of
the Exchange Act, and (iv) any entity in which the Company has at least
twenty percent (20%) of the combined voting power of the entity's
outstanding voting securities, in each case as designated by the Board
as being a participating employer in the Plan.
(b) "AWARD" shall mean any Option, Stock Appreciation
Right, Restricted Share Award, Restricted Share Unit, Performance
Award, Other Stock-Based Award or other award granted under the Plan,
whether singly, in combination, or in tandem, to a Participant by the
Committee (or the Board) pursuant to such terms, conditions,
restrictions and/or limitations, if any, as the Committee (or the
Board) may establish.
(c) "AWARD AGREEMENT" shall mean any written agreement,
contract, or other instrument or document evidencing any Award, which
may, but need not, be executed or acknowledged by a Participant.
(d) "BOARD" shall mean the board of directors of the
Company.
(e) "CAUSE" shall mean, unless otherwise defined in the
applicable Award Agreement, (i) a felony conviction of the Participant
or the failure of the Participant to contest prosecution for a felony,
or (ii) a Participant's willful misconduct or dishonesty, which is
directly and materially harmful to the business or reputation of the
Company or any Subsidiary or Affiliate. For purposes of this paragraph,
no act, or failure to act, on the Participant's part shall be
considered "willful" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that the
Participant's action or omission was in the best interest of the
Company. Any determination of Cause for purposes of the Plan or any
Award shall be made by the Committee in its sole discretion. Any such
determination shall be final and binding on a Participant.
(f) "CHANGE IN CONTROL" shall mean, unless otherwise
defined in the applicable Award Agreement, any of the following events:
(i) Any Person, including a "group" as defined
in Section 13(d)(3) of the Exchange Act, other than the
Company or a wholly-owned Subsidiary thereof or any employee
benefit plan of the Company or any of its Subsidiaries,
becomes the beneficial owner of the Company's securities
having twenty-five percent (25%) or more of the combined
voting power of the then outstanding securities of the Company
that may be cast for the election of directors of the Company
(other than as a result of an issuance of securities initiated
by the Company in the ordinary course of business); or
(ii) As the result of, or in connection with, any
cash tender or exchange offer, merger or other business
combination, sales of assets or contested election, or any
combination of the foregoing transactions, less than a
majority of the combined voting power of the then outstanding
securities of the Company or any successor corporation or
Person entitled to vote generally in the election of the
directors of the Company or such other corporation or Person
after such transaction are held in the aggregate by the
holders of the Company's securities entitled to vote generally
in the election of directors of the Company immediately prior
to such transaction; or
(iii) During any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Board cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company's shareholders, of each director of
the Company first elected during such period was approved by a
vote of at least two-thirds (2/3) of the directors of the
Company.
(g) "CODE" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
(h) "COMMITTEE" shall mean a committee of the Board
composed of not less than two Non-Employee Directors, each of whom
shall be a "Non-Employee Director" for purposes of Section 16 of the
Exchange Act and Rule 16b-3 promulgated thereunder and an "outside
director" for purposes of Section 162(m).
(i) "CONSULTANT" shall mean any consultant to the Company
or its Subsidiaries or Affiliates.
(j) "COVERED OFFICER" shall mean at any date (i) any
individual who, with respect to the previous taxable year of the
Company, was a "covered employee" of the Company within the meaning of
Section 162(m); provided, however, that the term "Covered Officer"
shall not include any such individual who is designated by the
Committee, in its discretion, at the time of any Award or at any
subsequent time, as reasonably expected not to be such a "covered
employee" with respect to the current taxable year of the Company and
(ii) any individual who is designated by the Committee, in its
discretion, at the time of any Award or at any subsequent time, as
reasonably expected to be such a "covered employee" with respect to the
current taxable year of the Company or with respect to the taxable year
of the Company in which any applicable Award will be paid or vested.
(k) "DIRECTOR" shall mean a member of the Board.
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(l) "DISABILITY" shall mean, unless otherwise defined in
the applicable Award Agreement, a disability that would qualify as a
total and permanent disability under the Company's then current
long-term disability plan.
(m) "EARLY RETIREMENT" shall mean, unless otherwise
defined in the applicable Award Agreement, retirement of a Participant
from the employ or service of the Company or any of its Subsidiaries or
Affiliates prior to age 65, with the express consent of the Company
and, in accordance with any applicable early retirement policy of the
Company then in effect or as may be approved by the Committee.
(n) "EMPLOYEE" shall mean a current or prospective
officer or employee of the Company or of any Subsidiary or Affiliate.
(o) "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
(p) "FAIR MARKET VALUE" with respect to the Shares, shall
mean, for purposes of a grant of an Award as of any date, (i) the
closing sales price of the Shares on the New York Stock Exchange, or
any other such exchange on which the shares are traded, on such date,
or in the absence of reported sales on such date, the closing sales
price on the immediately preceding date on which sales were reported or
(ii) in the event there is no public market for the Shares on such
date, the fair market value as determined, in good faith, by the
Committee in its sole discretion, and for purposes of a sale of a Share
as of any date, the actual sales price on that date.
(q) "INCENTIVE STOCK OPTION" shall mean an option to
purchase Shares from the Company that is granted under Section 6 of the
Plan and that is intended to meet the requirements of Section 422 of
the Code or any successor provision thereto.
(r) "NON-QUALIFIED STOCK OPTION" shall mean an option to
purchase Shares from the Company that is granted under Sections 6 or 10
of the Plan and is not intended to be an Incentive Stock Option.
(s) "NON-EMPLOYEE DIRECTOR" shall mean a member of the
Board who is not an officer or employee of the Company or any
Subsidiary or Affiliate.
(t) "NORMAL RETIREMENT" shall mean, unless otherwise
defined in the applicable Award Agreement, retirement of a Participant
from the employ or service of the Company or any of its Subsidiaries or
Affiliates on or after age 65.
(u) "OPTION" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option.
(v) "OPTION PRICE" shall mean the purchase price payable
to purchase one Share upon the exercise of an Option.
(w) "OTHER STOCK-BASED AWARD" shall mean any Award
granted under Sections 9 or 10 of the Plan.
(x) "OUTSIDE DIRECTOR" means, with respect to the grant
of an Award, a member of the Board then serving on the Committee.
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(y) "PARTICIPANT" shall mean any Employee, Director,
Consultant or other person who receives an Award under the Plan.
(z) "PERFORMANCE AWARD" shall mean any Award granted
under Section 8 of the Plan.
(aa) "PERSON" shall mean any individual, corporation,
partnership, limited liability company, associate, joint-stock company,
trust, unincorporated organization, government or political subdivision
thereof or other entity.
(bb) "POTENTIAL CHANGE IN CONTROL" shall mean, unless
otherwise defined in the applicable Award Agreement, either of the
following events:
(i) The approval by shareholders of an agreement
by the Company, the consummation of which would result in a
Change in Control of the Company; or
(ii) The acquisition of beneficial ownership,
directly or indirectly, by any Person or group (other than the
Company or a Subsidiary or any Company employee benefit plan
(including any trustee of such plan acting as such trustee))
of securities of the Company representing five percent (5%) or
more of the combined voting power of the Company's outstanding
securities and the adoption by the Committee of a resolution
to the effect that a Potential Change in Control of the
Company has occurred for purposes of this Plan.
(cc) "RESTRICTED SHARE" shall mean any Share granted under
Sections 7 or 10 of the Plan.
(dd) "RESTRICTED SHARE UNIT" shall mean any unit granted
under Sections 7 or 10 of the Plan.
(ee) "RETIREMENT" shall mean, unless otherwise defined in
the applicable Award Agreement, Normal or Early Retirement.
(ff) "SEC" shall mean the Securities and Exchange
Commission or any successor thereto.
(gg) "SECTION 16" shall mean Section 16 of the Exchange
Act and the rules promulgated thereunder and any successor provision
thereto as in effect from time to time.
(hh) "SECTION 162(m)" shall mean Section 162(m) of the
Code and the regulations promulgated thereunder and any successor or
provision thereto as in effect from time to time.
(ii) "SHARES" shall mean shares of the common stock,
$1.00 par value, of the Company.
(jj) "STOCK APPRECIATION RIGHT" OR "SAR" shall mean a
stock appreciation right granted under Sections 6 or 10 of the Plan
that entitles the holder to receive, with respect to each Share
encompassed by the exercise of such SAR, the amount determined by the
Committee and specified in an Award Agreement. In the absence of such a
determination, the holder shall be entitled to receive, with respect to
each Share encompassed by the exercise of such SAR, the excess of the
Fair Market Value on the date of exercise over the Fair Market Value on
the date of grant.
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(kk) "SUBSIDIARY" shall mean any Person (other than the
Company) of which a majority of its voting power or its equity
securities or equity interest is owned directly or indirectly by the
Company.
(ll) "SUBSTITUTE AWARDS" shall mean Awards granted solely
in assumption of, or in substitution for, outstanding awards previously
granted by a company acquired by the Company or with which the Company
combines.
(mm) "TANDEM SAR" shall mean an SAR that is granted under
Sections 6 or 10 of the Plan in relation to a particular Option and
that can be exercised only upon the surrender to the Company,
unexercised, of that portion of the Option to which the SAR relates.
SECTION 3. ADMINISTRATION
3.1 Authority of Committee. The Plan shall be administered by the
Committee, which shall be appointed by and serve at the pleasure of the Board;
provided, however, with respect to Awards to Outside Directors, all references
in the Plan to the Committee shall be deemed to be references to the Board.
Subject to the terms of the Plan and applicable law, and in addition to other
express powers and authorizations conferred on the Committee by the Plan, the
Committee shall have full power and authority in its discretion to: (i)
designate Participants; (ii) determine the type or types of Awards to be granted
to a Participant; (iii) determine the number of Shares to be covered by, or with
respect to which payments, rights, or other matters are to be calculated in
connection with Awards; (iv) determine the timing, terms, and conditions of any
Award; (v) accelerate the time at which all or any part of an Award may be
settled or exercised; (vi) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited, or suspended
and the method or methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vii) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(viii) interpret and administer the Plan and any instrument or agreement
relating to, or Award made under, the Plan; (ix) except to the extent prohibited
by Section 6.2, amend or modify the terms of any Award at or after grant with
the consent of the holder of the Award; (x) establish, amend, suspend, or waive
such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (xi) make any other determination
and take any other action that the Committee deems necessary or desirable for
the administration of the Plan, subject to the exclusive authority of the Board
under Section 14 hereunder to amend or terminate the Plan.
3.2 Committee Discretion Binding. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive, and binding upon all Persons, including the Company, any
Subsidiary or Affiliate, any Participant and any holder or beneficiary of any
Award.
3.3 Action by the Committee. The Committee shall select one of its
members as its Chairperson and shall hold its meetings at such times and places
and in such manner as it may determine. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be made by not
less than a majority of its members. Any decision or determination reduced to
writing and signed by all of the members of the Committee shall be fully
effective as if it had been made by a majority vote at a meeting duly called
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and held. The exercise of an Option or receipt of an Award shall be effective
only if an Award Agreement shall have been duly executed and delivered on behalf
of the Company following the grant of the Option or other Award. The Committee
may appoint a Secretary and may make such rules and regulations for the conduct
of its business as it shall deem advisable.
3.4 Delegation. Subject to the terms of the Plan and applicable
law, the Committee may delegate to one or more officers or managers of the
Company or of any Subsidiary or Affiliate, or to a committee of such officers or
managers, the authority, subject to such terms and limitations as the Committee
shall determine, to grant Awards to, or to cancel, modify or waive rights with
respect to, or to alter, discontinue, suspend, or terminate Awards held by
Participants who are not officers or directors of the Company for purposes of
Section 16 or who are otherwise not subject to such Section.
3.5 No Liability. No member of the Board or Committee shall be
liable for any action taken or determination made in good faith with respect to
the Plan or any Award granted hereunder.
SECTION 4. SHARES AVAILABLE FOR AWARDS
4.1 Shares Available. Subject to the provisions of Section 4.2
hereof, the stock to be subject to Awards under the Plan shall be the Shares of
the Company and the maximum number of Shares with respect to which Awards may be
granted under the Plan shall be 1,000,000, of which the number of Shares with
respect to which Incentive Stock Options may be granted shall be no more than
1,000,000. If, after the effective date of the Plan, any Shares covered by an
Award granted under this Plan, or to which such an Award relates, are forfeited,
or if such an Award is settled for cash or otherwise terminates, expires
unexercised, or is canceled without the delivery of Shares, then the Shares
covered by such Award, or to which such Award relates, or the number of Shares
otherwise counted against the aggregate number of Shares with respect to which
Awards may be granted, to the extent of any such settlement, forfeiture,
termination, expiration, or cancellation, shall again become Shares with respect
to which Awards may be granted. In the event that any Option or other Award
granted hereunder is exercised through the delivery of Shares or in the event
that withholding tax liabilities arising from such Award are satisfied by the
withholding of Shares by the Company, the number of Shares available for Awards
under the Plan shall be increased by the number of Shares so surrendered or
withheld. Notwithstanding the foregoing and subject to adjustment as provided in
Section 4.2 hereof, no Participant may receive Options or SARs under the Plan in
any calendar year that, taken together, relate to more than 200,000 Shares.
4.2 Adjustments. In the event that the Committee determines that
any dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such
that an adjustment is determined by the Committee, in its sole discretion, to be
appropriate, then the Committee shall, in such manner as it may deem equitable
(and, with respect to Incentive Stock Options, in such manner as is consistent
with Section 422 of the Code and the regulations thereunder and with respect to
Covered Officers, in such a manner as is consistent with Section 162(m)): (i)
adjust any or all of (1) the aggregate number of Shares or other securities of
the Company (or number and kind of other securities or property) with respect to
which Awards may be granted under the Plan; (2) the number of Shares or other
securities of the Company (or number and kind of other securities or property)
subject to outstanding Awards under the Plan; (3) the grant or exercise price
with respect to any Award under the Plan, provided that the number of shares
subject to any Award shall always be a whole number; and (4) the limits on the
number of Shares that may be granted to Participants under the Plan in any
calendar year; (ii) if deemed
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appropriate, provide for an equivalent award in respect of securities of the
surviving entity of any merger, consolidation or other transaction or event
having a similar effect; or (iii) if deemed appropriate, make provision for a
cash payment to the holder of an outstanding Award.
4.3 Substitute Awards. Any Shares issued by the Company as
Substitute Awards in connection with the assumption or substitution of
outstanding grants from any acquired corporation shall not reduce the Shares
available for Awards under the Plan.
4.4 Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of authorized
and unissued Shares or of issued Shares which have been reacquired by the
Company.
SECTION 5. ELIGIBILITY
Any Employee, Director or Consultant shall be eligible to be designated
a Participant; provided, however, that Outside Directors shall only be eligible
to receive Awards granted consistent with Section 10.
SECTION 6. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
6.1 Grant. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Participants to whom
Options and SARs shall be granted, the number of Shares subject to each Award,
the exercise price and the conditions and limitations applicable to the exercise
of each Option and SAR. An Option may be granted with or without a Tandem SAR.
An SAR may be granted with or without a related Option. The Committee shall have
the authority to grant Incentive Stock Options, or to grant Non-Qualified Stock
Options, or to grant both types of Options. However, reload options may not be
granted (i.e., evergreen grants) under the Plan. In the case of Incentive Stock
Options or Tandem SARs related to such Options, the terms and conditions of such
grants shall be subject to and comply with such rules as may be prescribed by
Section 422 of the Code, as from time to time amended, and any regulations
implementing such statute. A person who has been granted an Option or SAR under
this Plan may be granted additional Options or SARs under the Plan if the
Committee shall so determine; provided, however, that to the extent the
aggregate Fair Market Value (determined at the time the Incentive Stock Option
or Tandem SAR related thereto is granted) of the Shares with respect to which
all Incentive Stock Options or Tandem SARs related to such Option are
exercisable for the first time by an Employee during any calendar year (under
all plans described in subsection (d) of Section 422 of the Code of the
Employee's employer corporation and its parent and Subsidiaries) exceeds
$100,000, such Options shall be treated as Non-Qualified Stock Options.
6.2 Price. The Committee in its sole discretion shall establish
the Option Price at the time each Option is granted. Except in the case of
Substitute Awards, the Option Price of an Option may not be less than one
hundred percent (100%) of the Fair Market Value of the Shares with respect to
which the Option is granted on the date of grant of such Option. Notwithstanding
the foregoing and except as permitted by the provisions of Section 4.2 and
Section 14 hereof, the Committee shall not have the power to (i) amend the terms
of previously granted Options to reduce the Option Price of such Options, or
(ii) cancel such Options and grant substitute Options with a lower Option Price
than the cancelled Options. Except with respect to Substitute Awards, SARs may
not be granted at a price less than the Fair Market Value of a Share on the date
of grant.
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6.3 Term. Subject to the Committee's authority under Section 3.1
and the provisions of Section 6.6, each Option and SAR and all rights and
obligations thereunder shall expire on the date determined by the Committee and
specified in the Award Agreement. The Committee shall be under no duty to
provide terms of like duration for Options or SARs granted under the Plan.
Notwithstanding the foregoing, no Option or Tandem SAR that relates to such
Option shall be exercisable after the expiration of ten (10) years from the date
such Option or SAR was granted.
6.4 Exercise.
(a) Each Option and SAR shall be exercisable at such times
and subject to such terms and conditions as the Committee may, in its
sole discretion, specify in the applicable Award Agreement or
thereafter. The Committee shall have full and complete authority to
determine, subject to Section 6.6 herein, whether an Option or SAR will
be exercisable in full at any time or from time to time during the term
of the Option or SAR, or to provide for the exercise thereof in such
installments, upon the occurrence of such events and at such times
during the term of the Option or SAR as the Committee may determine.
(b) The Committee may impose such conditions with respect
to the exercise of Options, including without limitation, any relating
to the application of federal, state or foreign securities laws or the
Code, as it may deem necessary or advisable. The exercise of any Option
granted hereunder shall be effective only at such time as the sale of
Shares pursuant to such exercise will not violate any state or federal
securities or other laws.
(c) An Option or SAR may be exercised in whole or in part
at any time, with respect to whole Shares only, within the period
permitted thereunder for the exercise thereof, and shall be exercised
by written notice of intent to exercise the Option or SAR, delivered to
the Company at its principal office, and payment in full to the Company
at the direction of the Committee of the amount of the Option Price for
the number of Shares with respect to which the Option is then being
exercised. A Tandem SAR that is related to an Incentive Stock Option
may be exercised only to the extent that the related Option is
exercisable and only when the Fair Market Value exceeds the Option
Price of the related Option. The exercise of either an Option or Tandem
SAR shall result in the termination of the other to the extent of the
number of Shares with respect to which either the Option or Tandem SAR
is exercised.
(d) Payment of the Option Price shall be made in cash or
cash equivalents, or, at the discretion of the Committee, (i) by
transfer, either actually or by attestation, to the Company of Shares
that have been held by the Participant for such period as may be
determined by the Committee valued at the Fair Market Value of such
Shares on the date of exercise (or next succeeding trading date, if the
date of exercise is not a trading date), together with any applicable
withholding taxes, such transfer to be upon such terms and conditions
as determined by the Committee, or (ii) by a combination of such cash
(or cash equivalents) and such Shares; provided, however, that the
optionee shall not be entitled to tender Shares pursuant to successive,
substantially simultaneous exercises of an Option or any other stock
option of the Company. Subject to applicable securities laws, an Option
may also be exercised by delivering a notice of exercise of the Option
and simultaneously selling the Shares thereby acquired, pursuant to a
brokerage or similar agreement approved in advance by proper officers
of the Company, using the proceeds of such sale as payment of the
Option Price, together with any applicable withholding taxes. Until the
optionee has been issued the Shares subject to such exercise, he or she
shall possess no rights as a stockholder with respect to such Shares.
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(e) At the Committee's discretion, the amount payable as
a result of the exercise of an SAR may be settled in cash, Shares, or a
combination of cash and Shares. A fractional Share shall not be
deliverable upon the exercise of an SAR but a cash payment will be made
in lieu thereof.
6.5 Ten Percent Stock Rule. Notwithstanding any other provisions
in the Plan, if at the time an Option or SAR is otherwise to be granted pursuant
to the Plan the optionee or rights holder owns directly or indirectly (within
the meaning of Section 424(d) of the Code) Shares of the Company possessing more
than ten percent (10%) of the total combined voting power of all classes of
Stock of the Company or its parent or Subsidiary or Affiliate corporations
(within the meaning of Section 422(b)(6) of the Code), then any Incentive Stock
Option or Tandem SAR to be granted to such optionee or rights holder pursuant to
the Plan shall satisfy the requirement of Section 422(c)(5) of the Code, and the
Option Price shall be not less than one hundred ten percent (110%) of the Fair
Market Value of the Shares of the Company, and such Option by its terms shall
not be exercisable after the expiration of five (5) years from the date such
Option is granted.
SECTION 7. RESTRICTED SHARES AND RESTRICTED SHARE UNITS
7.1 Grant.
(a) Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Participants to
whom Restricted Shares and Restricted Share Units shall be granted, the
number of Restricted Shares and/or the number of Restricted Share Units
to be granted to each Participant, the duration of the period during
which, and the conditions under which, the Restricted Shares and
Restricted Share Units may be forfeited to the Company, and the other
terms and conditions of such Awards. The Restricted Share and
Restricted Share Unit Awards shall be evidenced by Award Agreements in
such form as the Committee shall from time to time approve, which
agreements shall comply with and be subject to the terms and conditions
provided hereunder and any additional terms and conditions established
by the Committee that are consistent with the terms of the Plan.
(b) Each Restricted Share and Restricted Share Unit Award
made under the Plan shall be for such number of Shares as shall be
determined by the Committee and set forth in the Award Agreement
containing the terms of such Restricted Share or Restricted Share Unit
Award. Such agreement shall set forth a period of time during which the
grantee must remain in the continuous employment of the Company in
order for the forfeiture and transfer restrictions to lapse. If the
Committee so determines, the restrictions may lapse during such
restricted period in installments with respect to specified portions of
the Shares covered by the Restricted Share or Restricted Share Unit
Award. The Award Agreement may also, in the discretion of the
Committee, set forth performance or other conditions that will subject
the Shares to forfeiture and transfer restrictions. The Committee may,
at its discretion, waive all or any part of the restrictions applicable
to any or all outstanding Restricted Share and Restricted Share Unit
Awards.
7.2 Delivery of Shares and Transfer Restrictions. At the time of a
Restricted Share Award, a certificate representing the number of Shares awarded
thereunder shall be registered in the name of the grantee. Such certificate
shall be held by the Company or any custodian appointed by the Company for the
account of the grantee subject to the terms and conditions of the Plan, and
shall bear such a legend setting forth the restrictions imposed thereon as the
Committee, in its discretion, may determine. Unless otherwise provided in the
applicable Award Agreement, the grantee shall have all rights of a shareholder
with respect to the Restricted Shares, including the right to receive dividends
and the right to vote such Shares, subject to
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the following restrictions: (i) the grantee shall not be entitled to delivery of
the stock certificate until the expiration of the restricted period and the
fulfillment of any other restrictive conditions set forth in the Award Agreement
with respect to such Shares; (ii) none of the Shares may be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or disposed of during
such restricted period or until after the fulfillment of any such other
restrictive conditions; and (iii) except as otherwise determined by the
Committee at or after grant, all of the Shares shall be forfeited and all rights
of the grantee to such Shares shall terminate, without further obligation on the
part of the Company, unless the grantee remains in the continuous employment of
the Company for the entire restricted period in relation to which such Shares
were granted and unless any other restrictive conditions relating to the
Restricted Share Award are met. Any Shares, any other securities of the Company
and any other property (except for cash dividends) distributed with respect to
the Shares subject to Restricted Share Awards shall be subject to the same
restrictions, terms and conditions as such Restricted Shares.
7.3 Termination of Restrictions. At the end of the restricted
period and provided that any other restrictive conditions of the Restricted
Share Award are met, or at such earlier time as otherwise determined by the
Committee, all restrictions set forth in the Award Agreement relating to the
Restricted Share Award or in the Plan shall lapse as to the Restricted Shares
subject thereto, and a stock certificate for the appropriate number of Shares,
free of the restrictions and restricted stock legend, shall be delivered to the
Participant or the Participant's beneficiary or estate, as the case may be.
7.4 Payment of Restricted Share Units. Each Restricted Share Unit
shall have a value equal to the Fair Market Value of a Share. Restricted Share
Units shall be paid in cash, Shares, other securities or other property, as
determined in the sole discretion of the Committee, upon the lapse of the
restrictions applicable thereto, or otherwise in accordance with the applicable
Award Agreement. Unless otherwise determined in the applicable Award Agreement,
a Participant shall be credited with dividend equivalents on any vested
Restricted Share Units credited to the Participant's account at the time of any
payment of dividends to shareholders on Shares. The amount of any such dividend
equivalents shall equal the amount that would have been payable to the
Participant as a shareholder in respect of a number of Shares equal to the
number of vested Restricted Share Units then credited to the Participant. Any
such dividend equivalents shall be credited to the Participant's account as of
the date on which such dividend would have been payable and shall be converted
into additional Restricted Share Units (which shall be immediately vested) based
upon the Fair Market Value of a Share on the date of such crediting. No dividend
equivalents shall be paid in respect of Restricted Share Units that are not yet
vested. Except as otherwise determined by the Committee at or after grant,
Restricted Share Units may not be sold, assigned, transferred, pledged,
hypothecated or otherwise encumbered or disposed of, and all Restricted Share
Units and all rights of the grantee to such Restricted Share Units shall
terminate, without further obligation on the part of the Company, unless the
grantee remains in continuous employment of the Company for the entire
restricted period in relation to which such Restricted Share Units were granted
and unless any other restrictive conditions relating to the Restricted Share
Unit Award are met.
SECTION 8. PERFORMANCE AWARDS
8.1 Grant. The Committee shall have sole and complete authority to
determine the Participants who shall receive a Performance Award, which shall
consist of a right that is (i) denominated in cash or Shares, (ii) valued, as
determined by the Committee, in accordance with the achievement of such
performance goals during such performance periods as the Committee shall
establish, and (iii) payable at such time and in such form as the Committee
shall determine.
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8.2 Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the performance goals
to be achieved during any performance period, the length of any performance
period, the amount of any Performance Award and the amount and kind of any
payment or transfer to be made pursuant to any Performance Award, and may amend
specific provisions of the Performance Award; provided, however, that such
amendment may not adversely affect existing Performance Awards made within a
performance period commencing prior to implementation of the amendment.
8.3 Payment of Performance Awards. Performance Awards may be paid
in a lump sum or in installments following the close of the performance period
or, in accordance with the procedures established by the Committee, on a
deferred basis. Termination of employment prior to the end of any performance
period, other than for reasons of death or Disability, will result in the
forfeiture of the Performance Award, and no payments will be made. A
Participant's rights to any Performance Award may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or disposed of in any
manner, except by will or the laws of descent and distribution, and/or except as
the Committee may determine at or after grant.
SECTION 9. OTHER STOCK-BASED AWARDS
The Committee shall have the authority to determine the Participants
who shall receive an Other Stock-Based Award, which shall consist of any right
that is (i) not an Award described in Sections 6 and 7 above and (ii) an Award
of Shares or an Award denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Shares (including, without
limitation, securities convertible into Shares), as deemed by the Committee to
be consistent with the purposes of the Plan. Subject to the terms of the Plan
and any applicable Award Agreement, the Committee shall determine the terms and
conditions of any such Other Stock-Based Award.
SECTION 10. NON-EMPLOYEE DIRECTOR AND OUTSIDE DIRECTOR AWARDS
10.1 The Board may provide that all or a portion of a Non-Employee
Director's annual retainer, meeting fees and/or other awards or compensation as
determined by the Board, be payable (either automatically or at the election of
a Non-Employee Director) in the form of Non-Qualified Stock Options, Restricted
Shares, Restricted Share Units and/or Other Stock-Based Awards, including
unrestricted Shares. The Board shall determine the terms and conditions of any
such Awards, including the terms and conditions which shall apply upon a
termination of the Non-Employee Director's service as a member of the Board, and
shall have full power and authority in its discretion to administer such Awards,
subject to the terms of the Plan and applicable law.
10.2 The Board may also grant Awards to Outside Directors pursuant
to the terms of the Plan, including any Award described in Sections 6, 7 and 9
above. With respect to such Awards, all references in the Plan to the Committee
shall be deemed to be references to the Board.
SECTION 11. PROVISIONS APPLICABLE TO COVERED OFFICERS AND PERFORMANCE AWARDS
11.1 Notwithstanding anything in the Plan to the contrary, unless
the Committee determines that a Performance Award to be granted to a Covered
Officer should not qualify as "performance-based compensation" for purposes of
Section 162(m), Performance Awards granted to Covered Officers shall be subject
to the terms and provisions of this Section 11.
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11.2 The Committee may grant Performance Awards to Covered Officers
based solely upon the attainment of performance targets related to one or more
performance goals selected by the Committee from among the goals specified
below. For the purposes of this Section 11, performance goals shall be limited
to one or more of the following Company, Subsidiary, operating unit or division
financial performance measures:
(a) earnings before interest, taxes, depreciation and/or
amortization;
(b) operating income or profit;
(c) operating efficiencies;
(d) return on equity, assets, capital, capital employed,
or investment;
(e) after-tax operating income;
(f) net income;
(g) earnings or book value per Share;
(h) cash flow(s);
(i) total sales or revenues or sales or revenues per
employee;
(j) production (separate work units or SWUs);
(k) stock price or total shareholder return;
(l) dividends; or
(m) strategic business objectives, consisting of one or
more objectives based on meeting specified cost targets, business
expansion goals, and goals relating to acquisitions or divestitures;
or any combination thereof. Each goal may be expressed on an absolute
and/or relative basis, may be based on or otherwise employ comparisons
based on internal targets, the past performance of the Company or any
Subsidiary, operating unit or division of the Company and/or the past
or current performance of other companies, and in the case of
earnings-based measures, may use or employ comparisons relating to
capital, shareholders' equity and/or Shares outstanding, or to assets
or net assets. The Committee may appropriately adjust any evaluation of
performance under criteria set forth in this Section 11.2 to exclude
any of the following events that occurs during a performance period:
(i) asset write-downs, (ii) litigation or claim judgments or
settlements, (iii) the effect of changes in tax law, accounting
principles or other such laws or provisions affecting reported results,
(iv) accruals for reorganization and restructuring programs and (v) any
extraordinary non-recurring items as described in Accounting Principles
Board Opinion No. 30 and/or in management's discussion and analysis of
financial condition and results of operations appearing in the
Company's annual report to stockholders for the applicable year.
11.3 With respect to any Covered Officer, the maximum annual number
of Shares in respect of which all Performance Awards may be granted under
Section 8 of the Plan is 200,000 and the maximum
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amount of all Performance Awards that are settled in cash and that may be
granted under Section 8 of the Plan in any year is $2,250,000.
11.4 To the extent necessary to comply with Section 162(m), with
respect to grants of Performance Awards, no later than 90 days following the
commencement of each performance period (or such other time as may be required
or permitted by Section 162(m)), the Committee shall, in writing, (1) select the
performance goal or goals applicable to the performance period, (2) establish
the various targets and bonus amounts which may be earned for such performance
period, and (3) specify the relationship between performance goals and targets
and the amounts to be earned by each Covered Officer for such performance
period. Following the completion of each performance period, the Committee shall
certify in writing whether the applicable performance targets have been achieved
and the amounts, if any, payable to Covered Officers for such performance
period. In determining the amount earned by a Covered Officer for a given
performance period, subject to any applicable Award Agreement, the Committee
shall have the right to reduce (but not increase) the amount payable at a given
level of performance to take into account additional factors that the Committee
may deem relevant to the assessment of individual or corporate performance for
the performance period.
11.5 Unless otherwise expressly stated in the relevant Award
Agreement, each Award granted to a Covered Officer under the Plan is intended to
be performance-based compensation within the meaning of Section 162(m).
Accordingly, unless otherwise determined by the Committee, if any provision of
the Plan or any Award Agreement relating to such an Award does not comply or is
inconsistent with Section 162(m), such provision shall be construed or deemed
amended to the extent necessary to conform to such requirements, and no
provision shall be deemed to confer upon the Committee discretion to increase
the amount of compensation otherwise payable to a Covered Officer in connection
with any such Award upon the attainment of the performance criteria established
by the Committee.
SECTION 12. TERMINATION OF EMPLOYMENT
The Committee shall have the full power and authority to determine the
terms and conditions that shall apply to any Award upon a termination of
employment with the Company, its Subsidiaries and Affiliates, including a
termination by the Company with or without Cause, by a Participant voluntarily,
or by reason of death, Disability or Retirement, and may provide such terms and
conditions in the Award Agreement or in such rules and regulations as it may
prescribe.
SECTION 13. CHANGE IN CONTROL AND POTENTIAL CHANGE IN CONTROL
Upon a Change in Control, all outstanding Awards shall vest, become
immediately exercisable or payable or have all restrictions lifted. Upon a
Potential Change in Control, all outstanding Awards shall vest, become
immediately exercisable or payable or have all restrictions lifted, but only if
and to the extent so determined by the Committee or the Board at or after grant
(subject to any right of approval expressly reserved by the Committee or the
Board).
SECTION 14. AMENDMENT AND TERMINATION
14.1 Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to
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comply with any tax or regulatory requirement for which or with which the Board
deems it necessary or desirable to comply.
14.2 Amendments to Awards. Subject to the restrictions of Section
6.2, the Committee may waive any conditions or rights under, amend any terms of,
or alter, suspend, discontinue, cancel or terminate, any Award theretofore
granted, prospectively or retroactively; provided that any such waiver,
amendment, alteration, suspension, discontinuance, cancellation or termination
that would materially and adversely affect the rights of any Participant or any
holder or beneficiary of any Award theretofore granted shall not to that extent
be effective without the consent of the affected Participant, holder, or
beneficiary.
14.3 Adjustments of Awards Upon the Occurrence of Certain Unusual
or Nonrecurring Events. The Committee is hereby authorized to make adjustments
in the terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4.2 hereof) affecting the Company, any
Subsidiary or Affiliate, or the financial statements of the Company or any
Subsidiary or Affiliate, or of changes in applicable laws, regulations, or
accounting principles, whenever the Committee determines that such adjustments
are appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
SECTION 15. GENERAL PROVISIONS
15.1 Limited Transferability of Awards. Except as otherwise
provided in the Plan, no Award shall be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by a Participant, except by will or
the laws of descent and distribution and/or as may be provided by the Committee
in its discretion, at or after grant, in the Award Agreement. No transfer of an
Award by will or by laws of descent and distribution shall be effective to bind
the Company unless the Company shall have been furnished with written notice
thereof and an authenticated copy of the will and/or such other evidence as the
Committee may deem necessary or appropriate to establish the validity of the
transfer.
15.2 Dividend Equivalents. In the sole and complete discretion of
the Committee, an Award may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a
current or deferred basis. All dividend or dividend equivalents which are not
paid currently may, at the Committee's discretion, accrue interest, be
reinvested into additional Shares, or in the case of dividends or dividend
equivalents credited in connection with Performance Awards, be credited as
additional Performance Awards and paid to the Participant if and when, and to
the extent that, payment is made pursuant to such Award. The total number of
Shares available for grant under Section 4 shall not be reduced to reflect any
dividends or dividend equivalents that are reinvested into additional Shares or
credited as Performance Awards.
15.3 No Rights to Awards. No Person shall have any claim to be
granted any Award, and there is no obligation for uniformity of treatment of
Participants or holders or beneficiaries of Awards. The terms and conditions of
Awards need not be the same with respect to each Participant.
15.4 Share Certificates. All certificates for Shares or other
securities of the Company or any Subsidiary or Affiliate delivered under the
Plan pursuant to any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem advisable under
the Plan or the rules, regulations and other requirements of the SEC or any
state securities commission or regulatory authority, any stock exchange or other
market upon which such Shares or other securities are then
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listed, and any applicable Federal or state laws, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
15.5 Withholding. A Participant may be required to pay to the
Company or any Subsidiary or Affiliate and the Company or any Subsidiary or
Affiliate shall have the right and is hereby authorized to withhold from any
Award, from any payment due or transfer made under any Award or under the Plan,
or from any compensation or other amount owing to a Participant the amount (in
cash, Shares, other securities, other Awards or other property) of any
applicable withholding or other tax-related obligations in respect of an Award,
its exercise or any other transaction involving an Award, or any payment or
transfer under an Award or under the Plan and to take such other action as may
be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. The Committee may provide for additional cash payments to
holders of Options to defray or offset any tax arising from the grant, vesting,
exercise or payment of any Award.
15.6 Award Agreements. Each Award hereunder shall be evidenced by
an Award Agreement that shall be delivered to the Participant and may specify
the terms and conditions of the Award and any rules applicable thereto. In the
event of a conflict between the terms of the Plan and any Award Agreement, the
terms of the Plan shall prevail. The Committee shall, subject to applicable law,
determine the date an Award is deemed to be granted. The Committee or, except to
the extent prohibited under applicable law, its delegate(s) may establish the
terms of agreements or other documents evidencing Awards under this Plan and
may, but need not, require as a condition to any such agreement's or document's
effectiveness that such agreement or document be executed by the Participant,
including by electronic signature or other electronic indication of acceptance,
and that such Participant agree to such further terms and conditions as
specified in such agreement or document. The grant of an Award under this Plan
shall not confer any rights upon the Participant holding such Award other than
such terms, and subject to such conditions, as are specified in this Plan as
being applicable to such type of Award (or to all Awards) or as are expressly
set forth in the agreement or other document evidencing such Award.
15.7 No Limit on Other Compensation Arrangements. Nothing contained
in the Plan shall prevent the Company or any Subsidiary or Affiliate from
adopting or continuing in effect other compensation arrangements, which may, but
need not, provide for the grant of Options, Restricted Shares, Restricted Share
Units, Other Stock-Based Awards or other types of Awards provided for hereunder.
15.8 No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Subsidiary or Affiliate. Further, the Company or a Subsidiary or
Affiliate may at any time dismiss a Participant from employment, free from any
liability or any claim under the Plan, unless otherwise expressly provided in an
Award Agreement.
15.9 No Rights as Stockholder. Subject to the provisions of the
Plan and the applicable Award Agreement, no Participant or holder or beneficiary
of any Award shall have any rights as a shareholder with respect to any Shares
to be distributed under the Plan until such person has become a holder of such
Shares. Notwithstanding the foregoing, in connection with each grant of
Restricted Shares hereunder, the applicable Award Agreement shall specify if and
to what extent the Participant shall not be entitled to the rights of a
shareholder in respect of such Restricted Shares.
15.10 Governing Law. The validity, construction and effect of the
Plan and any rules and regulations relating to the Plan and any Award Agreement
shall be determined in accordance with the laws of the State of Tennessee
without giving effect to conflicts of laws principles.
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15.11 Severability. If any provision of the Plan or any Award is, or
becomes, or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
15.12 Other Laws. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation (including
applicable non-U.S. laws or regulations) or entitle the Company to recover the
same under Exchange Act Section 16(b), and any payment tendered to the Company
by a Participant, other holder or beneficiary in connection with the exercise of
such Award shall be promptly refunded to the relevant Participant, holder, or
beneficiary.
15.13 No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Subsidiary or Affiliate and a
Participant or any other Person. To the extent that any Person acquires a right
to receive payments from the Company or any Subsidiary or Affiliate pursuant to
an Award, such right shall be no greater than the right of any unsecured general
creditor of the Company or any Subsidiary or Affiliate.
15.14 No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated or otherwise eliminated.
15.15 Headings. Headings are given to the sections and subsections
of the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
SECTION 16. TERM OF THE PLAN
16.1 Effective Date. The Plan shall be effective as of June 23,
2005, provided it has been approved by the Company's shareholders.
16.2 Expiration Date. No new Awards shall be granted under the Plan
after the tenth (10th) anniversary of the Effective Date. Unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any Award
granted hereunder may, and the authority of the Board or the Committee to amend,
alter, adjust, suspend, discontinue, or terminate any such Award or to waive any
conditions or rights under any such Award shall, continue after the tenth (10th)
anniversary of the Effective Date.
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