EXHIBIT 10.1
ROBBINS & MYERS, INC.
2004 STOCK INCENTIVE PLAN AS AMENDED
SECTION 1. PURPOSE
The purpose of the Plan is to promote the long-term success of the Company
by providing financial incentives to persons who are in positions to make
significant contributions toward the Company's success. The Plan is designed to
attract individuals of outstanding ability to employment or other service with
the Company and its subsidiaries and to encourage them to acquire a proprietary
interest in the Company through stock ownership, to continue in the service of
the Company and its subsidiaries, and to render superior performance during
their period of employment or other service with the Company.
SECTION 2. DEFINITIONS
Wherever the following capitalized terms are used in this Plan, they shall
have the meanings specified below.
(a) "Award" means an award of an Option, Restricted Share Award, Share
Unit Award, Performance Award or Share Award granted under the Plan.
(b) "Award Agreement" means an agreement entered into between the Company
and a Participant setting forth the terms and conditions of an Award granted to
a Participant.
(c) "Board" means the Board of Directors of the Company.
(d) "Change of Control" means and shall be deemed to have occurred on (i)
the date upon which the Company is provided a copy of a Schedule 13D, filed
pursuant to Section 13(d) of the Securities Exchange Act of 1934 indicating that
a group or person, as defined in Rule 13d-3 under said Act, has become the
beneficial owner of 20% or more of the outstanding Voting Shares or the date
upon which the Company first learns that a person or group has become the
beneficial owner of 20% or more of the outstanding Voting Shares if a Schedule
13D is not filed; (ii) the date of a change in the composition of the Board such
that individuals who were members of the Board on the date two years prior to
such change (or who were subsequently elected to fill a vacancy in the Board, or
were subsequently nominated for election by the Company's shareholders, by the
affirmative vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such two year period) no longer
constitute a majority of the Board; (iii) the date the shareholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
Voting Shares of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into Voting
Shares of the surviving entity) at least 80% of the total voting power
represented by the Voting Shares of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or (iv) the date
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 all or substantially all the Company's assets.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the committee referred to in Section 4.
(g) "Common Shares" means the common shares, without par value, of the
Company.
(h) "Company" means Robbins & Myers, Inc., an Ohio corporation, and when
used with reference to employment of a Participant or services as a director,
Company includes any Subsidiary of the Company.
(i) "Date of Grant" means the date on which an Award under the Plan is
made by the Committee, or such later date as the Committee may specify to be the
effective date of the Award.
(j) "Disability" means that because of an injury or sickness the
Participant is unable to perform any occupation for which the Participant is
qualified, or may reasonably become qualified, by reason of education, training,
or experience, whether or not a job involving such occupation is available with
the Company.
(k) "Eligible Person" means any person who is an employee, officer, or
director of the Company or any Subsidiary or any person who is determined by the
Committee to be a prospective employee, officer, or director of the Company or
any Subsidiary and who becomes such an employee, officer or director within six
months of the Date of Grant.
(l) "Fair Market Value" means the average of the high and low prices of a
Common Share on the date when the value of a Common Share is to be determined,
as reported on the New York Stock Exchange-Composite Transactions Tape; or, if
no sale of Common Shares is reported on such date, then the next preceding date
on which a sale occurred; or if the Common Shares are no longer listed on such
exchange, the determination of such value shall be made by the Committee in
accordance with applicable provisions of the Code and related regulations
promulgated under the Code.
(m) "Gross Misconduct" means engaging in any act or acts involving conduct
which violates Company policy or is illegal and which results, directly or
indirectly, in personal gain to the individual involved at the expense of the
Company or a Subsidiary.
(n) "Incentive Stock Option" means an Option that is an Incentive Stock
Option, as defined in Section 422 of the Code.
(o) "Nonqualified Stock Option" means an Option that is not an Incentive
Stock Option.
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(p) "Option" means a right to purchase Common Shares at a specified price;
"Optionee" means the holder of an Option.
(q) "Participant" means an Eligible Person who holds an outstanding Award.
(r) "Performance Award" means an award under Section 8 under which a
Participant has a right to receive Restricted Shares, Common Shares, cash, or a
combination thereof, contingent upon the attainment of performance objectives
determined in the discretion of the Committee as more fully set forth at Section
8.
(s) "Plan" means the Robbins & Myers, Inc. 2004 Stock Incentive Plan as
set forth herein and as amended from time to time.
(t) "Restricted Share Award" means an Award under Section 7 under which a
Participant receives Common Shares that are nontransferable and subject to
substantial risk of forfeiture until specific conditions are met; "Restricted
Shares" means Common Shares, which are the subject of a Restricted Share Award.
(u) "Subsidiary" means an entity (whether or not a corporation) of which
more than 50% of the voting stock in the case of a corporation, or other equity
interest having voting power in the case of an entity that is not a corporation,
is owned or controlled, directly or indirectly, by the Company.
(v) "Section 162(m) Award" means any Award that is intended to qualify for
the performance-based compensation exemption under Section 162(m)(4)(c) of the
Code and the regulations promulgated thereunder.
(w) "Share Award" means an Award under Section 10 entitling a Participant
to Common Shares that are free of transfer restrictions and forfeiture
conditions.
(x) "Share Unit Award" means an Award under Section 9 entitling a
Participant to a payment of a unit value based on the Fair Market Value of a
Common Share.
(y) "Voting Shares" means any securities of the Company, which vote
generally in the election of directors of the Company.
SECTION 3. COMMON SHARES SUBJECT TO THE PLAN
Section 3.1. Aggregate Limitation. The maximum number of Common Shares
that may be issued pursuant to the Plan shall be One Million Two Hundred
Thousand (1,200,000), subject to adjustment in accordance with Section 3.3. The
Common Shares that may be issued pursuant to the Plan may be authorized and
unissued Common Shares or Common Shares held in the Company's treasury. To the
extent that any Award payable in Common Shares is forfeited, cancelled, returned
to the Company for failure to satisfy vesting requirements or upon the
occurrence of other forfeiture events, or otherwise terminates without payment
being made thereunder, the Common Shares covered thereby will no longer be
charged against the foregoing
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maximum share limitation and may again be made subject to Awards under the Plan.
In addition, if any Common Shares are exchanged by a Participant or withheld
from a Participant as full or partial payment to the Company of the exercise
price or tax withholding upon exercise or payment of an Award, then the number
of Common Shares that shall be charged against the maximum number of Common
shares that may be issued pursuant to the Plan shall be reduced by the number of
Common Shares so exchanged or withheld. Any Awards settled in cash shall not be
counted against the share limitation set forth in this Section 3.1.
Section 3.2. Per Participant Limitations. The maximum number of Common
Shares that may be granted as Awards to a Participant in any fiscal year of the
Company is as follows:
(a) With respect to Options, no more than 100,000 Common Shares may be
subject to options granted in the year, subject to adjustment in accordance with
Section 3.3;
(b) With respect to Restricted Common Shares (not issued in connection
with Performance Awards), no more than $500,000 in Common Shares, based on the
Fair Market Value of the shares on the Date of Grant, may be awarded in the
year;
(c) With respect to Performance Awards, no more than $1,000,000 in Common
Shares, based on the Fair Market Value of the shares on the Date of Grant, may
be awarded in the year;
(d) With respect to Share Unit Awards, no more than $500,000 in Share Unit
Awards, based on the Fair Market Value of a Common Share on the Date of Grant,
may be awarded in the year; and
(e) With respect to Stock Awards, no more than $500,000 in Common Shares,
based on the Fair Market Value of the shares on the Date of Grant, may be
awarded in the year.
Section 3.3. Adjustment in Share Limitations. If there shall occur any
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other distribution with respect to the Common Shares, or any merger,
reorganization, consolidation or other change in corporate structure affecting
the Common Shares, the Committee may, in the manner and to the extent that it
deems appropriate and equitable to the Participants and consistent with the
terms of this Plan, cause an adjustment to be made in (i) the maximum number and
kind of shares provided in Section 3.1, (ii) the maximum number and kind of
shares or units set forth in Sections 3.2, (iii) the number and kind of Common
Shares, units, or other rights subject to then outstanding Awards, (iv) the
price for each share or unit or other right subject to then outstanding Awards,
(v) the performance measures or goals relating to an Award and (v) any other
terms of an Award that are affected by the event. Notwithstanding the foregoing,
in the case of Incentive Stock Options, any such adjustments shall be made in a
manner consistent with the requirements of Section 424(a) of the Code.
Section 3.4. Fractional Common Shares. No right to purchase, or to be
issued fractional Common Shares, shall result from any adjustment in Awards
pursuant to this Section
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3. In the case of any such adjustment, the Common Shares subject to the Award
shall be rounded down to the nearest whole share.
Section 3.5. Merger or Other Reorganization. Any other provision of the
Plan or an Award Agreement to the contrary notwithstanding, in the event the
Company is a party to a merger or other reorganization, outstanding Awards shall
be subject to the agreement of merger or reorganization. Such agreement may
provide, without limitation, for the assumption of outstanding Awards by the
surviving corporation or its parent, for their continuation by the Company (if
the Company is a surviving corporation), for accelerated vesting and accelerated
expiration, or for settlement in cash.
SECTION 4. ADMINISTRATION
Section 4.1. Committee. The Plan shall be administered by a Committee of
the Board, comprised of three or more directors, who shall from time to time be
appointed by, and serve at the pleasure of, the Board. Solely to the extent
deemed necessary or advisable by the Board, each director serving on the
Committee shall be (i) a "non-employee director" within the meaning of Rule
16b-3 promulgated under the Securities Exchange Act of 1934, (ii) an "outside
director" within the meaning of Code Section 162(m), and (iii) an "independent
director" within the meaning of rules adopted by the New York Stock Exchange.
Section 4.2. Authority. The Committee shall have and exercise all the
power and authority granted to it under the Plan. Subject to the provisions of
the Plan, the Committee shall have authority in its sole discretion from time to
time (i) to designate from Eligible Persons the persons to whom Awards are
granted; (ii) to prescribe such limitations, restrictions and conditions upon
any such awards as the Committee shall deem appropriate, including establishing
and administering performance measures in Section 11, and certifying whether the
performance measures have been met; (iii) to interpret the Plan and to adopt,
amend and rescind rules and regulations relating to the Plan; and (iv) to make
all other determinations and take all other actions necessary or advisable for
the implementation and administration of the Plan.
Section 4.3. Committee Actions. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at a
meeting at which a quorum is present, or acts reduced to or approved in writing
by all members of the Committee, shall be acts of the Committee. All such
actions shall be final, conclusive, and binding. No member of the Committee
shall be liable for any action taken or decision made in good faith relating to
the Plan or any Award thereunder.
Section 4.4. Interpretation and Construction. Section 162(m) Awards are
intended to qualify as performance-based compensation within the meaning of Code
Section 162(m)(4)(C). Any provision of the Plan that would prevent a Section
162(m) Award from so qualifying shall be administered, interpreted and construed
to carry out such intention and any provision that cannot be so administered,
interpreted and construed shall to that extent be disregarded.
SECTION 5. ELIGIBILITY; AWARDS
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Section 5.1. Eligible Persons. The Committee may grant Awards to Eligible
Persons.
Section 5.2. Awards. Awards may be granted in any one or more combinations
of (i) Incentive Stock Options, (ii) Nonqualified Stock Options, (iii)
Restricted Share Awards, (iv) Performance Awards, (v) Stock Unit Awards, and
(vi) Share Awards. All Awards shall be subject to such other terms and
conditions as may be established by the Committee. Determinations by the
Committee under the Plan, including without limitation, designation of
Participants, the form, amount and timing of Awards, the terms and provisions of
Awards, and the written agreements evidencing Awards, need not be uniform and
may be made selectively among Eligible Persons who receive, or are eligible to
receive, Awards hereunder, whether or not such Eligible Persons are similarly
situated.
Section 5.3. Employment. The Plan and the Awards granted hereunder shall
not confer upon any person the right to continued employment with the Company or
affect in any way the right of the Company to terminate the employment of any
person at any time and for any reason.
SECTION 6. OPTIONS
The Committee may grant Incentive Stock Options and Nonqualified Stock
Options and such Options shall be subject to the following terms and conditions
and such other terms and conditions as the Committee may prescribe:
Section 6.1. Option Price. The option price per Common Share with respect
to each Option shall be determined by the Committee but shall not be less than
the Fair Market Value of a Common Share on the Date of Grant.
Section 6.2. Period of Option. The period of each Option shall be fixed by
the Committee but in no case may an option be exercised more than ten years
after its Date of Grant.
Section 6.3. Exercise of Option. Subject to the provisions of Section 6.4
relating to continuous employment or other service, an Option may be exercised
with respect to all Common Shares covered thereby or may be exercised with
respect to a specified number of Common Shares over a specified period or
periods as determined by the Committee. Any Common Shares not purchased during a
specified period may be purchased thereafter at any time prior to the expiration
of the Option unless the Committee determines otherwise. The Committee may at
any time remove or alter any restriction on exercise of an Option that was
imposed by the Committee.
Section 6.4. Termination of Service. No Option may be exercised under the
Plan after the Optionee's employment or other service with the Company has
terminated except that an Option may, subject to the ten year limitation at
Section 6.2, be exercised (i) within 30 days after the Optionee's employment or
other service with the Company ceases, if the cause of cessation of employment
or other service was other than retirement, disability, death or termination of
employment or other service by the Company for Gross Misconduct; (ii) within one
year of cessation of employment in the case of early retirement except that the
Committee may, in its discretion, in the case of early retirement, extend the
period of exercise to a date not more than
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three years after cessation of employment; and (iii) within three years of
cessation of employment or other service in the case of normal retirement, death
or disability. After termination of employment or other service, Options may be
exercised only to the extent they could have been exercised on the date of the
Optionee's termination of employment or other service. Whether authorized leave
of absence or absence for military or governmental service shall constitute a
termination of employment or other service shall be determined by the Committee.
Section 6.5. Additional Rules Applicable to Incentive Stock Options.
Except as may otherwise be permitted by the Code, the following additional rules
shall be applicable to Incentive Stock Options:
(a) Eligibility. An Incentive Stock Option may only be granted to an
Eligible Person who is considered an employee of the Company or any Subsidiary
for purposes of Treasury Regulations applicable to Incentive Stock Options.
(b) Annual Limits; Limits on Grants to Holders of 10% or More. No
Incentive Stock Option shall be granted to a Participant as a result of which
the aggregate Fair Market Value (determined as of the Date of Grant) of the
Common Shares with respect to which Incentive Stock Options are exercisable for
the first time in any calendar year under the Plan and any other stock option
plans of the Company, any Subsidiary, or any parent corporation, would exceed
$100,000, determined in accordance with Section 422(d) of the Code. This
limitation shall be applied by taking Options into account in the order in which
granted. To the extent that any Common Shares subject to an Option granted under
the Plan are not eligible to subject to an Incentive Stock Option because of the
foregoing limitations, the Common Shares shall be treated as being subject to a
Nonqualified Stock Option granted under the Plan. In addition, no Incentive
Stock Option shall be granted to an Eligible Person who possesses, directly or
indirectly (within the meaning of Code Section 424(d)), at the time of grant
more than 10% of the combined voting power of all classes of stock of the
Company unless the option price is at least 110% of the Fair Market Value of the
Common Shares subject to the Option on the date such Option is granted and such
Incentive Stock Option is not exercisable after the expiration of five years
from the date of grant.
(c) Other Terms and Conditions; Nontransferability. Any Incentive Stock
Option granted hereunder shall contain such additional terms and conditions, not
inconsistent with the terms of this Plan, as are deemed necessary or desirable
by the Committee, which terms, together with the terms of this Plan, shall be
intended and interpreted to cause such Incentive Stock Option to qualify as an
"incentive stock option" under Section 422 of the Code. An Incentive Stock
Option shall by its terms be nontransferable other than by will, by the laws of
descent and distribution, or by designation of a beneficiary pursuant to this
Plan and shall be exercisable during the lifetime of a Participant only by such
Participant or a Participant's legal guardian as permitted under Section 422 of
the Code.
(d) Disqualifying Dispositions. If Common Shares acquired by exercise of
an Incentive Stock Option are disposed of within two years following the Date of
Grant or one year
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following the issuance of such shares to the Participant upon exercise, the
Participant shall, promptly following such disposition, notify the Company in
writing of the date and terms of such disposition and provide such other
information regarding the disposition as the Company may reasonably require.
Section 6.6. Option Exercise; Payment; Tax Withholding. Subject to such
terms and conditions as shall be specified in an Award Agreement and the Plan,
an Option may be exercised in whole or in part by notice in the form required by
the Company, together with payment of the aggregate exercise price therefor.
Unless otherwise specified in the Award Agreement, payment of the exercise price
may be made as follows: (i) in cash, (ii) payment in Common Shares that have
been held by the Participant for at least six months (or such other period as
the Committee may deem appropriate for purposes of applicable accounting rules)
by actual delivery of such Common Shares to the Company or by in accordance with
the attestation procedure at Section 6.7, valued at the Fair Market Value of
such shares on the date of exercise, (iii) by a delivery of a notice in the form
acceptable to the Committee that the Participant has placed a market sell order
(or similar instruction) with a broker with respect to Common Shares then
issuable upon exercise of the Option, and that the broker has been directed to
pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the exercise price (conditioned upon the payment of such net
proceeds), (iv) by a combination of the methods described above, or (v) by such
other method as may be approved by the Committee and set forth in the Award
Agreement.
Section 6.7 Attestation Procedure. If a Participant desires to pay the
Option price by delivery of already-owned Common Shares, the Participant may
either physically deliver the already-owned Common Shares or follow the
attestation procedure set forth in this Section 6.7. To attest to the ownership
of already-owned Common Shares, the Participant shall submit to the Company a
signed statement at the time of exercise of an Option that (i) sets forth the
number of Common Shares already-owned by the Participant that are to be used in
payment of the Option price, (ii) confirms that the Participant is the owner of
such payment shares, and (iii) if such payment shares are registered in the
Participant's name, sets forth the certificate numbers(s) of such payment
shares. Such payment shares shall be treated as having been delivered to the
Company by the Participant on the date of exercise, and the Company shall issue
to the Participant a certificate for the number of Common Shares being
purchased, less the number of payment shares. The Committee shall have the
authority to amend the foregoing procedure from time to time or to limit its use
in such manner as the Committee may in its discretion determine.
Section 6.8. Repricing and Reloads Prohibited. Neither the Committee nor
the Board shall cause the cancellation, substitution or amendment of an Option
that would have the effect of reducing the exercise price of an Option
previously granted under the Plan, except in accordance with an adjustment
permitted under Section 3.3. No Option granted under the Plan may provide for
the automatic grant of another Option upon the exercise of the underlying Option
without further action by the Committee.
SECTION 7. RESTRICTED SHARE AWARDS
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Section 7.1. Grant of Restricted Share Awards. A Restricted Share Award
may be granted to any Eligible Person selected by the Committee. A Restricted
Share Award granted to an Eligible Person represents Common Shares that are
issued subject to such vesting and transfer restrictions as the Committee shall
determine and set forth in an Award Agreement. The Committee may grant
Restricted Share Awards that are Section 162(m) Awards, as well as Restricted
Share Awards that are not Section 162(m) Awards.
Section 7.2. Vesting Requirements. The restrictions imposed on shares
granted under a Restricted Share Award shall lapse in accordance with the
vesting requirements specified by the Committee in the Award Agreement,
provided, however, that unless the vesting requirements are based on specified
performance goals and measures set forth in the Award Agreement at the time of
the Award or the Restricted Shares are issued in lieu of cash compensation, then
the shares shall vest over a not less than three-year period, with up to
one-third of the shares available for vesting on or after the first annual
anniversary date of the date of Award, up to an additional one-third of the
shares available for vesting on or after the second annual anniversary date, and
the remaining shares subject to the Award being available for vesting on or
after the third annual anniversary date. Notwithstanding the foregoing, the
Committee may accelerate the vesting of a Restricted Share Award in the event of
a Change of Control or the termination of the Participant's employment as a
result of disability or death. Such vesting requirements may be based on the
continued employment or other service of the Participant with the Company or its
Subsidiaries for a specified time period or periods. Such vesting requirements
may also be based on the attainment of specified performance goals or measures
established by the Committee in its sole discretion, but no performance period
for the attainment of specified performance goals or measures shall be less than
one year. In the case of any Restricted Share Award that is a Section 162(m)
Award, any such performance-based vesting requirements shall be based upon the
performance criteria identified in Section 11 hereof, and the terms of the Award
shall otherwise comply with the requirements described in Section 11 hereof. If
the vesting requirements of a Restricted Share Award shall not be satisfied, the
Award shall be forfeited and returned to the Company.
Section 7.3. Restrictions. Shares granted under any Restricted Share Award
may not be transferred, assigned or subject to any encumbrance, pledge, or
charge until all applicable restrictions are removed or have expired, unless
otherwise allowed by the Committee. Failure to satisfy any applicable
restrictions shall result in the subject shares of the Restricted Share Award
being forfeited and returned to the Company. The Committee may require in an
Award Agreement that certificates representing the shares granted under a
Restricted Share Award bear a legend making appropriate reference to the
restrictions imposed, and that certificates representing the shares granted
under a Restricted Share Award will remain in the physical custody of the
Company or an escrow holder until all restrictions are removed or have expired.
Section 7.4. Rights as a Shareholder. Subject to the foregoing provisions
of this Section 7 and the applicable Award Agreement, the Participant will have
all rights of a shareholder with respect to the shares granted to him under a
Restricted Share Award, including the right to vote the shares and receive all
dividends and other distributions paid or made with
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respect thereto, unless the Committee determines otherwise at the time the
Restricted Share Award is granted.
Section 7.5. Section 83(b) Election. If a Participant makes an election
pursuant to Section 83(b) of the Code with respect to a Restricted Share Award,
the Participant shall be required to file, within 30 days following the Date of
Grant, a copy of such election with the Company and with the Internal Revenue
Service, in accordance with the regulations under Section 83 of the Code. The
Committee may provide in an Award Agreement that the Restricted Share Award is
conditioned upon the Participant's refraining from making an election with
respect to the Award under Section 83(b) of the Code.
SECTION 8. PERFORMANCE AWARDS
Section 8.1. Grant of Performance Awards. The Committee may grant
Performance Awards under the Plan which represent the right to receive a
specified number Common Shares or their equivalent value, referred to herein as
Performance Shares, if performance goals established by the Committee for a
performance period are satisfied. The value of each Performance Share is equal
to the Fair Market Value of a Common Share on any applicable date of
determination. The Committee may grant Performance Awards that are Section
162(m) Awards, as well as Performance Awards that are not Section 162(m) Awards.
At the time a Performance Award is granted, the Committee shall determine, in
its sole discretion, the applicable performance period and performance goals to
be achieved during the performance period, as well as such other conditions as
the Committee deems appropriate. The performance goals applicable to a
Performance Award grant may be subject to adjustments as the Committee shall
deem appropriate to reflect significant unforeseen events, such as changes in
law, accounting practices or unusual or nonrecurring items or occurrences. The
Committee's authority to make such adjustments shall be subject to such
limitations as the Committee deems appropriate in the case of a Performance
Award that is a Section 162(m) Award. In the case of any Performance Award that
is a Section 162(m) Award, performance-goals shall be based upon the performance
criteria identified in Section 11.2 hereof, and the terms of the Award shall
otherwise comply with the requirements described in Section 11 hereof.
Section 8.2. Payment of Performance Awards. At the end of the performance
period, the Committee shall determine the extent to which performance goals have
been attained in order to establish number of Performance Shares that have been
earned. Payments for Performance Shares earned, if any, shall generally be made
as soon as practicable following the end of the performance period, subject to
any tax withholding requirements. The Committee, in its discretion, may elect to
make payment of the Performance Awards in Restricted Shares, Common Shares, cash
or any combination of the foregoing.
SECTION 9. SHARE UNIT AWARDS
Section 9.1. Grant of Share Unit Awards. A Share Unit Award may be granted
to any Eligible Person selected by the Committee. A Share Unit Award is an Award
to an Eligible Person of a number of hypothetical share units with respect to
Common Shares that are granted
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subject to such vesting and transfer restrictions and conditions of payment as
the Committee shall determine and set forth in an Award Agreement. The value of
each unit under a Share Unit Award is equal to the Fair Market Value of a Common
Share on any applicable date of determination. The Committee may grant Share
Unit Awards that are Section 162(m) Awards, as well as Share Unit Awards that
are not Section 162(m) Awards. A Share Unit Award shall be subject to such
restrictions and conditions as the Committee shall determine. A Share Unit Award
may be granted, at the discretion of the Committee, together with a dividend
equivalent right with respect to the same number of Common Shares.
Section 9.2. Vesting of Share Unit Awards. On the Date of Grant, the
Committee shall determine, in its sole discretion, any vesting requirements with
respect to a Share Unit Award, which shall be set forth in the Award Agreement,
provided that the Committee may accelerate the vesting of a Share Unit Award at
any time. Vesting requirements may be based on the continued employment or other
service of the Participant with the Company or its Subsidiaries for a specified
time period or periods. Vesting requirements may also be based on the attainment
of specified performance goals or measures established by the Committee in its
sole discretion. In the case of any Share Unit Award that is a Section 162(m)
Award, any such performance-based vesting requirements shall be based upon the
performance criteria identified in Section 11.2 hereof, and the terms of the
Award shall otherwise comply with the requirements described in Section 11
hereof. A Share Unit Award may also be granted on a fully vested basis, with a
deferred payment date.
Section 9.3. Payment of Share Unit Awards. A Share Unit Award shall become
payable to a Participant at the time or times determined by the Committee and
set forth in the Award Agreement, which may be upon or following the vesting of
the Award. The payment with respect to each share unit under a Share Unit Award
shall be determined by reference to the Fair Market Value of one Common Share on
each applicable payment date. Payment may be made, at the discretion of the
Committee, in cash, Restricted Shares or Common Shares, or in a combination
thereof, subject to applicable tax withholding requirements.
Section 9.4. No Rights as Shareholder. The Participant shall not have any
rights as a shareholder with respect to the shares subject to a Share Unit Award
until such time as shares of Common Shares are delivered to the Participant
pursuant to the terms of the Award.
SECTION 10. SHARE AWARDS
Section 10.1. Grant of Share Awards. A Share Award may be granted to any
Eligible Person selected by the Committee. A Share Award may be granted in lieu
of cash compensation, including salary, bonuses, or directors fee payments, as
determined the Committee. A Share Award granted to an Eligible Person represents
Common Shares that are issued free of restrictions on transfer and other
incidents of ownership and free of forfeiture conditions, except as otherwise
provided in the Plan and the Award Agreement. The Committee may, in connection
with any Share Award, require the payment of a specified purchase price. The
Committee may grant Share Awards that are Section 162(m) Awards, as well as
Share Awards that are not Section 162(m) Awards.
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Section 10.2. Rights as Shareholder. Subject to the foregoing provisions
of this Section 10 and the applicable Award Agreement, the Participant will have
all rights of a shareholder with respect to the shares granted to him under a
Share Award, including the right to vote the shares and receive all dividends
and other distributions paid or made with respect thereto.
SECTION 11. SECTION 162(m) AWARDS
Section 11.1. Awards. Options granted under the Plan are intended by their
terms to qualify as Section 162(m) Awards. Restricted Stock Awards, Stock Unit
Awards, Stock Awards and Performance Awards granted under the Plan may qualify
as Section 162(m) Awards if the Awards are granted or become payable or vested
based upon pre-established performance goals in accordance with this Section 11.
Section 11.2. Performance Criteria. In the case of a Restricted Stock
Award, Stock Unit Award, Stock Award or Performance Award that is intended to be
a Section 162(m) Award, the performance criteria upon which the grant, payment
or vesting may be based shall be limited to one or more of the following
performance measures, which may be applied with respect to the Company, any
Subsidiary or any business unit: cash flow; cash flow from operations; free cash
flow; total earnings; earnings per share, diluted or basic; earnings per share
from continuing operations, diluted or basic; income before income taxes;
earnings before interest and taxes; earnings before interest, taxes,
depreciation, and amortization; earnings from continuing operations; net asset
turnover; inventory turnover; receivable turnover; capital expenditures; net
earnings; operating earnings; gross or operating margin; debt; working capital;
return on equity; return on net assets; return on total assets; return on
capital; return on investment; return on sales; net or gross sales; market
share; economic value added; expense reduction levels; stock price; and total
shareholder return. The foregoing performance criteria shall have any reasonable
definitions that the Committee may specify within the period specified in
Section 11.3, which may include or exclude any items specified by the Committee,
including but not limited to any or all of the following items: discontinued
operations, extraordinary, unusual, non-recurring or special items, effects of
accounting changes, effects of currency or interest rate fluctuations, effects
of financing activities (e.g., effect on earnings per share of issuing
convertible debt securities), changes in tax rates, expenses for restructuring
or productivity initiatives, litigation losses, non-operating items, effects of
acquisitions or divestitures and changes of law or regulation affecting the
Company's business. The foregoing performance measures may be determined on an
absolute basis or relative to internal goals or relative to levels attained in
prior years, or related to other companies or indices, or as ratios expressing
relationships between two or more performance measures. In the case of Awards
that are not Section 162(m) Awards, the Committee may designate performance
criteria from among the foregoing or such other performance criteria as it shall
determine in its sole discretion.
Section 11.3. Section 162(m) Requirements. In the case of a Restricted
Stock Award, Stock Unit Award, Stock Award or Performance Award that is intended
to be a Section 162(m) Award, the Committee shall make such determinations with
respect to an Award as required by Section 162(m) of the Code within 90 days
after the beginning of the performance period (or such other time period as is
required under Section 162(m) of the Code). As and to the extent
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required by Section 162(m) of the Code, the terms of an Award that is a Section
162(m) Award must state, in terms of an objective formula or standard, the
method of computing the amount of compensation payable under the Award, and must
preclude discretion to increase the amount of compensation payable under the
terms of the Award (but may give the Committee discretion to decrease or
eliminate the amount of compensation payable).
SECTION 12. NON-ASSIGNABILITY OF AWARDS
Section 12.1. Restrictions on Transfer. Except as provided in Section 12.2
with respect to Nonqualified Stock Options, no Award granted under the Plan
shall be assigned, transferred, pledged, or otherwise encumbered by a
Participant, otherwise than by will, by designation of a beneficiary after
death, or by the laws of descent and distribution, or be made subject to
execution, attachment or similar process. Except as provided in Section 12.2
with respect to Nonqualified Stock Options, each Award shall be exercisable
during the Participant's lifetime only by the Participant or, if permissible
under applicable law, by the Participant's guardian or legal representative.
Section 12.2. Limited Transferability of Nonqualified Options. Neither a
Nonqualified Stock Option nor any right thereunder may be assigned or
transferred by the optionee except by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order (as defined in
the Code or the Employee Retirement Income Security Act of 1974), provided,
however, the Committee may by written action permit any holder of a Nonqualified
Stock Option, either before or after the time of grant, to transfer a
Nonqualified Stock Option during his lifetime to one or more members of his
family, to one or more trusts for the benefit of one or more members of his
family, or to a partnership or partnerships of members of his family, provided
that no consideration is paid for the transfer and that such transfer would not
result in the loss of any exemption under Rule 16b-3 for any option granted
under any plan of the Company. The transferee of a Nonqualified Stock Option
shall be subject to all restrictions, terms and conditions applicable to the
Nonqualified Stock Option prior to its transfer. The Committee may impose on any
transferable Nonqualified Stock Option and on the shares to be issued upon the
exercise of a Nonqualified Stock Option such limitations and conditions as the
Committee deems appropriate.
SECTION 13. CHANGE OF CONTROL
Section 13.1. General. In order to maintain all of the Participant's
rights in the event of a Change of Control of the Company, the Committee, in its
sole discretion, may, as to any Award, either at the time that an Award is made
or any time thereafter, take any one or more of the following actions:
(a) provide for the acceleration of any time periods relating to the
exercise or realization of any such Award, so that such award may be exercised
or realized in full on or before a date fixed by the Committee;
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(b) provide for the purchase of any such Award by the Company, upon a
Participant's request, for an amount of cash equal to the amount that could have
been attained upon the exercise of such Award or realization of such
Participant's rights had such award been currently exercisable or payable;
(c) make such adjustment to any such Award then outstanding as the
Committee deems appropriate to reflect a Change of Control; or
(d) cause any such Award then outstanding to be assumed, or new rights
substituted therefor, by the acquiring or surviving corporation, if any, in
connection with a Change of Control.
Section 13.2. Options. All outstanding Options that are not yet
exercisable shall become immediately exercisable in full in the event of a
Change of Control of the Company.
SECTION 14. TAXES
Section 14.1. Withholding for Taxes. The Company shall be entitled, if
necessary or desirable, to withhold the amount of any tax attributable to any
amounts payable under any Award and the Company may defer making payment of any
Award if any such tax, charge, or assessment may be pending until indemnified to
its satisfaction.
Section 14.2. Use of Common Shares for Tax Withholding Payments. Unless
the Committee determines otherwise in its discretion, either before or after the
grant of an Award, Common Shares may be used in lieu of cash to pay to the
Company all or any part of the mandatory federal, state or local withholding tax
payments ("Mandatory Withholdings") as follows:
(a) Nonqualified Stock Options. A Participant may use Common Shares to pay
the Company all or any part of the Mandatory Withholdings at the time of
exercise of a Nonqualified Option by following any of the methods of payment set
forth in Section 6.6 for use in connection with payment of the exercise price of
an Option.
(b) Restricted Share Awards. If Mandatory Withholdings are required to be
paid at the time Restricted Shares are delivered to a Participant or at the
expiration of the Restricted Period, then the Participant may pay the Mandatory
Withholdings by delivering Common Shares to the Company having a Fair Market
Value equal to the amount of the Mandatory Withholdings being paid by the use of
Common Shares.
(c) Performance Shares. If Mandatory Withholdings are required to be paid
at the time Common Shares are delivered to a Participant as a Performance Award,
then the Participant may pay the Mandatory Withholdings by delivering Common
Shares to the Company having a Fair Market Value equal to the amount of the
Mandatory Withholdings being paid by the use of Common Shares.
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(d) Share Awards. If Mandatory Withholdings are required to be paid at the
time Common Shares are delivered to a Participant in connection with a Share
Award, then the Participant may pay the Mandatory Withholdings by delivering
Common Shares to the Company having a Fair Market Value equal to the amount of
the Mandatory Withholdings being paid by the use of Common Shares.
SECTION 15. GENERAL PROVISIONS
Section 15.1. Form of Award Agreement. To the extent deemed necessary or
appropriate by the Committee, an Award under the Plan shall be evidenced by an
Award Agreement in a form approved by the Committee setting forth the number of
Common Shares or units subject to the Award, the exercise price, the base price,
the time or times at which an Award will become vested, exercisable or payable
and the term of the Award. The Award Agreement shall also set forth the effect
on the Award of termination of employment or other service under certain
circumstances. The Award Agreement may also set forth other terms and conditions
applicable to the Award as determined by the Committee consistent with the
limitations of this Plan. Award Agreements evidencing Incentive Stock Options
shall contain such terms and conditions as may be necessary to meet the
applicable provisions of Section 422 of the Code.
Section 15.2. Forfeiture Events. The Committee may specify in an Award
Agreement at the time of the Award that the Participant's rights, payments and
benefits with respect to an Award shall be subject to reduction, cancellation,
forfeiture or recoupment upon the occurrence of certain specified events, in
addition to any otherwise applicable vesting or performance conditions of an
Award. Such events shall include, but shall not be limited to, termination of
employment for Gross Misconduct, violation of material Company policies, breach
of noncompetition, confidentiality or other restrictive covenants that may apply
to the Participant, or other conduct by the Participant that is detrimental to
the business or reputation of the Company.
Section 15.3. Compliance with Laws and Other Requirements. No Option shall
be granted and no Common Shares shall be issued in connection with any Award
unless the grant of the Option and the issuance and delivery of Common Shares or
cash pursuant to the Award shall comply with all relevant provisions of state
and federal law, including, without limitation, the Securities Act of 1933, the
Securities Exchange Act of 1934, the rules and regulations promulgated
thereunder, and the requirements of any market system or stock exchange upon
which the Common Shares may then be listed or traded.
Section 15.4. Designation of Beneficiary. Each Participant may, from time
to time, name any beneficiary or beneficiaries (who may be named contingently or
successively and who may include a trustee under a will or living trust) to whom
any benefit under the Plan is to be paid in case of his death before he receives
any or all of such benefit. Each designation will revoke all prior designations
by the same Participant, shall be in a form prescribed by the Committee, and
will be effective only when filed by the Participant in writing with the
Committee during his lifetime. In the absence of any such designation or if all
designated
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beneficiaries predecease the Participant, benefits remaining unpaid at the
Participant's death shall be paid to the Participant's estate.
Section 15.5. Plan Binding on Transferees. The Plan shall be binding upon
the Company, its transferees and assigns, and the Participant, his executor,
administrator and permitted transferees and beneficiaries.
Section 15.6. Construction and Interpretation. Whenever used herein, nouns
in the singular shall include the plural, and the masculine pronoun shall
include the feminine gender. Headings of Sections hereof are inserted for
convenience of reference and constitute no part of the Plan.
Section 15.7. Severability. If any provision of the Plan or any Award
Agreement shall be determined to be illegal or unenforceable by any court of law
in any jurisdiction, the remaining provisions hereof and thereof shall be
severable and enforceable in accordance with their terms, and all provisions
shall remain enforceable in any other jurisdiction.
Section 15.8. Non-United States Participants. The Committee may grant
Awards to persons outside the United States under such terms and conditions as
may, in the judgment of the Committee, be necessary or advisable to comply with
any tax, securities, regulatory or other laws of the applicable foreign
jurisdictions and, to that end, may establish sub-plans, modified option
exercise procedures and other terms and procedures. The terms and conditions of
such Awards may vary from the terms and conditions that would otherwise be
required by the Plan solely to the extent the Committee deems necessary for such
purpose.
Section 15.9. Governing Law. The Plan and all rights hereunder shall be
subject to and interpreted in accordance with the laws of the State of Ohio,
without reference to the principles of conflicts of laws, and with applicable
Federal laws.
SECTION 16. NOTICES
Each notice relating to the Plan shall be in writing and delivered in person or
by certified or registered mail to the proper address. Each notice to the
Committee shall be addressed as follows: Robbins & Myers, Inc., 1400 Kettering
Tower, Dayton, Ohio 45423, Attention: Compensation Committee. Each notice to a
Participant shall be addressed to the Participant at the address of the
Participant maintained by the Company on its books and records. Anyone to whom a
notice may be given under this Plan may designate a new address by written
notice to the other party to that effect.
SECTION 17. EFFECTIVE DATE; EXPIRATION DATE; AMENDMENT AND TERMINATION
Section 17.1. Effective Date. The Plan was approved by the Board on
October __, 2004 and will become effective upon its approval by the shareholders
of the Company at the Annual Meeting of Shareholders of the Company held in
2004.
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Section 17.2. Expiration Date. The Plan shall remain available for the
grant of Awards until the expiration of ten years from the date of its approval
by shareholders of the Company or such earlier date as the Board shall determine
(the "Expiration Date"). The occurrence of the Expiration Date shall not affect
the operation of the terms of the Plan or the Company's or a Participant's
rights and obligations with respect to Awards granted on or prior to the
Expiration Date.
Section 17.3. Amendment. The Board may at any time terminate, amend or
modify the Plan, or any provision thereof, in such respects as the Board may
deem advisable or the Committee may to the extent permitted by the Plan amend
any Award Agreement or other document evidencing an Award made under the Plan,
provided, however, the Company shall submit to shareholders for their approval
any amendment (other than an amendment pursuant to the adjustment provisions of
Section 3.2) required to be submitted for shareholder approval by the New York
Stock Exchange or that otherwise would:
(a) increase the maximum number of Common Shares that may be issued under
the Plan;
(b) expand the types of Awards available to Participants under the Plan;
(c) materially expand the class of Eligible Persons;
(d) delete or limit the provisions of Section 6.7 prohibiting the
repricing of Options or reduce the price at which Common Shares may be offered
under Options;
(e) extend the term of the Plan; or
(f) increase the limits in Section 3.2
In addition, no such amendment or modification shall be made which would impair
the rights of any Participant, without such Participant's consent, under any
outstanding Award, provided that no such consent shall be required with respect
to any amendment or modification if the Committee determines in its sole
discretion that such amendment or modification either (i) is required or
advisable in order for the Company, the Plan or the Award to satisfy any law or
regulation or to meet the requirements of any accounting standard or (ii) is not
reasonably likely to significantly diminish the benefits provided under such
Award, or that any such diminishment has been adequately compensated.
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(1) The Plan was approved by shareholders and became effective on December 8,
2004.
(2) Sections 7.2 and 10.1 were amended, effective March 30, 2005, by the Board
of Directors of the Company.
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