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EXHIBIT 10.8
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CHEMED CORPORATION
1993 STOCK INCENTIVE PLAN
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(approved 5/17/93)
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CHEMED CORPORATION
1993 STOCK INCENTIVE PLAN
1. PURPOSES: The purposes of this Plan are (a) to secure for the
Corporation the benefits of incentives inherent in ownership of Capital Stock
by Key Employees, (b) to encourage Key Employees to increase their interest in
the future growth and prosperity of the Corporation and to stimulate and
sustain constructive and imaginative thinking by Key Employees, (c) to further
the identity of interest of those who hold positions of major responsibility in
the Corporation and its Subsidiaries with the interests of the Corporation's
stockholders, (d) to induce the employment or continued employment of Key
Employees and (e) to enable the Corporation to compete with other organizations
offering similar or other incentives in obtaining and retaining the services of
competent executives.
2. DEFINITIONS: Unless otherwise required by the context, the following
terms when used in this Plan shall have the meanings set forth in this section
2.
BOARD OF DIRECTORS: The Board of Directors of the Corporation.
CAPITAL STOCK: The Capital Stock of the Corporation, par value $1.00
per share, or such other class of shares or other securities as may be
applicable pursuant to the provisions of section 8.
CORPORATION: Chemed Corporation, a Delaware corporation.
FAIR MARKET VALUE: As applied to any date, the mean between the high
and low sales prices of a share of Capital Stock on the principal stock
exchange on which the Corporation is listed, or, if it is not so listed, the
mean between the bid and the ask prices of a share of Capital Stock in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System on such date or, if no such sales or prices
were made or quoted on such date, on the next preceding date on which there
were sales or quotes of Capital Stock on such exchange or market, as the case
may be; provided, however, that, if the Capital Stock is not so listed or
quoted, Fair Market Value shall be determined in accordance with the method
approved by the Incentive Committee, and, provided further, if any of the
foregoing methods of determining Fair Market Value shall not be consistent with
the regulations of the Secretary of the Treasury or his delegate at the time
applicable to a Stock Incentive of the type involved, Fair Market Value in the
case of such Stock Incentive shall be determined in accordance with such
regulations and shall mean the value as so determined.
INCENTIVE COMMITTEE: The Incentive Committee designated to
administer this Plan pursuant to the provisions of section 10.
INCENTIVE COMPENSATION: Bonuses, extra and other compensation
payable in addition to a salary or other base amount, whether contingent or
discretionary or required to be paid pursuant to an agreement, resolution or
arrangement, and whether payable currently or on a deferred basis, in cash,
Capital Stock or other property, awarded by the Corporation or a Subsidiary
prior or subsequent to the date of the
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approval and adoption of this Plan by the stockholders of the Corporation.
KEY EMPLOYEE: An employee of the Corporation or of a Subsidiary who
in the opinion of the Incentive Committee can contribute significantly to the
growth and successful operations of the Corporation or a Subsidiary. The grant
of a Stock Incentive to an employee by the Incentive Committee shall be deemed
a determination by the Incentive Committee that such employee is a Key
Employee. For the purposes of this Plan, a director or officer of the
Corporation or of a Subsidiary shall be deemed an employee regardless of
whether or not such director or officer is on the payroll of, or otherwise paid
for services by, the Corporation or a Subsidiary.
OPTION: An option to purchase shares of Capital Stock.
PERFORMANCE UNIT: A unit representing a share of Capital Stock,
subject to a Stock Award, the issuance, transfer or retention of which is
contingent, in whole or in part, upon attainment of a specified performance
objective or objectives, including, without limitation, objectives determined
by reference to or changes in (a) the Fair Market Value, book value or earnings
per share of Capital Stock, or (b) sales and revenues, income, profits and
losses, return on capital employed, or net worth of the Corporation (on a
consolidated or unconsolidated basis) or of any one or more of its groups,
divisions, Subsidiaries or departments, or (c) a combination of two or more of
the foregoing factors.
PLAN: The l993 Stock Incentive Plan herein set forth as the same may
from time to time be amended.
STOCK AWARD: An issuance or transfer of shares of Capital Stock at
the time the Stock Incentive is granted or as soon thereafter as practicable,
or an undertaking to issue or transfer such shares in the future, including,
without limitation, such an issuance, transfer or undertaking with respect to
Performance Units.
STOCK INCENTIVE: A stock incentive granted under this Plan in one of
the forms provided for in section 3.
SUBSIDIARY: A corporation or other form of business association of
which shares (or other ownership interests) having 50% or more of the voting
power are owned or controlled, directly or indirectly, by the Corporation.
3. GRANTS OF STOCK INCENTIVES:
(a) Subject to the provisions of this Plan, the Incentive Committee
may at any time, or from time to time, grant Stock Incentives under this Plan
to, and only to, Key Employees.
(b) Stock Incentives may be granted in the following forms:
(i) a Stock Award, or
(ii) an Option, or
(iii) a combination of a Stock Award and an Option.
4. STOCK SUBJECT TO THIS PLAN:
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(a) Subject to the provisions of paragraph (c) and of this section 4
and of section 8, the aggregate number of shares of Capital Stock which may be
issued or transferred pursuant to Stock Incentives granted under this Plan
shall not exceed 250,000 shares.
(b) The maximum aggregate number of shares of Capital Stock which
may be issued or transferred under the Plan to directors of the Corporation or
of a Subsidiary shall not exceed 100,000 shares.
(c) Authorized but unissued shares of Capital Stock and shares of
Capital Stock held in the treasury, whether acquired by the Corporation
specifically for use under this Plan or otherwise, may be used, as the
Incentive Committee may from time to time determine, for purposes of this Plan,
provided, however, that any shares acquired or held by the Corporation for the
purposes of this Plan shall, unless and until transferred to a Key Employee in
accordance with the terms and conditions of a Stock Incentive, be and at all
times remain treasury shares of the Corporation, irrespective of whether such
shares are entered in a special account for purposes of this Plan, and shall be
available for any corporate purpose.
(d) If any shares of Capital Stock subject to a Stock Incentive
shall not be issued or transferred and shall cease to be issuable or
transferable because of the termination, in whole or in part, of such Stock
Incentive or for any other reason, or if any such shares shall, after issuance
or transfer, be reacquired by the Corporation or a Subsidiary because of an
employee's failure to comply with the terms and conditions of a Stock
Incentive, the shares not so issued or transferred, or the shares so reacquired
by the Corporation or a Subsidiary shall no longer be charged against any of
the limitations provided for in paragraphs (a) or (b) of this section 4 and may
again be made subject to Stock Incentives.
5. STOCK AWARDS: Stock Incentives in the form of Stock Awards shall be
subject to the following provisions:
(a) A Stock Award shall be granted only in payment of Incentive
Compensation that has been earned or as Incentive Compensation to be earned,
including, without limitation, Incentive Compensation awarded concurrently with
or prior to the grant of the Stock Award.
(b) For the purposes of this Plan, in determining the value of a
Stock Award, all shares of Capital Stock subject to such Stock Award shall be
valued at not less than l00% of the Fair Market Value of such shares on the
date such Stock Award is granted, regardless of whether or when such shares are
issued or transferred to the Key Employee and whether or not such shares are
subject to restrictions which affect their value.
(c) Shares of Capital Stock subject to a Stock Award may be issued
or transferred to the Key Employee at the time the Stock Award is granted, or
at any time subsequent thereto, or in installments from time to time, as the
Incentive Committee shall determine. In the event that any such issuance or
transfer shall not be made to the Key Employee at
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the time the Stock Award is granted, the Incentive Committee may provide for
payment to such Key Employee, either in cash or in shares of Capital Stock from
time to time or at the time or times such shares shall be issued or transferred
to such Key Employee, of amounts not exceeding the dividends which would have
been payable to such Key Employee in respect of such shares (as adjusted under
section 8) if they had been issued or transferred to such Key Employee at the
time such Stock Award was granted. Any amount payable in shares of Capital
Stock under the terms of a Stock Award may, at the discretion of the
Corporation, be paid in cash, on each date on which delivery of shares would
otherwise have been made, in an amount equal to the Fair Market Value on such
date of the shares which would otherwise have been delivered.
(d) A Stock Award shall be subject to such terms and conditions,
including, without limitation, restrictions on sale or other disposition of the
Stock Award or of the shares issued or transferred pursuant to such Stock
Award, as the Incentive Committee shall determine; provided, however, that upon
the issuance or transfer of shares pursuant to a Stock Award, the recipient
shall, with respect to such shares, be and become a stockholder of the
Corporation fully entitled to receive dividends, to vote and to exercise all
other rights of a stockholder except to the extent otherwise provided in the
Stock Award. Each Stock Award shall be evidenced by a written instrument in
such form as the Incentive Committee shall determine, provided the Stock Award
is consistent with this Plan and incorporates it by reference.
6. OPTIONS: Stock Incentives in the form of Options shall be subject to
the following provisions:
(a) Upon the exercise of an Option, the purchase price shall be paid
in cash or, if so provided in the Option or in a resolution adopted by the
Incentive Committee (and subject to such terms and conditions as are specified
in the Option or by the Incentive Committee), in shares of Capital Stock or in
a combination of cash and such shares. Shares of Capital Stock thus delivered
shall be valued at their Fair Market Value on the date of exercise. Subject to
the provisions of section 8, the purchase price per share shall be not less
than l00% of the Fair Market Value of a share of Capital Stock on the date the
Option is granted.
(b) Each Option shall be exercisable in full or in part one year
after the date the Option is granted, or may become exercisable in one or more
installments and at such time or times, as the Incentive Committee shall
determine. Unless otherwise provided in the Option, an Option, to the extent it
is or becomes exercisable, may be exercised at any time in whole or in part
until the expiration or termination of the Option. Subject to the first
sentence of this paragraph, any term or provision in any outstanding Option
specifying when the Option is exercisable or that it be exercisable in
installments may be modified at any time during the life of the Option by the
Incentive Committee, provided, however, no such modification of an outstanding
Option shall, without the consent of the optionee, adversely affect any Option
theretofore granted to him. Subject to the preceding provisions of this
paragraph, an Option will become immediately exercisable in full if at any time
during the term of the Option the Corporation obtains actual
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knowledge that any of the following events has occurred, irrespective of the
applicability of any limitation on the number of shares then exercisable under
the Option: (1) any person within the meaning of Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "1934 Act"), other than the
Corporation or any of its subsidiaries, has become the beneficial owner, within
the meaning of Rule 13d-3 under the 1934 Act, of 30 percent or more of the
combined voting power of the Corporation's then outstanding voting securities;
(2) the expiration of a tender offer or exchange offer, other than an offer by
the Corporation, pursuant to which 20 percent or more of the shares of the
Corporation's Capital Stock have been purchased; (3) the stockholders of the
Corporation have approved (i) an agreement to merge or consolidate with or into
another corporation and the Corporation is not the surviving corporation or
(ii) an agreement to sell or otherwise dispose of all or substantially all of
the assets of the Corporation (including a plan of liquidation); or (4) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors cease for any reason to constitute at
least a majority thereof, unless the nomination for the election by the
Corporation's stockholders of each new director was approved by a vote of at
least one-half of the persons who were directors at the beginning of the
two-year period.
(c) Each Option shall be exercisable during the life of the optionee
only by him and, after his death, only by his estate or by a person who
acquired the right to exercise the Option by will or the laws of descent and
distribution. An Option, to the extent that it shall not have been exercised,
shall terminate when the optionee ceases to be an employee of the Corporation
or a Subsidiary, unless he ceases to be an employee because of his resignation
with the consent of the Incentive Committee (which consent may be given before
or after resignation), or by reason of his death, incapacity or retirement
under a retirement plan of the Corporation or a Subsidiary. Except as provided
in the next sentence, if the optionee ceases to be an employee by reason of
such resignation, the Option shall terminate three months after he ceases to be
an employee. If the optionee ceases to be an employee by reason of such death,
incapacity or retirement, or if he should die during the three-month period
referred to in the preceding sentence, the Option shall terminate fifteen
months after he ceases to be an employee. Where an Option is exercised
more than three months after the optionee ceased to be an employee, the Option
may be exercised only to the extent it could have been exercised three months
after he ceased to be an employee. A leave of absence for military or
governmental service or for other purposes shall not, if approved by the
Incentive Committee, be deemed a termination of employment within the meaning
of this paragraph (c); provided, however, that an Option may not be exercised
during any such leave of absence. Notwithstanding the foregoing provisions of
this paragraph (c) or any other provision of this Plan, no Option shall be
exercisable after expiration of the term for which the Option was granted,
which shall in no event exceed ten years. Where an Option is granted for a
term of less than ten years, the Incentive Committee, may, at any time prior to
the expiration of the Option, extend its term for a period ending not later
than ten years from the date the Option was granted. Such an extension shall
not be deemed the grant of an Option under this Plan.
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(d) Options shall be granted for such lawful consideration as the
Incentive Committee shall determine.
(e) Neither the Corporation nor any Subsidiary may directly or indirectly
lend any money to any person for the purpose of assisting him to purchase or
carry shares of Capital Stock issued or transferred upon the exercise of an
Option.
(f) No Option nor any right thereunder may be assigned or transferred by
the optionee except by will or the laws of descent and distribution. If so
provided in the Option or if so authorized by the Incentive Committee and
subject to such terms and conditions as are specified in the Option or by the
Incentive Committee, the Corporation may, upon or without the request of the
holder of the Option and at any time or from time to time, cancel all or a
portion of the Option then subject to exercise and either (i) pay the holder an
amount of money equal to the excess, if any, of the Fair Market Value, at such
time or times, of the shares subject to the portion of the Option so cancelled
over the aggregate purchase price of such shares, or (ii) issue or transfer
shares of Capital Stock to the holder with a Fair Market Value, at such time or
times, equal to such excess.
(g) Each Option shall be evidenced by a written instrument, which shall
contain such terms and conditions, and shall be in such form, as the Incentive
Committee may determine, provided the Option is consistent with this Plan and
incorporates it by reference. Notwithstanding the preceding sentence, an
Option, if so granted by the Incentive Committee, may include restrictions and
limitations in addition to those provided for in this Plan.
(h) Any federal, state or local withholding taxes payable by an optionee
upon the exercise of an Option shall be paid in cash, in such other form as the
Incentive Committee may authorize from time to time, including the surrender of
shares of Capital Stock or the withholding of shares of Capital Stock to be
issued to the optionee. All such shares so surrendered or withheld shall be
valued at Fair Market Value on the date such are surrendered to the Corporation
or authorized to be withheld.
7. COMBINATIONS OF STOCK AWARDS AND OPTIONS: Stock Incentives authorized
by paragraph (b)(iii) of section 3 in the form of combinations of Stock Awards
and Options shall be subject to the following provisions:
(a) A Stock Incentive may be a combination of any form of Stock
Award with any form of Option; provided, however, that the terms and conditions
of such Stock Incentive pertaining to a Stock Award are consistent with section
5 and the terms and conditions of such Stock Incentive pertaining to an Option
are consistent with section 6.
(b) Such combination Stock Incentive shall be subject to such other
terms and conditions as the Incentive Committee may determine, including,
without limitation, a provision terminating in whole or in part a portion
thereof upon the exercise in whole or in part of another portion thereof. Such
combination Stock Incentive shall be evidenced by a written instrument in such
form as the Incentive Committee shall
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determine, provided it is consistent with this Plan and incorporates it by
reference.
8. ADJUSTMENT PROVISIONS: In the event that any recapitalization, or
reclassification, split-up or consolidation of shares of Capital Stock shall be
effected, or the outstanding shares of Capital Stock are, in connection with a
merger or consolidation of the Corporation or a sale by the Corporation of all
or a part of its assets exchanged for a different number or class of shares of
stock or other securities of the Corporation or for shares of the stock or
other securities of any other corporation, or a record date for determination
of holders of Capital Stock entitled to receive a dividend payable in Capital
Stock shall occur (a) the number and class of shares or other securities that
may be issued or transferred pursuant to Stock Incentives, (b) the number and
class of shares or other securities which have not been issued or transferred
under outstanding Stock Incentives, (c) the purchase price to be paid per share
or other security under outstanding Options, and (d) the price to be paid per
share or other security by the Corporation or a Subsidiary for shares or other
securities issued or transferred pursuant to Stock Incentives which are subject
to a right of the Corporation or a Subsidiary to reacquire such shares or other
securities, shall in each case be equitably adjusted.
9. TERM: This Plan shall be deemed adopted and shall become effective on
the date it is approved and adopted by the stockholders of the Corporation. No
Stock Incentives shall be granted under this Plan after May 17, 2003.
10. ADMINISTRATION:
(a) The Plan shall be administered by the Incentive Committee, which
shall consist of no fewer than three persons designated by the Board of
Directors. Grants of Stock Incentives may be made by the Incentive Committee
either in or without consultation with employees, but, anything in this Plan to
the contrary notwithstanding, the Incentive Committee shall have full authority
to act in the matter of selection of all Key Employees and in determining the
number of Stock Incentives to be granted to them.
(b) The Incentive Committee may establish such rules and
regulations, not inconsistent with the provisions of this Plan, as it deems
necessary to determine eligibility to participate in this Plan and for the
proper administration of this Plan, and may amend or revoke any rule or
regulation so established. The Incentive Committee may make such
determinations and interpretations under or in connection with this Plan as it
deems necessary or advisable. All such rules, regulations, determinations and
interpretations shall be binding and conclusive upon the Corporation, its
Subsidiaries, its stockholders and all employees, and upon their respective
legal representatives, beneficiaries, successors and assigns and upon all other
persons claiming under or through any of them.
(c) Members of the Board of Directors and members of the Incentive
Committee acting under this Plan shall be fully protected in relying in good
faith upon the advice of counsel and shall incur no
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liability except for gross negligence or willful misconduct in the performance
of their duties.
11. GENERAL PROVISIONS:
(a) Nothing in this Plan nor in any instrument executed pursuant
hereto shall confer upon any employee any right to continue in the employ of
the Corporation or a Subsidiary, or shall affect the right of the Corporation
or of a Subsidiary to terminate the employment of any employee with or without
cause.
(b) No shares of Capital Stock shall be issued or transferred
pursuant to a Stock Incentive unless and until all legal requirements
applicable to the issuance or transfer of such shares, in the opinion of
counsel to the Corporation, have been complied with. In connection with any
such issuance or transfer the person acquiring the shares shall, if requested
by the Corporation, give assurances, satisfactory to counsel to the
Corporation, that the shares are being acquired for investment and not with a
view to resale or distribution thereof and assurances in respect of such other
matters as the Corporation or a Subsidiary may deem desirable to assure
compliance with all applicable legal requirements.
(c) No employee (individually or as a member of a group), and no
beneficiary or other person claiming under or through him, shall have any
right, title or interest in or to any shares of Capital Stock allocated or
reserved for the purposes of this Plan or subject to any Stock Incentive except
as to such shares of Capital Stock, if any, as shall have been issued or
transferred to him.
(d) The Corporation or a Subsidiary may, with the approval of the
Incentive Committee, enter into an agreement or other commitment to grant a
Stock Incentive in the future to a person who is or will be a Key Employee at
the time of grant, and, notwithstanding any other provision of this Plan, any
such agreement or commitment shall not be deemed the grant of a Stock Incentive
until the date on which the Company takes action to implement such agreement or
commitment.
(e) In the case of a grant of a Stock Incentive to an employee of a
Subsidiary, such grant may, if the Incentive Committee so directs, be
implemented by the Corporation issuing or transferring the shares, if any,
covered by the Stock Incentive to the Subsidiary, for such lawful consideration
as the Incentive Committee may specify, upon the condition or understanding
that the Subsidiary will transfer the shares to the employee in accordance with
the terms of the Stock Incentive specified by the Incentive Committee pursuant
to the provisions of this Plan. Notwithstanding any other provision hereof,
such Stock Incentive may be issued by and in the name of the Subsidiary and
shall be deemed granted on the date it is approved by the Incentive Committee,
on the date it is delivered by the Subsidiary or on such other date between
said two dates, as the Incentive Committee shall specify.
(f) The Corporation or a Subsidiary may make such provisions as it
may deem appropriate for the withholding of any taxes which the Corporation or
a Subsidiary determines it is required to withhold in connection with any Stock
Incentive.
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(g) Nothing in this Plan is intended to be a substitute for, or
shall preclude or limit the establishment or continuation of, any other plan,
practice or arrangement for the payment of compensation or fringe benefits to
employees generally, or to any class or group of employees, which the
Corporation or any Subsidiary or other affiliate now has or may hereafter
lawfully put into effect, including, without limitation, any retirement,
pension, group insurance, stock purchase, stock bonus or stock option plan.
12. AMENDMENTS AND DISCONTINUANCE:
(a) This Plan may be amended by the Board of Directors upon the
recommendation of the Incentive Committee, provided that, without the approval
of the stockholders of the Corporation, no amendment shall be made which (i)
increases the aggregate number of shares of Capital Stock that may be issued or
transferred pursuant to Stock Incentives as provided in paragraph (a) of
section 4, (ii) increases the maximum aggregate number of shares of Capital
Stock that may be issued or transferred under the Plan to directors of the
Corporation or of a Subsidiary as provided in paragraph (b) of section 4, (iii)
withdraws the administration of this Plan from the Incentive Committee, (iv)
permits any person who is not at the time a Key Employee of the Corporation or
of a Subsidiary to be granted a Stock Incentive, (v) permits any Option to be
exercised more than ten years after the date it is granted, (vi) amends section
9 to extend the date set forth therein or (viii) amends this section 12.
(b) Notwithstanding paragraph (a) of this section 12, the Board of
Directors may amend the Plan to take into account changes in applicable
securities laws, federal income tax laws and other applicable laws. Should the
provisions of Rule 16b-3, or any successor rule, under the Securities Exchange
Act of 1934 be amended, the Board of Directors may amend the Plan in accordance
therewith.
(c) The Board of Directors may by resolution adopted by a majority
of the entire Board of Directors discontinue this Plan.
(d) No amendment or discontinuance of this Plan by the Board of
Directors or the stockholders of the Corporation shall, without the consent of
the employee, adversely affect any Stock Incentive theretofore granted to him.