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EXHIBIT 10.29
EAGLE-PICHER HOLDINGS, INC.
INCENTIVE STOCK PLAN FOR
OUTSIDE DIRECTORS
Section 1. Purpose. The Plan is intended to further the attainment of
the profit and growth objectives of Eagle-Picher Holdings, Inc. and to
facilitate the recruiting and retaining of highly qualified directors by
providing stock-based incentive to outside directors. The Plan is not intended
to be an "employee pension benefit plan" within the meaning of Section 3 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
Section 2. Definitions. As used herein, the following terms shall have
the following meanings:
(a) "Affiliate" means any entity if, (i) the Company, directly or
indirectly, owns at least 50% of the combined voting power of all classes of
stock of such entity or at least 50% of the ownership interests in such entity,
(ii) such entity, directly or indirectly, owns at least 50% of the combined
voting power of all classes of stock of the Company, or (iii) such entity is at
least 50% owned (directly or indirectly) by one or more entities described in
(i) or (ii) above.
(b) "Agreed Share Price" means a U.S. Dollar cash price per share of
Restricted Stock equal to the quotient of (A the excess of (1) the sum of 6.54
times EBITDA for the Company's and the Company's Subsidiaries most recently
ended fiscal year prior to the closing of a purchase and sale plus cash and cash
equivalents of the Company and the Company's Subsidiaries (but only to the
extent the total of such cash and cash equivalents exceeds $15 million) over (2)
the principal amount of outstanding debt of Holdings and its Subsidiaries owing
to banks, or owing with respect to securities issued by Holdings or by any
Subsidiary of Holdings and the aggregate liquidation preference of all
outstanding preferred stock issued by Holdings, in each case as of the Company's
and the Company's Subsidiaries most recently ended fiscal year prior to the
closing of a purchase and sale, divided by (B) the total number of outstanding
shares of all classes of common stock of Holdings. The calculation of Agreed
Share Price shall be as of the Company's and the Company's Subsidiaries' most
recently ended fiscal year.
(c) "Award Date" of Units is the date the Committee establishes for an
award of Units to a Participant.
(d) "Beneficiary" means the person, persons, trust or trusts which have
been designated by a Participant in his or her most recent written beneficiary
designation filed with the Committee to receive the Participant's rights under
the Plan upon the Participant's death, or, if there is no such designation or no
such designated person survives the Participant, then the person, persons, trust
or trusts entitled by will or applicable law to receive such rights or, if no
such person has such right then the Participant's executor or administrator.
(e) "Change of Control Date" shall mean the date as of which (i) any
person who as of February 25, 1998 did not beneficially own, directly or
indirectly, voting stock of the Company shall acquire (including by purchase or
merger) direct or indirect beneficial ownership of more
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than 50% of the voting stock of the Company (or any successor of the Company) or
(ii) substantially all of the assets of the Company are sold, disposed of or
liquidated.
(f) "Committee" shall mean the committee described in Section 3.
(g) "Company" shall mean Eagle-Picher Industries, Inc., an Ohio
corporation, or any successor corporation.
(h) "EBITDA" (except to the extent modified according to Section 3(c)
if applicable) shall have the meaning such term has in the Credit Agreement
among E-P Acquisition, Inc., various lenders, and ABN AMRO Bank N.V. as Agent,
dated February 19, 1998.
(i) "Holdings" shall mean Eagle-Picher Holdings, Inc., a Delaware
corporation, or any successor corporation.
(j) "Incapacitated" shall mean permanently and totally disabled within
the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended.
(k) "Participant" shall mean any person who holds Units and/or
Restricted Stock under the Plan.
(l) "Plan" shall mean this Incentive Stock Plan for Outside Directors
in its entirety, including any amendments, rules and regulations adopted
pursuant hereto.
(m) "Restricted Stock" means non-voting certificates of beneficial
ownership in a voting trust established under Delaware law for the purpose of
holding shares of Class A common stock of Holdings. A share of Restricted Stock
is an amount of Restricted Stock that represents a beneficial ownership interest
in the voting trust corresponding to one share of Class A common stock of
Holdings.
(n) "Subsidiary" of any person shall mean any entity in which the
person owns, directly or indirectly, at least 50% of the combined voting power
of all classes of stock in such entity or at least 50% of the ownership
interests in such entity.
(o) "Trust" shall mean the Eagle-Picher Management Trust established
under a trust agreement dated February 17, 1998, with Thomas E. Petry, Joel P.
Wyler and Andries Ruijssenaars as Trustees.
(p) "Unit" shall mean a unit representing the right, subject to the
provisions of the Plan, to receive from the Trust one share of Restricted Stock,
which right has been awarded to a Participant by the Committee pursuant to the
Plan.
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Section 3. Administration.
(a) The Committee shall be composed of three individuals each of whom
shall continue to serve until he resigns, dies or is Incapacitated. Initially,
the members of the Committee shall be Thomas E. Petry, Joel P. Wyler and Andries
Ruijssenaars, each of whom shall continue to serve until he resigns, dies or is
Incapacitated. In the event that either Mr. Petry or Mr. Ruijssenaars shall
resign, die or be Incapacitated, the remaining members of the Committee shall
appoint his successor. In the event that Mr. Wyler shall resign, die, or be
Incapacitated, his successor shall be appointed by Granaria Industries B.V.
(b) The Plan shall be administered by and in the sole discretion of the
Committee which, by vote of a majority of the members, but only if Mr. Wyler (or
his successor appointed by Granaria Industries B.V.) is included in the
majority, may establish such rules and regulations as it deems necessary, make
amendments consistent with Section 11(d), make adjustments in the calculation of
EBITDA pursuant to Section 3(c), appoint successor Trustees (except as provided
in the last sentence of paragraph (a)), interpret the Plan and otherwise make
all determinations and take such action in connection with the Plan as it deems
appropriate.
(c) From time to time, the Committee in its sole discretion may make
adjustments in the Company's consolidated earnings derived from operations
before interest, taxes, depreciation and amortization determined in accordance
with GAAP for purposes of calculating EDITDA so that changes in accounting
principles; extraordinary or unusual charges or credits; acquisitions, mergers,
consolidations, and other corporate transactions; and other elements or factors
influencing calculation of EBITDA do not distort or affect the operation of the
Plan in a manner inconsistent with the achievement of its purposes.
(d) The decisions of the Committee shall be final, conclusive, and
binding upon all parties. In administering the Plan, the Committee may employ
accountants and counsel (who may be the independent auditors and outside counsel
for the Company or Holdings) and other persons to assist or render advice to it,
all at the expense of the Company.
Section 4. Eligibility.
The Committee shall designate those persons who shall be Participants
and shall award Units to each Participant.
Section 5. Vesting. The Committee, in its sole discretion, shall
determine the dates on which Units awarded to a Participant shall vest. In the
event that a Participant ceases to be a director of Holdings and the Company for
any reason other than by reason of death or being Incapacitated, any of the
Participant's Units that have not yet vested as of the date of such cessation
shall be immediately forfeited and cancelled without necessity of further action
and the shares of Restricted Stock that would have been delivered with respect
thereto shall be transferred to Granaria Holdings B.V. The Units of a
Participant who dies or is Incapacitated while a director of Holdings and the
Company shall be immediately 100% vested as of the date of death or incapacity.
The Units of a Participant who is a director of Holdings or the Company on any
Change of Control Date shall be immediately 100% vested as of the Change of
Control Date. At
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any time, the Committee may accelerate the vesting schedule applicable to a
particular Participant by notifying the Participant in writing.
Section 6. Number of Units. The total number of Units issued under the
Plan shall be equal to the total number of shares of Class A common stock of
Holdings allocated to the Plan by the Committee of the Second Amended And
Restated Incentive Stock Plan Of Eagle-Picher Industries, Inc.
Section 7. Payout of Units. Upon the earlier of the date as of which a
Participant has become 100% vested in all his or her awarded Units or the date
as of which the Participant forfeited Units pursuant to Section 5, the Trustees
shall transfer to the Participant or, if the Participant has died, to his or her
Beneficiary, a number of shares of Restricted Stock equal to the number of the
Participant's Units that have vested. The right of a Participant to receive
Restricted Stock pursuant to the preceding sentence shall be conditioned on the
Participant's execution of the Shareholders' Agreement attached hereto as
Exhibit A and the Voting Trust Agreement attached hereto as Exhibit B. A
Participant shall be deemed a Senior Manager under the Shareholders' Agreement.
Section 8. Dividends.
(a) In the event that the Trust receives a dividend paid with respect
to Restricted Stock, the Trustees shall pay to each Participant an amount that
bears the same ratio to the aggregate dividend received by the Trust that the
number of vested Units awarded to the Participant bears to the total number of
shares of Restricted Stock held by the Trust on which dividends were paid.
(b) At the time the Trustees transfer Restricted Stock to a Participant
or Beneficiary, the Trustees shall also transfer to the Participant or
Beneficiary cash equal to the aggregate amount of dividends received by the
Trust on such an amount of Restricted Stock less the amount of dividends
previously distributed to the Participant and his Beneficiary pursuant to
paragraph (a).
Section 9. Designation of Beneficiaries.
(a) Each Participant shall file with the Committee a written
designation of one or more persons as the Beneficiary who shall be entitled to
receive the amount, if any, payable under the Plan upon his death. A Participant
may, from time to time, revoke or change his Beneficiary designation without the
consent of any prior Beneficiary by filing a new designation with the Committee.
The last such designation received by the Committee shall be controlling;
provided, however, that no designation, or change or revocation thereof, shall
be effective unless received by the Committee prior to the Participant's death,
and in no event shall it be effective as of a date prior to such receipt.
(b) If the Committee is in doubt as to the right of any person to
receive such amount, the Committee may retain such amount, without liability for
any interest thereon, until the rights thereon are determined, or the Committee
may pay such amount into any court of appropriate
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jurisdiction and such payment shall be a complete discharge of the liability of
the Plan, Holdings, the Company, the Trustees and the Committee therefor.
Section 10. Miscellaneous.
(a) The Plan, the awarding of Units thereunder, the issuance and
delivery of shares of Restricted Stock with respect to Units and the other
obligations of Holdings, the Company and the Trustees under the Plan, shall be
subject to all applicable federal, state, and local laws, rules and regulations,
and to such approvals by any regulatory or governmental agency as may be
required. The Trustees, in their discretion, may postpone the issuance and
delivery of shares of Restricted Stock with respect to Units until completion of
such stock exchange listing or registration or qualification of such stock or
securities or other required action under any state, federal or Dutch law, rule
or regulation as the Trustees may consider appropriate, and may require any
Participant or Beneficiary to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of stock or securities in compliance with applicable laws, rules and
regulations.
(b) Nothing in the Plan shall confer upon any Participant the right to
continue as a director of Holdings, the Company, or any Affiliate, as the case
may be, or to be entitled to any remuneration or benefits not set forth in the
Plan or to interfere with or limit in any way the right of Holdings, the Company
or any Affiliate to terminate such Participant's directorship.
(c) Holdings, the Company or any Affiliate and the Trustees are
authorized to withhold from any payment of cash or issuance of shares of
Restricted Stock with respect to Units under the Plan, amounts of withholding
and other taxes as may be required to be withheld under applicable laws or
regulations in connection with any transaction under the Plan, and to take such
other action as the Committee may deem advisable to enable Holdings or the
Company to satisfy obligations for the payment of withholding taxes and other
tax obligations relating to any Unit or shares of Restricted Stock. This
authority shall include authority to withhold or receive shares of Restricted
Stock or other securities or other property and to make cash payments in respect
thereof in satisfaction of a Participant's tax obligations. Each Participant
shall be responsible for any tax liability incurred by him or her as a result of
the award of Units or receipt of Restricted Stock.
(d) The Committee may at any time and from time to time alter, amend,
suspend, or terminate the Plan in whole or in part. Notwithstanding the
foregoing, no amendment shall affect adversely any of the rights of any
Participant without such Participant's consent.
(e) Except as provided in Section 4, no person shall have any claim to
Units under the Plan. Except as provided specifically herein, Participants shall
have no rights as a stockholder with respect to any shares of Restricted Stock
until the date of the issuance of certificates to such Participants for such
shares of Restricted Stock. The Plan is for the benefit of the Participants and
their Beneficiaries and not for the benefit of any other person.
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(f) No interest in the Trust or the Units shall be subject in any
manner to anticipation, alienation, pledge, transfer, or assignment, except by
will or by the laws of descent and distribution or with the written consent of
the Trustees and the Committee and any attempt to so anticipate, alienate,
pledge, transfer, or assign shall be void and the interest of the Participant
shall be forfeited.
(g) Awards and payouts of Units or Restricted Stock will not be
considered as compensation for the purpose of computing employee contributions
or benefits under any other Company benefit plan.
(h) In the event that a Participant breaches any fiduciary duty to
Holdings, the Company or any of their Affiliates, then any rights of the
Participant under the Plan shall immediately terminate, any Units of the
Participant, whether or not vested, shall be forfeited and cancelled, and the
Participant shall return to Holdings any cash, Restricted Stock or property
received by him or her under the Plan. The Committee may waive the provisions of
this paragraph (h) if it determines in its sole discretion that such action is
in the best interests of the Company.
(i) Any payment by Holdings that is to be made in cash shall be from
the general funds of Holdings. No special or separate fund shall be established
or other segregation of assets made to assure any cash payment by the Company
under the Plan.
(j) No Participant or other person shall have under any circumstances
any interest whatever in any particular property or assets of Holdings, the
Company or any of their Affiliates.
(k) This Plan and all determinations made and actions taken pursuant
hereto shall be governed by the laws of the State of Ohio without giving effect
to the conflicts of law principles thereof.
Section 11. Effective Date. This Plan shall be effective as of January
1, 1999.
END OF DOCUMENT