Exhibit 10.18
FARM FAMILY HOLDINGS, INC.
OMNIBUS SECURITIES PLAN
AMENDMENT AND RESTATEMENT
ARTICLE I
Purpose
The purpose of this FARM FAMILY HOLDINGS, INC. OMNIBUS SECURITIES PLAN (the
"Plan") is to benefit the stockholders of FARM FAMILY HOLDINGS, INC., a Delaware
corporation (the "Company"), by assisting the Company to attract, retain and
incentivize key management employees and directors of the Company and its
Affiliates, and to align the interests of such employees and directors with
those of the Company's stockholders. Accordingly, the Plan provides for the
granting of Incentive Stock Options, Non-Qualified Stock Options, Stock
Appreciation Rights, Restricted Stock Awards or any combination of the
foregoing, as may be best suited to the circumstances of the particular employee
or director as provided herein. The Plan was originally adopted effective as of
December 13, 1996 and has since been amended from time to time. This amendment
and restatement of the Plan shall be effective as of February 29, 2000, provided
that the Plan is approved by the stockholders of the Company within twelve (12)
months of such date.
ARTICLE II
Definitions
The following definitions shall be applicable throughout the Plan unless the
context otherwise requires:
"Affiliate" means any person or entity which, at the time of reference,
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company.
"Award" means, individually or collectively, any Option, Stock Appreciation
Right or Restricted Stock Award.
"Award Agreement" means a written agreement between the Company and the Holder
with respect to any Award.
"Board" means the Board of Directors of the Company.
A "Change of Control" of the Company shall mean a change in control of the
Company of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A under the Exchange Act, whether or not
the Company is subject to the Exchange Act at such time; provided, however, that
without limiting the generality of the foregoing, a Change in Control will in
any event be deemed to occur if and when:
(a) any person (as such term is used in paragraphs 13(d) and 14(d)(2) of
the Exchange Act, hereinafter in this definition, "Person"), other
than the Company or a subsidiary or employee benefit plan of the
Company or subsidiary, becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of twenty
percent (20%) or more of the common stock of the Company then outstanding;
(b) stockholders approve a merger, consolidation or other business combination
(a "Business Combination") other than a Business Combination in which the
persons who were the holders of common stock of Farm Family Life Insurance
Company, Farm Family Casualty Insurance Company or Farm Family Holdings,
Inc. immediately prior to the Business Combination (i) own, immediately
after the Business Combination, more than sixty percent (60%) of the
combined voting power of securities issued by the ultimate parent company
resulting from such Business Combination, and (ii) own such securities in
substantially the same proportion as they were owned by such persons
immediately prior to the Business Combination;
(c) stockholders approve either (i) an agreement for the sale or disposition
of all or substantially all of the Company's assets to any entity that is
not a subsidiary of the Company, or (ii) a plan of complete liquidation;
or
(d) the persons who were members of the Board immediately before a tender
offer by any Person other than the Company or a subsidiary, or before a
merger, consolidation or contested election, or before any combination of
such transactions, cease to constitute a majority of the Board as a result
of such transaction or transactions.
"Code" means the Internal Revenue Code of 1986, as amended. Reference in the
Plan to any section of the Code shall be deemed to include any amendments or
successor provisions to any section and any regulation under such section.
"Committee" means not less than three (3) members of the Board who are selected
by the Board to administer the Plan.
"Common Stock" means the Common Stock, par value $.01 per share, of the Company.
"Company" means Farm Family Holdings, Inc., a Delaware corporation, and any
successor thereto.
"Director" means a member of the Board, or a member of the board of directors of
an Affiliate, in either case, who is not an Employee.
"Effective Date" shall be as set forth in Article III of the Plan.
"Employee" means any person employed by the Company or an Affiliate.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, as of any specified date, the mean of the reported
high and low sales prices of the Common Stock on the stock exchange composite
tape on that date, or if no prices are reported on that date, on the last
preceding date on which such prices of the Common Stock are so reported. If the
Common Stock is traded over-the-counter at the time a determination of its fair
market value is required to be made hereunder, its fair market value shall be
deemed to be equal to the average between the reported high and low or closing
bid and asked prices of Common Stock on the most recent date on which Common
Stock was publicly traded. In the event Common Stock is not publicly traded at
the time a determination of this value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in such
manner as it deems appropriate.
"Holder" means an Employee or a Director who has been granted an Award.
"Incentive Stock Option" means an Option which is an "incentive stock option"
within the meaning of Section 422 of the Code.
"Non-Qualified Stock Option" means an Option which is not an Incentive Stock
Option.
"Option" means an Award granted under Article VII of the Plan of an option to
purchase shares of Common Stock and includes both Incentive Stock Options and
Non-Qualified Stock Options.
"Option Agreement" means a written agreement between the Company and a Holder
with respect to an Option.
"Plan" means this Farm Family Holdings, Inc. Omnibus Securities Plan, as amended
from time to time.
"Restricted Stock Agreement" means a written agreement between the Company and a
Holder with respect to a Restricted Stock Award.
"Restricted Stock Award" means an Award granted under Article IX of the Plan.
"Rule 16b-3" means Rule 16b-3 promulgated by the Securities and Exchange
Commission under the Exchange Act, as such may be amended from time to time, and
any successor rule, regulation or statute fulfilling the same or a substantially
similar function.
"Spread" means, in the case of a Stock Appreciation Right, an amount equal to
the excess, if any, of the Fair Market Value of a share of Common Stock on the
date such Stock Appreciation Right is exercised over the Fair Market Value of a
share of Common Stock on the date on which such Stock Appreciation Right was
granted.
"Stock Appreciation Right" means an Award granted under Article VIII of the
Plan.
"Stock Appreciation Rights Agreement" means a written agreement between the
Company and a Holder with respect to an Award of Stock Appreciation Rights.
"Total and Permanent Disability" means the inability of an individual to provide
meaningful service for the Company due to a medically determinable physical or
mental impairment, which service is reasonably consistent with the individual's
past service for the Company, training and experience. Such determination of
total and permanent disability shall be made by the Committee. Notwithstanding
the foregoing, if an individual qualifies for Federal Social Security disability
benefits or for payments under a long-term disability income plan of the Company
or the Affiliate which employs such individual, based upon his physical or
mental condition, such individual shall be deemed to suffer from a Total and
Permanent Disability hereunder.
ARTICLE III
Effective Date of Plan
The Plan was originally effective as of December 13, 1996. This amendment and
restatement of the Plan shall be effective as of February 29, 2000, provided
that the Plan is approved by the stockholders of the Company within twelve (12)
months of such date.
ARTICLE IV
Administration
Section 4.1 Composition of Committee. Except as provided in Section 4.5, the
Plan shall be administered by the Committee. If a member of the Committee shall
be eligible to receive an Award under the Plan, such Committee member shall have
no authority hereunder with respect to his or her own Award.
Section 4.2 Powers. Subject to the provisions of the Plan, the Committee shall
have the sole authority, in its discretion, to determine which Employees shall
receive Awards, the time or times when Awards to Employees shall be made, what
type of Awards shall be granted to Employees and the number of shares of Common
Stock which may be issued under each Option, Stock Appreciation Right or
Restricted Stock Award to an Employee. In making such determinations the
Committee may take into account the nature of the services rendered by the
respective Employees, their present and potential contribution to the Company's
(or the Affiliate's) success and such other factors as the Committee in its
discretion shall deem relevant.
Section 4.3 Additional Powers. Subject to Section 4.5, the Committee shall have
such additional powers as are delegated to it under the other provisions of the
Plan. Subject to the express provisions of the Plan, including but not limited
to Section 4.5, the Committee is authorized to construe the Plan and the
respective Award Agreements executed hereunder, to prescribe such rules and
regulations relating to the Plan as it may deem advisable to carry out the
intent of the Plan, and to determine the terms, restrictions and provisions of
each Award made to an Employee, including such terms, restrictions and
provisions as shall be requisite in the judgment of the Committee to cause
designated Options to qualify as Incentive Stock Options, and to make all other
determinations necessary or advisable for administering the Plan with respect to
the participation of Employees. The Committee may correct any defect or supply
any omission or reconcile any inconsistency in any Award Agreement entered into
with an Employee in the manner and to the extent it shall deem expedient to
carry it into effect. In no event shall the Committee have the right to amend an
outstanding Option Agreement for the sole purpose of reducing the exercise price
thereof. The determinations of the Committee on the matters referred to in this
Article IV shall be conclusive.
Section 4.4 Committee Action. In the absence of specific rules to the contrary,
action by the Committee shall require the consent of a majority of the members
of the Committee, expressed either orally at a meeting of the Committee or in
writing in the absence of a meeting.
Section 4.5 Participation of Directors. Notwithstanding anything to the contrary
contained in the Plan, all decisions relating to the participation of Directors
in the Plan, including but not limited to the determination of which Directors
shall receive Awards, the time or times when Awards shall be made to Directors,
what types of Awards (other than Incentive Stock Options, which may not be
awarded to Directors) shall be granted to Directors and the number of shares of
Common Stock which may be issued under each Non-Qualified Stock Option, Stock
Appreciation Right or Restricted Stock Award for a Director, shall be made by
the Board, in its discretion, rather than by the Committee.
ARTICLE V
Stock Subject to Plan and Limitations Thereon
Section 5.1 Stock Grant and Award Limits. Subject to Article XII, the aggregate
number of shares of Common Stock that may be issued under the Plan shall not
exceed One Million (1,000,000) shares. Shares shall be deemed to have been
issued under the Plan solely to the extent actually issued and delivered
pursuant to an Award. To the extent that an Award is settled in cash or lapses
or the rights of its Holder terminate, any shares of Common Stock subject to
such Award shall again be available for the grant of a new Award.
Notwithstanding any provision in the Plan to the contrary, the aggregate number
of shares of Common Stock that may be subject to Awards of Restricted Stock
under Article IX is One Hundred Thousand (100,000) (subject to adjustment in the
same manner as provided in Article X with respect to shares of Common Stock
subject to Awards then outstanding). Notwithstanding any provision in the Plan
to the contrary, the maximum number of shares of Common Stock that may be
subject to Awards of Options and Stock Appreciation Rights under Article VII or
VIII granted to any one Employee during any calendar year is One Hundred
Thousand (100,000) (subject to adjustment in the same manner as provided in
Article X with respect to shares of Common Stock subject to Awards then
outstanding). The limitation set forth in the preceding sentence shall be
applied in a manner which shall permit compensation generated in connection with
the exercise of Options and Stock Appreciation Rights to constitute
"performance-based" compensation for purposes of Section 162(m) of the Code,
including, but not limited to, counting against such annual maximum number of
shares per covered employee, as defined in Section 162(m) of the Code, to the
extent required under Section 162(m) of the Code and applicable interpretive
authority thereunder, any shares subject to Options or Stock Appreciation Rights
that are canceled. Notwithstanding any provision in the Plan to the contrary,
the maximum number of shares of Common Stock that may be subject to Awards
granted to any one Director during any calendar year is One Thousand (1,000)
(subject to adjustment in the same manner as provided in Article X with respect
to shares of Common Stock subject to Awards then outstanding).
Section 5.2 Stock Offered. The stock to be offered pursuant to the grant of an
Award may be authorized but unissued Common Stock or Common Stock previously
issued and outstanding and reacquired by the Company.
ARTICLE VI
Eligibility for Awards; Termination of Employment
or Director Status
Section 6.1 Eligibility. Awards made under the Plan may be granted solely to
persons who, at the time of grant, are Employees or Directors; provided,
however, that Incentive Stock Options may not be granted to Directors. An Award
may be granted on more than one occasion to the same Employee or Director, and,
subject to the limitations set forth in the Plan, such Award may include an
Incentive Stock Option (except with respect to Awards made to Directors), a
Non-Qualified Stock Option, a Stock Appreciation Right, a Restricted Stock Award
or any combination thereof.
Section 6.2 Termination of Employment. Except to the extent inconsistent with
the terms of the applicable Award Agreement, the following terms and conditions
shall apply with respect to the termination of a Holder's employment with the
Company or an Affiliate, as applicable, for any reason, including, without
limitation, retirement upon or after attaining age fifty-five (55), Total and
Permanent Disability or death:
(a) The Holder's rights, if any, to exercise any then exercisable
Non-Qualified Stock Options and/or Stock Appreciation Rights (other than
Stock Appreciation Rights granted in connection with Incentive Stock
Options), shall terminate on the earlier of the expiration date of the
Options as set forth in the Award Agreement and one (1) year after the
date of termination of employee.
Upon such applicable date the Holder (and such Holder's estate, designated
beneficiary or other legal representative) shall forfeit any rights or
interests in or with respect to any such Non-Qualified Stock Options or
Stock Appreciation Rights.
(b) The Holder's rights, if any, to exercise any then exercisable Incentive
Stock Options and/or Stock Appreciation Rights granted in connection with
Incentive Stock Options, shall terminate on the earlier of the expiration
date of the Options as set forth in the Award Agreement and the relevant
date set forth in (1), (2), or (3) below:
(1) If such termination is for a reason other than the Holder's
retirement upon or after attaining age fifty-five (55), Total and
Permanent Disability or death, not more than thirty (30) days after
the date of such termination of employment;
(2) If such termination is on account of the Holder's retirement upon or
after attaining age fifty-five (55) or on account of the Holder's
Total and Permanent Disability, three (3) months after the date of
such termination of employment; or
(3) If such termination is on account of the Holder's death, one (1) year
after the date of the Holder's death.
Upon such applicable date the Holder (and such Holder's estate, designated
beneficiary or other legal representative) shall forfeit any rights or
interests in or with respect to any such Incentive Stock Options or Stock
Appreciation Rights.
(c) If a Holder's employment with the Company or an Affiliate, as applicable,
terminates for any reason prior to the actual or deemed satisfaction
and/or lapse of the restrictions, terms and conditions applicable to a
grant of Restricted Stock, such Restricted Stock shall immediately be
canceled, and the Holder (and such Holder's estate, designated beneficiary
or other legal representative) shall forfeit any rights or interests in
and with respect to any such Restricted Stock. The immediately preceding
sentence to the contrary notwithstanding, the Committee, in its sole
discretion, may determine, prior to or within thirty (30) days after the
date of such termination of employment, that all or a portion of any such
Holder's Restricted Stock shall not be so canceled and forfeited.
Section 6.3 Termination of Director Status. Except to the extent inconsistent
with the terms of the applicable Award Agreement, the following terms and
conditions shall apply with respect to the termination of a Holder's status as a
Director of the Company or an Affiliate, as applicable, for any reason:
(a) The Holder's rights, if any, to exercise any then exercisable
Non-Qualified Stock Options and/or Stock Appreciation Rights shall
terminate on the earlier of the expiration date of the Options as set
forth in the Award Agreement and one (1) year after the date of such
termination of Director status.
Upon such applicable date the Holder (and such Holder's estate, designated
beneficiary or other legal representative) shall forfeit any rights or
interests in or with respect to any such Non-Qualified Stock Options or
Stock Appreciation Rights.
(b) If a Holder's status as a Director of the Company or an Affiliate, as
applicable, terminates for any reason prior to the actual or deemed
satisfaction and/or lapse of the restrictions, terms and conditions
applicable to a grant of Restricted Stock, such Restricted Stock shall
immediately be canceled, and the Holder (and such Holder's estate,
designated beneficiary or other legal representative) shall forfeit any
rights or interests in and with respect to any such Restricted Stock. The
immediately preceding sentence to the contrary notwithstanding, the Board,
in its sole discretion, may determine, prior to or within thirty (30) days
after the date of such termination of Director status, that all or a
portion of any such Holder's Restricted Stock shall not be so canceled and
forfeited.
ARTICLE VII
Options
Section 7.1 Option Period. The term of each Option shall be as specified in the
Option Agreement.
Section 7.2 Limitations on Exercise of Option. An Option shall be exercisable in
whole or in such installments and at such times as specified in the Option
Agreement.
Section 7.3 Special Limitations on Incentive Stock Options. Incentive Stock
Options may be granted solely to Employees. In addition, to the extent that the
aggregate Fair Market Value (determined at the time the respective Incentive
Stock Option is granted) of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by an individual during any calendar
year under all plans of the Company and any parent corporation or subsidiary
corporation thereof (both as defined in Section 424 of the Code) which provide
for the grant of Incentive Stock Options exceeds One Hundred Thousand Dollars
($100,000) (or such other individual limit as may be in effect under the Code on
the date of grant), such Incentive Stock Options shall be treated as
Non-Qualified Stock Options. The Committee shall determine, in accordance with
applicable provisions of the Code, Treasury Regulations and other administrative
pronouncements, which of a Holder's Options, which were intended by the
Committee to be Incentive Stock Options when granted to the Holder, will not
constitute Incentive Stock Options because of such limitation and shall notify
the Holder of such determination as soon as practicable after such
determination. No Incentive Stock Option shall be granted to an Employee if, at
the time the Option is granted, such Employee owns stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company or of any parent corporation or subsidiary corporation thereof (both
as defined in Section 424 of the Code), within the meaning of Section 422(b)(6)
of the Code, unless (i) at the time such Incentive Stock Option is granted the
Option price is at least one hundred ten percent (110%) of the Fair Market Value
of the Common Stock subject to the Option and (ii) such Incentive Stock Option
by its terms is not exercisable after the expiration of five (5) years from the
date of grant.
Section 7.4 Option Agreement. Each Option shall be evidenced by an Option
Agreement in such form and containing such provisions not inconsistent with the
provisions of the Plan as the Committee or the Board from time to time shall
approve, including, but not limited to, provisions to qualify an Option as an
Incentive Stock Option. An Option Agreement may provide for the payment of the
Option price, in whole or in part, by the delivery of a number of shares of
Common Stock (plus cash if necessary) having a Fair Market Value equal to such
Option price. Each Option Agreement shall, solely to the extent inconsistent
with the provisions of Section 6.2 or 6.3, specify the effect of termination of
employment or Director status on the exercisability of the Option. Moreover, an
Option Agreement may provide for a "cashless exercise" of the Option by
establishing procedures whereby the Holder, by a properly-executed written
notice, directs (i) an immediate market sale or margin loan respecting all or a
part of the shares of Common Stock to which he is entitled upon exercise,(ii)
the delivery of the shares of Common Stock from the Company directly to a
brokerage firm and (iii) the delivery of the Option price from sale or margin
loan proceeds from the brokerage firm directly to the Company. Such Option
Agreement may also include provisions relating to (i) subject to the provisions
hereof, accelerated vesting of Options, (ii) tax matters (including provisions
covering any applicable Employee wage withholding requirements and requiring
additional "gross-up" payments to Holders to meet any excise taxes or other
additional income tax liability imposed as a result of a payment upon a Change
of Control resulting from the operation of the Plan or of such Option Agreement)
and (iii) any other matters not inconsistent with the terms and provisions of
the Plan that the Committee (or, with respect to Directors, the Board) shall in
its sole discretion determine. The terms and conditions of the respective Option
Agreements need not be identical.
Section 7.5 Option Price and Payment. The price at which a share of Common Stock
may be purchased upon exercise of an Option shall be determined by the Committee
or the Board, but such Option price (i) in the case of an Option that is an
Incentive Stock Option, shall not be less than the Fair Market Value of a share
of Common Stock on the date such Option is granted, and (ii) in the case of an
Option that is a Non-Qualified Stock Option, shall not be less than eighty-five
percent (85%) of the Fair Market Value of a share of Common Stock on the date
such Option is granted and (iii) shall be subject to adjustment as provided in
Article X. The Option or portion thereof may be exercised by delivery of an
irrevocable notice of exercise to the Company. The Option price for the Option
or portion thereof shall be paid in full in the manner prescribed by the
Committee or the Board. Separate stock certificates shall be issued by the
Company for those shares of Common Stock acquired pursuant to the exercise of an
Incentive Stock Option and for those shares of Common Stock acquired pursuant to
the exercise of a Non-Qualified Stock Option.
Section 7.6 Stockholder Rights and Privileges. The Holder shall be entitled to
all the privileges and rights of a stockholder of the Company solely with
respect to such shares of Common Stock as have been purchased under the Option
and for which certificates of stock have been registered in the Holder's name.
Section 7.7 Options and Rights in Substitution for Stock Options Granted by
Other Corporations. Options and Stock Appreciation Rights may be granted under
the Plan from time to time in substitution for stock options held by individuals
employed by entities who become Employees as a result of a merger or
consolidation of the employing entity with the Company or any Affiliate, or the
acquisition by the Company or an Affiliate of the assets of the employing
entity, or the acquisition by the Company or an Affiliate of stock of the
employing entity with the result that such employing entity becomes an
Affiliate.
ARTICLE VIII
Stock Appreciation Rights
Section 8.1 Stock Appreciation Rights. A Stock Appreciation Right is the right
to receive an amount equal to the Spread with respect to a share of Common Stock
upon the exercise of such Stock Appreciation Right. Stock Appreciation Rights
may be granted in connection with the grant of an Option, in which case the
Award Agreement will provide that the exercise of Stock Appreciation Rights will
result in the surrender of the right to purchase the shares under the Option as
to which the Stock Appreciation Rights were exercised. Alternatively, Stock
Appreciation Rights may be granted independently of Options in which case each
Award of Stock Appreciation Rights shall be evidenced by a Stock Appreciation
Rights Agreement which shall contain such terms and conditions as may be
approved by the Committee (or, with respect to Directors, by the Board)
including all applicable matters set forth with specificity in Section 7.4 with
respect to Option Agreements. The terms and conditions of the respective Stock
Appreciation Rights Agreements need not be identical. The Spread with respect to
a Stock Appreciation Right may be payable either in cash, in shares of Common
Stock with a Fair Market Value equal to the Spread or in a combination of cash
and shares of Common Stock, as determined by the Committee (or, with respect to
Directors, by the Board). Each Stock Appreciation Rights Agreement shall, solely
to the extent inconsistent with the provisions of Section 6.2 or 6.3, specify
the effect of termination of employment or Director status on the exercisability
of the Stock Appreciation Rights.
Section 8.2 Exercise Period. The term of each Stock Appreciation Right shall be
as specified by the Committee (or, with respect to Directors, by the Board) at
the date of grant.
Section 8.3 Limitations on Exercise of Stock Appreciation Right. A Stock
Appreciation Right shall be exercisable in whole or in such installments and at
such times as determined by the Committee (or, with respect to Directors, by the
Board).
ARTICLE IX
Restricted Stock Awards
Section 9.1 Restriction Period to be Established . At the time a Restricted
Stock Award is made, the Committee (or, with respect to Directors, the Board)
shall establish a period of time (the "Restriction Period") applicable to such
Award. Each Restricted Stock Award may have a different Restriction Period, in
the discretion of the Committee (or, with respect to Directors, the Board),
provided however, that all shares underlying Awards of Restricted Stock shall
vest either (i) in full at the expiration of a period of not less than three (3)
years from the date of grant of such Award, or (ii) proportionately in equal
installments over a period of not less than three (3) years from the date of
grant of such Award. The Restriction Period applicable to a particular
Restricted Stock Award shall not be changed except as permitted by Section 9.2
or Article X.
Section 9.2 Other Terms and Conditions. Common Stock awarded pursuant to a
Restricted Stock Award shall be represented by a stock certificate registered in
the name of the Holder of such Restricted Stock Award. If provided for by the
Award Agreement, the Holder shall have the right to receive dividends during the
Restriction Period, to vote Common Stock subject thereto and to enjoy all other
stockholder rights, except that (i) the Holder shall not be entitled to delivery
of the stock certificate until the Restriction Period shall have expired, (ii)
the Company shall retain custody of the stock during the Restriction Period,
(iii) the Holder may not sell, transfer, pledge, exchange, hypothecate or
otherwise dispose of the stock during the Restriction Period and (iv) a breach
of the terms and conditions established by the Committee (or, with respect to
Directors, by the Board) pursuant to the Restricted Stock Agreement shall cause
a forfeiture of the Restricted Stock Award. At the time of such Award, the
Committee (or, with respect to Directors, the Board) may, in its sole
discretion, prescribe additional terms and conditions or restrictions relating
to Restricted Stock Awards, including, but not limited to, rules pertaining to
the effect of termination of employment prior to expiration of the Restriction
Period, solely to the extent inconsistent with the provisions of Section 6.2 or
6.3. Such additional terms, conditions or restrictions shall, to the extent
inconsistent with the provisions of Section 6.2 or 6.3, be set forth in a
Restricted Stock Agreement made in conjunction with the Award. Such Restricted
Stock Agreement may also include provisions relating to (i) subject to the
provisions hereof, accelerated vesting of Restricted Stock Awards, (ii) tax
matters (including provisions covering any applicable Employee wage withholding
requirements, prohibiting an election by the Holder under Section 83(b) of the
Code and requiring additional "gross-up" payments to Holders to meet any excise
taxes or other additional income tax liability imposed as a result of a Change
of Control payment resulting from the operation of the Plan or of such
Restricted Stock Agreement) and (iii) any other matters not inconsistent with
the terms and provisions of the Plan that the Committee (or, with respect to
Directors, the Board) shall in its sole discretion determine. The terms and
conditions of the respective Restricted Stock Agreements need not be identical.
Section 9.3 Payment for Restricted Stock. The Committee (or, with respect to
Directors, the Board) shall determine the amount and form of any payment for
Common Stock received pursuant to a Restricted Stock Award, provided that in the
absence of such a determination, a Holder shall not be required to make any
payment for Common Stock received pursuant to a Restricted Stock Award, except
to the extent otherwise required by law.
Section 9.4 Agreements. At the time any Award is made under this Article IX, the
Company and the Holder shall enter into a Restricted Stock Agreement setting
forth each of the matters contemplated hereby and such other matters as the
Committee (or, with respect to Directors, the Board) may determine to be
appropriate.
ARTICLE X
Recapitalization or Reorganization
Section 10.1 Adjustments to Common Stock. The shares with respect to which
Awards may be granted are shares of Common Stock as presently constituted;
provided, however, that if, and whenever, prior to the expiration or
distribution to the Holder of an Award theretofore granted, the Company shall
effect a subdivision or consolidation of shares of Common Stock or the payment
of a stock dividend on Common Stock without receipt of consideration by the
Company, the number of shares of Common Stock with respect to which such Award
may thereafter be exercised or satisfied, as applicable, (i) in the event of an
increase in the number of outstanding shares, shall be proportionately
increased, and the purchase price per share shall be proportionately reduced,
and (ii) in the event of a reduction in the number of outstanding shares, shall
be proportionately reduced, and the purchase price per share shall be
proportionately increased.
Section 10.2 Recapitalization. If the Company recapitalizes or otherwise changes
its capital structure, thereafter upon any exercise or satisfaction, as
applicable, of a previously granted Award, the Holder shall be entitled to
receive (or entitled to purchase, if applicable) under such Award, in lieu of
the number of shares of Common Stock then covered by such Award, the number and
class of shares of stock and securities to which the Holder would have been
entitled pursuant to the terms of the recapitalization if, immediately prior to
such recapitalization, the Holder had been the holder of record of the number of
shares of Common Stock then covered by such Award.
Section 10.3 Change of Control. In the event of the occurrence of a Change of
Control, all outstanding Awards shall immediately vest and become exercisable or
satisfiable, as applicable. The Committee (or, with respect to Directors, the
Board), in its discretion, may determine that upon the occurrence of a Change of
Control, each Award outstanding hereunder shall terminate within a specified
number of days after notice to the Holder, and such Holder shall receive, with
respect to each share of Common Stock subject to such Award, cash in an amount
equal to the excess of (i) the higher of (x) the Fair Market Value of such share
of Common Stock immediately prior to the occurrence of such Change of Control or
(y) the value of the consideration to be received in connection with such Change
of Control for one share of Common Stock, over (ii) the exercise price per
share, if applicable, of one share of Common Stock. If the consideration offered
to stockholders of the Company in any transaction described in this Section 10.3
consists of anything other than cash, the Committee shall determine the fair
cash equivalent of the portion of the non-cash consideration offered. The
provisions contained in this Section 10.3 shall not terminate any rights of the
Holder to further payments pursuant to any other agreement with the Company
following the occurrence of a Change of Control.
Section 10.4 Other Events. In the event of changes to the outstanding Common
Stock by reason of stock split, stock dividend, recapitalization,
reorganization, mergers, consolidations, combinations, exchanges or other
relevant changes in capitalization occurring after the date of the grant of any
Award and not otherwise provided for under this Article X, any outstanding
Awards and any Award Agreements evidencing such Awards shall be subject to
adjustment by the Committee (or, with respect to Directors, by the Board) in its
discretion as to the number and price of shares of Common Stock or other
consideration subject to such Awards. In the event of any such change to the
outstanding Common Stock, the aggregate number of shares available under the
Plan may be appropriately adjusted by the Committee, the determination of which
shall be conclusive.
Section 10.5 Powers Not Affected. The existence of the Plan and the Awards
granted hereunder shall not affect in any way the right or power of the Board or
of the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change of the Company's capital
structure or business, any merger or consolidation of the Company, any issue of
debt or equity securities ahead of or affecting Common Stock or the rights
thereof, the dissolution or liquidation of the Company or any sale, lease,
exchange or other disposition of all or any part of its assets or business or
any other corporate act or proceeding.
Section 10.6 No Adjustment for Certain Awards. Except as hereinabove expressly
provided, the issuance by the Company of shares of stock of any class or
securities convertible into shares of stock of any class, for cash, property,
labor or services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, and in any case whether or not
for fair value, shall not affect previously granted Awards, and no adjustment by
reason thereof shall be made with respect to the number of shares of Common
Stock subject to Awards theretofore granted or the purchase price per share, if
applicable.
ARTICLE XI
Amendment and Termination of Plan
The Board in its discretion may terminate the Plan at any time with respect to
any shares for which Awards have not theretofore been granted. The Board shall
have the right to alter or amend the Plan or any part hereof from time to time;
provided, however, that no change in any Award theretofore granted may be made
which would impair the rights of a Holder without the consent of the Holder
(unless such change is required in order to cause the benefits under the Plan to
qualify as performance-based compensation within the meaning of Section 162(m)
of the Code and applicable interpretive authority thereunder).
ARTICLE XII
Miscellaneous
Section 12.1 No Right to Award. Neither the adoption of the Plan by the Company
nor any action of the Board or the Committee shall be deemed to give an Employee
or Director any right to be granted an Option, a Stock Appreciation Right and/or
a Restricted Stock Award except as may be evidenced by an Award or by an Award
Agreement duly executed on behalf of the Company, and then solely to the extent
and on the terms and conditions expressly set forth therein.
Section 12.2 No Rights Conferred. Nothing contained in the Plan shall (i) confer
upon any Employee or Director any right with respect to continuation of
employment or Director status with the Company or any Affiliate, or (ii)
interfere in any way with the right of the Company or any Affiliate to terminate
the employment of an Employee or the Director status of a Director at any time.
Section 12.3 Other Laws; Withholding. The Company shall not be obligated to
issue any Common Stock pursuant to any Award granted under the Plan at any time
when the shares covered by such Award have not been registered under the
Securities Act of 1933 and such other state and federal laws, rules or
regulations as the Company or the Committee deems applicable and, in the opinion
of legal counsel of the Company, there is no exemption from the registration
requirements of such laws, rules or regulations available for the issuance and
sale of such shares. No fractional shares of Common Stock shall be delivered,
nor shall any cash in lieu of fractional shares be paid. The Company shall have
the right to deduct in cash (whether under this Plan or otherwise) in connection
with all Awards any taxes required by law to be withheld and to require any
payments required to enable it to satisfy its withholding obligations. In the
case of any Award satisfied in the form of shares of Common Stock, no shares
shall be issued unless and until arrangements satisfactory to the Company shall
have been made to satisfy any tax withholding obligations applicable with
respect to such Award. Subject to such terms and conditions as the Committee may
impose, the Company shall have the right to retain, or the Committee may subject
to such terms and conditions as it may establish from time to time permit
Holders to elect to tender, Common Stock (including Common Stock issuable in
respect of an Award) to satisfy, in whole or in part, the amount required to be
withheld.
Section 12.4 No Restriction on Corporate Action. Nothing contained in the Plan
shall be construed to prevent the Company or any Affiliate from taking any
corporate action which is deemed by the Company or such Affiliate to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any Award made under the Plan. No Employee,
beneficiary or other person shall have any claim against the Company or any
Affiliate as a result of any such action.
Section 12.5 Restrictions on Transfer. No Award under the Plan or any Award
Agreement and no rights or interests herein or therein, shall or may be
assigned, transferred, sold, exchanged, encumbered, pledged or otherwise
hypothecated or disposed of by a Holder except (i) by will or by the laws of
descent and distribution, or (ii) by gift to any member of the Holder's
immediate family or to a trust for the benefit of such immediate family member,
if permitted under the applicable Award Agreement. An Award may be exercisable
during the lifetime of the Holder only by such Holder or by the Holder's
guardian or legal representative unless it has been transferred by gift to a
member of the Holder's immediately family or to a trust for the benefit of such
immediate family member, in which case it shall be exercisable solely by such
transferee. For purposes of this provision, a Holder's "immediate family" shall
mean the Holder's spouse, children and grandchildren. Notwithstanding any such
transfer, the Holder will continue to be subject to the withholding requirements
provided for under Section 12.3 hereof.
Section 12.6 Section 162(m). It is intended that the Plan shall comply fully
with and meet all the requirements of Section 162(m) of the Code so that Options
and Stock Appreciation Rights granted hereunder with an exercise price not less
than the Fair Market Value of a share of Common Stock on the date of grant shall
constitute "performance-based" compensation within the meaning of Section
162(m).
Section 12.7 Other Plans. No Award, payment or amount received hereunder shall
be taken into account in computing an Employee's salary or compensation for the
purposes of determining any benefits under any pension, retirement, life
insurance or other benefit plan of the Company or any Affiliate, unless such
other plan specifically provides for the inclusion of such Award, payment or
amount received.
Section 12.8 Limits of Liability. Any liability of the Company with respect to
an Award shall be based solely upon the contractual obligations created under
the Plan and the Award Agreement. Neither the Company nor any member of the
Committee or the Board shall have any liability to any party for any action
taken or not taken, in good faith, in connection with or under the Plan.
Section 12.9 Governing Law. Except as otherwise provided herein, the Plan shall
be construed in accordance with the laws of the State of New York.
Section 12.10 Severability of Provisions. If any provision of the Plan is held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of the Plan, and the Plan shall be construed and enforced as
if such invalid or unenforceable provision had not been included in the Plan.
Section 12.11 No Funding. The Plan shall be unfunded. The Company shall not be
required to establish any special or separate fund or to make any other
segregation of funds or assets to ensure the payment of any Award.
Section 12.12 Headings. Headings used throughout the Plan are for convenience
only and shall not be given legal significance. --------
IN WITNESS WHEREOF, the Company has hereby executed this amendment and
restatement of the Plan, on the date written below.
FARM FAMILY HOLDINGS, INC.
By: /s/ Philip P. Weber
Philip P. Weber
President & Chief Executive Officer
Date: May 3, 2000