EXHIBIT 10.1
VALASSIS COMMUNICATIONS, INC.
Broad-Based Incentive Plan
1. Purpose. The purpose of the Broad-Based Incentive Plan (the
"Plan") is to advance the interests of Valassis Communications, Inc. (the
"Company") and its shareholders by providing incentives to employees of the
Company and its affiliates and to certain other individuals who perform services
for these entities.
2. Administration. The Plan shall be administered solely by the
Compensation/Stock Option Committee (the "Committee") of the Board of Directors
(the "Board") of the Company, as such Committee is from time to time
constituted, or any successor committee the Board may designate to administer
the Plan; provided that the Committee may delegate the administration of the
Plan in whole or in part, on such terms and conditions, and to such person or
persons as it may determine in its discretion.
The Committee has all the powers vested in it by the terms of the Plan
set forth herein, such powers to include exclusive authority (except as may be
delegated as permitted herein and described in the foregoing paragraph) to
select the employees and other individuals to be granted options under the Plan
("Option"), to determine the type, size and terms of the grant of Options to be
made to each individual selected, to modify the terms of any Option that has
been granted, to determine the time when Options will be granted, to make any
adjustments necessary or desirable as a result of the granting of Options to
eligible individuals located outside the United States and to prescribe the form
of the instruments embodying Option Agreements (as hereinafter defined) made
under the Plan. The Committee is authorized to interpret the Plan and the
Options granted under the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determination, which it
deems necessary or desirable for the administration of the Plan. The Committee
(or its delegate as permitted herein) may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any Option in the
manner and to the extent the Committee deems necessary or desirable to carry it
into effect. Any decision of the Committee (or its delegate as permitted herein)
in the interpretation and administration of the Plan, as described herein, shall
lie within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. The Committee may act only by a majority of
its members in office, except that the members thereof may authorize any one or
more of their members or any officer of the Company or its Affiliates (as
hereinafter defined) to execute and deliver documents or to take any other
ministerial action on behalf of the Committee with respect to Options granted or
to be granted to Plan participants. No member of the Committee and no officer of
the Company or its Affiliates shall be liable for anything done or omitted to be
done by him or her, by any other member of the Committee or by any officer of
the Company or its Affiliates in connection with the performance of duties under
the Plan, except for his or her own willful misconduct or as expressly provided
by statute.
3. Participation.
(a) Affiliates. If an Affiliate of the Company wishes to
participate in the Plan and its participation shall have been approved by the
Board upon the recommendation of the Committee, the board of directors or other
governing body of the Affiliate shall adopt a resolution in form and substance
satisfactory to the Committee authorizing participation by the
Affiliate in the Plan with respect to its employees or other individuals
performing services for it. As used herein, the term "Affiliate" means any
entity that directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with the Company as determined by
the Committee in its discretion. Notwithstanding the foregoing, all of the
Company's wholly-owned subsidiaries are deemed to be Affiliates entitled to
participate in the Plan, subject to any additional conditions as may be required
by any applicable foreign laws.
An Affiliate participating in the Plan may cease to be a participating
company at any time by action of the Board or by action of the board of
directors or other governing body of such Affiliate, which latter action shall
be effective not earlier than the date of delivery to the Secretary of the
Company of a certified copy of a resolution of the Affiliate's board of
directors or other governing body taking such action. If the participation in
the Plan of an Affiliate shall terminate, such termination shall not relieve it
of any obligations theretofore incurred by it, except as may be approved by the
Committee in its discretion.
(b) Participants. All employees and independent contractors of
both the Company and participating Affiliates are eligible to participate in the
Plan, provided they are not (i) officers (as defined by Rule 16a-1(f) under the
Securities Exchange Act of 1934, as amended, (the "Exchange Act")) or directors
of the Company, (ii) an owner of at least 5% of the outstanding Common Shares,
or (iii) a closely related person of any person described in (i) or (ii) of this
paragraph. Consistent with the purposes of the Plan, the Committee shall have
exclusive power (except as may be delegated as permitted herein) to select the
eligible employees and other individuals performing services for the Company,
including consultants or independent contractors and others who perform services
for the Company and its Affiliates, who may be granted Options under the Plan.
Eligible individuals may be selected individually or by groups or categories, as
determined by the Committee in its discretion.
4. Options under the Plan.
(a) Options. Options are rights to purchase common shares of the
Company, par value $0.01 per share (the "Common Shares"), and they are not to be
treated as "incentive stock options" within the meaning of Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"). Options are subject to
the terms, conditions and restrictions specified in Paragraph 5.
(b) Options that May Be Issued. There may be issued under the
Plan an aggregate of not more than 150,000 Common Shares, subject to adjustment
as provided in Paragraph 8.
(c) Rights with respect to Common Shares and Other Securities.
Unless otherwise determined by the Committee in its discretion, a participant to
whom a grant of an Option is made (and any person succeeding to such a
participant's rights pursuant to the Plan) shall have no rights as a stockholder
with respect to any Common Shares or as a holder with respect to other
securities, if any, issuable pursuant to any such Option until the date of the
issuance of a stock certificate to him or her for such Common Shares or other
instrument of ownership, if any. Except as provided in Paragraph 8, no
adjustment shall be made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities, other property or
other forms of consideration, or any combination thereof) for which the record
date is prior to the
2
date such stock certificate or other instrument of ownership, if any, is issued.
5. Conditions and Restrictions. Each Option granted under the
Plan shall be evidenced by an instrument ("Option Agreement") in such form as
the Committee shall prescribe from time to time in accordance with the Plan and
shall comply with the following terms and conditions, and with such other terms
and conditions, including, but not limited to, restrictions upon the Option or
the Common Shares issuable upon exercise thereof, as the Committee, in its
discretion, shall establish:
(a) The Option exercise price may be equal to, or greater than,
the Fair Market Value (as hereinafter defined) of the Common Shares subject to
such Option at the time the Option is granted;
(b) The Committee shall determine the number of Common Shares to
be subject to each Option. Options shall become exercisable in installments, if
any, as provided by the Committee.
(c) Any Option offered pursuant to the Plan shall not be
transferable other than by will or the laws of descent and distribution and
shall be exercisable during the participant's lifetime only by him or her, and a
participant's rights and interest under the Plan may not be assigned or
transferred, hypothecated or encumbered in whole or in part either directly or
by operation of law or otherwise (except in the event of a participants death)
including, but not by way of limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy or in any other manner.
(d) The Option shall not be exercisable:
(i) other than during such period, at such time or times and
in such installments, as the Committee may establish;
(ii) unless payment in full is made for the shares being
acquired thereunder at the time of exercise. Such payment shall be
made in such form (including, but not limited to, cash, Common Shares
owned by the participant for at least six months, or any combination
thereof) as the Committee may determine in its discretion; and
(iii) unless the person exercising the Option has been, at all
times during the period beginning with the date of the grant of the
Option and ending on the date of such exercise, employed by or
otherwise performing services for the Company or an Affiliate, or a
corporation, or a parent or subsidiary of a corporation, substituting
or assuming the Option, except that, in the discretion of the
Committee:
(A) if such person shall cease such employment or
performance of services by reason of his Disability (as
defined in Paragraph 7) or early, normal or deferred
retirement under an approved retirement program of the Company
or an Affiliate (or such other plan or arrangement as may be
approved by the Committee, in its discretion, for this
purpose) while holding an Option which has not expired and has
not been fully exercised, such person may exercise the Option
with respect to any Common Shares as to which he or she could
have exercised
3
the Option on the date he ceased such employment or
performance of services (and, if the Committee so determines,
with respect to any or all Common Shares under such Option as
to which he could not then have otherwise exercised such
Option) for an additional period of up to three years after
the date he or she ceased such employment or performance of
services (but in no event after the expiration date of the
Option); or
(B) if such person shall cease such employment or
performance of services by reason of death while holding an
Option that has not expired and has not been fully exercised,
his or her executors, administrators, heirs or distributees,
as the case may be, may, at any time within one year (or such
other period determined by the Committee) after the date of
death (but in no event after the expiration date of the
Option), exercise the Option with respect to any Common Shares
as to which the decedent could have exercised the Option at
the time of his or her death (and if the Committee so
determines, with respect to any or all Common Shares subject
to such Option as to which the decedent could not then have
otherwise exercised such Option); and
(C) if such person shall cease such employment or
performance of services for any reason other than Disability,
early, normal or deferred retirement or death, while holding
an Option which has not expired and has not been fully
exercised, such person may exercise the Option with respect to
any Common Shares as to which he or she could have exercised
the Option on the date he or she ceased such employment or
performance of services (and, if the Committee so determines,
with respect to any or all Common Shares under the Option as
to which he or she could not then have otherwise exercised the
Option) for such additional period, if any, following the date
he or she ceased such employment or performance of services,
that the Committee may determine (but in no event after the
expiration date of the Option).
(e) For purposes of this Plan, "Fair Market Value" per Common
Share as of a particular date shall mean (i) the closing sales price per Common
Share on a national securities exchange for the last preceding date on which
there was a sale of such Common Shares on such exchange, or (ii) if Common
Shares are then traded on an over-the-counter market, the average of the closing
bid and asked prices for the Common Shares in such over-the-counter market for
the last preceding date on which there was a sale of such Common Shares in such
market, or (iii) if the shares of Common Shares are not then listed on a
national securities exchange or traded in an over-the-counter market, such value
as the Committee in its discretion may determine.
(f) The Option Agreements shall provide that Options are not
"incentive stock options" for purposes of Section 422 of the Code. Furthermore,
the intent of the Company is that all Options granted under this Plan shall have
fixed and determinable terms, and not options with variable terms, within the
meaning of Accounting Principles Board Opinion No. 25; all ambiguities in
construction of Option Agreements shall be so interpreted, and all Option
Agreements shall be deemed supplemented to the extent necessary to effectuate
this intent and contrary provisions disregarded.
4
6. Amendment or Substitution of Options under the Plan. The terms
of any outstanding Option under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate (including,
but not limited to, acceleration of the date of exercise of any Option) provided
that no such amendment shall adversely affect in a material manner any right of
a participant under the Option without his or her written consent, unless the
Committee determines in its discretion that there have occurred or are about to
occur significant changes in the participant's position, duties or
responsibilities, or significant changes in economic, legislative, regulatory,
tax, accounting or cost/benefit conditions which are determined by the Committee
in its discretion to have or to be expected to have a substantial effect on the
performance of the Company, Affiliate, division or department thereof, on the
Plan or on any Option under the Plan. The Committee may, in its discretion,
permit holders of Options under the Plan to exchange outstanding Options for the
grant of new Options, or require holders of Options to surrender outstanding
Options as a condition precedent to the grant of new Options under the Plan.
7. Disability. For the purposes of this Plan, a participant shall
be deemed to have terminated his employment or performance of services for the
Company and its Affiliates by reason of Disability, if the participant is absent
from his or her duties with the Company or an Affiliate for a period of at least
180 days during any 12 month period as a result of incapacity due to a mental or
physical illness. The method of establishing Disability shall be a good faith
determination by the Committee.
8. Dilution and Other Adjustments. In the event of any change in
the outstanding Common Shares of the Company by reason of any stock split, stock
dividend, split-up, split-off, spin-off, recapitalization, merger,
consolidation, rights offering, share offering, reorganization, combination or
exchange of shares, a sale by the Company of all or part of its assets, or in
the event of any distribution to stockholders other than a normal cash dividend,
or other extraordinary or unusual event, if the Committee shall determine, in
its discretion, that such change equitably requires an adjustment in the terms
of any Option or the number of Common Shares available for Options, such
adjustment may be made by the Committee and shall be final, conclusive and
binding for all purposes of the Plan.
9. Designation of Beneficiary by Participant. A participant may
name a beneficiary to receive any payment to which he or she may be entitled in
respect of any Option under the Plan in the event of his or her death, on a
written form to be provided by and filed with the Committee, and in a manner
determined by the Committee in its discretion. The Committee reserves the right
to review and approve beneficiary designations. A participant may change his or
her beneficiary from time to time in the same manner, unless such participant
has made an irrevocable designation. Any designation of beneficiary under the
Plan (to the extent it is valid and enforceable under applicable law) shall be
controlling over any other disposition, testamentary or otherwise, as determined
by the Committee in its discretion. If no designated beneficiary survives the
participant and is living on the date on which any amount becomes payable to
such participant's beneficiary, such payment will be made to the legal
representatives of the participants estate, and the term "beneficiary" as used
in the Plan shall be deemed to include such person or persons. If there is any
question as to the legal right of any beneficiary to receive a distribution
under the Plan, the Committee in its discretion may determine that the amount in
question be paid to the legal representatives of the estate of the participant,
in which
5
event the Company, the Board and the Committee and the members thereof will have
no further liability to anyone with respect to such amount.
10. Change in Control.
(a) Upon the occurrence of a Change in Control (as hereinafter
defined), each Option that is outstanding on the date of such Change in Control
shall be exercisable in full immediately (whether or not then exercisable).
(b) For this purpose, a Change in Control shall be deemed to have
occurred if:
(i) any Person (as defined below) is or becomes the beneficial
owner, as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates) representing more than
50% of the combined voting power of the Company's then outstanding
securities; or
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has entered
into an agreement with the Company to effect a transaction described
in clause (i), (iii) or (iv) of this paragraph) whose election by the
Board or nomination for election by the Company's shareholders was
approved by a vote of a majority of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease
for any reason to constitute a majority thereof, or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, which merger
or consolidation is consummated, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity), in combination with newly
acquired ownership acquired in such transaction by any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or an Affiliate, at least 50% of the combined voting power
of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (B) a
merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no Person acquires more
than 50% of the combined voting power of the Company's then
outstanding securities; or
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company to any Person of all or substantially all
the Company's assets, which liquidation, sale or disposition is
consummated.
For purposes of this subsection 10(b), Person shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof, however, a Person shall not include (1) the Company or
any of its Affiliates; (2) a trustee or other fiduciary
6
holding securities under an employee benefit plan of the Company or any of its
Affiliates; (3) an underwriter temporarily holding securities pursuant to an
offering of such securities; or (4) a corporation owned, directly or indirectly,
by the shareholders of the Company in substantially the same proportion as their
ownership of stock of the Company.
11. Miscellaneous Provisions.
(a) No employee or other person shall have any claim or right to
be granted an Option under the Plan. Determinations made by the Committee under
the Plan need not be uniform and may be made selectively among eligible
individuals under the Plan, whether or not such eligible individuals are
similarly situated. Neither the Plan nor any action taken hereunder shall be
construed as giving any employee or other person any right to continue to be
employed by or perform services for the Company or any Affiliate, and the right
to terminate the employment of or performance of services by any participant at
any time and for any reason is specifically reserved.
(b) No participant or other person shall have any right with
respect to the Plan, the Common Shares reserved for issuance under the Plan or
in any Option, contingent or otherwise, until written evidence of the Option
shall have been delivered to the recipient and all the terms, conditions and
provisions of the Plan and the Option applicable to such recipient (and each
person claiming under or through him or her) have been met.
(c) No Common Shares, other Company securities or property, or
other forms of payment shall be issued hereunder with respect to any Option
unless counsel for the Company shall be satisfied that such issuance will be in
compliance with applicable federal, state, local and foreign legal, securities
exchange and other applicable requirements.
(d) The Company and its Affiliates shall have the right to deduct
from any payment made under the Plan any federal, state, local or foreign income
or other taxes required by law to be withheld with respect to such payment. It
shall be a condition to the obligation of the Company to issue Common Shares,
other securities or property, or other forms of payment, or any combination
thereof, upon exercise of any Option under the Plan, that the participant (or
any beneficiary or person entitled to act) pay to the Company, upon its demand,
such amount as may be requested by the Company for the purpose of satisfying any
liability to withhold federal, state, local or foreign income or other taxes. If
the amount requested is not paid, the Company may refuse to issue Common Shares,
other securities or property, or other forms of payment, or any combination
thereof. Notwithstanding anything in the Plan to the contrary, the Committee
may, in its discretion, permit a participant (or any beneficiary or person
entitled to act) to elect to pay a portion or all of the amount requested by the
Company for such taxes with respect to such Option, at such time and in such
manner as the Committee shall deem to be appropriate, including, but not limited
to, by authorizing the Company to withhold, or agreeing to surrender to the
Company on or about the date such tax liability is determinable, Common Shares,
other Company securities or property, or other forms of payment, or any
combination thereof, owned by such person or a portion of such forms of payment
that would otherwise be distributed, or have been distributed, as the case may
be, pursuant to such Option to such person, having a fair market value equal to
the amount of such taxes.
7
(e) The expenses of the Plan shall be borne by the Company.
(f) By accepting any Option under the Plan, each participant and
each person claiming under or through him or her shall be conclusively deemed to
have indicated his or her acceptance and ratification of, and consent to, any
action taken by the Company, the Board or the Committee or its delegates.
(g) Fair market value in relation to securities (other than Common
Shares) or property or other forms of payment of Options under the Plan, or any
combination thereof, as of any specific time shall mean such value as determined
by the Committee in accordance with applicable law.
(h) The masculine pronoun includes the feminine and the singular
includes the plural wherever appropriate.
(i) The appropriate officers of the Company shall cause to be
filed any reports, returns or other information regarding Options hereunder or
any Common Shares issued pursuant hereto as may be required by Section 13 or
15(d) of the Exchange Act (or any successor provision) or any other applicable
statute, rule or regulation.
(j) The validity, construction, interpretation, administration and
effect of the Plan, and of its rules and regulations, and rights relating to the
Plan and to Options granted under the Plan, shall be governed by the substantive
laws, but not the choice of law rules, of the State of Delaware.
12. Plan Amendment or Suspension. The Plan may be amended or
suspended in whole or in part at any time and from time to time by the Board. No
amendment or suspension of the Plan shall adversely affect in a material manner
any right of any participant with respect to any Option theretofore granted
without such participant's written consent, except as permitted under Paragraph
8.
13. Effective Date and Duration of Plan.
(a) This Plan shall be effective as of March 14, 2000.
(b) This Plan shall terminate upon the earlier of the following
dates or event to occur:
(i) upon the adoption of a resolution of the Board terminating
the Plan; or
(ii) ten years from the effective date of the Plan, provided,
however, that the Board may, prior to the expiration of such ten-year
period, extend the term of the Plan for an additional period of up to
five years. No termination of the Plan shall materially alter or
impair any of the rights or obligations of any person, without his or
her consent, under any Option theretofore granted under the Plan
except that subsequent to termination of the Plan, the Committee may
make amendments permitted under Paragraph 8.
8