Annual Report — Form 10-K Filing Table of Contents
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1: 10-K Mdu Resources Group, Inc. 2005 10-K HTML 2.19M
2: EX-10.AE Mdu Resources 1997 Executive Long-Term Incentive HTML 92K Plan
3: EX-10.AF Mdu Resources Executive Incentive Compensation HTML 30K
Plan
4: EX-10.AG Montana-Dakota Executive Incentive Compensation HTML 29K
Plan
5: EX-10.AH Retirement Agreement for Warren L. Robinson HTML 41K
6: EX-10.AI Steven L. Bietz Change of Control Employment HTML 82K
Agreement
7: EX-10.AJ Nicole A. Kivisto Change of Control Employement HTML 82K
Agreement
8: EX-10.AK Doran N. Schwartz Change of Control Employement HTML 82K
Agreement
9: EX-12 Mdu Resources Ratio of Earnings to Charges & HTML 53K
Dividends
10: EX-21 Subsidiaries of Mdu Resources Group, Inc. HTML 33K
11: EX-23 Consent of Independent Registered Public HTML 11K
Accounting Firm
12: EX-31.A CEO Certification to Section 302 HTML 15K
13: EX-31.B CFO Certification to Section 302 HTML 16K
14: EX-32 CEO & CFO Certification to Section 906 HTML 13K
EX-10.AE — Mdu Resources 1997 Executive Long-Term Incentive Plan
MDU Resources 1997 Executive Long-Term Incentive Plan
MDU
RESOURCES GROUP, INC.
1997
EXECUTIVE LONG-TERM INCENTIVE PLAN
Article
1. Establishment, Purpose and Duration
1.1Establishment
of the Plan.
MDU
Resources Group, Inc., a Delaware corporation (hereinafter referred to as the
"Company"), hereby establishes an incentive compensation plan to be known as
the
"MDU Resources Group, Inc. 1997 Executive Long-Term Incentive Plan" (hereinafter
referred to as the "Plan"), as set forth in this document. The Plan permits
the
grant of Nonqualified Stock Options (NQSO), Incentive Stock Options (ISO),
Stock
Appreciation Rights (SAR), Restricted Stock, Performance Units, Performance
Shares and other awards.
The
Plan
shall become effective when approved by the stockholders at the annual meeting
on April 22, 1997 (the "Effective Date"), and shall remain in effect as provided
in Section 1.3 herein.
1.2Purpose
of the Plan.
The
purpose of the Plan is to promote the success and enhance the value of the
Company by linking the personal interests of Participants to those of Company
stockholders and customers.
The
Plan
is further intended to provide flexibility to the Company in its ability to
motivate, attract and retain the services of Participants upon whose judgment,
interest and special effort the successful conduct of its operations is largely
dependent.
1.3Duration
of the Plan.
The Plan
shall commence on the Effective Date, as described in Section 1.1 herein, and
shall remain in effect, subject to the right of the Board of Directors to
terminate the Plan at any time pursuant to Article 15 herein, until all Shares
subject to it shall have been purchased or acquired according to the Plan's
provisions. However, in no event may an Award be made under the Plan on or
after
the day immediately preceding the tenth anniversary of the Effective
Date.
Article
2. Definitions
Whenever
used in the Plan, the following terms shall have the meanings set forth below
and, when such meaning is intended, the initial letter of the word is
capitalized:
2.1"Award"
means,
individually or collectively, a grant under the Plan of NQSOs, ISOs, SARs,
Restricted Stock, Performance Units, Performance Shares or any other type of
award permitted under Article 10 of the Plan.
2.2"Award
Agreement"means
an
agreement entered into by each Participant and the Company, setting forth the
terms and provisions applicable to an Award granted to a Participant under
the
Plan.
2.3"Base
Value"of
an SAR
shall have the meaning set forth in Section 7.1 herein.
2.4"Board"
or
"Board
of Directors"
means
the Board of Directors of the Company.
2.5"Change
in Control"means
the
earliest of the following to occur: (a) the public announcement by the Company
or by any person (which shall not include the Company, any subsidiary of the
Company, or any employee benefit plan of the Company or of any subsidiary of
the
Company) ("Person") that such Person, who or which, together with all Affiliates
and Associates (within the meanings ascribed to such terms in the Rule 12b-2
of
the General Rules and Regulations under the Exchange Act) of such Person, shall
be the beneficial owner of twenty percent (20%) or more of the voting stock
of
the Company outstanding; (b) the commencement of, or after the first public
announcement of any Person to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the beneficial owner
of voting stock aggregating thirty percent (30%) or more of the then outstanding
voting stock of the Company; (c) the announcement of any transaction relating
to
the Company required to be described pursuant to the requirements of Item 6(e)
of Schedule 14A of Regulation 14A under the Exchange Act; (d) a proposed change
in constituency of the Board such that, during any period of two (2) consecutive
years, individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless the
election or nomination for election by the stockholders of the Company of each
new Director was approved by a vote of at least two-thirds (2/3) of the
Directors then still in office who were members of the Board at the beginning
of
the period; or (e) any other event which shall be deemed by a majority of the
Compensation Committee to constitute a "change in control."
2.6"Code"
means
the Internal Revenue Code of 1986, as amended from time to time.
2.7"Committee"
means
the Committee, as specified in Article 3, appointed by the Board to
administer the Plan with respect to Awards.
2.8"Company"
means
MDU Resources Group, Inc., a Delaware corporation, or any successor thereto
as
provided in Article 17 herein.
2.9“Covered
Employee”
means
any Participant who would be considered a “Covered Employee” for purposes of
Section 162(m) of the Code.
2.10"Director"
means
any individual who is a member of the Board of Directors of the
Company.
2.11"Disability"
means
"permanent and total disability" as defined under Section 22(e)(3)of the
Code.
2.12"Dividend
Equivalent"means,
with respect to Shares subject to an Award, a right to be paid an amount equal
to dividends declared on an equal number of outstanding Shares.
2.13"Eligible
Employee"means
an
Employee who is eligible to participate in the Plan, as set forth in Section
5.1
herein.
2.14"Employee"means
any
full-time or regularly-scheduled part-time employee of the Company or of the
Company's Subsidiaries, who is not covered by any collective bargaining
agreement to which the Company or any of its Subsidiaries is a party. Directors
who are not otherwise employed by the Company shall not be considered Employees
for purposes of the Plan. For purposes of the Plan, transfer of employment
of a
Participant between the Company and any one of its Subsidiaries (or between
Subsidiaries) shall not be deemed a termination of employment.
2.15"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended from time to time, or any
successor act thereto.
2.16"Exercise
Period"
means
the period during which an SAR or Option is exercisable, as set forth in the
related Award Agreement.
2.17"Fair
Market Value"
shall
mean the average of the high and low sale prices as reported in the consolidated
transaction reporting system or, if there is no such sale on the relevant date,
then on the last previous day on which a sale was reported.
2.18"Freestanding
SAR"means
an
SAR that is granted independently of any Option.
2.19"Incentive
Stock Option"or
"ISO"
means
an option to purchase Shares, granted under Article 6 herein, which is
designated as an Incentive Stock Option and satisfies the requirements of
Section 422 of the Code.
2.20"Nonqualified
Stock Option" or "NQSO"
means an
option to purchase Shares, granted under Article 6 herein, which is not intended
to be an Incentive Stock Option under Section 422 of the Code.
2.21"Option"
means an
Incentive Stock Option or a Nonqualified Stock Option.
2.22"Option
Price"means
the
price at which a Share may be purchased by a Participant pursuant to an Option,
as determined by the Committee and set forth in the Option Award
Agreement.
2.23"Participant"means
an
Employee of the Company who has an outstanding Award granted under the
Plan.
2.24“Performance
Goals” means the performance goals established by the Committee, which shall be
based on one or more of the following measures: sales or revenues, earnings
per
share, shareholder return and/or value, funds from operations, operating income,
gross income, net income, cash flow, return on equity, return on capital,
earnings before interest, operating ratios, stock price, customer satisfaction,
accomplishment of mergers, acquisitions, dispositions or similar extraordinary
business transactions, profit returns and margins, financial return ratios
and/or market performance. Performance goals may be measured solely on a
corporate subsidiary or business unit basis, or a combination thereof.
Performance goals may reflect absolute entity performance or a relative
comparison of entity performance to the performance of a peer group of entities
or other external measure.
2.25"Performance
Unit"means
an
Award granted to an Employee, as described in Article 9 herein.
2.26"Performance
Share"means
an
Award granted to an Employee, as described in Article 9 herein.
2.27"Period
of Restriction"means
the
period during which the transfer of Restricted Stock is limited in some way,
as
provided in Article 8 herein.
2.28"Person"shall
have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act,
as used in Sections 13(d) and 14(d) thereof, including usage in the definition
of a "group" in Section 13(d) thereof.
2.29“Qualified
Restricted Stock” means an Award of Restricted Stock designated as Qualified
Restricted Stock by the Committee at the time of grant and intended to qualify
for the exemption from the limitation on deductibility imposed by
Section 162(m) of the Code that is set forth in Section 162(m)(4)(C).
2.30"Restricted
Stock"means
an
Award of Shares granted to a Participant pursuant to Article 8
herein.
2.31"Shares"means
the
shares of common stock of the Company.
2.32"Stock
Appreciation Right" or "SAR"
means a right, granted alone or in connection with a related Option, designated
as an SAR, to receive a payment on the day the right is exercised, pursuant
to
the terms of Article 7 herein. Each SAR shall be denominated in terms of one
Share.
2.33"Subsidiary"means
any
corporation that is a "subsidiary corporation" of the Company as that term
is
defined in Section 424(f) of the Code.
2.34"Tandem
SAR"
means
an SAR that is granted in connection with a related Option, the exercise of
which shall require forfeiture of the right to purchase a Share under the
related Option (and when a Share is purchased under the Option, the Tandem
SAR
shall be similarly canceled).
Article
3. Administration
3.1The
Committee. The
Plan
shall be administered by the Compensation Committee of the Board, or by any
other Committee appointed by the Board. The members of the Committee shall
be
appointed from time to time by, and shall serve at the discretion of, the Board
of Directors.
3.2Authority
of the Committee.
The
Committee shall have full power except as limited by law, the Articles of
Incorporation and the Bylaws of the Company, subject to such other restricting
limitations or directions as may be imposed by the Board and subject to the
provisions herein, to determine the size and types of Awards; to determine
the
terms and conditions of such Awards in a manner consistent with the Plan; to
construe and interpret the Plan and any agreement or instrument entered into
under the Plan; to establish, amend or waive rules and regulations for the
Plan's administration; and (subject to the provisions of Article 15 herein)
to
amend the terms and conditions of any outstanding Award. Further, the Committee
shall make all other determinations which may be necessary or advisable for
the
administration of the Plan. As permitted by law, the Committee may delegate
its
authorities as identified hereunder.
3.3Restrictions
on Share Transferability.
The
Committee may impose such restrictions on any Shares acquired pursuant to Awards
under the Plan as it may deem advisable, including, without limitation,
restrictions to comply with applicable Federal securities laws, with the
requirements of any stock exchange or market upon which such Shares are then
listed and/or traded and with any blue sky or state securities laws applicable
to such Shares.
3.4Approval.
The
Board or the Committee shall approve all Awards made under the Plan and all
elections made by Participants, prior to their effective date, to the extent
necessary to comply with Rule 16b-3 under the Exchange Act.
3.5Decisions
Binding.
All
determinations and decisions made by the Committee pursuant to the provisions
of
the Plan and all related orders or resolutions of the Board shall be final,
conclusive and binding on all persons, including the Company, its stockholders,
Employees, Participants and their estates and beneficiaries.
3.6Costs.
The
Company shall pay all costs of administration of the Plan.
Article
4. Shares Subject to the Plan
4.1
Number
of Shares.
Subject
to Section 4.2 herein, the maximum number of Shares available for grant under
the Plan shall be 6,625,581. Shares underlying lapsed or forfeited Awards,
or
Awards that are not paid in Shares, may be reused for other Awards. Shares
granted pursuant to the Plan may be (i) authorized but unissued Shares of Common
Stock, (ii) treasury shares, or (iii) shares purchased on the open
market.
4.2Adjustments
in Authorized Shares.
In the
event of any merger, reorganization, consolidation, recapitalization,
separation, liquidation, stock split, stock dividend, split-up, share
combination or other change in the corporate structure of the Company affecting
the Shares, such adjustment shall be made in the number and class of Shares
which may be delivered under the Plan, and in the number and class of and/or
price of Shares subject to outstanding Awards granted under the Plan, as may
be
determined to be appropriate and equitable by the Committee, in its sole
discretion, to prevent dilution or enlargement of rights; provided, however,
that the number of Shares subject to any Award shall always be a whole number.
Notwithstanding the foregoing, (i) each such adjustment with respect to an
Incentive Stock Option shall comply with the rules of Section 424(a) of the
Code
and (ii) in no event shall any adjustment be made which would render any
Incentive Stock Option granted hereunder to be other than an incentive stock
option for purposes of Section 422 of the Code.
4.3
Individual
Limitations.
Subject
to Section 4.2 herein, (i) the total number of Shares with respect to which
Options or SARs may be granted in any calendar year to any Covered Employee
shall not exceed 1,500,000 Shares; (ii) the total number of shares of Qualified
Restricted Stock that may be granted in any calendar year to any Covered
Employee shall not exceed 1,500,000 Shares; (iii) the total number of
Performance Shares or Performance Units that may be granted in any calendar
year
to any Covered Employee shall not exceed 1,500,000 Shares or Units, as the
case
may be; (iv) the total number of Shares that are intended to qualify for
deduction under Section 162(m) of the Code granted pursuant to Article 10 herein
in any calendar year to any Covered Employee shall not exceed 1,500,000 Shares;
(v) the total cash Award that is intended to qualify for deduction under Section
162(m) of the Code that may be paid pursuant to Article 10 herein in any
calendar year to any Covered Employee shall not exceed $6,000,000; and (vi)
the
aggregate number of Dividend Equivalents that are intended to qualify for
deduction under Section 162(m) of the Code that a Covered Employee may receive
in any calendar year shall not exceed $6,000,000.
Article
5. Eligibility and Participation
5.1Eligibility.
Persons
eligible to participate in the Plan include all officers and key employees
of
the Company and its Subsidiaries, as determined by the Committee, including
Employees who are members of the Board, but excluding Directors who are not
Employees.
5.2Actual
Participation.
Subject
to the provisions of the Plan, the Committee may, from time to time, select
from
all eligible Employees those to whom Awards shall be granted and shall determine
the nature and amount of each Award.
Article
6. Stock Options
6.1Grant
of Options.
Subject
to the terms and conditions of the Plan, Options may be granted to an Eligible
Employee at any time and from time to time, as shall be determined by the
Committee.
The
Committee shall have complete discretion in determining the number of Shares
subject to Options granted to each Participant (subject to Article 4 herein)
and, consistent with the provisions of the Plan, in determining the terms and
conditions pertaining to such Options. The Committee may grant ISOs, NQSOs,
or a
combination thereof.
6.2Option
Award Agreement.
Each
Option grant shall be evidenced by an Option Award Agreement that shall specify
the Option Price, the term of the Option, the number of Shares to which the
Option pertains, the Exercise Period and such other provisions as the Committee
shall determine, including but not limited to any rights to Dividend
Equivalents. The Option Award Agreement shall also specify whether the Option
is
intended to be an ISO or an NQSO.
The
Option Price for each Share purchasable under any Incentive Stock Option granted
hereunder shall be not less than one hundred percent (100%) of the Fair Market
Value per Share at the date the Option is granted; and provided, further, that
in the case of an Incentive Stock Option granted to a person who, at the time
such Incentive Stock Option is granted, owns shares of stock of the Company
or
of any Subsidiary which possess more than ten percent (10%) of the total
combined voting power of all classes of shares of stock of the Company or of
any
Subsidiary, the Option Price for each Share shall be not less than one hundred
ten percent (110%) of the Fair Market Value per Share at the date the Option
is
granted. The Option Price will be subject to adjustment in accordance with
the
provisions of Section 4.2 of the Plan.
No
Incentive Stock Option by its terms shall be exercisable after the expiration
of
ten (10) years from the date of grant of the Option; provided, however, in
the
case of an Incentive Stock Option granted to a person who, at the time such
Option is granted, owns shares of stock of the Company or of any Subsidiary
possessing more than ten percent (10%) of the total combined voting power of
all
classes of shares of stock of the Company or of any Subsidiary, such Option
shall not be exercisable after the expiration of five (5) years from the date
such Option is granted.
6.3Exercise
of and Payment for Options.
Options
granted under the Plan shall be exercisable at such times and be subject to
such
restrictions and conditions as the Committee shall in each instance
approve.
A
Participant may exercise an Option at any time during the Exercise Period.
Options shall be exercised by the delivery of a written notice of exercise
to
the Company or its designee, setting forth the number of Shares with respect
to
which the Option is to be exercised, accompanied by provisions for full payment
for the Shares.
The
Option Price upon exercise of any Option shall be payable either: (a) in cash
or
its equivalent, (b) by tendering previously acquired Shares having an aggregate
Fair Market Value at the time of exercise equal to the total Option Price
(provided that the Shares which are tendered must have been held by the
Participant for at least six (6) months prior to their tender to satisfy the
Option Price), (c) by share withholding, (d) by cashless exercise or (e) by
a
combination of (a),(b),(c), and/or (d).
As
soon
as practicable after receipt of a written notification of exercise of an Option
and provisions for full payment therefor, there shall be delivered to the
Participant, in the Participant's name, Share certificates in an appropriate
amount based upon the number of Shares purchased under the
Option(s).
6.4Termination
of Employment.
Each
Option Award Agreement shall set forth the extent to which the Participant
shall
have the right to exercise the Option following termination of the Participant's
employment with the Company and its Subsidiaries. Such provisions shall be
determined in the sole discretion of the Committee (subject to applicable law),
shall be included in the Option Award Agreement entered into with Participants,
need not be uniform among all Options granted pursuant to the Plan or among
Participants and may reflect distinctions based on the reasons for termination
of employment. If the employment of a Participant by the Company or by any
Subsidiary is terminated for any reason other than death, any Incentive Stock
Option granted to such Participant may not be exercised later than three (3)
months (one (1) year in the case of termination due to Disability) after the
date of such termination of employment.
6.5Transferability
of Options.
Except
as otherwise determined by the Committee and set forth in the Option Award
Agreement, no Option granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by
the
laws of descent and distribution, and all Incentive Stock Options granted to
a
Participant under the Plan shall be exercisable during his or her lifetime
only
by such Participant.
Article
7. Stock Appreciation Rights
7.1Grant
of SARs. Subject
to the terms and conditions of the Plan, an SAR may be granted to an Eligible
Employee at any time and from time to time as shall be determined by the
Committee. The Committee may grant Freestanding SARs, Tandem SARs or any
combination of these forms of SAR.
The
Committee shall have complete discretion in determining the number of SARs
granted to each Participant (subject to Article 4 herein) and, consistent
with the provisions of the Plan, in determining the terms and conditions
pertaining to such SARs.
The
Base
Value of a Freestanding SAR shall equal the Fair Market Value of a Share on
the
date of grant of the SAR. The Base Value of Tandem SARs shall equal the Option
Price of the related Option.
7.2SAR
Award Agreement. Each
SAR
grant shall be evidenced by an SAR Award Agreement that shall specify the number
of SARs granted, the Base Value, the term of the SAR, the Exercise Period and
such other provisions as the Committee shall determine.
7.3Exercise
and Payment of SARs.
Tandem
SARs may be exercised for all or part of the Shares subject to the related
Option upon the surrender of the right to exercise the equivalent portion of
the
related Option. A Tandem SAR may be exercised only with respect to the Shares
for which its related Option is then exercisable.
Notwithstanding
any other provision of the Plan to the contrary, with respect to a Tandem SAR
granted in connection with an ISO: (i) the Tandem SAR will expire no later
than
the expiration of the underlying ISO; (ii) the value of the payout with respect
to the Tandem SAR may be for no more than one hundred percent (100%) of the
difference between the Option Price of the underlying ISO and the Fair Market
Value of the Shares subject to the underlying ISO at the time the Tandem SAR
is
exercised; and (iii) the Tandem SAR may be exercised only when the Fair Market
Value of the Shares subject to the ISO exceeds the Option Price of the
ISO.
Freestanding
SARs may be exercised upon whatever terms and conditions the Committee, in
its
sole discretion, imposes upon them.
A
Participant may exercise an SAR at any time during the Exercise Period. SARs
shall be exercised by the delivery of a written notice of exercise to the
Company, setting forth the number of SARs being exercised. Upon exercise of
an
SAR, a Participant shall be entitled to receive payment from the Company in
an
amount equal to the product of:
(a)
the
excess of (i) the Fair Market Value of a Share on the date of exercise
over (ii) the Base Value multiplied
by
(b)
the
number of Shares with respect to which the SAR is
exercised.
At
the
sole discretion of the Committee, the payment to the Participant upon SAR
exercise may be in cash, in Shares of equivalent value, or in some combination
thereof.
7.4Termination
of Employment.
Each SAR
Award Agreement shall set forth the extent to which the Participant shall have
the right to exercise the SAR following termination of the Participant's
employment with the Company and its Subsidiaries. Such provisions shall be
determined in the sole discretion of the Committee, shall be included in the
SAR
Award Agreement entered into with Participants, need not be uniform among all
SARs granted pursuant to the Plan or among Participants and may reflect
distinctions based on the reasons for termination of employment.
7.5Transferability
of SARs.
Except
as otherwise determined by the Committee and set forth in the SAR Award
Agreement, no SAR granted under the Plan may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by
the
laws of descent and distribution, and all SARs granted to a Participant under
the Plan shall be exercisable during his or her lifetime only by such
Participant or his or her legal representative.
Article
8. Restricted Stock
8.1Grant
of Restricted Stock. Subject
to the terms and conditions of the Plan, Restricted Stock may be granted to
Eligible Employees at any time and from time to time, as shall be determined
by
the Committee.
The
Committee shall have complete discretion in determining the number of shares
of
Restricted Stock granted to each Participant (subject to Article 4 herein)
and,
consistent with the provisions of the Plan, in determining the terms and
conditions pertaining to such Restricted Stock.
In
addition, the Committee may, prior to or at the time of grant, designate an
Award of Restricted Stock as Qualified Restricted Stock, in which event it
will
condition the grant or vesting, as applicable, of such Qualified Restricted
Stock upon the attainment of the Performance Goals selected by the
Committee.
8.2Restricted
Stock Award Agreement.
Each
Restricted Stock grant shall be evidenced by a Restricted Stock Award Agreement
that shall specify the Period or Periods of Restriction, the number of
Restricted Stock Shares granted and such other provisions as the Committee
shall
determine.
8.3Transferability.
Restricted Stock granted hereunder may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of the applicable
Period of Restriction established by the Committee and specified in the
Restricted Stock Award Agreement. All rights with respect to the Restricted
Stock granted to a Participant under the Plan shall be available during his
or
her lifetime only to such Participant or his or her legal
representative.
8.4Certificate
Legend.
Each
certificate representing Restricted Stock granted pursuant to the Plan may
bear
a legend substantially as follows:
"The
sale or other transfer of the shares of stock represented by this
certificate, whether voluntary, involuntary or by operation of law,
is
subject to certain restrictions on transfer as set forth in MDU Resources
Group, Inc. 1997 Executive Long-Term Incentive Plan, and in a Restricted
Stock Award Agreement. A copy of such Plan and such Agreement may
be
obtained from MDU Resources Group,
Inc."
The
Company shall have the right to retain the certificates representing Restricted
Stock in the Company's possession until such time as all restrictions applicable
to such Shares have been satisfied.
8.5Removal
of Restrictions.
Restricted Stock shall become freely transferable by the Participant after
the
last day of the Period of Restriction applicable thereto. Once Restricted Stock
is released from the restrictions, the Participant shall be entitled to have
the
legend referred to in Section 8.4 removed from his or her stock
certificate.
8.6Voting
Rights.
During
the Period of Restriction, Participants holding Restricted Stock may exercise
full voting rights with respect to those Shares.
8.7Dividends
and Other Distributions.
Subject
to the Committee's right to determine otherwise at the time of grant, during
the
Period of Restriction, Participants holding Restricted Stock shall receive
all
regular cash dividends paid with respect to all Shares while they are so held.
All other distributions paid with respect to such Restricted Stock shall be
credited to Participants subject to the same restrictions on transferability
and
forfeitability as the Restricted Stock with respect to which they were paid
and
shall be paid to the Participant within forty-five (45) days following the
full
vesting of the Restricted Stock with respect to which such distributions were
made.
8.8Termination
of Employment.
Each
Restricted Stock Award Agreement shall set forth the extent to which the
Participant shall have the right to receive unvested Restricted Stock following
termination of the Participant's employment with the Company and its
Subsidiaries. Such provisions shall be determined in the sole discretion of
the
Committee, shall be included in the Restricted Stock Award Agreement entered
into with Participants, need not be uniform among all grants of Restricted
Stock
or among Participants and may reflect distinctions based on the reasons for
termination of employment.
Article
9. Performance Units and Performance Shares
9.1Grant
of Performance Units and Performance Shares. Subject
to the terms and conditions of the Plan, Performance Units and/or Performance
Shares may be granted to an Eligible Employee at any time and from time to
time,
as shall be determined by the Committee.
The
Committee shall have complete discretion in determining the number of
Performance Units and/or Performance Shares granted to each Participant (subject
to Article 4 herein) and, consistent with the provisions of the Plan, in
determining the terms and conditions pertaining to such Awards.
9.2Performance
Unit/Performance Share Award Agreement. Each
grant of Performance Units and/or Performance Shares shall be evidenced by
a
Performance Unit and/or Performance Share Award Agreement that shall specify
the
number of Performance Units and/or Performance Shares granted, the initial
value
(if applicable), the Performance Period, the Performance Goals and such other
provisions as the Committee shall determine, including but not limited to any
rights to Dividend Equivalents.
9.3Value
of Performance Units/Performance Shares. Each
Performance Unit shall have an initial value that is established by the
Committee at the time of grant. The value of a Performance Share shall be equal
to the Fair Market Value of a Share. The Committee shall set Performance Goals
in its discretion which, depending on the extent to which they are met, will
determine the number and/or value of Performance Units/Performance Shares that
will be paid out to the Participants. The time period during which the
Performance Goals must be met shall be called a "Performance
Period."
9.4Earning
of Performance Units/Performance Shares.
After
the applicable Performance Period has ended, the holder of Performance
Units/Performance Shares shall be entitled to receive a payout with respect
to
the Performance Units/Performance Shares earned by the Participant over the
Performance Period, to be determined as a function of the extent to which the
corresponding Performance Goals have been achieved.
9.5Form
and Timing of Payment of Performance Units/Performance Shares.
Payment
of earned Performance Units/Performance Shares shall be made following the
close
of the applicable Performance Period. The Committee, in its sole discretion,
may
pay earned Performance Units/Performance Shares in cash or in Shares (or in
a
combination thereof), which have an aggregate Fair Market Value equal to the
value of the earned Performance Units/Performance Shares at the close of the
applicable Performance Period. Such Shares may be granted subject to any
restrictions deemed appropriate by the Committee.
9.6Termination
of Employment.
Each
Performance Unit/Performance Share Award Agreement shall set forth the extent
to
which the Participant shall have the right to receive a Performance
Unit/Performance Share payment following termination of the Participant's
employment with the Company and its Subsidiaries during a Performance Period.
Such provisions shall be determined in the sole discretion of the Committee,
shall be included in the Award Agreement entered into with Participants, need
not be uniform among all grants of Performance Units/Performance Shares or
among
Participants and may reflect distinctions based on reasons for termination
of
employment.
9.7Transferability.
Except
as otherwise determined by the Committee and set forth in the Performance
Unit/Performance Share Award Agreement, Performance Units/Performance Shares
may
not be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution,
and
a Participant's rights with respect to Performance Units/Performance Shares
granted under the Plan shall be available during the Participant's lifetime
only
to such Participant or the Participant's legal representative.
Article
10. Other Awards
The
Committee shall have the right to grant other Awards which may include, without
limitation, the grant of Shares based on attainment of Performance Goals
established by the Committee, the payment of Shares in lieu of cash, or cash
based on attainment of Performance Goals established by the Committee, and
the
payment of Shares in lieu of cash under other Company incentive or bonus
programs. Payment under or settlement of any such Awards shall be made in such
manner and at such times as the Committee may determine.
Article
11. Beneficiary Designation
Each
Participant under the Plan may, from time to time, name any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid in case of his or her death before he
or
she receives any or all of such benefit. Each such designation shall revoke
all
prior designations by the same Participant, shall be in a form prescribed by
the
Company, and will be effective only when filed by the Participant in writing
with the Company during the Participant's lifetime. In the absence of any such
designation, benefits remaining unpaid at the Participant's death shall be
paid
to the Participant's estate.
The
spouse of a married Participant domiciled in a community property jurisdiction
shall join in any designation of beneficiary or beneficiaries other than the
spouse.
Article
12. Deferrals
The
Committee may permit a Participant to defer the Participant's receipt of the
payment of cash or the delivery of Shares that would otherwise be due to such
Participant under the Plan. If any such deferral election is permitted, the
Committee shall, in its sole discretion, establish rules and procedures for
such
payment deferrals.
Article
13. Rights of Employees
13.1Employment.
Nothing
in the Plan shall interfere with or limit in any way the right of the Company
to
terminate any Participant's employment at any time, for any reason or no reason
in the Company's sole discretion, nor confer upon any Participant any right
to
continue in the employ of the Company.
13.2Participation.
No
Employee shall have the right to be selected to receive an Award under the
Plan,
or, having been so selected, to be selected to receive a future
Award.
Article
14. Change in Control
The
terms
of this Article 14 shall immediately become operative, without further action
or
consent by any person or entity, upon a Change in Control, and once operative
shall supersede and take control over any other provisions of this
Plan.
Upon
a
Change in Control
(a)
Any
and all Options and SARs granted hereunder shall become immediately
exercisable;
(b)
Any
restriction periods and restrictions imposed on Restricted Shares
and
Qualified Restricted Shares shall be deemed to have expired and such
Restricted Shares and Qualified Restricted Shares shall become immediately
vested in full; and
(c)
The
target payout opportunity attainable under all outstanding Awards
of
Performance Units, Performance Shares and other Awards shall be deemed
to
have been fully earned for the entire Performance Period(s) as of
the
effective date of the Change in Control. The vesting of all Awards
denominated in Shares shall be accelerated as of the effective date
of the
Change in Control, and shall be paid out in cash to Participants
immediately following the effective date of the Change in Control
the full
amount of the targeted cash payout opportunities associated with
outstanding cash-based Awards.
Article
15. Amendment, Modification and Termination
15.1Amendment,
Modification and Termination.
The
Board may, at any time and from time to time, alter, amend, suspend or terminate
the Plan in whole or in part, provided that no amendment shall be made which
shall increase the total number of Shares which may be issued and sold pursuant
to Incentive Stock Options, reduce the minimum exercise price in the case of
an
Incentive Stock Option or modify the provisions of the Plan relating to
eligibility with respect to Incentive Stock Options unless such amendment is
made by or with the approval of the stockholders within 12 months of the
effective date of such amendment, but only if such approval is required by
any
applicable provision of law. The Board of Directors of the Company is also
authorized to amend the Plan and the Options granted hereunder to maintain
qualification as "incentive stock options" within the meaning of Section 422
of
the Code, if applicable.
15.2Awards
Previously Granted.
No
termination, amendment or modification of the Plan shall adversely affect in
any
material way any Award previously granted under the Plan, without the written
consent of the Participant holding such Award, unless such termination,
modification or amendment is required by applicable law and except as otherwise
provided herein.
Article
16. Withholding
16.1Tax
Withholding. The
Company shall have the power and the right to deduct or withhold, or require
a
Participant to remit to the Company, an amount sufficient to satisfy Federal,
state and local taxes (including the Participant's FICA obligation) required
by
law to be withheld with respect to an Award made under the Plan.
16.2Share
Withholding.
With
respect to withholding required upon the exercise of Options or SARs, upon
the
lapse of restrictions on Restricted Stock, or upon any other taxable event
arising out of or as a result of Awards granted hereunder, Participants may
elect to satisfy the withholding requirement, in whole or in part, by tendering
previously-owned Shares or by having the Company withhold Shares having a Fair
Market Value on the date the tax is to be determined equal to the statutory
total tax which could be imposed on the transaction. All elections shall be
irrevocable, made in writing and signed by the Participant.
Article
17. Successors
All
obligations of the Company under the Plan, with respect to Awards granted
hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation or otherwise, of all or substantially all of the business
and/or assets of the Company.
Article
18. Legal Construction
18.1Gender
and Number.
Except
where otherwise indicated by the context, any masculine term used herein also
shall include the feminine, the plural shall include the singular and the
singular shall include the plural.
18.2Severability.
In the
event any provision of the Plan shall be held illegal or invalid for any reason,
the illegality or invalidity shall not affect the remaining parts of the Plan,
and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.
18.3Requirements
of Law.
The
granting of Awards and the issuance of Shares under the Plan shall be subject
to
all applicable laws, rules and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be
required.
18.4Governing
Law.
To the
extent not preempted by Federal law, the Plan, and all agreements hereunder,
shall be construed in accordance with, and governed by, the laws of the State
of
Delaware.
Article
19. Accounting Restatements
This
Article 19 shall apply to Awards granted to all Participants in the Plan.
Notwithstanding anything in the Plan or in any Award Agreement to the contrary,
if the Company's audited financial statements are restated, the Committee may,
in accordance with the Company's Guidelines
for Repayment of Incentives Due to Accounting Restatements,
take
such actions as it deems appropriate (in its sole discretion) with respect
to
(a) Awards
then outstanding (including Awards that have vested or otherwise been earned
but
with respect to which payment of cash or distribution of Shares, as the case
may
be, has not been made or deferred and also including unvested or unpaid Dividend
Equivalents attributable to such outstanding Awards) ("Outstanding Awards")
and
(b) vested,
earned and/or exercised Awards and any cash or Shares received with respect
to
Awards (including, without limitation, dividends and Dividend Equivalents),
in
each case to the extent payment of cash or distribution of Shares, as the case
may be, was received or deferred within the 3 year period preceding the
restatement ("Prior Awards"), provided such Prior Awards were not vested,
earned, exercised or paid prior to the date the Plan was amended to add this
Article 19,
if
the
terms of any such Outstanding Awards or Prior Awards or the benefits received
by
a Participant with respect to any such Outstanding Awards or Prior Awards
(including, without limitation, dividends or Dividend Equivalents credited
or
distributed to a Participant and/or consideration received upon the sale of
Shares that were acquired pursuant to the vesting, settlement or exercise of
a
Prior Award) are, or would have been, directly impacted by the restatement,
including, without limitation, (i) securing (or causing to be secured) repayment
of all or a portion of any amounts paid, distributed or deferred (including,
without limitation, dividends or Dividend Equivalents and/or consideration
received upon the sale of Shares that were acquired pursuant to the vesting,
settlement or exercise of a Prior Award), (ii) granting additional Awards or
making (or causing to be made) additional payments or distributions (or
crediting additional deferrals) with respect to Prior Awards, (iii) rescinding
vesting (including accelerated vesting) of Outstanding Awards and/or (iv)
causing the forfeiture of Outstanding Awards. The Committee may, in its sole
discretion, take different actions pursuant to this Article 19 with respect
to
different Awards, different Participants (or beneficiaries) and/or different
classes of Awards or Participants (or beneficiaries). The Committee has no
obligation to take any action permitted by this Article 19. The Committee may
consider any factors it chooses in taking (or determining whether to take)
any
action permitted by this Article 19, including, without limitation, the
following:
(A) The
reason for the restatement of the financial statements;
(B) The
amount of time between the initial publication and subsequent restatement of
the
financial statements; and
(C) The
Participant’s current employment status, and the viability of successfully
obtaining repayment.
If
the
Committee requires repayment of all or part of a Prior Award, the amount of
repayment shall be determined by the Committee based on the circumstances giving
rise to the restatement. The Committee shall determine whether repayment shall
be effected (i) by seeking repayment from the Participant, (ii) by reducing
(subject to applicable law and the terms and conditions of the applicable plan,
program or arrangement) the amount that would otherwise be provided to the
Participant under any compensatory plan, program or arrangement maintained
by
the Company or any of its affiliates, (iii) by withholding payment of future
increases in compensation (including the payment of any discretionary bonus
amount) or grants of compensatory awards that would otherwise have been made
in
accordance with the Company's otherwise applicable compensation practices,
or
(iv) by any combination of the foregoing. Additionally, by accepting an Award
under the Plan, Participants acknowledge and agree that the Committee may take
any actions permitted by this Article 19 with respect to Outstanding Awards
to
the extent repayment is to be made pursuant to another plan, program or
arrangement maintained by the Company or any of its affiliates.
Dates Referenced Herein and Documents Incorporated by Reference
