Exhibit 4.5
CHESAPEAKE CORPORATION
1997 INCENTIVE PLAN
Chesapeake Corporation
1997 Incentive Plan
ARTICLE I
DEFINITIONS
1.01. Administrator means the Committee and any delegate of the
Committee that is appointed in accordance with Article III.
1.02. Agreement means a written agreement (including any
amendment or supplement thereto) between the Company and a
Participant specifying the terms and conditions of an award of
Performance Shares or Stock Units or a Stock Award, Option or SAR
granted to such Participant.
1.03. Board means the Board of Directors of the Company.
1.04. Change in Control has the same meaning as such term is
defined in the Chesapeake Corporation Long-Term Incentive Plan.
1.05. Code means the Internal Revenue Code of 1986, and any
amendments thereto.
1.06. Committee means the Executive Compensation Committee of
the Board.
1.07. Common Stock means the common stock of the Company.
1.08. Company means Chesapeake Corporation.
1.09. Control Change Date has the same meaning as such term is
defined in the Chesapeake Corporation Long-Term Incentive Plan.
1.10. Corresponding SAR means an SAR that is granted in relation
to a particular Option and that can be exercised only upon the
surrender to the Company, unexercised, of that portion of the
Option to which the SAR relates.
1.11. Deferral Feature means the right to receive an award of
Stock Units in connection with a related Option subject to the
conditions described in Plan section 4.03.
1.12. Exchange Act means the Securities Exchange Act of 1934, as
amended and as in effect on the date of this Agreement.
1.13. Fair Market Value means, on any given date, the closing
price of a share of Common Stock as reported on the New York
Stock Exchange composite tape on such date, or if the Common
Stock was not traded on the New York Stock Exchange on such day,
then on the next preceding day that the Common Stock was traded
on such exchange, all as reported by such source as the
Administrator may select.
1.14. Incentive Award means an award which, subject to such
terms and conditions as may be prescribed by the Administrator,
entitles the Participant to receive a cash payment from the
Company or a Related Entity.
1.15. Initial Value means, with respect to a Corresponding SAR,
the option price per share of the related Option and, with
respect to a SAR granted independently of an Option, the Fair
Market Value of one share of Common Stock on the date of grant.
1.16. Option means a stock option that entitles the holder to
purchase from the Company a stated number of shares of Common
Stock at the price set forth in an Agreement.
1.17. Participant means an employee of the Company or a Related
Entity, including an employee who is a member of the Board, who
satisfies the requirements of Article IV and is selected by the
Administrator to receive an award of Performance Shares or Stock
Units, a Stock Award, an Option, an SAR, or an Incentive Award or
a combination thereof.
1.18. Performance Shares means an award which, in accordance
with and subject to an Agreement, will entitle the Participant,
or his estate or beneficiary in the event of the Participant's
death, to receive cash or a Stock Award or a combination thereof.
1.19. Plan means the Chesapeake Corporation 1997 Incentive Plan.
1.20. Related Entity means (i) any entity that directly or
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Company or
(ii) any entity that is designated by the Board as a
participating company in the Plan.
1.21. Restoration Feature means the right to receive a new
Option covering the number of shares surrendered pursuant to the
exercise of a related Option. The new Option shall have an
exercise price equal to the Fair Market Value of Common Stock on
the date such shares are surrendered, shall be exercisable six
months from the date of grant and shall otherwise be subject to
the same terms and conditions applicable to a related Option.
1.22. SAR means a stock appreciation right that entitles the
holder to receive, with respect to each share of Common Stock
encompassed by the exercise of such SAR, the lesser of (a) the
excess of the Fair Market Value at the time of exercise over the
Initial Value, or (b) the Initial Value. References to "SARs"
include both Corresponding SARs and SARs granted independently of
Options, unless the context requires otherwise.
1.23. Stock Award means Common Stock awarded to a Participant
under Article IX or in accordance with an award of Performance
Shares.
1.24. Stock Unit means an award, in the amount determined by the
Administrator and specified in an Agreement, stated with
reference to a specified number of shares of Common Stock, that
entitles the holder to receive a payment for each specified share
equal to the Fair Market Value of Common Stock on the date of
payment and the accumulated dividends on such share, in the form
of additional Stock Units as if such dividends had been invested
in Common Stock on the dividend payment date, from the date of
grant to the date of payment.
ARTICLE II
PURPOSES
The Plan is intended to assist the Company and Related
Entities in recruiting and retaining key employees by enabling
such employees to participate in the future success of the
Company and the Related Entities and to associate their interests
with those of the Company and its shareholders. The Plan is
intended to permit the award of Performance Shares and Stock
Units, the grant of Stock Awards, SARs, the grant of both Options
qualifying under Section 422 of the Code ("incentive stock
options") and Options not so qualifying, and the grant of
Incentive Awards. No Option that is intended to be an incentive
stock option shall be invalid for failure to qualify as an
incentive stock option. The proceeds received by the Company
from the sale of Common Stock pursuant to this Plan shall be used
for general corporate purposes.
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Administrator. The
Administrator shall have authority to award Performance Shares
and Stock Units and to grant Stock Awards, Incentive Awards,
Options and SARs upon such terms (not inconsistent with the
provisions of this Plan) as the Administrator may consider
appropriate. Such terms may include conditions (in addition to
those contained in this Plan) on the exercisability of all or any
part of an Option or SAR or on the transferability or
forfeitability of a Stock Award, Incentive Award, Performance
Shares, or Stock Units, including by way of example and not
limitation, conditions on which Participants may defer receipt of
benefits under the Plan, requirements that the Participant
complete a specified period of employment with the Company or a
Related Entity, that the Company achieve a specified level of
financial performance or that the Company achieve a specified
level of financial return. Notwithstanding any such conditions,
the Committee may, in its discretion, accelerate the time at
which any Option or SAR may be exercised, or the time at which a
Stock Award may become transferable or nonforfeitable or the time
at which a Stock Unit or Incentive Award may be settled. In
addition, the Administrator shall have complete authority to
interpret all provisions of this Plan; to prescribe the form of
Agreements; to adopt, amend, and rescind rules and regulations
pertaining to the administration of the Plan; and to make all
other determinations necessary or advisable for the
administration of this Plan. The express grant in the Plan of
any specific power to the Administrator shall not be construed as
limiting any power or authority of the Administrator. Any
decision made, or action taken, by the Administrator or in
connection with the administration of this Plan shall be final
and conclusive. Neither the Administrator nor any member of
the Committee shall be liable for any act done in good faith with
respect to this Plan or any Agreement, Option, SAR, Stock Award,
Incentive Award or an award of Performance Shares or Stock Units.
All expenses of administering this Plan shall be borne by the
Company.
The Committee, in its discretion, may delegate to one or
more officers of the Company all or part of the Committee's
authority and duties with respect to grants and awards to
individuals who are not subject to the reporting and other
provisions of Section 16 of the Exchange Act. The Committee may
revoke or amend the terms of a delegation at any time but such
action shall not invalidate any prior actions of the Committee's
delegate or delegates that were consistent with the terms of the
Plan.
ARTICLE IV
ELIGIBILITY
4.01. General. Any employee of the Company or a Related Entity
(including a corporation that becomes a Related Entity after the
adoption of this Plan) is eligible to participate in this Plan if
the Administrator, in its sole discretion, determines that such
person has contributed significantly or can be expected to
contribute significantly to the profits or growth of the Company
or a Related Entity. Directors of the Company who are employees
of the Company or a Related Entity may be selected to participate
in this Plan. A person who is a member of the Committee may not
be granted Options, SARs or Stock Awards or awarded Performance
Shares, Stock Units or Incentive Awards under this Plan.
4.02. Grants. The Administrator will designate individuals to
whom an award of Stock Units or Performance Shares are to be
granted and to whom Stock Awards, Incentive Awards, Options and
SARs are to be granted and will specify the number of shares of
Common Stock subject to each award or grant. An Option may be
granted with or without a related SAR, with or without a
Restoration Feature, or with or without a Deferral Feature. An
SAR may be granted with or without a related Option. Each award
of Performance Shares or Stock Units, and all Stock Awards,
Options and SARs granted under this Plan shall be evidenced by
Agreements which shall be subject to the applicable provisions of
this Plan and to such other provisions as the Administrator may
adopt. No Participant may be granted incentive stock options or
related SARs (under all incentive stock option plans of the
Company and any Related Entity) which are first exercisable in
any calendar year for stock having an aggregate Fair Market Value
(determined as of the date an Option is granted) that exceed the
limitation prescribed by Code section 422(d). The preceding
annual limitation shall not apply with respect to Options that
are not incentive stock options.
4.03. Deferral Feature. In accordance with rules prescribed by
the Administrator, the Participant may elect to defer receipt of
Common Stock otherwise issuable upon the exercise of an Option.
ARTICLE V
STOCK SUBJECT TO PLAN
5.01. Shares Issued. Upon the award of shares of Common Stock
pursuant to a Stock Award, or when an award of Stock Units is
earned, the Company may issue shares of Common Stock from its
authorized but unissued Common Stock. Upon the exercise of any
Option or SAR, the Company may deliver to the Participant (or the
Participant's broker if the Participant so directs), shares of
Common Stock from its authorized but unissued Common Stock.
5.02. Aggregate Limit. The maximum aggregate number of shares
of Common Stock that may be issued under this Plan is the sum of
5% of the outstanding shares of Common Stock as of December 31,
1996, plus the number of shares of Common Stock surrendered in
payment of all or part of the option price of any Option.
Moreover, the maximum aggregate number of shares of Common Stock
that may be covered by Performance Share awards and that may be
issued in any calendar year pursuant to Stock Award, Incentive
Award, or the settlement of Stock Units, is 30% of the aggregate
limitation described above. The maximum aggregate number of
shares of Common Stock that may be issued under this Plan and the
maximum number of shares that may be issued as Stock Awards and
in settlement of Performance Shares or Stock Units shall be
subject to adjustment as provided in Article XIII.
5.03. Individual Limitations. Subject to the limitations set
forth in the preceding sections, no individual may, in any
calendar year, be granted or awarded (i) in the aggregate,
Options, Corresponding SARs, and SARs granted independently of
Options covering more than 100,000 shares of Common Stock, and
(ii) in the aggregate, Stock Awards, Performance Shares, Stock
Units or an Incentive Award covering more than 100,000 shares of
Common Stock.
5.04. Stock Options. Subject to the limitations set forth in
the preceding sections, the maximum aggregate number of shares
that may be issued pursuant to the exercise of Options is
1,100,000 shares. The maximum aggregate number of shares of
Common Stock that may be issued pursuant to the exercise of
Options under this Plan shall be subject to adjustment as
provided in Article XIII.
5.05. Reallocation of Shares. If an Option is terminated, in
whole or in part, for any reason other than its exercise or the
exercise of a Corresponding SAR, the number of shares of Common
Stock allocated to the Option or portion thereof may be
reallocated to other Options, SARs, Stock Awards and awards of
Stock Units and Performance Shares to be granted under this Plan.
If an SAR is terminated, in whole or in part, for any reason
other than its exercise or the exercise of a related Option, the
number of shares of Common Stock allocated to the SAR or portion
thereof may be reallocated to other Options, SARs, Stock Awards
and awards of Stock Units and Performance Shares to be granted
under this Plan. If an award of Performance Shares is forfeited,
in whole or in part, without the issuance of a Stock Award, the
number of shares of Common Stock allocated to the Performance
Share Award or portion thereof may be reallocated to other
Options, SARs, Stock Awards and awards of Stock Units and
Performance Shares to be granted under this Plan. If an award of
Stock Units is forfeited, in whole or in part, to the extent that
no settlement is made for such Stock Units, the number of shares
of Common Stock allocated to the awards of Stock Units or portion
thereof may be reallocated to other Options, SARs, Stock Awards
and awards of Stock Units and Performance Shares to be granted
under this Plan.
ARTICLE VI
OPTION PRICE
The price per share for Common Stock purchased on the
exercise of an Option shall be determined by the Administrator on
the date of grant; provided, however, that (i) the price per
share for Common Stock purchased on the exercise of any Option
shall not be less than 85% of the Fair Market Value on the date
the Option is granted, (ii) the price per share for Common Stock
purchased on the exercise of an Option that is an incentive stock
option shall not be less than the Fair Market Value on the date
the Option is granted and (iii) the price per share for Common
Stock purchased on the exercise of an Option shall not be
repriced unless shareholder approval is obtained for such
repricing.
ARTICLE VII
EXERCISE OF OPTIONS AND SARS
7.01. Maximum Option or SAR Period. The maximum period in which
an Option or SAR may be exercised shall be determined by the
Administrator on the date of grant, except that no Option that is
an incentive stock option or its Corresponding SAR shall be
exercisable after the expiration of ten years from the date such
Option or Corresponding SAR was granted. The terms of any Option
or SAR may provide that it is exercisable for a period less than
such maximum period.
7.02. Nontransferability. Any Option or SAR granted under this
Plan shall be nontransferable except by will or by the laws of
descent and distribution. In the event of any such transfer, the
Option and any Corresponding SAR that relates to such Option must
be transferred to the same person or person(s). During the life-
time of the Participant to whom the Option or SAR is granted, the
Option or SAR may be exercised only by the Participant. No right
or interest of a Participant in any Option or SAR shall be liable
for, or subject to, any lien, obligation, or liability of such
Participant.
7.03. Transferable Options and SARs. Section 7.02 to the
contrary notwithstanding, if the Agreement provides, an Option
that is not an incentive stock option or an SAR, other than a
Corresponding SAR that is related to an incentive stock option,
may be transferred by a Participant to the Participant's
children, grandchildren, spouse, one or more trusts for the
benefit of such family members or a partnership in which such
family members are the only partners, on such terms and
conditions as may be permitted under Securities Exchange
Commission Rule 16b-3 as in effect from time to time. The holder
of an Option or SAR transferred pursuant to this section shall be
bound by the same terms and conditions that governed the Option
or SAR during the period that it was held by the Participant;
provided, however, that such transferee may not transfer the
Option or SAR except by will or the laws of descent and
distribution. In the event of any transfer of an Option or SAR
(by the Participant or his transferee), any Corresponding SAR
that relates to such Option or Corresponding SAR and related
Option must be transferred to the same person or persons or
entity or entities.
7.04. Employee Status. For purposes of determining the
applicability of Section 422 of the Code (relating to incentive
stock options), or in the event that the terms of any Option or
SAR provide that it may be exercised only during employment or
within a specified period of time after termination of
employment, the Administrator may decide to what extent leaves of
absence for governmental or military service, illness, temporary
disability, or other reasons shall not be deemed interruptions of
continuous employment.
7.05. Change in Control. Section 7.01 to the contrary
notwithstanding, after a Control Change Date each Option or SAR
shall be fully exercisable thereafter in accordance with the
terms of the applicable Agreement. If not sooner exercisable
under the terms of the applicable Agreement, a Participant's
Option or SAR shall be fully exercisable (i) as of his
termination of employment if his employment terminates after a
Control Change Date and he is terminated without cause or
following his refusal to move to another location or (ii) as of
the date that there is a material reduction in the Participant's
compensation or duties if such reduction occurs after a Control
Change Date. For purposes of the preceding sentence the term
"cause" means a willful neglect of responsibilities to the
Company or a Related Entity.
7.06. Performance Objectives. The Committee may prescribe that
an Option or SAR is exercisable only to the extent that certain
performance objectives are attained. Such performance objectives
may be based on one or more of the Company's, Related Entity's or
an operating unit's (i) gross, operating or net earnings before
or after taxes, (ii) return on equity, (iii) return on capital,
(iv) return on sales, (v) return on assets or net assets, (vi)
earnings per share, (vii) cash flow per share, (viii) book value
per share, (ix) earnings growth, (x) sales growth, (xi) volume
growth, (xii) cash flow (as defined by the Committee), (xiii)
Fair Market Value, (xiv) share price or total shareholder return,
(xv) market share, (xvi) economic value added, (xvii) market
value added, (xviii) productivity, (xix) level of expenses, (xx)
quality, (xxi) safety, (xxii) customer satisfaction, or (xxiii)
peer group comparisons of any of the aforementioned objectives.
If the Committee, on the date of the award, prescribes that an
Option or SAR shall become exercisable only upon the attainment
of performance objectives stated with respect to one or more of
the foregoing criteria, the Option or SAR shall become
exercisable only to the extent the Committee certifies that such
objectives have been achieved.
ARTICLE VIII
METHOD OF EXERCISE
8.01. Exercise. Subject to the provisions of Articles VII and
XIV, an Option or SAR may be exercised in whole at any time or in
part from time to time at such times and in compliance with such
requirements as the Administrator shall deter- mine; provided,
however, that a Corresponding SAR that is related to an incentive
stock option may be exercised only to the extent that the related
Option is exercisable and when the Fair Market Value exceeds
the option price of the related Option. An Option or SAR granted
under this Plan may be exercised with respect to any number of
whole shares less than the full number for which the Option or
SAR could be exercised. A partial exercise of an Option or SAR
shall not affect the right to exercise the Option or SAR from
time to time in accordance with this Plan and the applicable
Agreement with respect to the remaining shares subject to the
Option or related to the SAR. The exercise of either an Option
or Corresponding SAR shall result in the termination of the other
to the extent of the number of shares with respect to which the
Option or Corresponding SAR is exercised.
8.02. Payment. Unless otherwise provided by the Agreement,
payment of the Option price shall be made in cash or a cash
equivalent acceptable to the Administrator. Subject to rules
established by the Committee, payment of all or part of the
Option price may be made with shares of Common Stock to the
Company. If Common Stock is used to pay all or part of the
Option price, the sum of the cash and cash equivalent and the
Fair Market Value of the shares (on the day preceding the
exercise date) must not be less than the Option Price of shares
for which the Option is being exercised.
8.03. Determination of Payment of Cash and/or Common Stock Upon
Exercise of SAR. At the Administrator's discretion, the amount
payable as a result of the exercise of an SAR may be settled in
cash, Common Stock, or a combination of cash and Common Stock. A
fractional share shall not be deliverable upon the exercise of an
SAR but a cash payment will be made in lieu thereof. 8.04.
Shareholder Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to his Option or SAR
until the date of exercise of such Option or SAR.
ARTICLE IX
STOCK AWARDS
9.01. Awards. In accordance with the provisions of Article IV,
and subject to the limitations set forth in Plan section 5.03,
the Administrator will designate each individual to whom a Stock
Award is to be made and will specify the number of shares of
Common Stock covered by such awards. The preceding sentence
shall not limit the issuance of Stock Awards in settlement of
Performance Share awards.
9.02. Vesting. The Administrator, on the date of the award, may
prescribe that a Participant's rights in the Stock Award shall be
forfeitable or otherwise restricted for a period of time set
forth in the Agreement. The period of restriction shall be at
least one year. By way of example and not of limitation, the
restrictions may postpone transferability of the shares until the
attainment of performance objectives prescribed by Committee or
may provide that the shares will be forfeited if the Participant
separates from the service of the Company and its Related
Entities before the expiration of a stated term.
9.03. Performance Objectives. In accordance with Section 9.02,
the Committee may prescribe that Stock Awards will become vested
or transferable or both based on objectives stated with respect
to one or more of the Company's, a Related Entity's or an
operating unit's (i) gross, operating or net earnings before or
after taxes, (ii) return on equity, (iii) return on capital, (iv)
return on sales, (v) return on assets or net assets, (vi)
earnings per share, (vii) cash flow per share, (viii) book value
per share, (ix) earnings growth, (x) sales growth, (xi) volume
growth, (xii) cash flow (as defined by the Committee), (xiii)
Fair Market Value, (xiv) share price or total shareholder return,
(xv) market share, (xvi) economic value added, (xvii) market
value added, (xviii) productivity, (xix) level of expenses, (xx)
quality, (xxi) safety, (xxii) customer satisfaction, or (xxiii)
peer group comparisons of any of the aforementioned objectives.
If the Committee, on the date of the award, prescribes that a
Stock Award shall become nonforfeitable and transferrable only
upon the attainment of performance objectives stated with respect
to one or more of the foregoing criteria, the shares subject to
such Stock Award shall become nonforfeitable and transferrable
only to the extent the Committee certifies that such objectives
have been achieved.
9.04. Change in Control. Sections 9.02 and 9.03 to the contrary
notwithstanding, after a Control Change Date each Stock Award
will become transferable and nonforfeitable thereafter in
accordance with the terms of the applicable Agreement. If not
sooner transferable and nonforfeitable under the terms of the
applicable Agreement, a Participant's interest in a Stock Award
shall be transferable and nonforfeitable (i) as of his
termination of employment if his employment terminates after a
Control Change Date and he is terminated without cause or
following his refusal to move to another location or (ii) as of
the date that there is a material reduction in the Participant's
compensation or duties if such reduction occurs after a Control
Change Date. For purposes of the preceding sentence the term
"cause" means a willful neglect of responsibilities to the
Company or a Related Entity.
9.05. Shareholder Rights. Prior to their forfeiture (in
accordance with the terms of the Agreement and while the shares
of Common Stock granted pursuant to the Stock Award may be
forfeited), a Participant will have all rights of a shareholder
with respect to a Stock Award, including the right to receive
dividends and vote the shares; provided, however, that (i) a
Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of shares of Common Stock
granted pursuant to a Stock Award, (ii) the Company shall retain
custody of the certificates evidencing shares of Common Stock
granted pursuant to a Stock Award, and (iii) the Participant will
deliver to the Company a stock power, endorsed in blank, with
respect to each Stock Award. The limitations set forth in the
preceding sentence shall not apply after the shares of Common
Stock granted under the Stock Award are no longer forfeitable.
ARTICLE X
PERFORMANCE SHARE AWARDS
10.01. Award. In accordance with the provisions of Article IV
and subject to the limitations set forth in paragraph 5.03, the
Administrator will designate individuals to whom an award of
Performance Shares is to be granted and will specify the number
of shares of Common Stock covered by the award.
10.02. Earning the Award. The Administrator, on the date of the
grant of an award, may prescribe that the Performance Shares, or
portion thereof, will be earned, and the Participant will be
entitled to receive Common Stock pursuant to a Stock Award only
upon the satisfaction of certain requirements or the attainment
of certain objectives. By way of example and not of limitation,
the restrictions may provide that Performance Shares shall be
earned only upon the Participant's completion of a specified
period of employment with the Company or Related Entity or upon
the attainment of stated performance objectives or goals. Such
performance objectives or goals may be based on one or more of
the Company's, a Related Entity's or an operating unit's (i)
gross, operating or net earnings before or after taxes, (ii)
return on equity, (iii) return on capital, (iv) return on sales,
(v) return on assets or net assets, (vi) earnings per share,
(vii) cash flow per share, (viii) book value per share, (ix)
earnings growth, (x) sales growth, (xi) volume growth, (xii) cash
flow (as defined by the Committee), (xiii) Fair Market Value,
(xiv) share price or total shareholder return, (xv) market share,
(xvi) economic value added, (xvii) market value added, (xviii)
productivity, (xix) level of expenses, (xx) quality, (xxi)
safety, (xxii) customer satisfaction, or (xxiii) peer group
comparisons of any of the aforementioned objectives. If the
Committee, on the date of the award, prescribes that Performance
Shares shall be earned only upon the attainment of performance
objectives stated with respect to one or more of the foregoing
criteria, such Performance Shares shall be earned only to the
extent the Committee certifies that such objectives have been
achieved.
10.03. Change in Control. Section 10.02 to the contrary
notwithstanding, each Performance Share shall be earned in its
entirety and converted into a Stock Award as of a Control Change
Date. Each Performance Share award will become transferable and
nonforfeitable thereafter as described in Plan section 9.04 in
accordance with the terms of the applicable Agreement.
10.04. Shareholder Rights. No Participant shall, as a result of
receiving an award of Performance Shares, have any rights as a
shareholder until and to the extent that the award of Performance
Shares is earned and a Stock Award is made. If the Agreement so
provides, a Participant may receive a cash payment equal to the
dividends that are payable with respect to the number of shares
of Common Stock covered by the award between the date the
Performance Shares are awarded and the date a Stock Award is
made. A Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of a Performance Share award or
the right to receive Common Stock thereunder other than by will
or the laws of descent and distribution. After an award of
Performance Shares is earned and a Stock Award is made, a
Participant will have all the rights of a shareholder as
described in Plan section 9.05.
ARTICLE XI
STOCK UNITS
11.01. Award. In accordance with the provisions of Article IV,
and subject to the limitations set forth in Plan section 5.03,
the Administrator will designate individuals to whom an award of
Stock Units is to be made and will specify the number of Stock
Units covered by the award provided, however, that no Participant
may be awarded Stock Units in any calendar year for more than
100,000 shares of Common Stock.
11.02. Vesting. The Administrator, on the date of the award, may
prescribe that the Participant's right to receive a payment
pursuant to a Stock Unit award shall be forfeitable or otherwise
terminated for a period of time set forth in the Agreement or
upon the failure to satisfy such other conditions as the
Administrator may prescribe consistent with the Plan. The period
of restriction shall be at least one year. By way of example and
not limitation, the restrictions may provide that the shares
shall be earned only upon the Participant's completion of a
specified period of employment with the Company or Related Entity
or upon the attainment of stated performance objectives of goals.
Such performance objectives or goals may be based on one or more
of the Company's, a Related Entity's or an operating unit's (i)
gross, operating or net earnings before or after taxes, (ii)
return on equity, (iii) return on capital, (iv) return on sales,
(v) return on assets or net assets, (vi) earnings per share,
(vii) cash flow per share, (viii) book value per share, (ix)
earnings growth, (x) sales growth, (xi) volume growth, (xii) cash
flow (as defined by the Committee), (xiii) Fair Market Value,
(xiv) share price or total shareholder return, (xv) market share,
(xvi) economic value added, (xvii) market value added, (xviii)
productivity, (xix) level of expenses, (xx) quality, (xxi)
safety, (xxii) customer satisfaction, or (xxiii) peer group
comparisons of any of the aforementioned objectives. If the
Committee, on the date of the award, prescribes that Stock Units
shall be earned only upon the attainment of performance
objectives stated with respect to one or more of the foregoing
criteria, such Stock Units shall be earned only to the extent the
Committee certifies that such objectives have been achieved.
11.03. Payment. In accordance with the Agreement, the amount
payable when an award of Stock Units is earned may be settled in
cash, Common Stock or a combination of cash and Common Stock. A
fractional share shall not be deliverable when a award of Stock
Units is earned, but a cash payment will be made in lieu thereof.
11.04. Shareholder Rights. No Participant shall, as a result of
receiving a Stock Unit award, have any rights as a shareholder of
the Company or Related Entity. A Participant may not sell,
transfer, pledge, exchange, hypothecate, or otherwise dispose of
a Stock Unit award other than by will or the laws of descent and
distribution. The limitations set forth in the preceding
sentence shall not apply to Common Stock issued as payment
pursuant to a Stock Unit award.
ARTICLE XII
INCENTIVE AWARDS
12.01. Awards. The Administrator shall designate Participants to
whom Incentive Awards are made for annual incentive payments.
All Incentive Awards shall be finally determined exclusively by
the Administrator under the procedures established by the
Administrator; provided, however, that in any calendar year no
Participant may receive an Incentive Award that exceeds $1.5
million.
12.02. Terms and Conditions. The Administrator, at the time an
Incentive Award is made, shall specify the terms and conditions
which govern the award. Such terms and conditions may include,
by way of example and not of limitation, requirements that the
Participant complete a specified period of employment with the
Company or a Related Entity or that the Company, a Related
Entity, or the Participant attain stated objectives or goals as a
prerequisite to payment under an Incentive Award. Such
performance objectives or goals may be based on one or more of
the Company's, a Related Entity's or an operating unit's (i)
gross, operating or net earnings before or after taxes, (ii)
return on equity, (iii) return on capital, (iv) return on sales,
(v) return on assets or net assets, (vi) earnings per share,
(vii) cash flow per share, (viii) book value per share, (ix)
earnings growth, (x) sales growth, (xi) volume growth, (xii) cash
flow (as defined by the Committee), (xiii) Fair Market Value,
(xiv) share price or total shareholder return, (xv) market share,
(xvi) economic value added, (xvii) market value added, (xviii)
productivity, (xix) level of expenses, (xx) quality, (xxi)
safety, (xxii) customer satisfaction, or (xxiii) peer group
comparisons of any of the aforementioned objectives. If the
Committee, on the date of the award, prescribes that the
Incentive Award shall be earned only upon the attainment of
performance objectives stated with respect to one or more of the
foregoing criteria, such Incentive Award shall be earned only to
the extent that the Committee certifies that such objectives have
been achieved. The Administrator, at the time an Incentive Award
is made, shall also specify when amounts shall be payable under
the Incentive Award and whether amounts shall be payable in the
event of the Participant's death, disability, or retirement.
Except with respect to those Participants who are covered
employees (as determined under Code section 162(m)(3)) and
notwithstanding any other provision of the Plan, the
Administrator, in its discretion may adjust the terms, conditions
or other requirements applicable to Incentive Awards and may
increase or decrease the amounts otherwise payable under an
Incentive Award, to reflect unusual or extraordinary transactions
or events. The Administrator may make such adjustments with
respect to one or more Participants, with respect to all
Participants as to Incentive Awards made during a particular
year, or with respect to all outstanding Incentive Awards.
ARTICLE XIII
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options that are
incentive stock options and SARs may be granted under this Plan
shall be proportionately adjusted, and the terms of outstanding
awards of Performance Shares, Stock Awards, Stock Units, Options,
and SARs shall be adjusted, as the Committee shall determine to
be equitably required in the event that (a) the Company (i)
effects one or more stock dividends, stock split-ups,
subdivisions or consolidations of shares or (ii) engages in a
transaction to which Section 424 of the Code applies or (b) there
occurs any other event which, in the judgment of the Committee
necessitates such action. Any determination made under this
Article XIII by the Committee shall be final and conclusive.
The issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any
class, for cash or property, or for labor or services, either
upon direct sale or 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,
shall not affect, and no adjustment by reason thereof shall be
made with respect to, outstanding awards of Performance Shares,
Stock Awards, Stock Units, Options or SARs.
The Committee may make Stock Awards and may grant awards
of Performance Shares, Stock Units, Options, and SARs in
substitution for performance shares, phantom shares, stock
awards, stock options, stock appreciation rights, or similar
awards held by an individual who becomes an employee of the
Company or a Related Entity in connection with a transaction
described in the first paragraph of this Article XIII.
Notwithstanding any provision of the Plan (other than the
limitation of Article V), the terms of such substituted awards of
Performance Shares, Stock Units, Stock Awards, Option or SAR
grants shall be as the Committee, in its discretion, determines
is appropriate.
ARTICLE XIV
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES
No Option or SAR shall be exercisable, no Common Stock
shall be issued, no certificates for shares of Common Stock shall
be delivered, and no payment shall be made under this Plan except
in compliance with all applicable federal and state laws and
regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a
party, and the rules of all domestic stock exchanges on which the
Company's shares may be listed. The Company shall have the right
to rely on an opinion of its counsel as to such compliance. Any
share certificate issued to evidence Common Stock when a Stock
Award is granted, in payment when a Stock Unit is earned or for
which an Option or SAR is exercised may bear such legends and
statements as the Administrator may deem advisable to assure
compliance with federal and state laws and regulations. No
Option or SAR shall be exercisable, no Stock Award shall be
granted, no Common Stock shall be issued, no certificate for
shares shall be delivered, and no payment shall be made under
this Plan until the Company has obtained such consent or approval
as the Administrator may deem advisable from regulatory bodies
having jurisdiction over such matters.
ARTICLE XV
GENERAL PROVISIONS
15.01. Effect on Employment. Neither the adoption of this Plan,
its operation, nor any documents describing or referring to this
Plan (or any part thereof) shall confer upon any individual any
right to continue in the employ or service of the Company or a
Related Entity or in any way affect any right and power of the
Company or a Related Entity to terminate the employment or
service of any individual at any time with or without assigning a
reason therefor.
15.02. Unfunded Plan. The Plan, insofar as it provides for
grants, shall be unfunded, and the Company shall not be required
to segregate any assets that may at any time be represented by
grants under this Plan. Any liability of the Company to any
person with respect to any grant under this Plan shall be based
solely upon any contractual obligations that may be created
pursuant to this Plan. No such obligation of the Company shall
be deemed to be secured by any pledge of, or other encumbrance
on, any property of the Company.
15.03. Disposition of Stock. A Participant shall notify the
Administrator of any sale or other disposition of Common Stock
acquired pursuant to an Option that was an incentive stock option
if such sale or disposition occurs (i) within two years of the
grant of an Option or (ii) within one year of the issuance of the
Common Stock to the Participant. Such notice shall be in writing
and directed to the Secretary of the Company.
15.04. Rules of Construction. Headings are given to the articles
and sections of this Plan solely as a convenience to facilitate
reference. The reference to any statute, regulation, or other
provision of law shall be construed to refer to any amendment to
or successor of such provision of law.
15.05. Employee Status. In the event that the terms of any award
of Performance Shares, Stock Unit or Stock Award or Incentive
Award or the grant of any Option or SAR provide that shares may
be issued or become transferable and nonforfeitable thereunder
only after completion of a specified period of employment, the
Administrator may decide in each case to what extent leaves of
absence for govern- mental or military service, illness,
temporary disability, or other reasons shall not be deemed
interruptions of continuous employment.
15.06. Withholding Taxes. Each Participant shall be responsible
for satisfying any income and employment tax withholding
obligations attributable to participation in the Plan. Unless
otherwise provided by the Agreement, any such withholding tax
obligations may be satisfied in cash (including from any cash
payable in settlement of an award of Performance Shares, an SAR
or Incentive Award) or a cash equivalent acceptable to the
Committee. Any withholding tax obligations may also be satisfied
by surrendering shares of Common Stock to the Company, by
withholding or reducing the number of shares of Common Stock
otherwise issuable to the Participant upon the exercise of an
Option or SAR, the settlement of an award of Performance Shares
or the grant or vesting of a Stock Award, or by any other method
as may be approved by the Committee. If shares of Common Stock
are used to pay all or part of such withholding tax obligation,
the Fair Market Value of the shares surrendered, withheld or
reduced shall be determined as of the day preceding the date the
Option or SAR is exercised, the Stock Award vests or the
Performance Shares or Stock Units are earned, as applicable.
15.07. Certain Reduction of Restrictive Payments. Any benefit,
payment, accelerated vesting or other right under this Plan may
constitute a "parachute payment" (as defined in Code section
280G(b)(2)(A), but without regard to Code section
280G(b)(2)(A)(ii)), with respect to a Participant and the
Participant may incur a liability under Code section 4999. In
accordance with the terms of an Agreement, the Company shall
reduce any such parachute payments, if, and only to the extent
that a reduction will allow the Participant to receive a greater
"net after- tax amount" than such Participant would receive
absent a reduction. For purposes of this Plan section, "net
after tax amount" means the amount of any parachute payments, as
applicable, net of taxes imposed under Code sections 1, 3101(b)
and 4999 and any State or local income taxes applicable to the
Participant as in effect on the date of the first payment under
this Agreement. The determination of the net after tax amount
shall be imposed by the foregoing taxes on income of the same
character as the parachute payments or capped parachute payments,
as applicable, in effect for the year in which the determination
is made. "Capped parachute payments" means the largest amount of
parachute payments that may be paid without liability under Code
section 4999.
ARTICLE XVI
AMENDMENT
The Board may amend or terminate this Plan from time to
time; provided, however, that no amendment may become effective
until shareholder approval is obtained if (i) the amendment
increases the aggregate number of shares of Common Stock that may
be issued under the Plan or (ii) the amendment changes the class
of individuals eligible to become Participants. No amendment
shall, without a Participant's consent, adversely affect any
rights of such Participant under any outstanding award of
Performance Shares, Stock Unit, or under any Stock Award, Option
or SAR outstanding at the time such amendment is made.
ARTICLE XVII
DURATION OF PLAN
No Performance Shares or Stock Units may be awarded and no
Stock Award, Option, SAR or Incentive Award may be granted under
this Plan more than ten years after the earlier of the date that
the Plan is adopted by the Board or the date that the Plan is
approved by shareholders as provided in Article XVIII.
Performance Shares and Stock Units awarded, and Stock Awards,
Options, SARs and Incentive Awards granted before that date shall
remain valid in accordance with their terms.
ARTICLE XVIII
EFFECTIVE DATE OF PLAN
Performance Shares and Stock Units may be awarded and
Stock Awards, Options, SARs and Incentive Awards may be granted
under this Plan upon its adoption by the Board, provided that no
award of Performance Shares, Stock Unit, Stock Award, Option or
SAR will be effective unless this Plan is approved by a majority
of the votes entitled to be cast by the Company's shareholders,
voting either in person or by proxy, at a duly held shareholders'
meeting or by the unanimous consent of shareholders within twelve
months of such adoption.
