Filed
by the Registrant ý
|
||
Filed
by a Party other than the Registrant o
|
||
Check
the appropriate box:
|
||
ý
|
Preliminary
Proxy Statement
|
|
o
|
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
|
o
|
Definitive
Proxy Statement
|
|
o
|
Definitive
Additional Materials
|
|
o
|
Soliciting
Material Pursuant to §240.14a-12
|
Payment
of Filing Fee (Check the appropriate box):
|
||||
ý
|
No
fee required
|
|||
o
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11
|
|||
(1)
|
Title
of each class of securities to which transaction
applies:
|
|||
(2)
|
Aggregate
number of securities to which transaction
applies:
|
|||
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was
determined):
|
|||
(4)
|
Proposed
maximum aggregate value of
transaction:
|
|||
(5)
|
Total
fee paid:
|
|||
o
|
Fee
paid previously with preliminary materials.
|
|||
o
|
Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
|
|||
(1)
|
Amount
Previously Paid:
|
|||
(2)
|
Form,
Schedule or Registration Statement No.:
|
|||
(3)
|
Filing
Party:
|
|||
(4)
|
Date
Filed:
|
Sincerely,
Ronald
J. Evans
President
and Chief Executive Officer
|
918-494-0964
|
Fax 918-494-3999
|
www.nagalv.com
|
1.
|
Electing
seven directors nominated
by the Board of Directors to one year
terms.
|
2.
|
Ratifying
the appointment of Deloitte & Touche LLP as independent registered
public accountants for 2009.
|
3.
|
Approving
an
amendment
to the Restated Certificate of Incorporation to increase the number of
authorized shares of the Company’s common stock from 25,000,000 shares to
50,000,000 shares.
|
4.
|
Approving
the 2009 Incentive Stock
Plan.
|
5.
|
Approving
an amendment to the Restated Certificate of Incorporation to place
responsibilities on certain
investors.
|
6.
|
Transacting
such other business as may properly come before the Annual Meeting or any
adjournment or adjournments
thereof.
|
BY
ORDER OF THE BOARD OF DIRECTORS
Beth
B. Hood,
Vice
President & Corporate Secretary
May
8,
2009
|
·
|
giving
written notice to North American Galvanizing & Coatings, Inc.,
Attention: Corporate Secretary, 5314 South Yale Avenue, Suite 1000, Tulsa,
Oklahoma 74135,
|
·
|
submitting
a subsequent proxy by Internet, telephone or mail with a later date,
or
|
·
|
by
voting in person at the Annual
Meeting.
|
·
|
FOR
the election of the seven directors nominated by the Board of Directors on
the recommendation of the Corporate Governance and Nominating
Committee,
|
·
|
FOR
the ratification of the appointment of Deloitte & Touche LLP as
independent registered public accountants for
2009.
|
·
|
FOR
the approval of an amendment to the Restated Certificate of Incorporation
to increase the number of authorized shares of the Company’s common stock
from 25,000,000 shares to 50,000,000
shares.
|
·
|
FOR
the approval of the 2009 Incentive Stock Plan.
|
· |
FOR
the approval of an amendment to the Restated Certificate of Incorporation
to place responsibilities on certain
investors.
|
Name
|
Fees
Earned
or
Paid
in
Cash
(1)
|
Stock
Awards
(2)
|
Option
Awards
(3)
|
Total
|
Linwood
J. Bundy
|
$35,000
|
$69,317
|
—
|
$104,317
|
Ronald
J. Evans (4)
|
—
|
—
|
—
|
—
|
Janice
K. Henry
|
29,750
|
39,588
|
—
|
69,338
|
Gilbert
L. Klemann, II
|
35,000
|
69,317
|
—
|
104,317
|
Patrick
J. Lynch
|
35,000
|
69,317
|
—
|
104,317
|
Joseph
J. Morrow
|
35,000
|
69,317
|
—
|
104,317
|
John
H. Sununu
|
35,000
|
69,317
|
—
|
104,317
|
·
|
appointing
our independent registered public accountants, subject to stockholder
ratification,
|
·
|
reviewing
the scope of the annual audit and recommendations of the independent
registered public accountants,
|
·
|
reviewing
and discussing with management and the independent registered public
accountants our audited financial statements and other financial
information,
|
·
|
monitoring
the independence and performance of our independent registered public
accountants, and
|
·
|
evaluating
overall risk exposures and the adequacy of the overall internal control
functions of the Company.
|
North
American Galvanizing & Coatings, Inc.
|
||||||
Stock
Ownership, April 15, 2009 (1)
|
||||||
Number
of Shares of Common Stock Beneficially Owned (excluding options)
(2)
|
Nonvested
Forfeitable Shares of Common Stock
|
Options
Granted (3)
|
Total
Beneficial Ownership of Common Stock (including options)
|
Percentage
of Common Stock (4)
|
||
Linwood
J. Bundy
|
281,280
|
39,999
|
—
|
321,279
|
1.9%
|
|
Ronald
J. Evans
|
281,128
|
133,334
|
600,000
|
1,014,462
|
5.9%
|
|
Janice
K. Henry
|
—
|
26,666
|
—
|
26,666
|
.2%
|
|
Beth
B. Hood
|
26,627
|
40,000
|
62,500
|
129,127
|
0.8%
|
|
Gilbert
L. Klemann, II
|
174,618
|
39,999
|
79,166
|
293,783
|
1.7%
|
|
Patrick
J. Lynch
|
201,062
|
39,999
|
20,000
|
261,061
|
1.5%
|
|
Joseph
J. Morrow
|
2,106,825
|
39,999
|
—
|
2,146,824
|
12.5%
|
|
John
H. Sununu
|
151,729
|
39,999
|
20,000
|
211,728
|
1.2%
|
|
All
Directors and Executive
|
|
|||||
Officers
as Group (8 persons)
|
3,223,269
|
399,995
|
781,666
|
4,404,930
|
25.7%
|
|
(1)
|
All
shares adjusted to reflect a four-for-three stock split on September 14,
2008.
|
(2)
|
Excludes
stock units allocated to the account of the named person under the
Director Stock Unit Program, as persons are not permitted to vote the
units.
|
(3)
|
Represents
shares which the directors and executive officers have, or within 60 days
after April 15, 2009 will have, the right to acquire through the exercise
of stock options.
|
(4)
|
Based
on 16,332,735 shares of the Common Stock outstanding as of April 15, 2009.
This assumes that all options or warrants exercisable within 60 days after
April 15, 2009 owned by the named individual are exercised. The
total number of shares outstanding also assumes that none of the options
or warrants owned by other named individuals are
exercised.
|
(5)
|
The
address for each of our directors and executive officers is as
follows: c/o North American Galvanizing & Coatings, Inc.,
5314 South Yale Avenue, Suite 1000, Tulsa, Oklahoma
74135.
|
|
(a)
|
the
date that is four (4) years after the date of
grant;
|
|
(b)
|
the
date of a change in control;
|
|
(c)
|
the
date the participant terminates employment due to a
disability;
|
|
(e)
|
the
date of the participant’s death;
|
Name
and Principal Position
|
Year
|
Salary
($)
(1)
|
Bonus
($)
|
Stock
Awards
($)(2)
|
Option
Awards
($)
(2)
|
All
Other Compensation
($)
(3)
|
Total
($)
|
||||||||||||||||||
Ronald
J. Evans
|
2008
|
$ | 325,000 | $ | 250,000 | $ | 57,917 | $ | 255,745 | $ | 42,787 | $ | 931,449 | ||||||||||||
President
and CEO
|
2007
|
293,750 | 200,000 |
—
|
229,389 | 44,756 | 767,895 | ||||||||||||||||||
2006
|
195,000 | 120,000 |
—
|
64,686 | 38,483 | 418,169 | |||||||||||||||||||
Beth
B. Hood
|
2008
|
182,500 | 90,000 | 17,375 | 31,943 | $ | 12,337 | $ | 334,155 | ||||||||||||||||
CFO
and Secretary
|
2007
|
168,750 | 75,000 |
—
|
29,738 | 10,631 | 284,119 | ||||||||||||||||||
2006
|
145,000 | 50,000 |
—
|
10,027 | 5,906 | 210,933 | |||||||||||||||||||
Name
and Principal
Position
|
Grant
Date
|
All
Other Stock
Awards:
Number
of
Shares
of Stock
or
Units (#)
|
Grant
Date Fair
Value
of Stock and
Option
Awards ($)
|
|
|
|
|
Ronald
J. Evans
|
3/5/2008
|
66,666
|
$278,000
|
President
and CEO
|
1/2/2008
|
3,288
(1)
|
15,313 (2)
|
4/2/2008
|
3,679
(1)
|
15,313
(2)
|
|
7/1/2008
|
2,411
(1)
|
15,313
(2)
|
|
10/1/2008
|
2,663
(1)
|
15,313
(2)
|
|
Beth
B. Hood
|
3/5/2008
|
20,000
|
83,400
|
|
(a)
|
the
date that is four (4) years after the date of
grant;
|
|
(b)
|
the
date of a change in control;
|
|
(c)
|
the
date the participant terminates employment due to a
disability;
|
|
(d)
|
the
date of the participant’s death;
|
Option
Awards
|
Stock
Awards
|
||||||
Stock
Awards
|
Number
of Securities Underlying Unexercised Options (#)
Exercisable
|
Number
of Securities Underlying Unexercised Options (#) Unexercisable
(1)
|
Option
Exercise Price ($/Sh)
|
Option
Expiration Date (2)
|
Number
of Shares or Units of Stock That Have Not Vested (#)
|
Market
Value of Shares or Units of Stock That Have Not Vested ($)
(3)
|
|
Ronald
J. Evans
|
50,000
|
—
|
1.25
|
02/16/2015
|
—
|
—
|
|
President
and CEO
|
50,000
|
—
|
1.05
|
02/17/2016
|
—
|
—
|
|
100,000
|
100,000
|
2.60
|
02/23/2017
|
—
|
—
|
||
133,332
|
66,668
|
2.60
|
02/23/2017
|
—
|
—
|
||
—
|
—
|
—
|
—
|
66,666
|
$255,331
|
||
Beth
B. Hood
|
5,000
|
—
|
1.23
|
04/18/2015
|
—
|
—
|
|
CFO
and Secretary
|
10,000
|
10,000
|
1.05
|
02/17/2016
|
—
|
—
|
|
12,500
|
25,000
|
2.60
|
02/23/2017
|
—
|
—
|
||
—
|
—
|
—
|
—
|
20,000
|
$76,600
|
Option
Awards
|
Stock
Awards
|
||||
Name
and Principal Position
|
Number
of Shares Acquired on Exercise (#)
|
Value
Realized on Exercise ($)
|
Number
of Shares Acquired on Vesting (#)
|
Value
Realized on Vesting ($)(1)
|
|
Ronald
J. Evans
|
|||||
President
and CEO
|
—
|
—
|
22,041
|
61,250
|
|
Beth
B. Hood
|
10,000
|
38,625
|
—
|
—
|
|
CFO
and Secretary
|
Name
and Principal Position
|
Executive
Contributions in 2008 ($)
|
Registrant
Contributions in 2008 ($)
|
Aggregate
Earnings in 2007 ($)
|
Aggregate
Withdrawals/Distributions ($)
|
Aggregate
Balance at December 31, 2008 ($)
|
Ronald
J. Evans
|
$ 35,000
|
$ 26,250
|
$ —
|
$ —
|
$ 378,354
|
President
and CEO
|
By
the Compensation Committee of the Board of Directors:
Linwood
J. Bundy, Chairman
Patrick
J. Lynch
Joseph
J. Morrow
|
·
|
reviewed
and discussed with Deloitte & Touche, LLP, our independent registered
public accountants (“Deloitte”), and with management our audited financial
statements included in our Annual Report on Form 10-K for the year ended
December 31, 2008,
|
·
|
discussed
with Deloitte the matters required by Statement on Auditing Standards No.
61, as amended, relating to communications between the Audit Committee and
the independent registered public accountants,
and
|
·
|
received
from and discussed with Deloitte the written disclosures and letter from
Deloitte required by Independence Standards Board Standard No. 1 as
modified or supplemented, regarding their independence from the
Company.
|
The
Audit Committee:
Patrick
J. Lynch, Chairman
Linwood
J. Bundy
Janice
K. Henry
Gilbert
L. Klemann, II
|
(a)
|
(b)
|
(c)
|
|
Plan
Category
|
Number
of securities to be
|
Weighted-average
exercise
|
Number
of securities
|
issued
upon exercise of
|
price
of outstanding options,
|
remaining
available for
|
|
outstanding
options
|
future
issuance under
|
||
equity
compensation
|
|||
plans
(excluding
|
|||
securities
reflected in
|
|||
column
(a))
|
|||
Equity
compensation Plans approved by security
holders
|
1,037,916
|
$1.95
|
296,907
(1)
|
|
|||
Equity
compensation Plans not approved by security
holders
|
0
|
N/A
|
0
|
Total
|
1,037,916
|
1.95
|
296,907
|
Page | ||
§ 1.
BACKGROUND AND PURPOSE
|
1 | |
§ 2.
DEFINITIONS
|
1 | |
2.1
|
Account
|
1
|
2.2
|
Affiliate
|
1
|
2.3
|
Automatic
Deferral Period
|
1
|
2.4
|
Beneficiary
|
1
|
2.5
|
Board
|
1
|
2.6
|
Certificate
|
2
|
2.7
|
Change
Effective Date
|
2
|
2.8
|
Change
in Control
|
2
|
2.9
|
Code
|
5
|
2.10
|
Committee
|
5
|
2.11
|
Company
|
5
|
2.12
|
Deferral
Period
|
5
|
2.13
|
Director
|
5
|
2.14
|
Elective
Deferral Period
|
5
|
2.15
|
Fair
Market Value
|
5
|
2.16
|
ISO
|
6
|
2.17
|
Inside
Director
|
6
|
2.18
|
Key
Employee
|
6
|
2.19
|
1933
Act
|
6
|
2.20
|
1934
Act
|
7
|
2.21
|
Non-ISO
|
7
|
2.22
|
Option
|
7
|
2.23
|
Option
Certificate
|
7
|
2.24
|
Option
Price
|
7
|
2.25
|
Outside
Director
|
7
|
2.26
|
Parent
|
7
|
2.27
|
Plan
|
7
|
2.28
|
Preexisting
Plan
|
7
|
2.29
|
Rule
16b-3
|
7
|
2.30
|
SAR
Value
|
8
|
2.31
|
Stock
|
8
|
2.32
|
Stock
Appreciation Right
|
8
|
2.33
|
Stock
Appreciation Right Certificate
|
8
|
2.34
|
Stock
Grant
|
8
|
2.35
|
Stock
Grant Certificate
|
8
|
2.36
|
Stock
Unit Grant
|
8
|
2.37
|
Subsidiary
|
8
|
2.38
|
Ten
Percent Shareholder
|
8
|
§ 3.
SHARES AND GRANT LIMITS
|
||
3.1
|
Shares
Reserved
|
9
|
3.2
|
Source
of Shares
|
9
|
3.3
|
Reduction
and Restoration of Shares Reserved
|
9
|
3.4
|
Use
of Proceeds
|
11
|
3.5
|
Grant
Limits
|
11
|
3.6
|
Preexisting
Plan
|
11
|
§ 4.
EFFECTIVE DATE
|
12 | |
§ 5.
COMMITTEE
|
12 | |
§ 6.
ELIGIBILITY
|
12 | |
§ 7.
OPTIONS
|
13 | |
7.1
|
Committee
Action
|
13
|
7.2
|
Option
Certificate
|
13
|
7.3
|
$100,000
Limit
|
13
|
7.4
|
Option
Price
|
14
|
7.5
|
Payment
|
14
|
7.6
|
Exercise
|
15
|
§ 8 STOCK
APPRECIATION RIGHTS
|
16 | |
8.1
|
Committee
Action
|
16
|
8.2
|
Terms
and Conditions
|
17
|
8.3
|
Exercise
|
19
|
§ 9.
STOCK GRANTS
|
19 | |
9.1
|
Committee
Action
|
19
|
9.2
|
Conditions
|
20
|
9.3
|
Dividends,
Voting Rights and Creditor Status
|
22
|
9.4
|
Satisfaction
of Forfeiture Conditions
|
23
|
9.5
|
Performance
Goals for Income Tax Deduction
|
24
|
§ 10.
STOCK UNIT GRANTS
|
26 | |
10.1
|
Outside
Directors
|
26
|
10.2
|
Inside
Directors
|
26
|
10.3
|
Matching
Units and Deferral Elections
|
27
|
10.4
|
Deferral
Periods
|
29
|
10.5
|
Payment
|
31
|
10.6
|
Non-Forfeitable
Account and Account Adjustments
|
31
|
10.7
|
General
Assets
|
32
|
10.8
|
Rabbi
Trust.
|
32
|
§ 11.
NON-TRANSFERABILITY
|
32 | |
§ 12.
SECURITIES REGISTRATION
|
33 | |
§ 13.
LIFE OF PLAN
|
34 | |
§ 14.
ADJUSTMENT
|
34 | |
14.1
|
Capital
Structure
|
34
|
14.2
|
Shares
Reserved
|
35
|
14.3
|
Transactions
Described in § 424 of the Code
|
36
|
14.4
|
Fractional
Shares
|
37
|
§ 15.
CHANGE IN CONTROL
|
37 | |
§ 16.
AMENDMENT OR TERMINATION
|
38 | |
§ 17.
MISCELLANEOUS
|
39 | |
17.1
|
Shareholder
Rights
|
39
|
17.2
|
No
Contract of Employment
|
39
|
17.3
|
Tax
Withholding
|
39
|
17.4
|
Construction
|
40
|
17.5
|
Other
Conditions
|
40
|
17.6
|
Rule
16b-3
|
40
|
17.7
|
Coordination
with Employment Agreements and Other Agreements
|
41
|
|
(a)
|
any
“person” (as that
term is used in Sections 13(d) and 14(d)(2) of the 1934 Act) after the
date this Plan becomes effective under § 4 becomes the beneficial
owner (as defined in Rule 13d-3 under the 1934 Act) directly or
indirectly, of securities representing 30% or more of the combined voting
power for election of directors of the then outstanding securities of the
Company or any successor to the Company; provided, however, the following
transactions shall not constitute a Change of Control under this
§2.8(a): (A) any acquisition of such securities by the Company,
(B) any acquisition of such securities by any employee benefit plan (or a
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, (C)
|
any
acquisition of such securities by any person who, immediately before such
acquisition, had beneficial ownership (as defined in Rule 13d-3 under the
1933 Act) of 50% or more of (i) the fair market value of the then
outstanding securities of the Company or (ii) the combined voting power of
the outstanding voting securities of the Company entitled to vote
generally in the election of directors to the board of directors of the
Company or (D) any acquisition by any corporation pursuant to a
transaction which satisfies the requirements
of § 2.8(d)(A), § 2.8(d)(B) and
§ 2.8(d)(C);
|
||
|
(b)
|
during
any period of two consecutive years or less, individuals who at the
beginning of such period constitute the Board cease for any reason
(whether beginning on after the date this Plan becomes effective under
§ 4) to constitute at least a majority of the Board, unless the
election or nomination for election of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the
period;
|
|
(c)
|
the
shareholders of the Company after the date this Plan becomes effective
under § 4 approve any dissolution or liquidation of the Company or
any sale or the disposition of 50% or more of the assets or business of
the Company; or
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(d)
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shareholders
of the Company after the date this Plan becomes effective under § 4
approve any reorganization, merger, consolidation or share exchange unless
(A) the persons who were the beneficial owners of the outstanding shares
of the common stock of the Company immediately before the consummation of
such transaction beneficially own more than 60% of the outstanding shares
of the common stock of the successor or survivor corporation in such
transaction immediately following the consummation of such transaction and
(B) the number of shares of the common stock of such successor or survivor
corporation beneficially owned by the persons described in
§ 2.8(d)(A) immediately following the consummation of such
transaction is beneficially owned by each such person in substantially the
same proportion that each such person had beneficially owned shares of the
Company common stock immediately before the consummation of such
transaction, provided (C) the percentage described in
§ 2.8(d)(A) of the beneficially owned shares of the successor or
survivor corporation and the number described in § 2.8(d)(B) of the
beneficially owned shares of the successor or survivor corporation shall
be determined exclusively by reference to the shares of the successor or
survivor corporation which result from the beneficial ownership of shares
of common stock of the Company by the persons described in
§ 2.8(d)(A) immediately before the consummation of such
transaction.
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(a)
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any
such shares of stock which are issued pursuant to an Option shall reduce
the number of shares reserved for issuance under § 3.1 on a one to
one (1 to 1) basis, any shares issued pursuant to a Stock Appreciation
Right or a Stock Grant or Stock Unit Grant shall reduce the number of
shares reserved for issuance under § 3.1 on a one to one (1 to 1)
basis and any shares which are forfeited after issuance pursuant to a
Stock Grant or Stock Unit Grant shall be restored to the number of shares
reserved for issuance under § 3.1 on a one to one (1 to 1) basis,
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(b)
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any
shares of Stock issued or otherwise used to satisfy a tax withholding
obligation under § 17.3 shall no longer be available for issuance
under § 3.1,
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(c)
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any
shares of Stock which are tendered to the Company to pay the Option Price
of an Option or which are tendered to the Company in satisfaction of any
condition to a Stock Grant shall not be added to the shares of Stock
reserved for issuance under § 3.1,
and
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(d)
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the
number of shares of Stock reserved for issuance under § 3.1 shall be
reduced on a one to one (1 to 1) basis for each share of Stock with
respect to which the appreciation in a Stock Appreciation Right is based
if a share of Stock is issued in connection with the exercise of such
Stock Appreciation Right.
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(a)
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Vesting. The
Committee may condition the right to exercise an Option on the
satisfaction of a service requirement or a performance requirement or on
the satisfaction of more than one such requirement or the satisfaction of
any combination of such requirements or may grant an Option which is not
subject to any such requirements, all as determined by the Committee in
its discretion and as set forth in the related Option
Certificate.
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(b)
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Exercise
Period. Each Option granted under this Plan shall be
exercisable in whole or in part to the extent vested at such time or times
as set forth in the related Option Certificate, but no Option Certificate
shall make an Option exercisable on or after the earlier
of
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(1)
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the
date which is the fifth anniversary of the date the Option is granted, if
the Option is an ISO and the Key Employee is a Ten Percent
Shareholder on the date the Option is granted,
or
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(2)
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the
date which is the tenth anniversary of the date the Option is granted, if
the Option is (a) a Non-ISO or (b) an ISO which is granted to a Key
Employee who is not a Ten Percent Shareholder on the date the Option is
granted.
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(c)
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Termination of Status
as Key Employee or Director. Subject to § 7.6(a),
an Option Certificate may provide for the exercise of an Option after a
Key Employee’s or a Director’s status as such has terminated for any
reason whatsoever, including death or
disability.
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(a)
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Stock Appreciation
Right Certificate. If a Stock Appreciation Right is
granted independent of an Option, such Stock Appreciation Right shall be
evidenced by a Stock Appreciation Right Certificate, and such certificate
shall set forth the number of shares of Stock on which the Key Employee’s
or Director’s right to appreciation shall be based and the SAR Value of
each share of Stock. The SAR Value shall be no less than the
Fair Market Value of a share of Stock on the date the Stock Appreciation
Right is granted. The Stock Appreciation Right Certificate
shall set forth such other terms and conditions for the exercise of the
Stock Appreciation Right as the Committee deems appropriate under the
circumstances, but no Stock Appreciation Right Certificate shall make a
Stock Appreciation Right exercisable on or after the date which is the
tenth anniversary of the date such Stock Appreciation Right is
granted.
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(b)
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Option
Certificate. If a Stock Appreciation Right is granted
together with an Option, such Stock Appreciation Right shall be evidenced
by the related Option Certificate, the number of shares of Stock on which
the Key Employee’s or Director’s right to appreciation is based shall be
no more than the number of shares of Stock subject to the related
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Option, and the SAR Value for each such share of Stock shall be no less than the Option Price under the related Option. Each such Option Certificate shall provide that the exercise of the Stock Appreciation Right with respect to any share of Stock shall cancel the Key Employee’s or Director’s right to exercise his or her Option with respect to such share and, conversely, that the exercise of the Option with respect to any share of Stock shall cancel the Key Employee’s or Director’s right to exercise his or her Stock Appreciation Right with respect to such share. A Stock Appreciation Right which is granted as part of an Option shall be exercisable only while the related Option is exercisable. The Option Certificate shall set forth such other terms and conditions for the exercise of the Stock Appreciation Right as the Committee deems appropriate under the circumstances. | ||
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(c)
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Vesting. The
Committee may condition the right to exercise a Stock Appreciation Right
on the satisfaction of a service requirement or a performance requirement
or on the satisfaction of more than one such requirement or the
satisfaction of any combination of such requirements or may grant a Stock
Appreciation Right which is not subject to any such requirements, all as
determined by the Committee in its discretion and as set forth in the
related Stock Appreciation Right
Certificate.
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(a)
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Conditions to Issuance
of Stock. The Committee acting in its absolute
discretion may make the issuance of Stock under a Stock Grant subject to
the satisfaction of one, or more than one, condition which the Committee
deems appropriate under the circumstances for Key Employees or Directors
generally or for a Key Employee or a Director in particular, and the
related Stock Grant Certificate shall set forth each such condition and
the deadline for satisfying each such condition. Stock subject
to a Stock Grant shall be issued in the name of a Key Employee or Director
only after each such condition, if any, has been timely satisfied, and any
Stock which is so issued shall be held by the Company pending the
satisfaction of the vesting conditions, if any, under § 9.2(b) for
the related Stock Grant.
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(b)
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Vesting
Conditions. The Committee acting in its absolute
discretion may issue any Stock in the name of a Key Employee or Director
under a Stock Grant subject to the satisfaction of one, or more than one,
objective employment, performance or other vesting condition that the
Committee acting in its absolute discretion deems appropriate under the
circumstances for Key Employees or Directors generally or for a Key
Employee or a Director in particular, and the
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related
Stock Grant Certificate shall set forth each such vesting
condition, if any, and the deadline, if any, for satisfying each such
vesting condition. A Key Employee’s or a Director’s vested and
non-forfeitable interest in the shares of Stock underlying a Stock Grant
shall depend on the extent to which he or she timely satisfies each such
vesting condition. If a share of Stock is issued under this
§ 9.2(b) before a Key Employee’s or Director’s interest in such share
of Stock vested and is non-forfeitable, (1) such share of Stock shall not
be available for re-issuance under § 3 until such time, if any, as
such share of Stock thereafter is forfeited as a result of a failure to
timely satisfy a vesting condition and (2) the Company shall have the
right to condition any such issuance on the Key Employee or Director first
signing an irrevocable stock power in favor of the Company with respect to
the forfeitable shares of Stock issued to such Key Employee or Director in
order for the Company to effect any forfeiture called for under the
related Stock Grant Certificate.
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||
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(c)
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Minimum Service
Requirement. If the only condition to the vesting of a
Stock Grant is the satisfaction of a service requirement and a performance
requirement, the minimum service requirement for 100% vesting shall be at
least one year and, if the only condition to the vesting of a Stock Grant
is the satisfaction of a service requirement, the minimum service
requirement for 100% vesting shall be at least three years unless the
Committee in either case determines that a longer or shorter period of
service (or no period of service) better serves the Company’s
interest.
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(a)
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Cash
Dividends. Except as otherwise set forth in a Stock
Grant Certificate, if a dividend is paid in cash on a share of Stock after
such Stock has been issued under a Stock Grant but before the first date
that a Key Employee’s or a Director’s interest in such Stock (1) is
forfeited completely or (2) becomes completely non-forfeitable, the
Company shall pay such cash dividend directly to such Key Employee or
Director.
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(b)
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Stock
Dividends. If a dividend is paid on a share of Stock in
Stock after such Stock has been issued under a Stock Grant but before the
first date that a Key Employee’s or a Director’s interest in such Stock
(1) is forfeited completely or (2) becomes completely
non-forfeitable, the Company shall hold such dividend Stock subject to the
same conditions under § 9.2(b) as the related Stock
Grant.
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(c)
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Other. If
a dividend (other than a dividend described in § 9.3(a) or
§ 9.3(b)) is paid with respect to a share of Stock after such Stock
has been issued under a Stock Grant but before the first date that a Key
Employee’s or a Director’s interest in such Stock (1) is forfeited
completely or (2) becomes completely non-forfeitable, the Company
shall distribute or hold such dividend in accordance with such rules as
the Committee shall adopt with respect to each such
dividend.
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(d)
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Voting. Except
as otherwise set forth in a Stock Grant Certificate, a Key Employee or a
Director shall have the right to vote the Stock issued under his or her
Stock Grant during the period which comes after such Stock has been issued
under a Stock Grant but before the first date that a Key Employee’s or
Director’s interest in such Stock (1) is forfeited completely or (2)
becomes completely
non-forfeitable.
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(a)
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General. The
Committee shall (where the Committee under the circumstances deems in the
Company’s best interest) either (1) make Stock Grants to Key Employees
subject to at least one condition related to one, or more than one,
performance goal based on the performance goals described in § 9.5(b)
which seems likely to result in the Stock Grant qualifying as
“performance-based compensation” under § 162(m) of the Code or (2)
make Stock Grants to Key Employees under such other circumstances as the
Committee deems likely to result in an income tax deduction for the
Company with respect to such Stock
Grant.
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(b)
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Performance
Goals. A performance goal is described in this
§ 9.5(b) if such goal relates to (1) the Company’s return over
capital costs or increases in return over capital costs, (2) the Company’s
total earnings or the growth in such earnings, (3) the Company’s
consolidated earnings or the growth in such earnings, (4) the Company’s
earnings per share or the growth in such earnings, (5) the Company’s net
earnings or the growth in such earnings, (6) the Company’s earnings before
interest expense, taxes, depreciation, amortization and other non-cash
items or the growth in such earnings,
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(7) the
Company’s earnings before interest and taxes or the growth in such
earnings, (8) the Company’s consolidated net income or the growth in such
income, (9) the value of the Company’s stock or the growth in such value,
(10) the Company’s stock price or the growth in such price, (11) the
Company’s return on assets or the growth on such return, (12) the
Company’s cash flow or the growth in such cash flow, (13) the Company’s
total shareholder return or the growth in such return, (14) the Company’s
expenses or the reduction of such expenses, (15) the Company’s sales
growth, (16) the Company’s overhead ratios or changes in such ratios, (17)
the Company’s expense-to-sales ratios or the changes in such ratios, or
(18) the Company’s economic value added or changes in such value
added.
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||
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(c)
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Alternative
Goals. A performance goal may be set in any manner
determined by the Committee, including looking to achievement on an
absolute or relative basis in relation to peer groups or indexes, and the
Committee may set more than one goal. No change may be made to
a performance goal after the goal has been set. However, the
Committee may express any goal in terms of alternatives, or a range of
alternatives, as the Committee deems appropriate under the circumstances,
such as including or excluding (1) any
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acquisitions or dispositions, restructuring, discontinued operations, extraordinary items and other unusual or non-recurring charges, (2) any event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management or (3) the effects of tax or accounting changes. |
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(a)
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Fifty
Percent. If an Outside Director does not elect to defer
more than the required deferral under § 10.1, the Committee shall
match 25% of his or her deferral in an additional Stock Unit
Grant
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(b)
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Seventy Five
Percent. If an Outside Director elects in accordance
with § 10.3(d) to defer 75% of his or her director fees, the
Committee shall match 50% of his or her deferral in an additional Stock
Unit Grant.
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(c)
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One Hundred
Percent. If an Outside Director elects in accordance
with § 10.3(d) to defer 100% of his or her director fees, the
Committee shall match 75% of his or her deferral in an additional Stock
Unit Grant.
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(d)
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Deferral Election
Rules for Outside Directors.
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(1)
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General
Rule. A deferral election under § 10.3(b) or
§ 10.3(c) shall be effective for fees for services performed in any
calendar year only if the election is delivered to the Company before the
beginning of the calendar year in which the services are performed, and an
election shall be effective only if made on the form provided for this
purpose.
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(2)
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Special
Rules. Each Outside Director may make an election under
§ 10.3(b) or § 10.3(c) with respect to director fees payable for
services performed in the calendar year in which he or she is first
elected an Outside Director if such election is delivered to the Company
before the end of the 30 day period which starts on the date he or she is
first elected an Outside Director. An election under this
§ 10.3(d)(2) shall be effective for directors’ fees for services
rendered starting with the first full month after such election is
delivered to the Company.
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(3)
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Irrevocable. An
election under this § 10.3(d) shall be irrevocable for the calendar
year for which the election is made on the last date specified in this
Plan for making the election.
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(e)
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Conversion to a Stock
Unit Grant. A Director’s match under this § 10.3
will be converted into a Stock Unit Grant at the same time and under the
same procedure as his or her deferrals are converted into a Stock Unit
Grant.
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(a)
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General. All
deferrals under this § 10 shall be paid in the calendar year immediately
following, and within 30 days after the end of, an Automatic Deferral
Period or, if a Director so elects in accordance with this § 10.4,
the end of an additional Elective Deferral
Period.
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(b)
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Automatic Deferral
Period. The Automatic Deferral Period for a Director for
deferrals effected in any calendar year shall be the five calendar year
period starting on the immediately following
January 1. There will be separate Automatic Deferral
Period for deferrals effected in each calendar
year.
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(c)
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Elective Deferral
Period. If a Director delivers an election on the form
provided for this purpose to the Company at least one full year before the
end of any Automatic Deferral Period, the payment of the deferrals subject
to such Automatic Deferral Period shall be deferred for an additional five
calendar years. Any such election shall be irrevocable when
delivered to the Company. Any such payment shall be made in the
calendar year immediately following, and within 30 days after the end of,
any Elective Deferral Period.
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(d)
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Special
Rules.
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(1)
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Termination. All
deferrals (whether subject to an Automatic Deferral Period or an Elective
Deferral Period) shall be payable as of the date a Director has “separated
from service”, by death or otherwise, as that term is defined for
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purposes of § 409A of the Code. If the Director is also a “specified employee”, as defined for purposes of § 409A of the Code, the distribution on account of the Director’s separation from service shall be made six months and one day after the date of the Director’s separation from service unless the separation from service occurs as a result of the Director’s death, in which event the distribution shall be made as soon as is practical after the Director’s death. | ||
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(2)
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Unforseeable
Emergency. If a Director can demonstrate to a majority
of the other members of the Board that he or she has an extreme financial
hardship as a result of an unforeseeable emergency (within the meaning of
§ 409A of the Code) and that access to his or her deferrals under
this Plan is more appropriate under the circumstances than using any of
his or her other assets to meet the emergency, the Board (acting by a
majority vote with the affected Director not voting) may authorize the
payment of all or a portion of his or her deferrals to meet the
emergency. The amounts distributed under this § 10.4(d)(2)
may not exceed the amount necessary to meet the emergency plus the amount
necessary to pay taxes reasonably anticipated to result from the
distribution and, in any event, may not exceed the amount allowable under
§ 409A of the Code.
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(e)
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Accelerated
Payments. The timing of any payment under this § 10
shall not be accelerated unless the Committee (1) in its absolute
discretion consents to such acceleration and (2) determines (acting
in good faith) such acceleration is permissible under § 409A of the
Code.
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(f)
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Delayed
Payments. The timing of any payment under this § 10
shall not be delayed unless the Committee (1) in its absolute
discretion consents to such acceleration and (2) determines (acting
in good faith) such delay is permissible under § 409A of the
Code.
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(1)
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the
tenth anniversary of the effective date of this Plan (as determined under
§ 4), in which event this Plan otherwise thereafter shall continue in
effect until all outstanding Options and Stock Appreciation Rights have
been exercised in full or no longer are exercisable, all Stock issued
under any Stock Grants under this Plan have been forfeited or have become
non-forfeitable, and payment has been made in full with respect to all
Stock Unit Grants, or
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(2)
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the
date on which all of the Stock reserved under § 3 has (as a result of
the exercise of Options or Stock Appreciation Rights granted under this
Plan or the satisfaction of the forfeiture conditions, if any, on Stock
Grants or the payments with respect to Stock Unit Grants) been issued or
no longer is available for use under this Plan, in which event this Plan
also shall terminate on such date.
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(a)
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any
equity restructuring or change in the capitalization of the Company,
including, but not limited to, spin offs, stock dividends, large
non-reoccurring cash or stock dividends, rights offerings or stock splits,
or
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(b)
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any
other transaction described in § 424(a) of the Code which does not
constitute a Change in Control of the
Company
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