Delaware
|
1-13455
|
74-2148293
|
(State or
other jurisdiction
|
(Commission
File Number)
|
(IRS
Employer
|
of
incorporation)
|
Identification
No.)
|
|
24955
Interstate 45 North
|
||
The
Woodlands, Texas 77380
|
||
(Address of
Principal Executive Offices and Zip Code)
|
||
Registrant’s
telephone number, including area code:
(281)
367-1983
|
Officer
|
Threshold
Award Opportunity
%
of Base Salary
|
Target
Award Opportunity
%
of Base Salary
|
Stretch
Award Opportunity
%
of Base Salary
|
|||
Stuart M.
Brightman,
|
15%
|
75%
|
120%
|
|||
President & CEO | ||||||
Joseph M.
Abell III,
|
11%
|
55%
|
88%
|
|||
Sr. Vice President & CFO | ||||||
Philip N.
Longorio,
|
11%
|
55%
|
88%
|
|||
Sr. Vice President | ||||||
Geoffrey M.
Hertel,
|
11%
|
50%
|
88%
|
|||
Former President and CEO |
Exhibit
Number
|
Description
|
|
10.1
|
TETRA
Technologies, Inc. Cash Incentive Compensation
Plan
|
TETRA
Technologies, Inc.
|
|
By:
|
/s/Stuart M.
Brightman
|
Stuart M.
Brightman
|
|
President
& Chief Executive Officer
|
|
Date: March
12, 2010
|
Exhibit
Number
|
Description
|
|
10.1
|
TETRA
Technologies, Inc. Cash Incentive Compensation
Plan
|
I.
|
PURPOSE
|
II.
|
DEFINITIONS
|
(a)
|
“Administrator”
shall mean the Committee; provided, however, that the Company’s Chief
Executive Officer (“CEO”) shall be the Administrator with respect to
Participants other than Senior Managers, subject to the ultimate authority
of the Committee.
|
(b)
|
“Affiliate”
shall mean (i) any entity in which the Company, directly or indirectly,
owns 10% or more of the combined voting power, as determined by the
Committee, (ii) any “parent corporation” of the Company (as defined in
Section 424(e) of the Code), (iii) any “subsidiary corporation” of any
such parent corporation (as defined in Section 424(f) of the Code) of the
Company and (iv) any trades or businesses, whether or not incorporated
which are members of a controlled group or are under common control (as
defined in Sections 414(b) or (c) of the Code) with the
Company.
|
(c)
|
“Annual
Incentive Award” means an annual incentive award providing a Participant
the opportunity to receive incentive compensation based upon performance
over a Performance Period of one Plan
Year.
|
(d)
|
“Award”
shall mean any Annual Incentive Award or a Long-Term Incentive Award
granted under the Plan.
|
(e)
|
“Base Salary”
shall mean with respect to a Participant who is an Employee, such
Participant’s annual base salary rate in effect at the end of a Plan
Year. With respect to a Participant who is a Consultant, “Base
Salary” shall mean such Participant’s annual compensation for the Plan
Year. Base Salary does not include Awards under this Plan or
any other short-term or long-term incentive plan or imputed income from
programs such as group term life insurance. Base Salary is
based on annual salary
|
|
before
reductions for deferrals under Company-sponsored deferred compensation
plans, contributions under Code Section 401(k) and contributions to
flexible spending accounts under Code
Section 125.
|
(f)
|
“Board” shall
mean the Company’s Board of
Directors.
|
(g)
|
“Change in
Control” shall be deemed to have occurred upon any of the following
events:
|
(i)
|
any “person”
(as defined in Section 3(a)(9) of the Exchange Act, and as modified in
Section 13(d) and 14(d) of the Exchange Act) other than (A) the Company or
any of its subsidiaries, (B) any employee benefit plan of the Company or
any of its subsidiaries, (C) any Affiliate, (D) a company owned, directly
or indirectly, by stockholders of the Company in substantially the same
proportions as their ownership of the Company, or (E) an underwriter
temporarily holding securities pursuant to an offering of such securities
(collectively referred to as a “Person”), becomes the “beneficial owner”
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the shares of
voting stock of the Company then
outstanding;
|
(ii)
|
the
consummation of any merger, organization, business combination or
consolidation of the Company or one of its subsidiaries with or into any
other company, other than a merger, reorganization, business combination
or consolidation which would result in the holders of the voting
securities of the Company outstanding immediately prior thereto holding
securities which represent immediately after such merger, reorganization,
business combination or consolidation more than 50% of the combined voting
power of the voting securities of the Company or the surviving company or
the parent of such surviving
company;
|
(iii)
|
the
consummation of a sale or disposition by the Company of all or
substantially all of the Company’s assets, other than a sale or
disposition if the holders of the voting securities of the Company
outstanding immediately prior thereto hold securities immediately
thereafter which represent more than 50% of the combined voting power of
the voting securities of the acquiror, or parent of the acquiror, of such
assets;
|
(iv)
|
the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company; or
|
(v)
|
individuals
who, as of the Effective Date, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director
subsequent to the Effective Date whose election by the Board, was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board
|
|
shall be
considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an election contest with
respect to the election or removal of directors or other solicitation of
proxies or consents by or on behalf of a person other than the
Board.
|
(h)
|
“Code” shall
mean the Internal Revenue Code of 1986, as amended, or any successor
statute thereto.
|
(i)
|
“Consultant”
means any individual, other than an Employee or director of the Company,
who renders consulting or advisory services to the Company or an
Affiliate, provided such services are not in connection with the offer or
sale of securities in a capital-raising
transaction.
|
(j)
|
“Disability”
means an inability to perform the Participant’s material services for the
Company for a period of 90 consecutive days or a total of 180 days, during
any 365-day period, in either case as a result of incapacity due to mental
or physical illness, which is determined to be total and permanent. A
determination of Disability shall be made by a physician satisfactory to
both the Participant (or his guardian) and the Company, provided that if
the Participant and the Company do not agree on a physician, the
Participant and the Company shall each select a physician and these two
together shall select a third physician, whose determination as to
Disability shall be final, binding and conclusive with respect to all
parties. Notwithstanding the above, eligibility for disability benefits
under any policy for long-term disability benefits provided to the
Participant by the Company shall conclusively establish the Participant’s
disability.
|
(k)
|
“Employee”
shall mean any employee of the Company or an
Affiliate.
|
(l)
|
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
|
(m)
|
“Long-Term
Incentive Award” means a long-term incentive award providing a Participant
the opportunity to receive compensation based upon performance over a
Performance Period extending beyond one Plan
Year.
|
|
upon
performance over a Performance Period extending beyond one Plan
Year.
|
(n)
|
“Participant”
for any Plan Year shall mean an officer, manager, other key Employee or
Consultant of the Company or any Affiliate who is designated by the
Administrator to participate in the Plan and receive either or both of an
Annual Incentive Award or Long-Term Incentive Award under the
Plan.
|
(o)
|
“Performance
Goal” shall mean the goal or level of performance established by the
Administrator with respect to any Award for the purpose of determining
when an Award may be earned.
|
(p)
|
“Performance
Measures” shall mean (i) the performance measures for the Company, on
a consolidated basis, and/or for specified subsidiaries, divisions or
business or geographical units of the Company as determined by the
Administrator that may include any one or more of the
following: earnings per share; increase in price per share;
increase in revenues; increase in cash flow; return on assets; return on
investments; return on equity; return on net capital employed; economic
value added; gross margin; net income; earnings before interest, taxes,
depreciation, depletion and amortization; earnings before interest and
taxes; profit before taxes; operating income; total stockholder return;
debt reduction; health/safety/environmental performance; other financial
and non-financial measures deemed by the Administrator material to the
short or long-term success of the Company; and any of the foregoing
determined on the absolute or relative basis or as compared to the
performance of a published or special index deemed applicable by the
Administrator including, but not limited to, the Standard &
Poor’s 500 Stock Index, the Oil Service Index (“OSX”) or components
thereof or a group of comparable companies, and (ii) the personal
objectives or performance measures for each Participant as may be
established by the Administrator pursuant to the
Plan.
|
(q)
|
“Performance
Period” for an Award means the one or more periods of time of at least one
(1) Plan Year in duration, as the Administrator may select, during which
any Performance Goals specified with respect to such Award are to be
measured. Performance Periods applicable to outstanding Awards
may be overlapping.
|
(r)
|
“Retirement”
means termination of Employment of an Employee or the termination of
service of a Consultant, in each case under circumstances as shall
constitute retirement as determined by the
Administrator.
|
(s)
|
“Senior
Manager” shall refer to any officer, manager or other Employee whose
compensation is established, on an annual basis, by the
Committee.
|
III.
|
TERM
|
IV.
|
ELIGIBILITY
|
4.1
|
All officers,
managers, other key Employees and Consultants may be eligible to
participate in the Plan. Directors who are not Employees of the Company
shall not be eligible to participate in the Plan. For each Plan Year, the
Committee shall designate the Senior Managers who shall participate in the
Plan and the CEO shall designate all other
Participants.
|
4.2
|
A newly
hired, engaged, transferred or promoted Employee or Consultant may be
selected by the CEO for participation in the Plan after the commencement
of the Plan Year; however, the participation of any such Employee who is a
Senior Manager of the Company must be approved by the
Committee. Participants who are selected for participation
after the commencement of a Performance Period will be eligible to
participate in the Plan on a pro-rata basis for such a Performance Period
as of the date the Participant was approved into the
Plan.
|
4.3
|
Participants
will be assigned to a specific eligibility level by the CEO and in the
case of Senior Managers, such designation will be approved by the
Committee. For purposes of the Annual Incentive Awards, Threshold, Target,
Stretch and Over Achievement incentive award opportunities will be
determined and approved by the Committee annually for each eligibility
level.
|
V.
|
ESTABLISHMENT
OF AWARDS
|
5.1
|
In connection
with the grant of each Award, the Administrator shall (i) determine the
Performance Period applicable to such Award and identify the Award as
either an Annual Incentive Award or Long-Term Incentive Award; (ii)
determine the Performance Measures and Performance Goals applicable to
such Award in accordance with the terms of the Plan; (iii) determine
the applicable vesting schedule for each Long-Term Incentive Award; and
(iv) establish such other terms and conditions for the Award as the
Administrator may deem appropriate.
|
5.2
|
For each
Annual Incentive Award, a Participant will receive an individual Annual
Incentive Award Determination Worksheet or other document that illustrates
his or her specific Annual Incentive Award opportunity and the applicable
Performance Measures and Performance
Goals.
|
5.3
|
For each
Long-Term Incentive Award, a Participant will receive a document that
illustrates his or her specific Long-Term Incentive Award opportunity, the
applicable Performance Measures and Performance Goals and the applicable
vesting schedule. Unless otherwise provided in any Long-Term
Incentive Award, the Performance Period for a Long-Term Incentive Award
shall be a period of three (3) fiscal years commencing on January 1 of the
year the Long-Term Incentive Award is granted and shall vest at the end of
the Performance Period based upon the performance achieved during the
Performance Period.
|
5.4
|
All Awards
under the Plan shall be payable in cash. The actual dollar
amount paid to a Participant under any Award (the “Award Payment”)
pursuant to the Plan shall be discretionary, and no Participant shall be
automatically entitled to an Award Payment under the Plan. The
Administrator shall have the sole discretion to increase, reduce or
eliminate the amount of a Participant’s Award Payment otherwise payable
under the Plan.
|
VI.
|
PERFORMANCE
MEASURES AND WEIGHTS
|
6.1
|
Performance
Measures are generally selected and weighted to give emphasis to
performance over which Participants have the most direct control.
Performance Measures may (i) vary among Participants, (ii) vary between
Annual Incentive Award and Long-Term Incentive Awards, and
(iii) change from Performance Period to Performance
Period.
|
6.2
|
(a)
Annual
Incentive Awards
. Each Participant receiving an Annual
Incentive Award will have a Performance Measure based upon (i) the overall
financial performance of the Company, on a consolidated basis; and (ii)
one or more health/safety/environmental indicators. Designated
Participants will also have Performance Measures based upon the financial
performance of any one or more of the Company’s subsidiaries, divisions,
business or geographical units.
In
addition,
each
Participant will also have a “personal objectives” component which may
include (i) personal performance objectives and measures such as teamwork,
interpersonal skills, communication skills, leadership and other similar
skills, and (ii) individual business objectives including those described
in clause (i) of the definition of Performance Measures. The
personal objectives component will also include an overall assessment of
the Participant’s contribution to the Company and/or the subsidiary,
division, business or geographical unit of the Company in which he or she
is employed or to which he or she provides
services.
|
|
(b)
Long-Term Incentive Awards
. Each Participant
receiving a Long-Term Incentive Award will have Performance Measures which
may be based upon the overall financial performance of the Company, on a
consolidated basis, or the financial performance of any one or more of the
Company’s subsidiaries, divisions, business or geographical
units. A Participant receiving a Long-Term Incentive Award may,
at the discretion of the Administrator, also have a “personal objectives”
component.
|
6.3
|
The
Performance Measures and weights for all Awards with respect to Senior
Managers shall be determined and approved by the Committee for each
Performance Period. The Performance Measures and weights for
all Awards with respect to all other Participants shall be determined and
approved by the CEO. The determination of the Performance
Measures and weights for each Annual Incentive Award shall be established
on or before March 31 of the respective Plan Year. The
determination of the Performance Measures and weights for each Long-Term
Incentive Award shall be established on or before May 31 of the first Plan
Year of the respective Performance
Period.
|
VII.
|
PERFORMANCE
GOALS
|
7.1
|
(a)
Annual
Incentive Awards
. A Threshold, Target and Stretch
Performance Goal will be established for each Performance Measure
applicable to an Annual Incentive Award. Based on the weighting
of each Performance Measure, an incentive award opportunity for each
Participant will be established for each such Performance Goal and
expressed as a percentage of Base Salary. The Over Achievement
incentive award opportunity established by the Committee for each
eligibility level pursuant to Section 4.3 will be applied to designated
financial Performance Measures for corporate and each major division to
create an additional Incentive Award opportunity pursuant to provisions of
Section 8.4.
|
|
(b)
Long-Term Incentive Awards
. A
Threshold, Target, Stretch and Over Achievement Performance Goal will be
established for each Performance Measure applicable to a Long-Term
Incentive Award. Based on the weighting of each Performance
Measure, an incentive award opportunity for each Participant will be
established for each such Performance
Goal.
|
7.2
|
The Target
level of performance is generally set at the budgeted level for the Plan
Year; the Threshold level of performance is generally set at 80% of
budget; the Stretch level of performance is generally set at 115% of
budget; and the maximum Over Achievement level of performance is generally
set at 125% of budget. These are general guidelines and may vary between
Annual Incentive Awards and Long-Term Incentive Awards, from Performance
Period to Performance Period, and between subsidiaries, divisions,
business and geographical units to reflect specific circumstances. The
Committee has final authority to set performance levels under the
Plan.
|
7.3
|
Financial
Performance Goals shall be based on the financial budgets approved by the
Board, to the extent applicable.
|
7.4
|
The
Performance Goals for Senior Managers will be established by the
Committee. The CEO will establish the Performance Goals for all
other Participants; provided, however, that if the Committee has
established Threshold, Target, Stretch and Over Achievement Performance
Goals for any Senior Manager with respect to a financial or operational
Performance Measure, the CEO must also use such Performance Goals for any
other Participants who have similar Awards containing Performance Goals
based upon such Performance Measures. The Performance Goals
will be established on or before (i) March 31 of the respective Plan
Year for Annual Incentive Awards, and (ii) May 31 of the first Plan
Year of the respective Performance Period for Long-Term Incentive
Awards.
|
7.5
|
Personal
Performance Goals for each Participant will be established based on such
Participant’s ability to impact the outcome of such Performance Goals and
they will include an overall assessment of the individual’s contributions
to the Company and/or the subsidiary, division, business or geographical
unit of the Company in which he or she is employed or provides services.
The Committee is responsible for establishing the personal Performance
Goals for the CEO. The CEO (in conjunction with other officers) shall
establish the personal Performance Goals for all other
Participants. The personal Performance Goals for all
|
|
Participants
shall be established on or before (i) March 31 of the respective Plan Year
for Annual Incentive Awards, and (ii) May 31 of the first Plan Year of the
respective Performance Period for Long-Term Incentive
Awards.
|
VIII.
|
DETERMINING
THE PAYMENT AWARD
|
8.1
|
Once the
applicable Performance Period has been completed and the Company has
received its audited financial statements covering the applicable
Performance Period, the financial performance of the Company, on a
consolidated basis, and each applicable subsidiary, division and business
or geographical unit will be determined over such Performance
Period. The financial performance shall then be evaluated to
determine the extent to which the financial Performance Goals have been
achieved, based on the standards established at the beginning of the
Performance Period. In making any such determination, the Administrator
may make adjustments for the following: (i) cumulative
effect of accounting changes; (ii) extraordinary items, as that term
is defined in FASB Codification, Topic 225-20, “Extraordinary and Unusual
Items”; (iii) discontinued operations; and (iv) unusual or
infrequently occurring items (less the amount of related income taxes), as
that term is used in FASB Codification, Topic 225-20, “Extraordinary and
Unusual Items”. The Administrator may also make other
adjustments with respect to the financial results for purposes of
evaluating the Performance Goals and the amount of the Award Payment
payable on the basis thereof, including without limitation, adjustments
related to: asset write-downs; the acquisition or disposition
of any business(es) or material asset(s); acquisition-related charges;
litigation or claim judgments or settlements; the effects of changes in
tax law or other laws or provisions affecting reported results; accruals
for reorganization and restructuring programs; unrealized gains or losses
on investments; weather related events including business interruption and
losses related to the damage or destruction of facilities from hurricanes;
and, other adjustments determined by the Administrator to be appropriate
under the circumstances. Any adjustments affecting a financial
Performance Goal applicable to an Award to the CEO or any other Senior
Managers shall be approved by the
Committee.
|
8.2
|
Each
Participant will meet with his or her supervisor to evaluate the results
achieved for each personal Performance Goal and the overall assessment of
the Participant’s contributions to the Company and/or the subsidiary,
division, business or geographical unit of the Company in which he or she
is employed or to which he or she provides services. The performance level
for the personal component will be determined based on an assessment of
results achieved compared to the personal Performance Goals established at
the beginning of the Performance Period and the assessment of such
Participant’s contributions during the Performance Period. The
determination of whether a Participant has achieved his or her personal
Performance Goals shall be within the sole discretion of the supervisor,
subject to the approval of the CEO, and in the case of the CEO and other
Senior Managers, the sole discretion of the
Committee.
|
8.3
|
The actual
Award Payment which may be received by a Participant under an Annual
Incentive Award will be determined on an individual basis and based upon
the sum of the awards determined by the Performance Goals achieved under
the respective Annual Incentive Award for each applicable Performance
Measure, up to the Stretch award level. The actual Award
Payment which may be received by a Participant under a Long-Term Incentive
Award will be determined on an individual basis and based upon the sum of
the awards determined by the Performance Goals achieved under the
respective Long-Term Incentive Award for each applicable Performance
Measure up to the Over Achievement award level. The amount of
the Award Payment to be received under any Award shall be within the sole
discretion of the Committee, in the case of the CEO and other Senior
Managers, and the CEO with respect to all other Participants, and no
Participant shall be automatically entitled to an Award Payment under any
Award. The Administrator shall have the discretion to increase,
decrease or eliminate the amount of a Participant’s Award Payment
otherwise payable under any Award.
|
8.4
|
In addition
to Award Payments which may be received under any Annual Incentive Award
on an individual basis, Participants receiving Annual Incentive Awards
shall have the opportunity to participate in an annual bonus pool (the
“Over Achievement Pool”) which may be established for corporate and each
major division, including Maritech Resources, Inc. and Compressco, Inc.,
providing an opportunity for additional annual bonus
payments. Participants receiving Long-Term Incentive Awards but
not Annual Incentive Awards shall not have an opportunity to participate
in the Over Achievement Pool. The establishment of the Over
Achievement Pool for any Plan Year for corporate will be based upon
achievement of a financial Performance Goal established by the Committee
with respect to the Annual Incentive Awards for the Senior Managers within
corporate for such Plan Year. The establishment of the Over
Achievement Pool for any Plan Year for a major division will be based upon
achievement of a financial Performance Goal established by the Committee
with respect to the Annual Incentive Awards for the Senior Managers within
such major division for such Plan Year. If the actual results
for the designated financial Performance Measure for corporate or any
major division exceeds the respective Stretch level of performance for
such Plan Year, an Over Achievement Pool shall be established for
corporate or the respective major division, as applicable. An
Over Achievement Pool shall only be established for corporate or a major
division if the actual results for the designated financial Performance
Measure for corporate or the respective major division exceed the Stretch
level of performance. One or more Over Achievement Pools may be
established for any Plan Year. The amount of the Over
Achievement Pool for corporate or the respective major division shall be
equal to the aggregate amount of the incremental annual bonus
opportunities available to all Participants in corporate or such major
division, based upon their respective eligibility levels. The
maximum bonus amount which may be contributed on behalf of any Participant
to an Over Achievement Pool for any Plan Year will not exceed two times
the Target Award opportunity for such Participant less the Stretch Award
opportunity for such Participant. The Over Achievement Pool
shall be allocated among the Participants in corporate or the respective
division, as applicable, at the discretion of management, with the
approval of the CEO; provided that any allocation of funds from an Over
|
|
Achievement
Pool to the CEO or other Senior Manager shall be approved by the
Committee, in its sole discretion.
|
8.5
|
Award
Payments will be paid in cash as soon as practicable after the end of the
Performance Period and completion of the outside audit of financial
results. Award Payments will be paid no later than two and one-half
(2 1/2) months after the end of the Performance Period to which the
Award relates. Except as provided in Section 9.5 and 9.6, a Participant
must be employed on the date Award Payments are paid in order to receive
payment under an Award.
|
IX.
|
ADMINISTRATION
OF PLAN
|
9.1
|
The Committee
administers the Plan; provided, however, that the CEO will be responsible
for administration of the Plan with respect to all Participants other than
Senior Managers. The CEO will be responsible for the day-to-day
management of the Plan. The authority of the Administrator in
administering the Plan shall include, in particular, the authority
to:
|
(a)
|
designate
Participants for a particular Plan Year in accordance with the
Plan;
|
(b)
|
establish,
for each Performance Period, the Performance Measures, Performance Goals
and specific Plan terms for each Participant in accordance with the
Plan;
|
(c)
|
establish
regulations for the administration of the Plan and make all determinations
deemed necessary for the administration of the Plan, in each case which
are not inconsistent with the Plan;
and
|
(d)
|
interpret the
provisions of the Plan and make final decisions with respect to the
entitlement of any Participant to an
Award.
|
9.2
|
The Committee
will review the performance results of the Company and the specified
subsidiaries, divisions or business or geographical units of the Company
and will determine whether the Performance Goals under any Award for
Senior Managers established for the Performance Period have been
met. If the Performance Goals established by the Committee for
a Senior Manager have been met, the Committee shall document the
achievement of such Performance Goals and the total amount of the Award to
be paid in the minutes of the Committee meeting or in accordance with the
policies and procedures as may be established by the Committee from time
to time. For all Participants who are not Senior Managers, the
CEO shall determine whether the Performance Goals under any Award
established for the Performance Period have been met by the respective
Participants and document such determination in accordance with the
Company’s policies and procedures, as may be established from time to
time. The Committee and each of its members shall be entitled
to rely upon information provided by appropriate officers of the Company
with respect to
|
|
financial and
other data in order to determine if the Performance Goals for a Plan Year
have been met. Neither the Committee nor any member shall be
liable for any action or determination made in good faith with respect to
the Plan or any Award made
hereunder.
|
9.3
|
The Awards
for each applicable Performance Period will be accrued and charged as an
expense before determining the financial performance under the
Plan.
|
9.4
|
Except as
provided in Section 9.6, Participants whose employment or period of
service is terminated for any reason other than death, Disability or
Retirement prior to payment of any Award Payment will not be eligible to
receive payment under any Award.
|
9.5
|
Upon the
recommendation of management and with the approval of the Administrator
(which may be given or withheld at the Administrator’s sole discretion),
Participants whose employment or period of service is terminated for
reason of death, Disability, or Retirement prior to the payment of any
Award Payment may be eligible for a pro-rated Award Payment if the
applicable Performance Goals are achieved for the then current Performance
Period. Any such prorated payment will be made to the Participant or his
or her guardian or estate, as applicable, in accordance with the
provisions of the Plan, including Section 8.5
above.
|
9.6
|
Unless the
Committee determines otherwise, upon the effective date of any Change in
Control, all potential Awards payable hereunder attributable to the
Performance Period in which the Change in Control occurs will become
payable on a pro rata basis based upon the Target incentive amount that
may be paid under such Award. Payment shall be made as soon as
practicable (and no more than two and one-half months) following the
Change in Control.
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9.7
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The Committee
may, in its sole discretion, discontinue the Plan at any time, or amend it
from time to time. The Administrator shall have the authority
to amend any grant to include any provision which, at the time of such
amendment, is authorized under the terms of the
Plan.
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X.
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ADDITIONAL
PROVISIONS
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10.1
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No
Right to Employment
. Neither the Plan nor the grant of
any Award shall be construed as giving a Participant the right to be
retained in the employ or service of the Company or any
Affiliate. Further, the Company or any Affiliate may at any
time dismiss a Participant from employment or service as a Consultant,
free from any liability or any claim under the Plan or any Award
hereunder.
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10.2
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No
Assignment
. A Participant’s rights and interests under
the Plan or any Award may not be assigned or transferred except by will or
by the laws of descent and distribution. Any other attempted
assignment or alienation shall be void and of no force or
effect.
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10.3
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Participant’s
Rights
. The Plan shall be unfunded. The right
of any Participant to receive any Award Payment under an Award granted to
such Participant pursuant to the provisions of the Plan shall be an
unsecured claim against the
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general assets of the
Company. The Company shall not be required to establish any
special or separate fund or to make any other segregation of assets to
assure the payment of any Awards under the
Plan.
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10.4
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Withholding
Taxes
. All Awards under the Plan shall be subject to
applicable federal (including FICA), state and local tax withholding
requirements. The Company may require that the Participant or
his or her personal representative pay to the Company the amount of any
federal, state or local taxes that the Company is required to withhold
with respect to such Awards, or the Company may deduct from other wages
paid by the Company the amount of any withholding taxes due with respect
to such Awards.
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10.5
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Governing
Law
. The validity, construction and interpretation and
effect of the Plan shall be governed by and determined in accordance with
the laws of the State of Texas, without giving effect to the conflict of
laws provisions thereof.
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10.6
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Section
409A
. The Plan is intended to comply with
Section 409A and the interpretive guidance thereunder, including the
exemption for short-term deferrals, and shall be administered
accordingly. The Plan shall be construed and interpreted with
such intent. The Company makes no representations that the
Plan, the administration of the Plan, or the amounts hereunder comply
with, or are exempt from, Section 409A. If an operational
failure occurs with respect to Section 409A, any affected Participant
shall fully cooperate with the Company to correct the failure, to the
extent possible, in accordance with any correction procedure established
by the Secretary of the
Treasury.
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