EXHIBIT 10.1
DIEBOLD, INCORPORATED
1991 EQUITY AND PERFORMANCE INCENTIVE PLAN
(AS AMENDED AND RESTATED AS OF APRIL 13, 2009)
1.
Purpose.
The purpose of the 1991 Equity and Performance Incentive Plan (As Amended and
Restated as of April 13, 2009) (this Plan) is to attract and retain directors, officers and key
employees for Diebold, Incorporated (the Corporation) and its Subsidiaries and to provide to such
persons incentives and rewards for superior performance.
2.
Definitions.
As used in this Plan,
Annual Meeting means the annual meeting of shareholders of the Corporation.
Appreciation Right means a right granted pursuant to Section 5 of this Plan.
Board means the Board of Directors of the Corporation and, to the extent of any delegation
by the Board to a committee (or subcommittee thereof) pursuant to Section 17 of this Plan, such
committee (or subcommittee thereof).
Change in Control shall have the meaning provided in Section 12 of this Plan.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Common Shares means shares of common stock, $1.25 par value per share, of the Corporation or
any security into which such Common Shares may be changed by reason of any transaction or event of
the type referred to in Section 11 of this Plan.
Covered Employee means a Participant who is, or is determined by the Board to be likely to
become, a covered employee within the meaning of Section 162(m) of the Code (or any successor
provision).
Date of Grant means the date specified by the Board on which a grant of Option Rights,
Appreciation Rights, Performance Shares or Performance Units or a grant or sale of Restricted
Shares or Deferred Shares shall become effective (which date shall not be earlier than the date on
which the Board takes action with respect thereto) and shall also include the date on which a grant
of Option Rights to a Non-Employee Director becomes effective pursuant to Section 9 of this Plan.
Deferral Period means the period of time during which Deferred Shares are subject to
deferral limitations under Section 7 of this Plan.
Deferred Shares means an award made pursuant to Section 7 of this Plan of the right to
receive Common Shares at the end of a specified Deferral Period.
Designated Subsidiary means a Subsidiary that is (i) not a corporation or (ii) a corporation
in which at the time the Corporation owns or controls, directly or indirectly, less than 80 percent
of the total combined voting power represented by all classes of stock issued by such corporation.
Detrimental Activity means:
(i) Engaging in any activity, as an employee, principal, agent or consultant for another
entity, and in a capacity, that directly competes with the Corporation or any Subsidiary in
any actual product, service, or business activity (or in any product, service, or business
activity which was under active development while the Participant was employed by the
Corporation if such development is being actively pursued by the Corporation during the
one-year period following the termination of Participants employment by the Corporation or
a Subsidiary) for which the Participant has had any direct responsibility and direct
involvement during the last two years of his or her employment with the Corporation or a
Subsidiary, in any territory in which the Corporation or a Subsidiary manufactures, sells,
markets, services, or installs such product or service or engages in such business activity.
(ii) Soliciting any employee of the Corporation or a Subsidiary to terminate his or her
employment with the Corporation or a Subsidiary.
(iii) The disclosure to anyone outside the Corporation or a Subsidiary, or the use in other
than the Corporation or a Subsidiarys business, without prior written authorization from
the Corporation, of any confidential, proprietary or trade secret information or material
relating to the business of the Corporation and its Subsidiaries, acquired by the
Participant during his or her employment with the Corporation or its Subsidiaries or while
acting as a consultant for the Corporation or its Subsidiaries thereafter.
(iv) The failure or refusal to disclose promptly and to assign to the Corporation upon
request all right, title and interest in any invention or idea, patentable or not, made or
conceived by the Participant during employment by the Corporation and any Subsidiary,
relating in any manner to the actual or anticipated business, research or development work
of the Corporation or any Subsidiary or the failure or refusal to do anything reasonably
necessary to enable the Corporation or any Subsidiary to secure a patent where appropriate
in the United States and in other countries.
(v) Activity that results in Termination for Cause. For purposes of this Section,
Termination for Cause shall mean a termination:
(A) due to the Participants willful and continuous gross neglect of his or her
duties for which he or she is employed, or
(B) due to an act of dishonesty on the part of the Participant constituting a felony
resulting or intended to result, directly or indirectly, in his or her gain for
personal enrichment at the expense of the Corporation or a Subsidiary
Evidence of Award means an agreement, certificate, resolution or other type or form of
writing or other evidence approved by the Board which sets forth the terms and conditions of the
Option Rights, Appreciation Rights, Performance Units, Performance Shares, Restricted Shares,
Deferred Shares or other awards. An Evidence of Award may be in an electronic medium, may be
limited to a notation on the books and records of the Corporation and, with the approval of the
Committee, need not be signed by a representative of the Corporation or a Participant.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, as such law, rules and regulations may be amended from time to time.
Incentive Stock Options means Option Rights that are intended to qualify as incentive stock
options under Section 422 of the Code or any successor provision.
Management Objectives means the measurable performance objective or objectives established
pursuant to this Plan for Participants who have received grants of Performance Shares or
Performance Units or, when so determined by the Board, Option Rights, Appreciation Rights,
Restricted Shares and dividend credits pursuant to this Plan. Management Objectives may be
described in terms of Corporation-wide objectives or objectives that are related to the performance
of the individual Participant or of the Subsidiary, division, department, region or function within
the Corporation or Subsidiary in which the Participant is employed. The Management Objectives may
be made relative to the performance of other corporations. The Management Objectives applicable to
any award to a Covered Employee shall be based on specified levels of or growth in one or more of
the following criteria:
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1.
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earnings;
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2.
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earnings per share (earnings per share will be calculated without regard to any
change in accounting standards that may be required by the Financial Accounting Standards
Board after the goal is established);
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3.
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share price;
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4.
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total shareholder return;
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5.
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return on invested capital, equity, or assets;
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6.
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operating earnings;
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7.
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sales growth;
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8.
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productivity improvement;
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If the Board determines that a change in the business, operations, corporate structure or
capital structure of the Corporation, or the manner in which it conducts its business, or other
events or circumstances render the Management Objectives unsuitable, the Board may in its
discretion modify such Management Objectives or the related minimum acceptable level of
achievement, in whole or in part, as the Board deems appropriate and equitable, except in the case
of a Covered Employee where such action would result in the loss of the otherwise available
exemption under Section 162(m) of the Code. In such case, the Board shall not make any modification
of the Management Objectives or minimum acceptable level of achievement.
Market Value per Share means, as of any particular date, the fair market value of the Common
Shares as determined by the Board.
Non-Employee Director means a Director of the Corporation who is not an employee of the
Corporation or any Subsidiary.
Optionee means the optionee named in an Evidence of Award evidencing an outstanding Option
Right.
Option Price means the purchase price payable on exercise of an Option Right.
Option Right means the right to purchase Common Shares upon exercise of an option granted
pursuant to Section 4 or Section 9 of this Plan.
Participant means a person who is selected by the Board to receive benefits under this Plan
and who is at the time an officer, or other key employee of the Corporation or any one or more of
its Subsidiaries, or who has agreed to commence serving in any of such capacities within 90 days of
the Date of Grant, and shall also include each Non-Employee Director who receives an award of
Option Rights pursuant to Section 9 of this Plan;
provided, however,
that for purposes of
Sections 4, 5, 7 and 8 of this Plan, Participant shall not include such Non-Employee Director.
Performance Period means, in respect of a Performance Share or Performance Unit, a period of
time established pursuant to Section 8 of this Plan within which the Management Objectives relating
to such Performance Share or Performance Unit are to be achieved.
Performance Share means a bookkeeping entry that records the equivalent of one Common Share
awarded pursuant to Section 8 of this Plan.
Performance Unit means a bookkeeping entry that records a unit equivalent to $1.00 awarded
pursuant to Section 8 of this Plan.
Restricted Shares means Common Shares granted or sold pursuant to Section 6 or Section 9 of
this Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers
referred to in such Section 6 has expired.
Restricted Stock Unit means a bookkeeping entry reflecting an award of Deferred Shares.
Rule l6b-3 means Rule 16b-3 of the Securities and Exchange Commission (or any successor rule
to the same effect) as in effect from time to time.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
thereunder, as such law, rules and regulations may be amended from time to time.
Spread means the excess of the Market Value per Share of the Common Shares on the date when
an Appreciation Right is exercised, or on the date when Option Rights are surrendered in payment of
the Option Price of other Option Rights, over the Option Price provided for in the related Option
Right.
Subsidiary means a corporation, company or other entity (i) more than 50 percent of whose
outstanding shares or securities (representing the right to vote for the election of directors or
other managing authority) are, or (ii) which does not have outstanding shares or securities (as may
be the case in a partnership, joint venture or unincorporated association), but more than 50
percent of whose ownership interest representing the right generally to make decisions for such
other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Corporation
except that for purposes of determining whether any person may be a Participant for purposes of any
grant of Incentive Stock Options, Subsidiary means any corporation in which at the time the
Corporation owns or controls, directly or indirectly, more than 50 percent of the total combined
voting power represented by all classes of stock issued by such corporation.
Termination for Cause means a termination:
(i) due to the Participants willful and continuous gross neglect of his or her duties for
which he or she is employed, or
(ii) due to an act of dishonesty on the part of the Participant constituting a felony
resulting or intended to result, directly or indirectly, in his or her gain for personal
enrichment at the expense of the Corporation or a Subsidiary.
Voting Shares means at any time, the then-outstanding securities entitled to vote generally
in the election of directors of the Corporation.
3.
Shares Available Under the Plan.
(a) Subject to adjustment as provided in Section 11 of this Plan, the number of Common
Shares that may be issued or transferred (i) upon the exercise of Option Rights or Appreciation
Rights, (ii) as Restricted Shares and released from substantial risks of forfeiture thereof,
(iii) as Deferred Shares, (iv) in payment of Performance Shares or Performance Units that have
been earned, (v) as awards to Non-Employee Directors or (vi) in payment of dividend equivalents
paid with respect to awards made under the Plan shall not exceed in the aggregate 13,265,313
shares (3,265,313 of which were approved in 1991; 3,000,000 of which were approved in 1997,
3,000,000 of which were approved in 2001 and 4,000,000 of which were approved in 2009) plus any
shares relating to awards that expire or are forfeited or cancelled. Such shares may be shares
of original issuance or treasury shares or a combination of the foregoing. Upon the payment of
any Option Price by the transfer to the Corporation of Common Shares or upon satisfaction of any
withholding amount by means of transfer or relinquishment of Common Shares, there shall be
deemed to have been issued or transferred under this Plan only the net number of Common Shares
actually issued or transferred by the Corporation.
(b) Notwithstanding anything in this Section 3, or elsewhere in this Plan, to the
contrary, the aggregate number of Common Shares actually issued or transferred by the
Corporation upon the exercise of Incentive Stock Options shall not exceed 13,265,313 shares.
Further, no Participant shall be granted Option Rights for more than 200,000 Common Shares
during any calendar year, subject to adjustments as provided in Section 11 of this Plan.
(c) Upon payment in cash of the benefit provided by any award granted under this Plan, any
shares that were covered by that award shall again be available for issue or transfer hereunder.
(d) Notwithstanding any other provision of this Plan to the contrary, in no event shall
any Participant in any calendar year receive more than 200,000 Appreciation Rights, subject to
adjustments as provided in Section 11 of this plan.
(e) Notwithstanding any other provision of this Plan to the contrary, in no event shall
any Participant in any calendar year receive more than 200,000 Restricted Shares or 200,000
Deferred Shares, subject to adjustments as provided in Section 11 of this Plan.
(f) Notwithstanding any other provision of this Plan to the contrary, in no event shall
any Participant in any calendar year receive an award of Performance Shares or Performance Units
having an aggregate maximum value as of their respective Dates of Grant in excess of $3,000,000.
4.
Option Rights.
The Board may, from time to time and upon such terms and conditions as it
may determine, authorize the granting to Participants of options to purchase Common Shares. Each
such grant may utilize any or all of the authorizations, and shall be subject to all of the
requirements, contained in the following provisions:
(a) Each grant shall specify the number of Common Shares to which it pertains subject to
the limitations set forth in Section 3 of this plan.
(b) Each grant shall specify an Option Price per share, which shall not be less than
100 percent of the Market Value per Share on the Date of Grant.
(c) Each grant shall specify whether the Option Price shall be payable (i) in cash or by
check acceptable to the Corporation, (ii) by the actual or constructive transfer to the
Corporation of nonforfeitable, unrestricted Common Shares owned by the Optionee (or other
consideration authorized pursuant to subsection (d) below) having a value at the time of
exercise equal to the total Option Price, or (iii) by a combination of such methods of payment.
(d) The Board may determine, at or after the Date of Grant, that payment of the Option
Price of any option (other than an Incentive Stock Option) may also be made in whole or in part
in the form of Restricted Shares or other Common Shares that are forfeitable or subject to
restrictions on transfer, Deferred Shares, Performance Shares (based, in each case, on the
Market Value per Share on the date of exercise), other Option Rights (based on the Spread on the
date of exercise) or Performance Units. Unless otherwise determined by the Board at or after the
Date of Grant, whenever any Option Price is paid in whole or in part by means of any of the
forms of consideration specified in this paragraph, the Common Shares received upon the exercise
of the Option Rights shall be subject to such risks of forfeiture or restrictions on transfer as
may correspond to any that apply to the consideration surrendered, but only to the extent of
(i) the number of shares or Performance Shares, (ii) the Spread of any unexercisable portion of
Option Rights, or (iii) the stated value of Performance Units surrendered.
(e) Any grant may provide for deferred payment of the Option Price from the proceeds of
sale through a bank or broker on a date satisfactory to the Corporation of some or all of the
shares to which such exercise relates.
(f) Successive grants may be made to the same Participant whether or not any Option Rights
previously granted to such Participant remain unexercised.
(g) Each grant shall specify the period or periods of continuous service by the Optionee
with the Corporation or any Subsidiary which is necessary before the Option Rights or
installments thereof will become exercisable and may provide for the earlier exercise of such
Option Rights in the event of a Change in Control or other similar transaction or event.
(h) Any grant of Option Rights may specify Management Objectives that must be achieved as
a condition to the exercise of such rights.
(i) Option Rights granted under this Plan may be (i) options, including, without
limitation, Incentive Stock Options that are intended to qualify under particular provisions of
the Code, (ii) options that are not intended so to qualify, or (iii) combinations of the
foregoing. Incentive Stock Options may only be granted to Participants who meet the definition
of employees under Section 3401(c) of the Code.
(j) The Board may, at or after the Date of Grant of any Option Rights (other than
Incentive Stock Options), provide for the payment of dividend equivalents to the Optionee on
either a current or deferred or contingent basis.
(k) The exercise of an Option Right shall result in the cancellation on a share-for-share
basis of any related Appreciation Right authorized under Section 5 of this Plan.
(l) No Option Right shall be exercisable more than 10 years from the Date of Grant.
(m) Each grant of Option Rights shall be evidenced by an Evidence of Award, which shall
contain such terms and provisions, consistent with this Plan, as the Board may approve.
5.
Appreciation Rights.
The Board may also authorize the granting to any Optionee of
Appreciation Rights in respect of Option Rights granted hereunder at any time prior to the exercise
or termination of such related Option Rights; provided, however, that an Appreciation Right awarded
in relation to an Incentive Stock Option must be granted concurrently with such Incentive Stock
Option. An Appreciation Right shall be a right of the Optionee, exercisable by surrender of the
related Option Right, to receive from the Corporation an amount determined by the Board, which
shall be expressed as a percentage of the Spread (not exceeding 100 percent) at the time of
exercise. Each such grant may utilize any or all of the authorizations, and shall be subject to all
of the requirements, contained in the following provisions:
(a) Any grant may specify that the amount payable on exercise of an Appreciation Right may
be paid by the Corporation in cash, in Common Shares or in any combination thereof and may
either grant to the Optionee or retain in the Board the right to elect among those alternatives.
(b) Any grant may specify that the amount payable on exercise of an Appreciation Right may
not exceed a maximum specified by the Board at the Date of Grant.
(c) Any grant may specify waiting periods before exercise and permissible exercise dates
or periods and shall provide that no Appreciation Right may be exercised except at a time when
the related Option Right is also exercisable and at a time when the Spread is positive.
(d) Any grant may specify that such Appreciation Right may be exercised only in the event
of a Change in Control or other similar transaction or event.
(e) Each grant of Appreciation Rights shall be evidenced by an Evidence of Award that
shall describe such Appreciation Rights, identify the related Option Rights, state that such
Appreciation Rights are subject to all the terms and conditions of this Plan, and contain such
other terms and provisions, consistent with this Plan, as the Board may approve.
(f) Any grant of Appreciation Rights may specify Management Objectives that must be
achieved as a condition of the exercise of such rights.
6.
Restricted Shares.
The Board may also authorize the grant or sale to Participants of
Restricted Shares. Each such grant or sale may utilize any or all of the authorizations, and shall
be subject to all of the requirements, contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate transfer of the ownership of
Common Shares to the Participant in consideration of the performance of services, entitling such
Participant to voting, dividend and other ownership rights, but subject to the substantial risk
of forfeiture and restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional consideration or in
consideration of a payment by such Participant that is less than Market Value per Share at the
Date of Grant.
(c) Each such grant or sale shall provide that the Restricted Shares covered by such grant
or sale shall be subject, except (if the Board shall so determine) in the event of a Change in
Control or other similar transaction or event, for a period of not less than 3 years to be
determined by the Board at the Date of Grant, to a substantial risk of forfeiture within the
meaning of Section 83 of the Code.
(d) Each such grant or sale shall provide that during the period for which such
substantial risk of forfeiture is to continue, the transferability of the Restricted Shares
shall be prohibited or restricted in the manner and to the extent prescribed by the Board at the
Date of Grant (which restrictions may include, without limitation, rights of repurchase or first
refusal in the Corporation or provisions subjecting the Restricted Shares to a continuing
substantial risk of forfeiture in the hands of any transferee).
(e) Any grant of Restricted Shares may specify Management Objectives which, if achieved,
will result in termination or early termination of the restrictions applicable to such shares
and each grant may specify in respect of such specified Management Objectives, a minimum
acceptable level of achievement and shall set forth a formula for determining the number of
Restricted Shares on which restrictions will terminate if performance is at or above the minimum
level, but falls short of full achievement of the specified Management Objectives.
(f) Any such grant or sale of Restricted Shares may require that any or all dividends or
other distributions paid thereon during the period of such restrictions be automatically
deferred and reinvested in additional Restricted Shares, which may be subject to the same
restrictions as the underlying award.
(g) Each grant or sale of Restricted Shares shall be evidenced by an Evidence of Award
that shall contain such terms and provisions, consistent with this Plan, as the Board may
approve. Unless otherwise directed by the Board, all certificates representing Restricted Shares
shall be held in custody by the Corporation until all restrictions thereon shall have lapsed,
together with a stock power executed by the Participant in whose name such certificates are
registered, endorsed in blank and covering such Shares.
7.
Deferred Shares.
The Board may also authorize the granting or sale of Deferred Shares to
Participants. Each such grant or sale may utilize any or all of the authorizations, and shall be
subject to all of the requirements contained in the following provisions:
(a) Each such grant or sale shall constitute the agreement by the Corporation to deliver
Common Shares to the Participant in the future in consideration of the performance of services,
but subject to the fulfillment of such conditions during the Deferral Period as the Board may
specify.
(b) Each such grant or sale may be made without additional consideration or in
consideration of a payment by such Participant that is less than the Market Value per Share at
the Date of Grant.
(c) Each such grant or sale shall be subject, except (if the Board shall so determine) in
the event of a Change in Control or other similar transaction or event, to a Deferral Period of
not less than 3 years, as determined by the Board at the Date of Grant.
(d) During the Deferral Period, the Participant shall have no right to transfer any rights
under his or her award and shall have no rights of ownership in the Deferred Shares and shall
have no right to vote them, but the Board may, at or after the Date of Grant, authorize the
payment of dividend equivalents on such Shares on either a current or deferred or contingent
basis, either in cash or in additional Common Shares.
(e) Each grant or sale of Deferred Shares shall be evidenced by an Evidence of Award
containing such terms and provisions, consistent with this Plan, as the Board may approve.
8.
Performance Shares and Performance Units.
The Board may also authorize the granting of
Performance Shares and Performance Units that will become payable to a Participant upon achievement
of specified Management Objectives. Each such grant may utilize any or all of the authorizations,
and shall be subject to all of the requirements, contained in the following provisions:
(a) Each grant shall specify the number of Performance Shares or Performance Units to
which it pertains, which number may be subject to adjustment to reflect changes in compensation
or other factors;
provided, however,
that no such adjustment shall be made in the case of a
Covered Employee.
(b) The Performance Period with respect to each Performance Share or Performance Unit
shall be such period of time (not less than 1 year, except in the event of a Change in Control
or other similar transaction or event, if the Board shall so determine) commencing with the Date
of Grant (as shall be determined by the Board at the time of grant).
(c) Any grant of Performance Shares or Performance Units shall specify Management
Objectives which, if achieved, will result in payment or early payment of the award, and each
grant may specify in respect of such
specified Management Objectives a minimum acceptable level
of achievement and shall set forth a formula for determining the number of Performance Shares or
Performance Units that will be earned if performance is at or
above the minimum level, but falls short of full achievement of the specified Management
Objectives. The grant of Performance Shares or Performance Units shall specify that, before the
Performance Shares or Performance Units shall be earned and paid, the Board must certify that
the Management Objectives have been satisfied.
(d) Each grant shall specify a minimum acceptable level of achievement in respect of the
specified Management Objectives below which no payment will be made and shall set forth a
formula for determining the amount of payment to be made if performance is at or above such
minimum but short of full achievement of the Management Objectives.
(e) Each grant shall specify the time and manner of payment of Performance Shares or
Performance Units which have been earned. Any grant may specify that the amount payable with
respect thereto may be paid by the Corporation in cash, in Common Shares or in any combination
thereof and may either grant to the Participant or retain in the Board the right to elect among
those alternatives.
(f) Any grant of Performance Shares may specify that the amount payable with respect
thereto may not exceed a maximum specified by the Board at the Date of Grant. Any grant of
Performance Units may specify that the amount payable or the number of Common Shares issued with
respect thereto may not exceed maximums specified by the Board at the Date of Grant.
(g) The Board may, at or after the Date of Grant of Performance Shares, provide for the
payment of dividend equivalents to the holder thereof on either a current or deferred or
contingent basis, either in cash or in additional Common Shares.
(h) Each grant of Performance Shares or Performance Units shall be evidenced by an
Evidence of Award containing such other terms and provisions, consistent with this Plan, as the
Board may approve.
9.
Awards to Non-Employee Directors.
The Board may, from time to time and upon such terms
and conditions as it may determine, authorize the granting to Non-Employee Directors of options to
purchase Common Shares and may also authorize the grant or sale of Restricted Shares and Deferred
Shares to Non-Employee Directors.
(a) Each grant of Option Rights awarded pursuant to this Section 9 shall be evidenced by
an agreement in such form as shall be approved by the Board, and shall be subject to the
following additional terms and conditions:
(i) Each grant shall specify the number of Common Shares to which it pertains subject to
the limitations set forth in Section 3 of this Plan.
(ii) Each grant shall specify an Option Price per share, which shall not be less than
100 percent of the Market Value per Share on the Date of Grant.
(iii) Each such Option Right shall become exercisable to the extent of one-fourth of the
number of shares covered thereby 1 year after the Date of Grant and to the extent of an
additional one-fourth of such shares after each of the next 3 successive years thereafter.
Such Option Rights shall become exercisable in full immediately in the event of a Change in
Control. Each such Option Right granted under the Plan shall expire 5 years from the Date
of Grant and shall be subject to earlier termination as hereinafter provided.
Notwithstanding the foregoing, the Board may provide that Option Rights granted after
October 9, 2001 shall expire not more than 10 years from the Date of Grant.
(iv) In the event of the termination of service on the Board by the holder of any such
Option Rights, other than by reason of disability or death as set forth in paragraph
(d) hereof, the then outstanding Option Rights of such holder may be exercised only to the
extent that they were exercisable on the date of such termination and shall expire 90 days
after such termination, or on their stated expiration date, whichever occurs first;
provided, however, that any Option Rights may provide that a Director who has completed a
specified period of service
on the Board or attained a specified age will be entitled to
exercise any such Option Rights immediately in full at any time after any such termination
until their stated expiration date.
(v) In the event of the death or disability of the holder of any such Option Rights, each
of the then outstanding Option Rights of such holder may be exercised at any time within one
year after such death or disability, but in no event after the expiration date of the term
of such Option Rights.
(vi) If a Non-Employee Director subsequently becomes an employee of the Corporation or a
Subsidiary while remaining a member of the Board, any Option Rights held under the Plan by
such individual at the time of such commencement of employment shall not be affected
thereby.
(vii) Option Rights may be exercised by a Non-Employee Director only upon payment to the
Corporation in full of the Option Price of the Common Shares to be delivered. Such payment
shall be made in cash or in Common Shares previously owned by the Optionee for more than six
months, or in a combination of cash and such Common Shares.
(viii) Common Shares acquired upon the exercise of these Option Rights may not be
transferred for 1 year except in the case of the Directors death, disability or other
termination of service as a Director.
(b) Each grant or sale of Restricted Shares pursuant to this Section 9 shall be upon terms
and conditions consistent with Section 6 of this Plan.
(c) Each grant or sale of Deferred Shares pursuant to this Section 9 shall be upon terms
and conditions consistent with Section 7 of this Plan.
10.
Transferability.
(a) Except as otherwise determined by the Board, no Option Right, Appreciation Right or
other derivative security granted under the Plan shall be transferable by an Optionee other than
by will or the laws of descent and distribution, except (in the case of a Participant who is not
a Director or officer of the Corporation) to a fully revocable trust of which the Optionee is
treated as the owner for federal income tax purposes. Except as otherwise determined by the
Board, Option Rights and Appreciation Rights shall be exercisable during the Optionees lifetime
only by him or her or by his or her guardian or legal representative. Notwithstanding the
foregoing, the Board in its sole discretion may provide for transferability of particular awards
under this Plan so long as such provisions will not disqualify the exemption for other awards
under Rule 16b-3.
(b) The Board may specify at the Date of Grant that part or all of the Common Shares that
are (i) to be issued or transferred by the Corporation upon the exercise of Option Rights or
Appreciation Rights, upon the termination of the Deferral Period applicable to Deferred Shares
or upon payment under any grant of Performance Shares or Performance Units or (ii) no longer
subject to the substantial risk of forfeiture and restrictions on transfer referred to in
Section 6 of this Plan, shall be subject to further restrictions on transfer.
11.
Adjustments.
The Board shall make or provide for such adjustments in the numbers of
Common Shares covered by outstanding Option Rights, Appreciation Rights, Deferred Shares, and
Performance Shares granted hereunder, in the prices per share applicable to such Option Rights and
Appreciation Rights and in the kind of shares covered thereby, as the Board, in its sole
discretion, exercised in good faith, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants or Optionees that otherwise would result from (a) any
stock dividend, stock split, combination of shares, recapitalization or other change in the capital
structure of the Corporation, or (b) any merger, consolidation, spin-off, split-off, spin-out,
split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance
of rights or warrants to purchase securities, or (c) any other corporate transaction or event
having an effect similar to any of the foregoing. Moreover, in the event of any such transaction or
event, the Board, in its discretion, may provide in substitution for any or all outstanding awards
under this Plan such alternative consideration as it, in good faith, may determine to be equitable
in the circumstances and may require in connection therewith the surrender of all awards so
replaced. The Board may also make or provide for such adjustments in the numbers of shares
specified in Section 3 of this Plan and in the number of shares to be granted pursuant to Section 9 of
this Plan as the Board in its sole discretion, exercised in good faith, may determine is
appropriate to reflect any transaction or event described in this Section 11.
12.
Change in Control.
For purposes of this Plan, a Change in Control shall mean if at any
time any of the following events shall have occurred:
(i) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
Exchange Act)) (a Person) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of either: (A) the then-outstanding
shares of common stock of the Corporation (the Corporation Common Stock) or (B) the
combined voting power of the then-outstanding voting securities of the Corporation entitled
to vote generally in the election of directors (Voting Stock); provided, however, that for
purposes of this subsection (i), the following acquisitions shall not constitute a Change in
Control: (1) any acquisition directly from the Corporation, (2) any acquisition by the
Corporation, (3) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Corporation or any Subsidiary of the Corporation, or (4) any
acquisition by any Person pursuant to a transaction which complies with clauses (A), (B) and
(C) of subsection (iii) of this Section 1(b); or
(ii) Individuals who, as of the date hereof, constitute the Board cease for any reason
(other than death or disability) to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Corporations shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent Board (either by
a specific vote or by approval of the proxy statement of the Corporation in which such
person is named as a nominee for director, without objection to such nomination) 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 actual or threatened election contest (within the meaning of Rule 14a-11 of the Exchange
Act) with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Corporation (a Business
Combination), in each case, unless, following such Business Combination, (A) all or
substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Corporation Common Stock and Voting Stock immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of,
respectively, the then-outstanding shares of common stock and the combined voting power of
the then-outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such transaction owns the
Corporation or all or substantially all of the Corporations assets either directly or
through one or more subsidiaries) in substantially the same proportions relative to each
other as their ownership, immediately prior to such Business Combination, of the Corporation
Common Stock and Voting Stock of the Corporation, as the case may be, (B) no Person
(excluding any entity resulting from such Business Combination or any employee benefit plan
(or related trust) sponsored or maintained by the Corporation or such entity resulting from
such Business Combination) beneficially owns, directly or indirectly, 15% or more of,
respectively, the then-outstanding shares of common stock of the entity resulting from such
Business Combination, or the combined voting power of the then-outstanding voting securities
of such corporation except to the extent that such ownership existed prior to the Business
Combination and (C) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action of the Board providing
for such Business Combination; or
(iv) Approval by the shareholders of the Corporation of a complete liquidation or
dissolution of the Corporation.
13.
Fractional Shares.
The Corporation shall not be required to issue any fractional Common
Shares pursuant to this Plan. The Board may provide for the elimination of fractions or for the
settlement of fractions in cash.
14.
Withholding Taxes.
To the extent that the Corporation is required to withhold federal,
state, local or foreign taxes in connection with any payment made or benefit realized by a
Participant or other person under this Plan, and the amounts available to the Corporation for such
withholding are insufficient, it shall be a condition to the receipt of such payment or the
realization of such benefit that the Participant or such other person make arrangements
satisfactory to the Corporation for payment of the balance of such taxes required to be withheld,
which arrangements (in the discretion of the Board) may include relinquishment of a portion of such
benefit. Participants shall also make such arrangements
as the Corporation may require for the payment of any withholding tax obligations that may arise in
connection with the disposition of shares acquired upon the exercise of Option Rights. In no event,
however, shall the Corporation accept Common Shares for payment of taxes in excess of required tax
withholding rates, with respect to any grant made on or after July 1, 2000, except that, in the
discretion of the Board, a Participant or such other person may surrender Common Shares owned for
more than 6 months to satisfy any tax obligations resulting from any such transaction.
15.
Participation by Employees of Designated Subsidiaries.
As a condition to the
effectiveness of any grant or award to be made hereunder to a Participant who is an employee of a
Designated Subsidiary, whether or not such Participant is also employed by the Corporation or
another Subsidiary, the Board may require such Designated Subsidiary to agree to transfer to such
employee (when, as and if provided for under this Plan and any applicable agreement entered into
with any such employee pursuant to this Plan) the Common Shares that would otherwise be delivered
by the Corporation, upon receipt by such Designated Subsidiary of any consideration then otherwise
payable by such Participant to the Corporation. Any such award shall be evidenced by an agreement
between the Participant and the Designated Subsidiary, in lieu of the Corporation, on terms
consistent with this Plan and approved by the Board and such Designated Subsidiary. All such Common
Shares so delivered by or to a Designated Subsidiary shall be treated as if they had been delivered
by or to the Corporation for purposes of Section 3 of this Plan, and all references to the
Corporation in this Plan shall be deemed to refer to such Designated Subsidiary, except for
purposes of the definition of Board and except in other cases where the context otherwise
requires.
16.
Foreign Employees.
In order to facilitate the making of any grant or combination of
grants under this Plan, the Board may provide for such special terms for awards to Participants who
are foreign nationals or who are employed by the Corporation or any Subsidiary outside of the
United States of America as the Board may consider necessary or appropriate to accommodate
differences in local law, tax policy or custom. Moreover, the Board may approve such supplements to
or amendments, restatements or alternative versions of this Plan as it may consider necessary or
appropriate for such purposes, without thereby affecting the terms of this Plan as in effect for
any other purpose, and the Secretary or other appropriate officer of the Corporation may certify
any such document as having been approved and adopted in the same manner as this Plan. No such
special terms, supplements, amendments or restatements, however, shall include any provisions that
are inconsistent with the terms of this Plan as then in effect unless this Plan could have been
amended to eliminate such inconsistency without further approval by the shareholders of the
Corporation.
17.
Administration of the Plan.
(a) This Plan shall be administered by the Board, which may from time to time delegate all
or any part of its authority under this Plan to a committee of the Board (or subcommittee
thereof), consisting of not less than three Non-Employee Directors appointed by the Board of
Directors, each of whom shall be a Non-Employee Director within the meaning of Rule 16b-3 and
an outside director within the meaning of Section 162(m) of the Code. A majority of the
committee (or subcommittee thereof) shall constitute a quorum, and the action of the members of
the committee (or subcommittee thereof) present at any meeting at which a quorum is present, or
acts unanimously approved in writing, shall be the acts of the committee (or subcommittee
thereof).
(b) The interpretation and construction by the Board of any provision of this Plan or of
any agreement, notification or document evidencing the grant of Option Rights, Appreciation
Rights, Restricted Shares, Deferred Shares, Performance Shares or Performance Units and any
determination by the Board pursuant to any provision of this Plan or of any such agreement,
notification or document shall be final and conclusive. No member of the Board shall be liable
for any such action or determination made in good faith.
18.
Corporations Rights Upon Occurrence of Detrimental Activity.
Any Evidence of Award may
provide that if a Participant, either during employment by the Corporation or a Subsidiary or
within a specified period after
termination of such employment, shall engage in any Detrimental
Activity, and the Board shall so find, forthwith upon notice of such finding, the Participant
shall:
(a) Return to the Corporation, in exchange for payment by the Corporation of any amount
actually paid therefor by the Participant, all shares of Common Shares that the Participant has
not disposed of that were offered pursuant to this Plan within a specified period prior to the
date of the commencement of such Detrimental Activity, and
(b) With respect to any Common Shares so acquired that the Participant has disposed of,
pay to the Corporation in cash the difference between:
(i) Any amount actually paid therefor by the Participant pursuant to this Plan, and
(ii) The Market Value per Share of the Common Shares on the date of such acquisition.
To the extent that such amounts are not paid to the Corporation, the Corporation may set off the
amounts so payable to it against any amounts (but only to the extent that such amount would not be
considered nonqualified deferred compensation within the meaning of Section 409A of the Code)
that may be owing from time to time by the Corporation or a Subsidiary to the Participant, whether
as wages, deferred compensation or vacation pay or in the form of any other benefit or for any
other reason.
19.
Compliance with Section 409A of the Code.
To the extent applicable, it is intended that
this Plan and any grants made hereunder comply with the provisions of Section 409A of the Code.
This Plan and any grants made hereunder shall be administered in a manner consistent with this
intent
20.
Governing Law.
The Plan and all awards granted and actions taken thereunder shall be
governed by and construed in accordance with the internal substantive laws of the State of Ohio.
21.
Amendments, Etc.
(a) The Board may at any time and from time to time amend the Plan in whole or in part;
provided, however,
that any amendment which must be approved by the shareholders of the
Corporation in order to comply with applicable law or the rules of any national securities
exchange upon which the Common Shares are traded or quoted shall not be effective unless and
until such approval has been obtained. Presentation of the Plan or any amendment thereof for
shareholder approval shall not be construed to limit the Corporations authority to offer
similar or dissimilar benefits in plans that do not require shareholder approval.
(b) Except with respect to Option Rights and Appreciation Rights, the Board may permit
Participants to elect to defer the issuance of Common Shares or the settlement of awards in cash
under the Plan pursuant to such rules, procedures or programs as it may establish for purposes
of this Plan and which are intended to comply with the requirements of Section 409A of the Code.
The Board also may provide that deferred settlements include the payment or crediting of
dividend equivalents or interest on the deferral amounts.
(c) The Board may condition the grant of any award or combination of awards authorized
under this Plan on the surrender or deferral by the Participant of his or her right to receive a
cash bonus or other compensation otherwise payable by the Corporation or a Subsidiary to the
Participant.
(d) If permitted by Section 409A of the Code and except in the case of a Covered Employee
where such action would result in the loss of an otherwise available exemption under Section
162(m) of the Code, in case of termination of employment by reason of death, disability or
normal or early retirement, or in the case of hardship or other special circumstances, of a
Participant who holds an Option Right or Appreciation Right not immediately exercisable in full,
or any Restricted Shares as to which the substantial risk of forfeiture or the prohibition or
restriction on transfer has not lapsed, or any Deferred Shares as to which the Deferral Period
has not been completed, or any Performance Shares or Performance Units which have not been fully
earned, or who holds Common Shares subject to any transfer restriction imposed pursuant to
Section 10(b) of this Plan, the Board may, in its sole discretion, accelerate the time at which
such Option Right or Appreciation Right may be exercised or the
time at which such substantial
risk of forfeiture or prohibition or restriction on transfer will lapse or the time when such
Deferral Period will end or the time at which such Performance Shares or Performance Units will
be deemed to have been fully earned or the time when such transfer restriction will terminate or
may waive any other limitation or requirement under any such award.
(e) Except in connection with a corporate transaction or event described in Section 11 of
this Plan, the terms of outstanding awards may not be amended to reduce the exercise price of
outstanding Option Rights or the base price of outstanding Appreciation Rights, or cancel
outstanding Option Rights or Appreciation Rights
in exchange for cash, other awards or Option Rights or Appreciation Rights with an exercise
price or base price, as applicable, that is less than the exercise price of the original Option
Right or base price of the original Appreciation Right, as applicable, without shareholder
approval.
(f) This Plan shall not confer upon any Participant any right with respect to continuance
of employment or other service with the Corporation or any Subsidiary, nor shall it interfere in
any way with any right the Corporation or any Subsidiary would otherwise have to terminate such
Participants employment or other service at any time. Prior to exercise of any Option Right,
and prior to exercise, payment or delivery pursuant to any other award, the Participant may be
required, at the Corporations request, to certify in a manner reasonably acceptable to the
Corporation that the Participant has not engaged in, and has no present intention to engage in
the future in, any Detrimental Activity.
(g) To the extent that any provision of this Plan would prevent any Option Right that was
intended to qualify as an Incentive Stock Option from qualifying as such, that provision shall
be null and void with respect to such Option Right. Such provision, however, shall remain in
effect for other Option Rights and there shall be no further effect on any provision of this
Plan.
22.
Termination.
No grant shall be made under this Plan more than 10 years after March 4,
2009, subject to approval by the shareholders of the Corporation at the 2009 Annual Meeting of
Shareholders, but all grants made on or prior to such date shall continue in effect thereafter
subject to the terms thereof and of this Plan.