Exhibit 10.1
U.S. CONCRETE, INC.
2017 CASH INCENTIVE PLAN
Article I
Purpose
The purpose of the U.S. Concrete, Inc. 2017 Cash Incentive Plan (the “Plan”) is to advance the
interests of U.S. Concrete, Inc. (the “Company”) and its stockholders by (a) providing certain Employees
of the Company and its Subsidiaries (as hereinafter defined) with incentive compensation which is tied to
the achievement of pre-established and objective performance goals, (b) identifying and rewarding
superior performance and providing competitive compensation to attract, motivate, and retain Employees
who have outstanding skills and abilities and who achieve superior performance, and (c) fostering
accountability and teamwork throughout the Company.
The Plan is intended to provide Participants (as hereinafter defined) with incentive compensation
which is not subject to the deduction limitation rules prescribed under Section 162(m) of the Internal
Revenue Code of 1986, as amended (the “Code”), and should be construed to the extent possible as
providing for remuneration which is “performance-based compensation” within the meaning of Section
162(m) of the Code and the treasury regulations promulgated thereunder. Notwithstanding the foregoing,
the Committee (as defined below) may, in its sole discretion, grant Incentive Compensation (defined
below) which is not intended to meet the “performance-based compensation” exception under Section
162(m) of the Code and the treasury regulations promulgated thereunder.
Article II
Definitions
For the purposes of this Plan, unless the context requires otherwise, the following terms shall
have the meanings indicated:
“Adjusted EBITDA” means, for the Company or any Subsidiary, income (loss) from continuing
operations plus income tax expense (benefit), depreciation, depletion and amortization, net interest
expense, loss on extinguishment of debt, derivative (gain) loss, non-cash gain (loss) on revaluation of
contingent consideration, non-cash stock compensation expense, acquisition-related professional fees, and
officer severance, as reported from time to time by the Company in its earnings releases.
“Adjusted Free Cash Flow” means net cash provided by operating activities less capital
expenditures, plus proceeds from the sale of property, plant and equipment, plus proceeds from disposals
of business units.
“Adjusted Gross Profit” means Adjusted Gross Profit as income from operations, plus
depreciation, depletion and amortization, selling, general and administrative expenses, loss (gain) on
revaluation of contingent consideration, and (gain) loss on sale of assets.
“Adjusted Net Income from Continuing Operations” means net income, plus loss from
discontinued operations, net of taxes, income tax expense (benefit), derivative (gain) loss, loss on
extinguishment of debt, non-cash stock compensation expense, acquisition-related professional fees,
officer severance and non-cash loss (gain) on revaluation of contingent consideration.
“Award” means a grant of Incentive Compensation that may be paid to an Eligible Employee
upon the satisfaction of specified Performance Goal(s) for a particular Performance Period; such
Performance Period may be for a period of less than a Fiscal Year (e.g., six months, a “Short-Term
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Award”), a period equal to a Fiscal Year (an “Annual Award”), or a period in excess of a Fiscal Year
(e.g., three Fiscal Years, a “Long-Term Award”).
“Base Pay” means a Participant’s base salary at the end of the applicable Performance Period,
according to the books and records of the Company, excluding overtime, commissions, bonuses,
disability pay, any Incentive Compensation paid to the Participant, or any other payment in the nature of a
bonus or compensation paid under any other employee plan, contract, agreement, or program.
“Board” means the Board of Directors of the Company.
“Business Unit” means any segment or operating or administrative unit, including geographical
unit, of the Company identified by the Committee as a separate business unit, or a Subsidiary identified
by the Committee as a separate business unit.
“Business Unit Performance Goals” means the objective performance goals established for each
Business Unit in accordance with Sections 5.1 and 5.2 below for any Performance Period.
“Chief Executive Officer” or “CEO” means the chief executive officer of the Company.
“Claims” shall have the meaning set forth in Section 7.5 below.
“Code” means the Internal Revenue Code of 1986, as amended.
“Committee” means the Compensation Committee of the Board or any other committee as
determined by the Board, which shall consist of two or more “outside directors” within the meaning of
Section 162(m) of the Code.
“Company” means U.S. Concrete, Inc., a Delaware corporation.
“Company Performance Goals” means the objective performance goals established for the
Company in accordance with Sections 5.1 and 5.3 below for any Performance Period.
“Covered Employee” shall have the same meaning as the term “covered employee” (or its
counterpart, as such term may be changed from time to time) contained in the treasury regulations
promulgated under Section 162(m) of the Code, or their respective successor provision or provisions,
provided that only an Employee for whom the limitation on deductibility for compensation pursuant to
Section 162(m) of the Code is applicable shall be considered a “Covered Employee” for purposes of this
Plan.
“Eligible Employee” shall mean any Employee of the Company or any Subsidiary.
“Employee” means a common law employee (as defined in accordance with the treasury
regulations and revenue rulings applicable under Section 3401(c) of the Code) of the Company or any
Subsidiary of the Company.
“Fiscal Year” means the fiscal year of the Company.
“Incentive Compensation” means the compensation approved by the Committee to be paid to a
Participant for any Performance Period under the Plan.
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“Individual Performance Goals” means the objective performance goals established for an
individual Participant for any Performance Period, which shall be based on the performance of the
Company or any Business Unit and shall be related to the achievement of financial and operating
objectives of the Company or any Business Unit, as applicable.
“Maximum Achievement” means, for a Participant for any Performance Period, the maximum
level of achievement of a set of Performance Goals required for Incentive Compensation to be paid at the
maximum bonus level, which shall be a specified percentage of the Participant’s Base Pay with respect to
such set of Performance Goals, determined by the Committee in accordance with Section 5.1 below.
“Net Debt” means total debt, including current maturities and capital lease obligations, less cash
and cash equivalents
“Participant” means an Employee of the Company or a Subsidiary who satisfies the eligibility
requirements of Article IV of the Plan and who is selected by the Committee (or an Authorized Officer,
duly appointed in accordance with Article III) to participate in the Plan for any Performance Period.
“Performance Criteria” shall have the meaning set forth in Section 5.2 below.
“Performance Goals” means the Individual Performance Goals, Business Unit Performance
Goals, and Company Performance Goals established by the Committee for a Participant, the Company
and/or each Business Unit for any Performance Period, as provided in Sections 5.1, 5.2, 5.3, and 5.6
below.
“Performance Period” means the period selected by the Committee for the payment of Incentive
Compensation. Unless the Committee, in its discretion, specifies other Performance Periods for the
payment of Incentive Compensation hereunder, the Performance Period shall be a Fiscal Year.
“Plan” means the U.S. Concrete, Inc. 2017 Cash Incentive Plan, as it may be amended from time
to time.
“Segment Adjusted EBITDA” means, for any Business Unit, income (loss) from continuing
operations plus income tax expense (benefit), depreciation, depletion and amortization, net interest
expense, loss on extinguishment of debt, derivative (gain) loss, non-cash gain (loss) on revaluation of
contingent consideration, non-cash stock compensation expense, acquisition-related professional fees, and
officer severance, as reported from time to time by the Company in its filings with the Securities and
Exchange Commission.
“Subsidiary” means (i) any corporation in an unbroken chain of corporations beginning with the
Company, if each of the corporations other than the last corporation in the unbroken chain owns stock
possessing at least fifty percent (50%) of the total combined voting power of all classes of stock in one of
the other corporations in the chain, (ii) any limited partnership, if the Company or any corporation
described in item (i) above owns a majority of the general partnership interest and a majority of the
limited partnership interests entitled to vote on the removal and replacement of the general partner, and
(iii) any partnership or limited liability company, if the partners or members thereof are composed only of
the Company, any corporation listed in item (i) above, any limited partnership listed in item (ii) above or
any other limited liability company described in this item (iii). “Subsidiaries” means more than one of
any such corporations, limited partnerships, partnerships, or limited liability company.
“Target Achievement” means, for a Participant for any Performance Period, the level or range of
achievement of a set of Performance Goals required for Incentive Compensation to be paid at the target
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bonus level, which shall be a specified percentage of the Participant’s Base Pay with respect to such set of
Performance Goals, determined by the Committee in accordance with Section 5.1 below.
“Threshold Achievement” means, for a Participant for any Performance Period, the minimum
level of achievement of a set of Performance Goals required for any Incentive Compensation to be paid at
the threshold bonus level, which shall be a specified percentage of the Participant’s Base Pay with respect
to such set of Performance Goals, as determined by the Committee in accordance with Section 5.1 below.
Article III
Administration
3.1 Committee’s Authority. Subject to the terms of this Article III, the Plan shall be
administered by the Committee. For each Performance Period, the Committee shall have full authority to
(i) designate the Eligible Employees who shall participate in the Plan; (ii) establish the Performance
Goals and achievement levels for each Participant pursuant to Article V hereof; and (iii) establish and
certify the achievement of the Performance Goals. Notwithstanding any provision of the Plan to the
contrary, any decision concerning the awarding of Incentive Compensation hereunder (including, without
limitation, establishment of Performance Goals, Threshold Achievement, Target Achievement, Maximum
Achievement, and any other information necessary to calculate Incentive Compensation for a Covered
Employee for such Performance Period) shall be made exclusively by the members of the Committee who
are at that time “outside” directors, as that term is used in Section 162(m) of the Code and the treasury
regulations promulgated thereunder.
3.2 Committee Action. A majority of the Committee shall constitute a quorum, and the act
of a majority of the members of the Committee present at a meeting at which a quorum is present shall be
the act of the Committee.
3.3 Committee’s Powers. The Committee shall have the power, in its discretion, to take such
actions as may be necessary to carry out the provisions and purposes of the Plan and shall have the
authority to control and manage the operation and administration of the Plan. In order to effectuate the
purposes of the Plan, the Committee shall have the discretionary power and authority to construe and
interpret the Plan, to supply any omissions therein, to reconcile and correct any errors or inconsistencies,
to decide any questions in the administration and application of the Plan, and to make equitable
adjustments for any mistakes or errors made in the administration of the Plan. All such actions or
determinations made by the Committee, and the application of rules and regulations to a particular case or
issue by the Committee, in good faith, shall not be subject to review by anyone, but shall be final, binding
and conclusive on all persons ever interested hereunder.
To the extent permitted by applicable law, the Committee also may, in its discretion and by a
resolution adopted by the Committee, authorize one or more officers of the Company (each an
“Authorized Officer”), solely with respect to Employees who are not Covered Employees, within the ten
most highly compensated officers of the Company, or Authorized Officers to: (i) determine the amount of
Incentive Compensation payable to such Employees in accordance with the terms of the Plan; (ii)
establish Performance Goals for such Employees, and certify whether, and to what extent, such
Performance Goals were achieved for the applicable Performance Period; and (iii) reduce Incentive
Compensation payable to such Employees in accordance with the provisions of Section 5.6, and authorize
payment to such Employees in accordance with Article VI.
In construing the Plan and in exercising its power under provisions requiring the Committee’s
approval, the Committee shall attempt to ascertain the purpose of the provisions in question, and when the
purpose is known or reasonably ascertainable, the purpose shall be given effect to the extent feasible.
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Likewise, the Committee is authorized to determine all questions with respect to the individual rights of
all Participants under this Plan, including, but not limited to, all issues with respect to eligibility. The
Committee shall have all powers necessary or appropriate to accomplish its duties under this Plan
including, but not limited to, the power to:
(a) designate the Eligible Employees who shall participate in the Plan;
(b) maintain complete and accurate records of all Plan transactions and other data in
the manner necessary for proper administration of the Plan;
(c) adopt rules of procedure and regulations necessary for the proper and efficient
administration of the Plan, provided the rules and regulations are not inconsistent with the
terms of the Plan as set out herein. All rules and decisions of the Committee shall be
uniformly and consistently applied to all Participants in similar circumstances;
(d) enforce the terms of the Plan and the rules and regulations it adopts;
(e) review claims and render decisions on claims for benefits under the Plan;
(f) furnish the Company or the Participants, upon request, with information that the
Company or the Participants may require for tax or other purposes;
(g) employ agents, attorneys, accountants or other persons (who also may be
employed by or represent the Company) for such purposes as the Committee considers
necessary or desirable in connection with its duties hereunder; and
(h) perform any and all other acts necessary or appropriate for the proper
management and administration of the Plan.
Article IV
Eligibility
For each Performance Period, the Committee shall select the particular Eligible Employees to
whom Incentive Compensation may be awarded for such Performance Period; with respect to Covered
Employees, such determination shall be made within the first ninety (90) days of such Performance
Period (and in the case of a Performance Period that is less than twelve (12) months, such determination
shall be made no later than the date that 25% of the Performance Period has elapsed). To the extent
permitted by the Committee, Employees who participate in the Plan may also participate in other
incentive or benefit plans of the Company or any Subsidiary. Senior management of each Business Unit
shall recommend to the Committee within not more than ninety (90) days after the beginning of a
Performance Period (and in the case of a Performance Period less than a Fiscal Year, such determination
shall be made no later than the date that 25% of the Performance Period has elapsed), those Employees of
such Business Unit to be eligible to participate in the Plan for such Performance Period; the Committee
shall consider, but shall not be bound by, such recommendations. Notwithstanding any provision in this
Plan to the contrary, the Committee may grant one or more Awards to an Eligible Employee at any time,
and from time to time, and the Committee shall have the discretion to determine whether any such Award
shall be a Short-Term Award, an Annual Award or a Long-Term Award.
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Article V
Determination of Goals and Incentive Compensation
5.1 Establishment of Performance Goals. No later than the ninetieth (90th) day of the
Performance Period (and in the case of a Performance Period less than a Fiscal Year, such determination
shall be made no later than the date that 25% of the Performance Period has elapsed), the Committee shall
approve and deliver to the Chief Executive Officer of the Company a written report setting forth, as
applicable, the following: (i) the Business Unit Performance Goals for the Performance Period, (ii)
Company Performance Goals for the Performance Period, (iii) the Individual Performance Goals for the
Performance Period (if any), (iv) the Threshold Achievement, Target Achievement, and Maximum
Achievement levels for the Performance Goals for the Performance Period, (v) with respect to each
Participant, Incentive Compensation as a percentage of Base Pay for achievement of Threshold
Achievement, Target Achievement, and Maximum Achievement levels and the relative weighting of each
Performance Goal in determining the Participant’s Incentive Compensation, and (vi) a schedule setting
forth the payout opportunity as a percentage of Base Pay for Threshold Achievement, Target
Achievement, and Maximum Achievement levels. The Committee may delegate to the CEO to establish
and report to the Committee for each Participant (other than the CEO) the determinations under items (i)
through (vi) above. The Committee shall consider, but shall not be bound by, the recommendations and
determinations of the CEO with respect to such items.
5.2 Categories of Business Unit Performance Goals. The Business Unit Performance Goals,
if any, established by the Committee for any Performance Period may differ among Participants and
Business Units. For each Business Unit, the Business Unit Performance Goals shall be based on the
performance of the Business Unit. Performance criteria for a Business Unit shall be related to the
achievement of financial and operating objectives of the Business Unit, which, where applicable, shall be
within the meaning of Section 162(m) of the Code, and consist of one or more or any combination of the
following criteria: (a) income from operations; (b) net income; (c) income from continuing operations; (d)
basic and diluted earnings per share; (e) Total Company Adjusted EBITDA, Total Company Adjusted
EBITDA ratios and margins, Segment Adjusted EBITDA and Segment Adjusted EBITDA ratios and
margins; (f) sales volumes and changes in sales volumes; (g) average selling prices and changes in
average selling prices; (h) material margin spreads and changes in material margin spreads; (i) revenues,
revenue growth and revenue ratios; (j) Adjusted Gross Profit and Adjusted Gross Profit margins; (k)
Adjusted Net Income from Continuing Operations and Adjusted Net Income from Continuing Operations
per share (basic or diluted); (l) cash flows, Adjusted Free Cash Flow and changes in cash flow and
Adjusted Free Cash Flow; (m) debt, Net Debt, changes in debt and Net Debt and debt and Net Debt
ratios; (n) total stockholder return, stockholder return based on growth measures or the attainment by the
shares of a specified value for a specified period of time, share price or share price appreciation; (o) price
of the Company’s common stock, stockholder value, total market value; (p) return on assets, return on
invested capital, or other return measures, including return or net return on working assets, equity, capital
or sales; (q) value of assets; (r) market share or market penetration with respect to specific designated
products or product groups and/or specific geographic areas; (s) expense or cost levels; (t) reduction of
losses, loss ratios or expense ratios; (u) reduction in fixed assets; (v) operating cost management; (w)
management of capital structure; (x) capital expenditures; (y) net borrowing; (z) credit quality or debt
ratings; (aa) productivity improvements; (bb) satisfaction of specified business expansion goals or goals
relating to acquisitions or divestitures; (cc) customer satisfaction based on specified objective goals or a
Company-sponsored customer survey; (dd) customer growth; (ee) employee diversity goals; (ff)
employee turnover; (gg) specified objective social goals; (hh) safety record; (ii) productivity goals; (jj) the
accomplishment of mergers, acquisitions, dispositions, public offerings or similar extraordinary business
transactions; or (kk) other objectively measurable factors directly tied to the performance of the Company
or any Business Unit (each, a “Performance Criteria”). Any Performance Criteria may be measured in
absolute terms, relative to a peer group or index, relative to past performance, or as otherwise determined
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by the Committee. Any Performance Criteria may include or exclude (i) extraordinary, unusual and/or
non-recurring items of gain or loss, (ii) gains or losses on the disposition of a business, (iii) changes in tax
or accounting regulations or laws, or (iv) the effect of a merger or acquisition, as identified in the
Company’s quarterly and annual earnings releases. In all other respects, Performance Criteria shall be
calculated in accordance (i) with the Company’s financial statements, (ii) under generally accepted
accounting principles, or (iii) under a methodology established by the Committee which is consistently
applied and identified in the audited financial statements, the Company’s earnings releases or filings with
the Securities and Exchange Commission.
5.3 Company Performance Goals. The Company Performance Goals, if any, established by
the Committee for any Performance Period shall relate to the achievement of predetermined financial and
operating objectives for the Company and its Subsidiaries on a consolidated basis, which, where
applicable, shall be within the meaning of Section 162(m) of the Code and consist of one or more of any
combination of the factors set forth in Section 5.2 above, as applied to the Company and its Subsidiaries
on a consolidated basis. The Company Performance Goals may be established either on an absolute or on
a per share basis reflecting dilution of shares as the Committee deems appropriate and, if the Committee
so determines, net of or including cash dividends (if any). The Company Performance Goals may also be
established on a relative basis as compared to the performance of a published or special index deemed
applicable by the Committee including, but not limited to, a group of companies deemed by the
Committee to be comparable to the Company.
5.4 Certification. Within seventy-five (75) days after the end of each Performance Period,
the senior management of the Company and each Business Unit shall report to the Committee the extent
to which Company and Business Unit Performance Goals were achieved for the Performance Period. As
soon as practicable following the finalization of the Company’s financial statements or receipt of the
Independent Auditor’s Report on the Company’s financial statements for a Performance Period consisting
of one or more Fiscal Years covered by the financial statements or other accounting finalizing of the
Company’s financial results for any Performance Period and receipt of the report of the Company and
Business Unit senior management, the Committee shall certify in writing and, where applicable, in
compliance with the requirements of Treasury Regulation 1.162-27 (and successor regulations thereto) in
the case of any Award intended to qualify under Section 162(m) of the Code: (i) the extent to which each
Business Unit achieved its Business Unit Performance Goals, if any, for the Performance Period, (ii) the
extent to which the Company achieved its Company Performance Goals, if any, for the Performance
Period, (iii) the calculation of the Participants’ Incentive Compensation, and (iv) the determination by the
Committee of the amount of Incentive Compensation, if any, to be paid to each Participant for the
Performance Period. In determining whether Performance Goals have been achieved and Incentive
Compensation is payable for a given Performance Period, generally accepted accounting principles to the
extent applicable to the Performance Goal shall be applied on a basis consistent with prior periods, and
such determinations shall be based on the calculations made by the Company and binding on each
Participant. Approved minutes of the Committee meeting in which the certification required by this
Section 5.4 is made shall be treated as written certification for purposes for this Section 5.4.
5.5 Award Based on Level of Achievement. If Threshold Achievement is attained with
respect to a Performance Goal, then the Incentive Compensation that may be paid to such Participant with
respect to such Performance Goal shall be based on a specified percentage of Base Pay and the
Committee’s predetermined schedule (which may allow for interpolation between achievement levels)
setting forth the earned award as a percentage of Base Pay.
5.6 Discretion to Reduce Incentive Compensation. After the certification described in
Section 5.4 the Committee may, in its sole and absolute discretion, decrease the Incentive Compensation
to be paid to one or more Participants for such Performance Period. The Committee may consider
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subjective factors, including factors communicated to the Participant at the beginning of the Performance
Period or other factors the Committee considers appropriate, and including any Individual Performance
Goals set for the Participant for the given Performance Period, in determining whether to reduce the
Incentive Compensation to be paid to a Participant. Individual Performance Goals need not have been
established during the specific time periods set forth in Section 5.1 above for the establishment of
Company Performance Goals and Business Unit Performance Goals.
5.7 Limitation on Total Incentive Compensation. Notwithstanding any provision to the
contrary contained herein, the maximum Incentive Compensation payable to any Participant with respect
to any single Award shall not exceed $1,750,000.
Article VI
Payment of Incentive Compensation
6.1 Form and Time of Payment. Subject to the provisions of Sections 6.2 and 6.3 below and
except as otherwise provided herein, a Participant’s Incentive Compensation for each Performance Period
shall be paid as soon as practicable after the results for such Performance Period have been finalized, but
in no event later than the date that is 2½ months immediately following the close of Fiscal Year in which
such Performance Period ended. The payment shall be in the form of a cash lump sum payment.
6.2 Forfeiture Upon Termination Prior to Date of Payment. If a Participant’s employment
with the Company and all of its Subsidiaries is terminated voluntarily by the Participant for any reason, or
is terminated by his or her employer for any reason, during a Performance Period or after a Performance
Period but prior to the date of actual payment in accordance with Section 6.1 above, then such Participant
will immediately forfeit any right to receive any Incentive Compensation hereunder for such Performance
Period.
6.3 Pro Rata Payment for New Hires; Promotions.
(a) New Hires. Any individual who is newly-hired or becomes an Eligible
Employee during a Performance Period and who is selected by the Committee to participate in
the Plan shall be eligible to receive a pro rata portion of the Incentive Compensation to which he
or she could have been entitled if he or she had been employed for the full Performance Period,
based on the number of full months during the Performance Period during which he or she is a
Participant in the Plan and calculated on the basis of his or her Base Pay received for the
Performance Period. Such Incentive Compensation shall be paid at the time and in the manner
set forth in Section 6.1 hereof.
(b) Promotions. In the case of a promotion or transfer from a position where an
individual was already a Participant for Incentive Compensation for a Performance Period to a
position where the Participant is eligible for a higher or lower maximum amount of Incentive
Compensation, the Participant shall complete his or her participation in the prior position until the
end of the complete month containing his or her date of promotion or transfer, prior to
participating in the Performance Period for the transferred or promoted position. The overall
Incentive Compensation will be pro-rated for both Performance Periods. In calculating the pro-
rated amount, (i) the prior Performance Period will be prorated using the Participant’s Base Pay
immediately prior to the date of promotion or transfer, and (ii) the subsequent Performance
Period will be pro-rated using the Participant’s Base Pay at the end of the Performance Period. If
a Participant is transferred to a lateral position (i.e., the same job grade or level), then the
Incentive Compensation will not be pro-rated based on the lateral change in position.
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Article VII
Miscellaneous Provisions
7.1 Non-Assignability. A Participant may not alienate, assign, pledge, encumber, transfer,
sell or otherwise dispose of any rights or benefits awarded hereunder prior to the actual receipt thereof;
and any attempt to alienate, assign, pledge, sell, transfer or assign prior to such receipt, or any levy,
attachment, execution or similar process upon any such rights or benefits shall be null and void.
7.2 No Right To Continue In Employment. Nothing in the Plan confers upon any Employee
the right to continue in the employ of the Company or any Subsidiary, or interferes with or restricts in any
way the right of the Company and its Subsidiaries to discharge any Employee at any time (subject to any
contract rights of such Employee), including, without limitation, before or after the date such Participant
is entitled to payment with respect to an Award.
7.3 Indemnification of Committee; No Duties; Waiver of Claims. No member of the
Committee, nor any officer or Employee of the Company acting with or on behalf of the Committee, shall
be personally liable for any action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all of the members of the Committee and each and any officer or Employee of the
Company acting with or on their behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action, determination or interpretation. Except to the
extent required by any unwaiveable requirement under applicable law, no member of the Committee (and
no officer, Employee or Subsidiary of the Company) shall have any duties or liabilities, including without
limitation any fiduciary duties, to any Participant (or any person claiming by and through any Participant)
as a result of this Plan, any Award or any Claim arising hereunder and, to the fullest extent permitted
under applicable law, each Participant (as consideration for receiving and accepting an Award)
irrevocably waives and releases any right or opportunity such Participant might have to assert (or
participate or cooperate in) any Claim against any member of the Committee and any officer, Employee
or Subsidiary of the Company, arising out of this Plan.
7.4 No Trust or Plan Funding. The Company (and not any of its Subsidiaries) will be solely
responsible for the payment of all amounts hereunder. The Plan shall at all times be entirely unfunded
and no provision shall at any time be made with respect to segregating assets of the Company for payment
of any amounts hereunder. Neither the Plan nor any Award shall create or be construed to create a trust
or separate fund of any kind or a fiduciary relationship between the Company and any Participant. No
Participant, beneficiary, or other person shall have any interest in any particular assets of the Company (or
any of its Subsidiaries) by reason of the right to receive any Incentive Compensation under the Plan. To
the extent that any Participant acquires a right to receive any payment from the Company pursuant to an
Award, such right shall be no greater than the right of any general unsecured creditor of the Company.
7.5 Governing Law. This Plan shall be construed in accordance with the laws of the State of
Texas, without giving effect to principles of conflict of laws, and the rights and obligations created hereby
shall be governed by the laws of the State of Texas. The Participant’s sole remedy for any claim, liability
or obligation of any nature, arising out of or relating to this Plan or an alleged breach of this Plan, or an
Award (collectively, “Claims”) shall be against the Company, and no Participant shall have any claim or
right of any nature against any Subsidiary or any owner or existing or former director, officer or
Employee of the Company or any Subsidiary. The individuals and entities described above in this
Section 7.5 (other than the Company) shall be third-party beneficiaries of this Plan for purposes of
enforcing the terms of this Section 7.5.
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7.6 Binding Effect. This Plan shall be binding upon and inure to the benefit of the Company,
its successors and assigns, and the Participants, and their heirs, assigns, and personal representatives.
7.7 Construction of Plan. The captions used in this Plan are for convenience only and shall
not be construed in interpreting the Plan. Whenever the context so requires, the masculine shall include
the feminine and neuter, and the singular shall also include the plural, and conversely.
7.8 Integrated Plan. This Plan constitutes the final and complete expression of agreement
with respect to the subject matter hereof.
7.9 Tax Requirements. The Company (and, where applicable, its Subsidiaries) shall have the
power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy applicable taxes required by law to be withheld with respect to any payment of any
Incentive Compensation to a Participant.
7.10 Accounting of Compensation. Unless otherwise specifically provided in such benefit
plan, any amounts paid to a Participant hereunder shall not be treated as compensation paid to such
Participant for the purposes of any other benefit plan.
7.11 Adjustments. In the event of (a) any merger, reorganization, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights,
offering, extraordinary dividend (including a spin-off), or other similar change affecting the Company’s
common stock; (b) any purchase, acquisition, sale, or disposition of a significant amount of assets other
than in the ordinary course of business, or of a significant business; (c) any change resulting from the
accounting effects of discontinued operations, extraordinary income or loss, changes in accounting as
determined under generally accepted accounting principles, or restatement of earnings; or (d) any charge
or credit resulting from an item which is classified as “non-recurring,” “restructuring,” or similar unusual
item on the Company’s audited financial statements which, in the case of (a) – (d), results in a change in
the components of the calculations of any of the criteria upon which the Performance Goals are based, as
established by the Committee, in each case with respect to the Company or any other entity whose
performance is relevant to the achievement of any Performance Goal included in an Award, the
Committee shall, without the consent of any affected Participant, amend or modify the terms of any
outstanding Award that includes any Performance Goal based in whole or in part on the financial
performance of the Company (or any Subsidiary or division thereof) or such other entity so as equitably
to reflect such event or events, such that the criteria for evaluating such financial performance of the
Company or such other entity (and the achievement of the corresponding Performance Goal) will be
substantially the same (as determined by the Committee or the committee of the board of directors of the
surviving corporation) following such event as prior to such event; provided, however, that the
Committee shall not take any action pursuant to this Section which would constitute an impermissible
exercise of discretion pursuant to Section 162(m) of the Code.
Article VIII
Amendment or Discontinuance
The Committee may at any time and from time to time, without the consent of the Participants,
alter, amend, revise, suspend, or discontinue the Plan in whole or in part; provided that any amendment
that modifies any pre-established Performance Goal for a Participant who is a Covered Employee (or his
successor(s), as may be applicable) under this Plan with respect to any particular Performance Period may
only be effected on or prior to that date which is ninety (90) days following the commencement of such
Performance Period (and in the case of a Performance Period less than a Fiscal Year, such determination
shall be made no later than the date that 25% of the Performance Period has elapsed). In addition, the
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Board shall have the power to discontinue the Plan in whole or in part and amend the Plan in any manner
advisable in order for Incentive Compensation granted under the Plan to qualify as “performance-based”
compensation under Section 162(m) of the Code (including amendments as a result of changes to Section
162(m) of the Code or the regulations thereunder to permit greater flexibility with respect to Incentive
Compensation granted under the Plan).
Article IX
Effect of the Plan
Neither the adoption of this Plan nor any action of the Board or the Committee shall be deemed to
give any Participant any right to be granted Incentive Compensation or any other rights. In addition,
nothing contained in this Plan and no action taken pursuant to its provisions shall be construed to (a) give
any Participant any right to any compensation, except as expressly provided herein; (b) be evidence of
any agreement, contract or understanding, express or implied, that the Company or any Subsidiary will
employ a Participant in any particular position; (c) give any Participant any right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in meeting its obligations
hereunder; or (d) create a trust of any kind or a fiduciary relationship between the Company and a
Participant or any other person.
Article X
Section 409A of the Code
This Plan is intended to be exempt from Section 409A of the Code and shall be interpreted in a
manner consistent with Section 409A of the Code and the treasury regulations and guidance issued
thereunder. If an Award is subject to Section 409A, to the extent (i) any payment for such Award to
which a Participant becomes entitled under this Plan in connection with the Participant’s termination of
service with the Company (for reasons other than death) constitutes a payment of deferred compensation
subject to Section 409A of the Code, and (ii) the Participant is deemed at the time of such termination to
be a “specified employee” under Section 409A of the Code to whom the following provisions must apply,
then such payment shall not be made or commence until the earliest of (A) the expiration of the six (6)
month period measured from the date of Participant’s termination of service with the Company; or (B) the
date of the Participant’s death following such termination of service. Upon the expiration of the
applicable deferral period, any payment which would have otherwise been made during that period in the
absence of this Article X shall be made to the Participant or the Participant’s beneficiary.
Article XI
Term
The effective date of this Plan shall be as of January 1, 2017, subject to stockholder approval.
The material terms of this Plan shall be disclosed and submitted to the stockholders of the Company at the
next annual meeting of stockholders and thereafter every five (5) years (unless earlier terminated) for
approval in accordance with the requirements of Section 162(m) of the Code. This Plan and any benefits
granted hereunder shall be null and void if stockholder approval is not obtained at the applicable meeting
of stockholders of the Company, and no award or payment of Incentive Compensation under this Plan to
any Covered Employee shall be made unless such applicable stockholder approval is obtained. This Plan
shall remain in effect until it is terminated by the Committee or the Board.
* * * * *
