Attached files
file | filename |
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10-K - FORM 10-K - BOB EVANS FARMS INC | l40075e10vk.htm |
EX-21 - EX-21 - BOB EVANS FARMS INC | l40075exv21.htm |
EX-23 - EX-23 - BOB EVANS FARMS INC | l40075exv23.htm |
EX-24 - EX-24 - BOB EVANS FARMS INC | l40075exv24.htm |
EX-3.1 - EX-3.1 - BOB EVANS FARMS INC | l40075exv3w1.htm |
EX-31.2 - EX-31.2 - BOB EVANS FARMS INC | l40075exv31w2.htm |
EX-10.5 - EX-10.5 - BOB EVANS FARMS INC | l40075exv10w5.htm |
EX-32.1 - EX-32.1 - BOB EVANS FARMS INC | l40075exv32w1.htm |
EX-10.3 - EX-10.3 - BOB EVANS FARMS INC | l40075exv10w3.htm |
EX-31.1 - EX-31.1 - BOB EVANS FARMS INC | l40075exv31w1.htm |
EX-32.2 - EX-32.2 - BOB EVANS FARMS INC | l40075exv32w2.htm |
EX-10.31 - EX-10.31 - BOB EVANS FARMS INC | l40075exv10w31.htm |
EX-10.32 - EX-10.32 - BOB EVANS FARMS INC | l40075exv10w32.htm |
EX-10.23 - EX-10.23 - BOB EVANS FARMS INC | l40075exv10w23.htm |
EX-10.25 - EX-10.25 - BOB EVANS FARMS INC | l40075exv10w25.htm |
EX-10.24 - EX-10.24 - BOB EVANS FARMS INC | l40075exv10w24.htm |
Exhibit 10.36
BOB EVANS FARMS, INC.
2002 INCENTIVE GROWTH PLAN
SECTION 1.00 PURPOSE
This Plan is intended to foster and promote the Companys long-term financial success and to
increase stockholder value by [1] providing Participants an opportunity to earn incentive
compensation if specified objectives are met and [2] enabling the Company to attract and retain the
services of outstanding persons upon whose judgment, interest and dedication the successful conduct
of the Companys business is largely dependent.
SECTION 2.00 DEFINITIONS
When used in this Plan, the following terms will have the meanings given to them in this section
unless another meaning is expressly provided elsewhere in this document. When applying these
definitions, the form of any term or word will include any of its other forms.
ACT. The Securities Exchange Act of 1934, as amended.
BOARD. The Companys Board of Directors.
CAUSE.
[1] With respect to a Participant who is a party to a Change in Control Agreement, Cause as
defined in (and subject to the terms of) that Participants Change in Control Agreement; or
[2] With respect to all Participants, a Participants [a] willful and continued refusal to
substantially perform assigned duties (other than any refusal resulting from incapacity due to
physical or mental illness), [b] willful engagement in gross misconduct materially and demonstrably
injurious to the Company or any Related Entity or [c] breach of any material agreement between the
Participant and the Company or any Related Entity. However, [d] Cause will not arise [i] solely
because the Participant is absent from active employment during periods of vacation, consistent
with the Companys applicable vacation policy, or other period of absence initiated by the
Participant and approved by the Employer or [ii] due to any event that constitutes Good Reason.
CODE. The Internal Revenue Code of 1986, as amended.
CHANGE IN CONTROL.
[1] With respect to a Participant who is a party to a Change in Control Agreement, a change
in control as defined in (and subject to the terms of) that Participants Change in Control
Agreement; or
[2] With respect to all Participants, approval by the Companys stockholders of a definitive
agreement [a] to merge or consolidate the Company with or into another corporation in which the
Company is not the continuing or surviving corporation or pursuant to which any Common Shares would
be converted into cash, securities or other property of another corporation, other than a merger of
the Company in which holders of Common Shares immediately before the merger have the same
proportionate ownership of shares of the surviving corporation immediately after the merger as
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immediately before or [b] within a 12-consecutive calendar month period, to sell or otherwise
dispose of 50 percent or more of the book value of the combined assets of the Company and all
Subsidiaries.
[3] For purposes of this definition, book value will be established on the basis of the
latest consolidated financial statement the Company filed with the Securities and Exchange
Commission before the date any 12-consecutive calendar month measurement period began.
CHANGE IN CONTROL AGREEMENT. Any individual agreement between the Company and a Participant
describing the effect of a Change in Control on that Participant.
COMMITTEE. The Boards Compensation Committee.
COMMON SHARES. The Companys shares of common stock or any security issued in
substitution, exchange or in place of the Companys common stock.
COMPANY. Bob Evans Farms, Inc., a Delaware corporation, and any successor to it.
DISABILITY.
[1] With respect to a Participant who is a party to a Change in Control Agreement, a
disability as defined in (and subject to the terms of) the Participants Change in Control
Agreement, if any; or
[2] With respect all Participants, a Participants inability due to illness accident or
otherwise to perform his duties for the period of time during which benefits are payable to the
Participant under the Companys Short-Term Disability Plan, as determined by an independent
physician selected by the Committee and reasonably acceptable to the Participant (or to his or her
legal representative), provided that the Participant does not return to work on a substantially
full-time basis within 30 days after the Company notifies the Participant that his employment is
being terminated because of his or her Disability.
GOOD REASON.
[1] With respect to a Participant who is a party to a Change in Control Agreement, Good
Reason as defined in (and subject to the terms of) the Participants Change in Control Agreement;
or
[2] With respect to all Participants, any of the following to which the Participant has not
consented in writing and which has not been cured by the Company (or accepted by the Participant)
within 30 days after the Participant notifies the Company, in writing, that he or she believes Good
Reason has arisen:
[a] Any material breach of this Plan of any nature whatsoever by or in behalf of the
Company or any Related Entity;
[b] A reduction in the Participants title, duties, responsibilities or status, as
compared to either [i] the Participants title, duties, responsibilities or status
immediately before the date he or she becomes a Participant or [ii] any enhanced or
increased title, duties, responsibilities or status to which the Participant accedes after
becoming a Participant;
[c] The assignment to a Participant of duties that are inconsistent with [i] the
Participants office immediately before the date he or she became a Participant or [ii] any
more senior office to which the Participant is promoted after becoming a Participant;
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[d] During any calendar year ending after the date the Participant becomes a
Participant, a 10 percent (or larger) reduction (other than a reduction attributable to any
termination of employment for death, Disability or Cause or for any period the Participant
is temporarily absent from active employment) in the highest of [i] the Participants total
cash compensation for the preceding calendar year or, if higher, [i] the Participants total
cash compensation for the preceding calendar year but [ii] in both cases, determined without
regard to any amounts described in this Plan;
[e] A requirement that a Participant relocate to a principal office or worksite (or
accept indefinite assignment) to a location more than 50 miles distant from [i] the
principal office or worksite to which the Participant was assigned immediately before the
relocation or [ii] any location to which the Participant agreed to be assigned;
[f] The imposition on a Participant of business travel obligations substantially
greater than the Participants business travel obligations during the preceding 12
consecutive calendar months; or
[g] [i] failure to continue in effect any material fringe benefit or compensation plan,
retirement or deferred compensation plan, life insurance plan, health and accident plan or
disability plan in which the Participant participated; [ii] modification of any of the plans
or programs just described that adversely affects the value of the Participants benefits
under those plans; or [iii] failure to provide the Participant with the same number of paid
vacation days to which the Participant was entitled for the immediately preceding calendar
year under the terms of the Employers vacation policy or program. However, Good Reason will
not arise under this subsection solely because [iv] the Company terminates or modifies any
program solely to comply with applicable law but only to the extent of the change required
or [v] a plan or benefit program expires under self-executing terms contained in that plan
or benefit program.
OFFICER. Those employees whose compensation is subject to limitation under Code Section 162(m) as
of the last day of any calendar year ending with or within any Performance Cycle.
PARTICIPATION AGREEMENT. The form that the Committee and each Participant must complete within the
period described in Section 3.02.
PARTICIPANT. Any Officer designated as a Participant under Section 3.01 who has returned a
completed Participation Agreement to the Committee within the period described in Section 3.02.
PERFORMANCE CRITERIA. The criteria established by the Committee as of the beginning of each
Performance Cycle and applied at the end of the same Performance Cycle to determine the portion (if
any) of the Target Bonus payable under this Plan to any Participant.
PERFORMANCE CYCLE. The period over which the Committee will apply the Performance Criteria to
establish the portion (if any) of the Target Bonus payable under this Plan to each Participant.
PLAN. The Bob Evans Farms, Inc. 2002 Incentive Growth Plan.
RELATED ENTITY.
[1] an entity related to the Company by application of Code Sections 414(b) and (c), as
modified by Code Section 415(h) or
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[2] an affiliated service group [as defined in Code Section 414(m)] or other organization
described in Code Section 414(o) that includes the Company.
RETIREMENT.
[1] With respect to a Participant who is a party to a Change in
Control Agreement, Retirement as defined in (and subject to the terms of) that Participants
Change in Control Agreement; or
[2] With respect to all Participants, termination of a Participants employment at or after
age 55.
SUBSIDIARY. Any corporation, partnership or limited liability company in which the Company owns,
directly or indirectly, 50 percent or more of the total combined voting power of all classes of
stock of that corporation or of the capital or profits interest of a partnership or limited
liability company.
TARGET BONUS. The cash amount that a Participant will receive if he or she fully meets the
Performance Criteria established under Section 4.01 as of the beginning of the Performance Cycle.
As determined by the Committee, the bonus paid may be larger or smaller than the Target Bonus to
the extent that Performance Criteria are exceeded or are partially, but not fully, met during a
Performance Cycle. However, no Participant may receive a distribution under this Plan for any
Performance Cycle that is larger than $2,000,000.
SECTION 3.00 PARTICIPATION
1.1 DESIGNATION OF PARTICIPANTS. Subject to Section 3.02, all Officers may participate in this
Plan. The Committee will send each Participant a Participation Agreement specifying [1] the
conditions that must be met if he or she is to receive a bonus at the end of the Performance Cycle
and [2] the basis on which that amount will be calculated.
1.2 CONDITIONS OF PARTICIPATION. An Officer may become a Participant for any Performance Cycle only
if he or she:
[1] Before the beginning of a Performance Cycle, is designated by the Committee as a
Participant for that Performance Cycle; and
[2] Returns to the Committee a signed Participation Agreement within 60 days after receiving
that form from the Committee.
SECTION 4.00 ADMINISTRATION
1.1 PERFORMANCE CRITERIA.
[1] For each Performance Cycle, the Committee will [a] establish each Participants Target
Bonus and the extent to which a bonus will be paid if established Performance Criteria are exceeded
or are partially, but not fully, met, [b] develop the Performance Criteria that will be applied to
determine the portion of the Target Bonus that will be paid at the end of the Performance Cycle and
[c] establish the Performance Cycle over which Performance Criteria will be measured.
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[2] In establishing each Participants Performance Criteria, the Committee will consider the
relevance of each Participants assigned duties and responsibilities to factors that preserve and
increase the Companys value. These factors will include:
[a] Gross revenues, either throughout the Company or within any specified division or
geographic area;
[b] Net income, either throughout the Company or within any specified division or
geographic area;
[c] Gross sales, either throughout the Company or within any specified division or
geographic area;
[d] Earnings per Common Share;
[e] New products and lines of revenue;
[f] Customer satisfaction, either throughout the Company or within any specified
division or geographic area;
[g] Market share;
[h] Developing and managing relationships with regulatory and other governmental
agencies;
[i] Managing claims against the Company or any of its Subsidiaries, including
litigation;
[j] The Companys book value or the book value of any designated Subsidiary or
division;
[k] The trading value of the Common Shares;
[l] Completion of assigned corporate transactions, such as mergers, acquisitions or
divestitures; and
[m] Controlling expenses.
[3] The Committee will make appropriate adjustments to reflect:
[a] The effect on any Performance Criteria of any Common Shares dividend or Common
Shares split, recapitalization (including, without limitation, the payment of an
extraordinary dividend), merger, consolidation, combination, spin-off, distribution of
assets to stockholders, exchange of shares or similar corporate change. This adjustment to
the Performance Criteria will be made [i] to the extent the Performance Criteria is based on
Common Shares, [ii] as of the effective date of the event and [iii] for the Performance
Cycle in which the event occurs. Also, the Committee will make a similar adjustment to any
portion of a Performance Criteria that is not based on Common Shares but which is affected
by an event having an effect similar to those just described.
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[b] A substantive change in a Participants job description or assigned duties and
responsibilities.
[4] Performance Criteria will be established and communicated to each affected Participant in
a Participation Agreement no later than the earlier of:
[a] 90 days after the beginning of the applicable Performance Cycle; or
[b] The expiration of 25 percent of the applicable Performance Cycle.
1.2 CERTIFICATION. As of the end of each Performance Cycle, the Committee will certify to the Board
the extent to which each Participant has or has not met his or her Performance Criteria and the
portion (if any) of the Target Bonus that is to be paid to each Participant.
1.3 ADMINISTRATION. The Committee is responsible for administering the Plan. In addition to the
duties described elsewhere in this Plan, the Committee, by majority action, may [1] prescribe,
amend and rescind rules and regulations relating to the Plan; [2] provide for conditions deemed
necessary or advisable to protect the interests of the Company; and [3] interpret the Plan and
supply any missing terms needed to administer the Plan. Determinations, interpretations or other
actions made or taken by the Committee under the provisions of this document will be final, binding
and conclusive for all purposes and upon all persons.
SECTION 5.00 EFFECT OF TERMINATION OF EMPLOYMENT DURING PERFORMANCE CYCLE; CHANGE IN CONTROL
1.1 EFFECT OF TERMINATION OF EMPLOYMENT DURING PERFORMANCE CYCLE FOR REASONS OTHER THAN RETIREMENT,
DEATH, DISABILITY, GOOD REASON OR WITHOUT CAUSE. Except as provided in Sections 5.02 and 5.03 and
under any Participants Change in Control Agreement, a Participant who terminates employment before
the end of a Performance Cycle will forfeit all right to receive any amount under this Plan.
However, in all cases a terminated Participant will receive any amounts earned during any
Performance Cycle that ended before his or her termination (e.g., if the Committee has not then
valued or distributed amounts earned during a Performance Cycle that ended before the Participant
terminated).
1.2 EFFECT OF RETIREMENT, DEATH, DISABILITY, TERMINATION FOR GOOD REASON OR TERMINATION WITHOUT
CAUSE DURING PERFORMANCE CYCLE. Except as provided in a Participants Change in Control Agreement,
a Participant who Retires, dies or becomes Disabled during a Performance Cycle or is terminated by
the Company without Cause or terminates employment voluntarily for Good Reason will receive a
prorated distribution at the end of the Performance Cycle during which he or she Retired, died,
became Disabled, is terminated without Cause or terminates for Good Reason. The amount of this
distribution will be calculated at the end of the Performance Cycle by applying the following
procedure:
[1] As of the end of the Performance Cycle during which the affected Participant Retired,
died, became Disabled is terminated without Cause or terminates for Good Reason, the Committee will
apply the Performance Criteria to measure the portion of the Target Bonus to be distributed. This
calculation will be made in the manner described in Section 4.02 and will be made as if the
Retired, deceased, Disabled or terminated Participant had remained actively employed throughout the
Performance Cycle.
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[2] The Committee then will multiply the amount produced under Section 5.02[1] by a fraction,
the numerator of which is the number of whole calendar months during which the Retired, deceased,
Disabled or terminated Participant was actively employed during the Performance Cycle and the
denominator of which is the number of whole calendar months in the Performance Cycle.
[3] Then, the Committee will direct the Company to distribute the amount calculated in the
form and at the time described in Section 6.00 to, as appropriate, the Retired, Disabled or
terminated Participant or to the beneficiary of the deceased Participant.
1.3 CHANGE IN CONTROL. Subject to the terms of any Change in Control Agreement, if, within 36
months after a Change in Control:
[1] With respect to all Participants, the Plan is terminated and not replaced with a similar
program providing comparable benefits and features; or
[2] With respect to a Participant who is a party to a Change in Control Agreement, an event
occurs that generates a change in control payment under that Participants Change in Control
Agreement, within 30 days after an event described in Section 5.03[1] or [2], the Company will distribute to
each affected Participant their Target Bonus for the year in which the Change in Control occurs.
This distribution will be made whether or not the Performance Criteria for that period have been
met and whether or not the pending Performance Cycle has been completed.
1.4 EFFECT OF CODE SECTION 280G. Subject to a Participants Change in Control Agreement, if the sum
of the payments described in this section and those provided under all other plans, programs or
agreements between the Participant and the Company or any Subsidiary constitutes an excess
parachute payment as defined in Code Section 280G(b)(1), the Company will either:
[1] Reimburse the Participant for the amount of any excise tax due under Code Section 4999
(but not for any income taxes or additional excise taxes associated with this initial payment), if
this procedure provides the affected Participant with an after-tax amount that is larger than the
after-tax amount produced under Section 5.04[2]; or
[2] Reduce the amounts paid to the Participant under this Plan so that his or her total
parachute payment as defined in Code Section 280G(b)(2)(A) under this and all other plans,
programs or agreements between the Participant and the Company or Subsidiary will be $1.00 less
than the amount that would be an excess parachute payment, if this procedure provides the
Participant with an after-tax amount that is larger than the after-tax amount produced under
Section 5.04[1].
SECTION 6.00 FORM AND TIME OF DISTRIBUTION
1.1 DISTRIBUTION. Subject to Sections 6.02 and 8.04, the amount determined by applying the
procedures described in Sections 4.00 and 5.00 will be distributed in a single lump sum cash
payment no later than 90 days after the end of the applicable Performance Cycle.
1.2 DEFERRAL OF DISTRIBUTION. Each Participant may direct the Company to defer all or any portion
of his or her Plan distribution by electing to have that amount [1] credited to his or her account
under any nonqualified deferred compensation plan [as defined in Section 201(2) of the Employee
Retirement Income Security Act of 1974, as amended] maintained by the Company and designated by the
Committee or any successor plan and [2] distributed under theterms of that plan. This election must
be
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made in the Participation Agreement that relates to the Performance Cycle during which the deferred
amount may be earned. Once filed, this election will be irrevocable.
SECTION 7.00 AMENDMENT, MODIFICATION AND TERMINATION OF PLAN
The Board or the Committee may terminate, suspend or amend the Plan at any time without stockholder
approval except to the extent prohibited under the terms of the Participants Change in Control
Agreement or to the extent that stockholder approval is required to satisfy applicable requirements
imposed by [1] applicable requirements of the Code or [2] any securities exchange on which the
Companys securities are listed. Also, no Plan amendment may, without the consent of the affected
Participant, adversely affect his or her ability to earn any Target Bonus for which Performance
Criteria were established before the amendment, modification or termination of the Plan.
SECTION 8.00 MISCELLANEOUS PROVISIONS
1.1 ASSIGNABILITY. Except as provided in Section 8.02, no Participant may transfer, alienate,
pledge, hypothecate, transfer or otherwise assign his or her rights to receive a distribution under
the Plan to any other person and any attempt to do so will be void.
1.2 BENEFICIARY DESIGNATION. Each Participant may from time to time name any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any amount under the Plan
will be paid as provided in Section 5.00. Each designation must be made on a form acceptable to the
Committee and will be effective only after it is delivered to the Committee. In the absence of any
beneficiary designation, amounts remaining unpaid at the Participants death will be paid to the
deceased Participants surviving spouse, if any, or otherwise to his or her estate. The Participant
(and his or her beneficiary) and not the Company or the Committee is responsible for keeping the
Committee apprised of the beneficiarys address. Also, neither the Company nor the Committee is
required to search for any beneficiary beyond sending a registered letter to the beneficiary at the
latest address given to it by the Participant or beneficiary. Any amount otherwise payable to a
beneficiary whom the Committee cannot locate at this address will be forfeited. However, if, within
one year of the Participants death, the beneficiary files a claim and establishes that he or she is the deceased Participants beneficiary,
the Committee will direct the Company to pay (and the Company will pay) any amount that was payable
at the death of the Participant. However, no amount will be paid representing the time value of the
delayed distribution. If this claim is not filed within one year of the Participants death, the
amount will be forfeited irrevocably.
1.3 NO GUARANTEE OF EMPLOYMENT OR PARTICIPATION. Nothing in the Plan will interfere with or limit
in any way the right of the Company or any Subsidiary to terminate any Participants employment at
any time, nor confer upon any Participant any right to continue in the employ of the Company or any
Subsidiary. Also, [1] receipt of a Target Bonus for any Performance Cycle is no guarantee that a
Participant will receive a similar (or any) Target Bonus for any subsequent Performance Cycle and
[2] establishment of Performance Criteria for any Performance Cycle is no guarantee that identical
or similar criteria will be established for any subsequent Performance Cycle.
1.4 TAX WITHHOLDING. Before distributing any amount under the Plan, the Company will withhold an
amount sufficient to satisfy federal, state and local income and employment tax withholding
requirements imposed on the amount of any distribution under the Plan.
1.5 INDEMNIFICATION. Each person who is or has been a member of the Committee or of the Board will
be indemnified and held harmless by the Company against and from any loss, cost, liability or
expense that may be imposed upon or reasonably incurred by him or her in connection with or
resulting
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from any claim, action, suit or proceeding to which he or she may be made a party or in which he or
she may be involved by reason of any action taken or failure to act under the Plan and against and
from any and all amounts paid by him or her in settlement thereof, with the Companys approval, or
paid by him or her in satisfaction of any judgment in any such action, suit or proceeding against
him or her, provided he or she gives the Company an opportunity, at its own expense, to handle and
defend the same before he or she undertakes to handle and defend it on his or her own behalf. The
foregoing right of indemnification is not exclusive and is independent of any other rights of
indemnification to which such persons may be entitled under the Companys Code of Regulations, by
contract, as a matter of law or otherwise.
1.6 NO LIMITATION ON COMPENSATION. Nothing in the Plan is to be construed to limit the right of the
Company to establish other plans or to pay compensation to its employees, in cash or property, in a
manner not expressly authorized under this document.
1.7 GOVERNING LAW. The Plan, and all agreements under it, will be construed in accordance with and
governed by the laws of the State of Ohio.
1.8 RESOLUTION OF DISPUTES.
[1] Any controversy of claim arising out of, or relating to, this Plan (other than those
arising under Section 5.00 with respect to a Participant who is a party to a Change in Control
Agreement when the controversy or claim arises) will be settled by arbitration in the city in which
the Participants principal place of employment with the Company is located or another place the
Participant and the Company mutually select immediately before the arbitration. The arbitration
will be conducted in accordance with the Rules of the American Arbitration Association, and
judgement on the award rendered by the arbitrator or arbitrators may be entered in any court of
competent jurisdiction.
[2] If the Company refuses or otherwise fails to make a payment when due and it is ultimately
decided that the Participant is entitled to that payment, the payment will be increased to reflect
an interest equivalent for the period of delay, calculated at the prime rate quoted in the Wall
Street Journal and in effect as of the date the payment was first due.
[3] The costs of arbitration will be borne solely by the person by which they are incurred.
[4] Any controversy or claim arising out of, or relating to, any matter within Section 5.03
will:
[a] With respect to a Participant who is a party to a Change in Control Agreement when
the controversy or claim arose, be resolved under the terms of the Participants Change in
Control Agreement; or
[b] With respect to a Participant who is not a party to a Change in Control Agreement
when the controversy or claim arose, will be resolved as otherwise provided in this section.
1.9 TERM OF PLAN. The Plan will be effective upon its adoption by the Committee, subject to
approval by the Board and approval by the affirmative vote of the holders of a majority of the
shares of voting stock present in person or represented by proxy at the first annual meeting of
stockholders occurring after the Board approves the Plan.
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1.10 RELATIONSHIP TO CHANGE IN CONTROL AGREEMENT. Regardless of any implication to the contrary,
the Company intends that:
[1] Any Target Bonus paid or payable through this Plan will be a bonus for purposes of any
Participants Change in Control Agreement;
[2] If any term, condition or feature of this Plan relates to an item that also is dealt with
in the Participants Change in Control Agreement, [a] the terms of the Change in Control Agreement
will apply if those terms provide the Participant a larger benefit than otherwise would have been
generated under the terms of the Plan, without regard to this section or [b] the terms of this Plan
(other than Section 5.04) will apply if those terms provide the Participant a larger benefit than
would have been generated under the terms of the Change in Control Agreement; and
[3] Any Target Benefit that is payable subject to a Participants Change in Control Agreement
as described in Section 5.03 will be deemed to have been paid through and subject to the
Participants Change in Control Agreement.
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