Attached files
| file | filename |
|---|---|
| 8-K - RE STOCK BONUS - DELTA NATURAL GAS CO INC | form8kaugust202010.htm |
| EX-10.3 - AWARD OF STOCK BONUS - DELTA NATURAL GAS CO INC | brownnotice.htm |
| EX-10.6 - AWARD OF STOCK BONUS - DELTA NATURAL GAS CO INC | ramseynotice.htm |
| EX-10.4 - AWARD OF STOCK BONUS - DELTA NATURAL GAS CO INC | caudillnotice.htm |
| EX-10.5 - AWARD OF STOCK BONUS - DELTA NATURAL GAS CO INC | jenningsnotice.htm |
| EX-10.1 - RE STOCK BONUS - DELTA NATURAL GAS CO INC | prospectussummary.htm |
Exhibit
10.2
Delta
Natural Gas Company, Inc.
Notice
of Stock Bonus Award
|
Name
of Stock Recipient:
|
_______________________________
|
|
No.
of Shares:
|
_______________________________
|
|
Grant
Date:
|
_______________________________
|
******************************************************************************
This is a Notice of Stock Bonus Award
(the “Notice”)
from Delta Natural Gas Company, Inc., a Kentucky corporation (the “Company”), to the
recipient identified above (the “Recipient”) effective
as of the Grant Date specified above.
Background
A. The
Company maintains the Delta Natural Gas Company, Inc. Incentive Compensation
Plan (the “Plan”).
B. Under
the Plan, the Corporate Governance and Compensation Committee of the Board of
Directors of the Company or such other committee appointed by the Board
(collectively, the “Plan Administrator”)
administers the Plan and has the authority to determine the awards to be granted
under the Plan.
C. The
Plan Administrator has determined that the Recipient is eligible to receive an
award under the Plan in the form of common stock of the Company.
D. The
Company hereby grants such common stock to the Recipient under the terms and
conditions that follow.
Terms and Conditions1
1. Grant of Stock
Bonus. The Company hereby grants to the Recipient the number
of shares of common stock of the Company specified in the table at the beginning
of this Notice on the terms and conditions set forth in this Notice and as
otherwise provided in the Plan (the “Stock
Bonus”). The Plan is attached as Exhibit
A.
2. Payment of Stock
Bonus. Your Stock Bonus will be paid as soon as
administratively feasible after the Grant Date, but no later September 13, 2010
(the seventy fifth day following the end of the fiscal year). Payment will be
made in the form of whole shares of Company common stock in a lump sum payment.
If your employment or your term as an Outside Director is terminated due to
Disability, Retirement or death after the award of a Stock Bonus but before the
payment of the shares of common stock, you or your respective beneficiaries, as
applicable, shall receive payment of the shares of common stock within the time
period referenced herein. If your employment or your term as an Outside Director
is terminated for any other reason after the award of a Stock Bonus but before
the payment of the shares of common stock, the payment shall be
forfeited.
3. Definitions. The
following terms used in this Notice will have the meanings
indicated:
(a) “Disability” shall
mean (a) the mental or physical disability of the Recipient defined as
“Disability” under the terms of the long-term disability plan sponsored by the
Company and in which the Recipient is covered, as amended from time to time in
accordance with the provisions of such plan; or (b) a determination by the
Plan Administrator, in its sole discretion, of total disability (based on
medical evidence) that precludes the Recipient from engaging in their full-time
position at the Company for wage or profit for at least twelve months and
appears to be permanent. All decisions by the Plan Administrator relating to a
Recipient’s Disability (including a decision that a Recipient is not disabled),
shall be final and binding on all parties.
(b) “Outside Director”
shall mean a director of the Company who is not employed by the Company or one
of its subsidiaries in a customary employer-employee relationship and designated
as such in accordance with the Company’s standard employment
practices.
(c) “Retirement” shall
mean the termination of employment for a Recipient consistent with the
provisions for early or normal retirement under the defined benefit pension plan
sponsored by the Company. Notwithstanding the foregoing, “Retirement”
before the Recipient is eligible for normal retirement under such plan shall
require prior approval by the Plan Administrator. With respect to a Recipient
who is an Outside Director, “Retirement” shall mean the end of the director’s
term of office upon attaining the mandatory retirement age for
directors.
DELTA NATURAL GAS COMPANY,
INC.
By: ________________________________Its: ________________________________
005522.135297/3910752.1
1 Any
capitalized term used in this Notice shall have the meaning set forth in this
Notice (including in the table at the beginning of this Notice) or, if not
defined in this Notice, the meaning set forth in the Plan as it currently exists
or as it is amended in the future.
Exhibit
A
DELTA
NATURAL GAS COMPANY, INC.
INCENTIVE
COMPENSATION PLAN
Effective
January 1, 2010
TABLE
OF CONTENTS
|
ARTICLE
I
|
PURPOSE
|
||
|
1.1
|
Purpose
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
|
1
|
|
|
ARTICLE
II
|
DEFINITIONS
|
||
|
2.1
|
“Agreement”
or “Award Agreement”. . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .
|
1
|
|
|
2.2
|
“Award".
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .
|
1
|
|
|
2.3
|
“Award
Date” or “Grant Date” . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
1
|
|
|
2.4
|
“Board”
or “Board of Directors” . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
1
|
|
|
2.5
|
“Change
in Control” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
1
|
|
|
2.6
|
“Code”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
|
1
|
|
|
2.7
|
“Committee”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
1
|
|
|
2.8
|
“Common
Stock” or “Stock” . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .
|
1
|
|
|
2.9
|
“Company”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
1
|
|
|
2.10
|
“Covered
Participant”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
1
|
|
|
2.11
|
“Designated
Beneficiary” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .
|
2
|
|
|
2.12
|
“Disability”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
2
|
|
|
2.13
|
“Effective
Date” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
2
|
|
|
2.14
|
“Eligible
Employee” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
2
|
|
|
2.15
|
“Employee”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
2
|
|
|
2.16
|
“Exchange
Act”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
2
|
|
|
2.17
|
“Fair
Market Value” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
2
|
|
|
2.18
|
“Outside
Director” . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .
|
2
|
|
|
2.19
|
“Participant”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
2
|
|
|
2.20
|
“Participating
Company” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . .
|
2
|
|
|
2.21
|
“Performance
Award”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .
|
2
|
|
|
2.22
|
“Performance
Criteria” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
2
|
|
|
2.23
|
“Performance
Period” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
3
|
|
|
2.24
|
“Performance
Share”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
3
|
|
|
2.25
|
“Person”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .
|
3
|
|
|
2.26
|
“Plan” .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
|
3
|
|
|
2.27
|
“Restricted
Stock” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
3
|
|
|
2.28
|
“Restricted
Period” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
3
|
|
|
2.29
|
“Retirement”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
3
|
|
|
2.30
|
“Rule
16b-3” . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .
|
3
|
|
|
2.31
|
“Section
162(m)”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
3
|
|
|
2.32
|
“Securities
Act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
3
|
|
|
2.33
|
“Shares”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
|
3
|
|
|
2.34
|
“Stock
Bonus Award” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
3
|
|
|
2.35
|
“Subsidiary” .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
3
|
|
|
ARTICLE
III
|
ELIGIBILITY
|
||
|
3.1
|
Eligibility.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
|
3
|
|
|
ARTICLE
IV
|
SHARES
SUBJECT TO THE PLAN
|
||
|
4.1
|
Number
of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
|
4
|
|
|
4.2
|
Forfeited
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
4
|
|
|
4.3
|
Capital
Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
4
|
|
|
ARTICLE
V
|
RESTRICTED
STOCK
|
||
|
5.1
|
Grant
of Restricted Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
4
|
|
|
5.2
|
Restricted
Stock Award Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . .
|
4
|
|
|
5.3
|
Restriction
Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
4
|
|
|
5.4
|
Removal
of Restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
5
|
|
|
5.5
|
Voting
Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .
|
5
|
|
|
5.6
|
Dividends
and Other Distributions. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
|
5
|
|
|
5.7
|
Death,
Disability or Retirement . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .
|
5
|
|
|
ARTICLE
VI
|
PERFORMANCE
SHARES
|
||
|
6.1
|
Grant
of Performance Shares. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .
|
5
|
|
|
6.2
|
Performance
Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
5
|
|
|
ARTICLE
VII
|
STOCK
BONUS AWARDS
|
||
|
7.1
|
Awards
of Stock Bonus Shares . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
7
|
|
|
7.2
|
Form
and Time of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
|
7
|
|
|
ARTICLE
VIII
|
SPECIAL
PROVISIONS APPLICABLE TO COVERED PARTICIPANTS
|
||
|
8.1
|
Special
Provisions Applicable to Covered Participants. . . . . . . . . . . . . . .
. .
|
8
|
|
|
ARTICLE
IX
|
CHANGE
IN CONTROL
|
||
|
9.1
|
Change
in Control Agreements . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
8
|
|
|
9.2
|
Change
in Control Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .
|
9
|
|
|
ARTICLE
X
|
ADMINISTRATION
|
||
|
10.1
|
The
Committee . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .
|
11
|
|
|
10.2
|
Committee
Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .
|
11
|
|
|
10.3
|
Rule
16b-3, Section 162(m) and Section 409A Requirements . . . . . . . . . .
.
|
11
|
|
|
ARTICLE
XI
|
GENERAL
PROVISIONS
|
||
|
11.1
|
Withholding
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
11
|
|
|
11.2
|
Terms
of Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
|
11
|
|
|
11.3
|
Guidelines
Applicable to All Awards . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . .
|
12
|
|
|
11.4
|
Non-transferability.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
|
12
|
|
|
11.5
|
No
Right to Employment. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
|
12
|
|
|
11.6
|
Rights
as Shareholder . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
|
12
|
|
|
11.7
|
Construction
of the Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
|
12
|
|
|
11.8
|
Amendment
of Plan or Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
|
12
|
|
|
11.9
|
Exemption
from Computation of Compensation for Other Purposes . . . . .
.
|
12
|
|
|
11.10
|
Legend
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .
|
13
|
|
|
11.11
|
Special
Provisions for Certain participants . . . . . . . . . . . . . . . . . . .
. . . . . . .
|
13
|
|
|
11.12
|
Unfunded
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
13
|
|
|
11.13
|
Conflict
with Employment Agreement . . . . . . . . . . . . . . . . . . . . . . . .
. . . . .
|
13
|
|
|
11.14
|
Gender
and Number . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .
|
13
|
|
|
11.15
|
Severability
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
13
|
|
|
11.16
|
Effect
of Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .
|
13
|
|
|
11.17
|
No
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
|
13
|
DELTA
NATURAL GAS COMPANY, INC.
INCENTIVE
COMPENSATION PLAN
Effective
January 1, 2010
As
Approved by the Shareholders on November 19, 2009
ARTICLE
I
PURPOSE
1.1 Purpose. Delta Natural Gas Company,
Inc. (“Company”), a Kentucky corporation, hereby establishes the Delta Natural
Gas Company, Inc. Incentive Compensation Plan (“Delta Incentive Compensation
Plan”) to promote the interests of the Company and its shareholders through
(a) the attraction and retention of Participants essential to the success
of the Company; (b) the motivation of Participants using
performance-related incentives linked to performance goals and the interests of
Company shareholders; and (c) enabling such individuals to share in the
growth and success of the Company and its Subsidiaries. The Plan permits the
grant of Performance Shares, Restricted Stock, and Stock Bonus Awards
as the Committee, in its sole and complete discretion, may determine to be
appropriate in carrying out the intent and purposes of this Plan.
ARTICLE
II
DEFINITIONS
2.1 “Agreement” or “Award Agreement”
shall mean a written agreement between the Company and a Participant
implementing an Award, and setting forth the particular terms, conditions and
restrictions of the Award.
2.2 “Award” shall mean an award or
grant made to a Participant under Article V, VI or VII.
2.3 “Award Date” or “Grant Date” shall
mean the date on which an Award is made by the Committee under the
Plan.
2.4 “Board” or “Board of Directors”
shall mean the Board of Directors of the Company.
2.5 “Change in Control” shall be
defined in Section 9.2.
2.6 “Code” shall mean the Internal
Revenue Code of 1986 and the rules and regulations promulgated thereunder or any
successor law, as amended from time to time.
2.7 “Committee” shall mean the
Corporate Governance and Compensation Committee of the Board or such other
committee appointed by the Board to administer the Plan in accordance with
Article X.
2.8 “Common Stock” or “Stock” shall
mean the Common Stock of the Company without par value, or such other security
or right or instrument into which such Common Stock may be changed or converted
in the future.
2.9 “Company” shall mean Delta Natural
Gas Company, Inc., a Kentucky corporation, or any successor
thereto.
2.10 “Covered Participant” shall mean a
Participant who is a “covered employee” as defined in Code Section 162(m)
(3).
2.11 “Designated Beneficiary” shall
mean the beneficiary designated by the Participant, pursuant to procedures
established by the Committee, to receive amounts due to the Participant in the
event of the Participant’s death. If the Participant does not make an effective
designation, then the Designated Beneficiary will be deemed to be the
Participant’s estate.
2.12 “Disability” shall mean
(a) the mental or physical disability of the Participant defined as
“Disability” under the terms of the long-term disability plan sponsored by the
Company and in which the Participant is covered, as amended from time to time in
accordance with the provisions of such plan; or (b) a determination by the
Committee, in its sole discretion, of total disability (based on medical
evidence) that precludes the Participant from engaging in their full-time
position at the Company for wage or profit for at least twelve months and
appears to be permanent. All decisions by the Committee relating to a
Participant’s Disability (including a decision that a Participant is not
disabled), shall be final and binding on all parties.
2.13 “Effective Date” shall mean
January 1, 2010.
2.14 “Eligible Employee” shall mean an
Employee who is an officer or other management or highly compensated employee of
a Participating Company as designated by the Committee to be eligible to
participate in the Plan.
2.15 “Employee” shall mean an
individual who is employed by a Participating Company in a customary
employer-employee relationship and designated as such in accordance with the
Company’s standard employment practices.
2.16 “Exchange Act” shall mean the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder or any successor law, as amended from time to time.
2.17 “Fair Market Value” shall mean, on
any given date, the closing price of Common Stock as reported on the composite
tape of the primary stock exchange in which the Common Stock is listed on such
day or, if no Shares were traded on such stock exchange on such day, then on the
next preceding day that Stock was traded on such exchange, all as reported by
The Wall Street Journal or such other source as the Committee may
select.
2.18 “Outside Director” shall mean a
member of the Board who is not an Employee.
2.19 “Participant” shall mean an
Eligible Employee or Outside Director who has been selected from time to time
under Article III to receive an Award under the Plan.
2.20 “Participating Company” shall mean
the Company and such other Subsidiaries as the Board authorizes to participate
herein.
2.21 “Performance Award” shall mean a
performance-based Award made under Section 6.2, which may be in the form of
Performance Shares.
2.22 “Performance Criteria” shall mean
objectives established by the Committee for a Performance Period for the purpose
of determining when an Award subject to such objectives has been earned, and may
include alternative and multiple Performance Criteria, including operating and
maintenance expense targets, customer satisfaction, safety, and financial goals
including absolute or relative (i.e., in relation to a peer group of companies)
total shareholder return, revenues, sales, net income, EBITDA, return on assets,
earnings per share and/or growth thereof, or net worth of the Company, any of
its Subsidiaries, divisions, business units or other areas of the
Company.
2.23 “Performance Period” shall mean
the time period designated by the Committee during which Performance Criteria
must be met in order for a Participant to obtain a performance-based
award.
2.24 “Performance Share” shall mean an
Award, designated as a Performance Share, granted to a Participant pursuant to
Section 6.2, the value of which is equal to a share of Company Stock and
which is determined, in whole or in part, by the attainment of pre-established
Performance Criteria as deemed appropriate by the Committee and described in the
Agreement.
2.25 “Person” shall have the meaning
ascribed to such term in Section 3(a)(9) of the Exchange Act and used in
Sections 13(d) and 14(d) thereof, including a “group” as defined in Section
13(d) thereof.
2.26 “Plan” shall mean the Delta
Incentive Compensation Plan, as herein established and as hereafter amended from
time to time.
2.27 “Restricted Stock” shall mean an
Award of Stock to a Participant pursuant to Article V herein.
2.28 “Restriction Period” shall mean
the period during which the transfer of Shares of Restricted Stock is restricted
and is subject to a risk of forfeiture, pursuant to Article V.
2.29 “Retirement” shall mean the
termination of employment for a Participant consistent with the provisions for
early or normal retirement under the defined benefit pension plan sponsored by
the Company. Notwithstanding the foregoing, “Retirement” before the
Participant is eligible for normal retirement under such plan shall require
prior approval by the Committee. With respect to a Participant who is an Outside
Director, “Retirement” shall mean the end of the director’s term of office upon
attaining the mandatory retirement age for directors.
2.30 “Rule 16b-3” shall mean
Rule 16b-3 under Section 16(b) of the Exchange Act as adopted in Exchange
Act Release No. 34-37260 (May 30, 1996), or any successor rule as
amended from time to time.
2.31 “Section 162(m)” shall mean
Section 162(m) of the Code, or any successor section under the Code, as amended
from time to time.
2.32 “Securities Act” shall mean the
Securities Act of 1933 and the rules and regulations promulgated thereunder or
any successor law, as amended from time to time.
2.33 “Shares” shall mean shares of
Common Stock of the Company.
2.34 “Stock Bonus Award” shall mean a
bonus, in the form of Stock, under Article VII.
2.35 “Subsidiary” shall mean any entity
with respect to which Delta owns, either directly or indirectly, at least 50% of
the total combined voting power of all classes of stock or other ownership
interest.
ARTICLE
III
ELIGIBILITY
3.1 Eligibility. The Committee shall
have sole and complete discretion in determining the Eligible Employees and
Outside Directors who shall be eligible to participate in the
Plan. An Eligible Employee or Outside Director of the Company
designated by the Committee as eligible hereunder shall be considered a
Participant upon receiving an Award under the Plan.
ARTICLE
IV
SHARES
SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to
adjustment as provided for in Section 4.3 below, the maximum aggregate number of
Shares that may be issued pursuant to Awards made under the Plan shall not
exceed 500,000 Shares, which shall be in a combination of Restricted Stock,
Performance Shares and Stock Bonus Awards as described in Articles V, VI
and VII. Shares of Common Stock issued pursuant to Awards under the Plan
may be authorized but unissued Shares, Shares issued and reacquired by the
Company or Shares purchased in the open market for purposes of the Plan. Except
as provided in Sections 4.2 herein, the issuance of Shares in connection
with the exercise of, or as other payment for, Awards under the Plan shall
reduce the number of Shares available for future Awards under the
Plan.
4.2 Forfeited Shares. In the event that
shares issued pursuant to the Awards are cancelled or forfeited for any reason,
the Shares subject to such Award shall thereafter be again available for grant
of an Award under the Plan.
4.3 Capital Adjustments. In the event
of a reorganization, recapitalization, stock split, stock dividend, combination
of shares, merger, consolidation, rights offering, or any other change in the
corporate structure, capitalization or Shares of the Company, the Committee
shall make such adjustments as are appropriate in the maximum number and kind of
Shares that may be issued under the Plan and to any Participant, and in the
number and kind of Shares covered by any Awards granted before such
change. Such adjustments shall be intended to put the Participant in
the same position as he or she was in immediately before such event. Any
adjustments will comply with Code Section 409A to the extent required to avoid
penalties.
ARTICLE
V
RESTRICTED
STOCK
5.1 Grant of Restricted Stock. Subject
to the limitations set forth in Section 4.1 and the other terms and
provisions of the Plan and applicable law, the Committee, at any time, and, from
time to time, may grant shares of Restricted Stock under the Plan to such
Participants, and in such amounts and for such duration and/or consideration as
it shall determine.
5.2 Restricted Stock Award Agreement.
Each share of Restricted Stock granted hereunder shall be evidenced by an Award
Agreement that shall specify the Restriction Period, the conditions which must
be satisfied prior to removal of the restriction, the forfeiture of such Shares
in the event such conditions are not satisfied, the number of Shares of
Restricted Stock granted, and such other provisions as the Committee shall
determine. The Committee may specify, but is not limited to, the following types
of conditions in the Award Agreement: (a) conditions for acceleration or
achievement of the end of the Restriction Period based on any Performance
Criteria and (b) any other conditions or restrictions which the Committee
may deem advisable, including requirements established pursuant to the
Securities Act, the Exchange Act, the Code and any securities trading system or
stock exchange upon which such Shares under the Plan are listed.
5.3 Restriction Period. Except as
otherwise provided in this Article, the Shares of Restricted
Stock granted under the Plan may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the termination of the
applicable Restriction Period or upon earlier satisfaction of other conditions
as specified by the Committee in its sole discretion and set forth in the
applicable Award Agreement. Subject to Section 5.7 and Article IX, if
a Participant resigns, is otherwise terminated from the Company or, in the case
of an Outside Director is not re-elected to the Board or otherwise resigns as a
member of the Board, prior to the end of the Restriction Period, he or she will
forfeit all interests in the Award. All rights with respect to the Restricted
Stock granted to a Participant under the Plan shall be exercisable during his or
her lifetime only by such Participant or his or her guardian or legal
representative.
5.4 Removal of
Restrictions. Except as otherwise provided in this Article V,
Restricted Stock covered by each Award made under the Plan shall
become freely transferable by the Participant after the last day of the
Restriction Period and/or upon the satisfaction of other conditions as
determined by the Committee and set forth in the applicable Award
Agreement.
5.5 Voting Rights. During the
Restriction Period, Participants in whose name Restricted Stock is granted under
the Plan may exercise full voting rights with respect to those
Shares.
5.6 Dividends and Other Distributions.
During the Restriction Period, Participants in whose name Restricted Stock is
granted under the Plan shall be entitled to receive all dividends and other
distributions paid with respect to those Shares. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to the same
restrictions on transferability and forfeitability as the Restricted Stock with
respect to which they were distributed.
5.7 Death, Disability or Retirement.
Except as otherwise provided in a Participant’s Award Agreement, in the event of
the Participant’s death, Disability, or Retirement while an Employee or an
Outside Director, the following shall apply:
(a) In
the event of the Participant’s Disability or Retirement before the Restriction
Period has ended, the restrictions on the Shares awarded to the Participant
shall be removed upon expiration of the Restriction Period, and the number of
Shares the Participant shall be entitled to, if any, shall equal (i) the
number of Shares, if any, the Participant would otherwise be entitled to had the
individual been an active Participant at the end of the Restriction Period
(i.e., as adjusted or forfeited based on the Performance Criteria) multiplied by
(ii) the portion of the Restriction Period the Participant was an active
Participant hereunder; or
(b) In
the event of the Participant’s death before the Restriction Period has ended,
the restrictions on the Shares awarded to the Participant shall be removed upon
the Participant’s date of death, and the number of Shares the Participant shall
be entitled to, if any, shall equal the number of Shares contingently granted to
the Participant, without any further adjustment.
ARTICLE
VI
PERFORMANCE
SHARES
6.1 Grant of Performance Shares.
Subject to the limitations set forth in Section 4.1 and the other terms and
provisions of the Plan and applicable law, the Committee may, at any
time and from time to time, issue to Participants, either alone or in addition
to other Awards made under the Plan, Performance Awards as described in
Section 6.2. Any such Awards shall be governed by the terms of an
Agreement, and the Committee may impose such terms and conditions, similar to
those described in Section 5.2 and not inconsistent with the
terms of this Plan, as it deems appropriate on such Award.
6.2 Performance Awards.
(a) Grant
of Performance Awards. Performance Awards granted hereunder may be issued in the
form of Performance Shares to Participants subject to the Performance Criteria,
Performance Period and other considerations or restrictions as the Committee
shall determine. The Committee shall have complete discretion in determining the
number and value of Performance Shares granted to each Participant.
(b) Value
of Performance Awards. The Committee shall determine the number and value of
Performance Shares granted to each Participant as a Performance Award. The
Committee shall set Performance Criteria in its discretion for each Participant
who is granted a Performance Award. The extent to which such Performance
Criteria are met will determine the value of the Performance Share to the
Participant.
(c) Settlement
of Performance Awards. After a Performance Period has ended, the holder of a
Performance Share shall be entitled to receive the value thereof based on the
degree to which the Performance Criteria established by the Committee and set
forth in the Award Agreement have been satisfied.
(d) Form
and Time of Payment. Payment of the amount to which a Participant shall be
entitled upon the settlement of the Performance Award shall be made in Shares.
However, if any payment in the form of Shares results in a fractional share,
such payment for the fractional share shall be made in cash. Payment of the
Stock as well as any cash for a fractional share shall be made at such times as
may be determined by the Committee following the end of the Performance Period
to which it relates, but not later than the last day of the seventy five (75)
day period following the end of the Performance Period.
(e)
Death, Disability or Retirement. Unless otherwise provided in a Participant’s
Award Agreement:
(1) In
the event of a Participant’s Disability or Retirement before the Performance
Period has ended, the number of Shares the Participant shall be entitled to, if
any, shall equal (i) the number of Shares, if any, the Participant would
otherwise be entitled to had the individual been an active Participant at the
end of the Performance Period (i.e., as adjusted or forfeited based on the
actual Performance Criteria) multiplied by (ii) the portion of the
Performance Period during which the Participant was an active Participant, and
such Shares shall be distributed following the end of the Performance Period as
set forth in Subsection 6.2(d) above; or
(2) In
the event of a Participant’s death while an Employee or Outside Director before
the Performance Period has ended, the Company will be assumed to have achieved a
target performance level for the Performance Period in which death occurs, and
the number of Shares the Participant’s beneficiary shall be entitled to, if any,
shall equal the number of Shares the Participant would otherwise be entitled to
had the Participant been an active Participant at the end of the Performance
Period, and such Shares shall be distributed within a reasonable period
following death; or
(3) In
the event of a Participant’s Disability, Retirement or death after the end of
the Performance Period, but before the date the Shares are distributed, the
number of Shares the Participant shall be entitled to, if any, shall be based on
the actual Performance Criteria for the entire Performance Period.
(f) Other
Termination. No Participant shall have a right to receive payment in respect of
an Award for a Performance Period if the Participant resigns or is otherwise
terminated from the Company or, in the case of an Outside Director, is not
re-elected (i) before the end of the Performance Period, or (ii) after the end
of the Performance period but before the Performance Award is paid, for reasons
other than the Participant’s death, Disability, or Retirement or following a
Change in Control.
(g) Short-Term
Disability; Other Authorized Leaves of Absence. Absence of a Participant from
employment during a Performance Period and entitling the Participant to (i)
reemployment rights following military service under the Uniformed Services
Employment and Reemployment Rights Act (USERRA) (or any other similar applicable
federal or state law) or (ii) sickness allowance and/or short-term disability
benefits under the Company’s employee benefit plans, shall not affect any Award.
In the event a Participant is absent from employment during a Performance Period
due to an authorized leave of absence not described in the immediately preceding
sentence, the amount or number of Shares the Participant shall be entitled to,
if any, under any Award shall equal (i) the amount or number of Shares, if
any, to which the Participant would otherwise be entitled had the individual
been an active Participant during the entire Performance Period ( i.e. , as
adjusted or forfeited based on the Performance Criteria) multiplied by
(ii) the portion of the Performance Period during which the Participant was
an active Participant (i.e., excluding the period of the authorized leave of
absence) and such Shares shall be distributed following the end of the
Performance Period as set forth in Subsection 6.2(d) above.
(h) Adjustment
of Award Due to Demotion or Promotion. The Committee, in its discretion, may
reduce an Award in the event of a Participant’s demotion during a Performance
Period, or grant an additional Award in the event of a Participant’s promotion
during a Performance Period.
(i) Restriction
on Payment of Awards. No distributions in respect of Performance Shares shall be
made, and such distribution shall be forfeited, if at the time a distribution
would otherwise have been made:
(1) The
regular quarterly dividend on any outstanding common or preferred shares of the
Company has been omitted and not subsequently paid; or
(2) The
estimated consolidated net income of the Company for the immediately preceding
twelve-month period is less than the sum of (i) the aggregate amount to be
distributed plus (ii) dividends on all outstanding preferred and common
shares of the Company applicable to such twelve-month period (either paid,
declared or accrued at the most recently paid rate).
ARTICLE
VII
STOCK
BONUS AWARDS
7.1 Awards of Stock Bonus
Shares. A “Stock Bonus” for purposes of this Article VII is an award
of Shares of the Company’s Stock for services rendered to the Company or any
Participating Company. Subject to the limitations set forth in Section 4.1 and
the other terms and conditions of the Plan and applicable law, the Committee may
award to any Employee and/or Outside Director Shares as a Stock Bonus for past
service rendered to the Company or any Participating Company as the Committee,
in its sole discretion, may from time to time determine. The Committee will
determine the number of Shares to be awarded to Employees and Outside Directors.
Stock Bonuses may vary among Employees and/or Outside Directors and between
groups of Employees and/or Outside Directors, and may be based upon the
achievement of the Company or any Participating Company and/or individual
performance or such other criteria as the Committee may determine.
7.2 Form and Time of
Payment. Any Stock Bonus awarded by the Committee will be paid as
soon as administratively feasible after the close of the fiscal year for which
the Stock Bonus is awarded, but no later than the last day of the seventy five
(75) day period following the end of the fiscal year. Payment will be made in
the form of whole Shares in a lump sum payment. If an Employee’s employment or
an Outside Director’s term is terminated due to Disability, Retirement or death
after the award of a Stock Bonus but before the payment of the Shares, the
Employee and/or Outside Director or their respective beneficiaries,
as applicable, shall receive payment of the Shares within the time period
referenced herein. If an Employee’s employment or an Outside Director’s term is
terminated for any other reason after the award of a Stock Bonus but before the
payment of the Shares, the payment shall be forfeited.
ARTICLE
VIII
SPECIAL
PROVISIONS APPLICABLE TO COVERED PARTICIPANTS
8.1 Special Provisions Applicable to
Covered Participants. Awards to Covered Participants shall be governed by the
conditions of this Article in addition to the requirements of Articles V, VI and
VII above. Should conditions set forth under this Article conflict with the
requirements of Articles V, VI and VII above, the conditions of this Article
shall prevail:
(a) All
Performance Criteria relating to Covered Participants for a relevant Performance
Period shall be established by the Committee in writing prior to the beginning
of the Performance Period, or by such other later date for the Performance
Period as may be permitted under Section 162(m) of the Code.
(b) The
Performance Criteria must be objective and must satisfy third party
“objectivity” standards under Code Section 162(m).
(c) The
Performance Criteria shall not allow for any discretion by the Committee as to
an increase in any Award, but discretion to lower an Award is
permissible.
(d) The
Award and payment of any Award under this Plan to a Covered Participant with
respect to a relevant Performance Period shall be contingent upon the attainment
of the Performance Criteria that are applicable to such Award. The Committee
shall certify in writing prior to payment of any such Award that such applicable
Performance Criteria have been satisfied. Resolutions adopted by the Committee
may be used for this purpose.
(e) The
aggregate maximum number of Shares subject to Awards that may be granted to any
Covered Participant under Articles V, VI and VII during any fiscal
year of the Company shall be 50,000 Shares.
(f) All
Awards under this Plan to Covered Participants or to other Participants who may
become Covered Participants at a relevant future date shall be further subject
to such other conditions, restrictions, and requirements as the Committee may
determine to be necessary to carry out the purposes of this Article, which is to
avoid the loss of deductions by the Company under Code section
162(m).
ARTICLE
IX
CHANGE IN
CONTROL
9.1 Change in Control Agreements. The
provision of this Section regarding the terms and conditions of an Award
Agreement upon a Change in Control shall apply notwithstanding any Plan
provision to the contrary, and notwithstanding any agreement between the
Participating Company and such Participant which relate to the terms of the
Awards hereunder, upon a Change in Control. Upon a Change in Control, the
following shall apply:
(a) The
Awards previously granted shall be immediately vested and not subject to
forfeiture due to any subsequent termination from employment or removal or
resignation from the Board, subject to Subsection (d) hereunder.
(b) Restrictions
on any Restricted Stock shall be eliminated as of such event.
(c) If
the Change in Control occurs before the end of the Performance Period, no
further adjustment shall be made to the number of Shares of Restricted Stock
contingently granted based on the Performance Criteria.
(d) Performance
Shares shall be considered earned and shall not be subject to forfeiture due to
any subsequent termination from employment. If the Change in Control occurs
before the end of the Performance Period, the amount of the Performance Shares
shall be determined assuming the Company has achieved a target performance level
and, the amount shall then be multiplied by the portion of the Performance
Period the individual was an active Participant hereunder. If the Change in
Control occurs after the end of the Performance Period but before the
Performance Shares are paid, the amount payable shall be determined based on the
actual performance level. In either case payment of the Performance Shares shall
be made as soon as practicable following the Change in Control but no later than
the close of the seventy five (75) day period following the earlier of the end
of the Performance Period or the Change in Control.
9.2 Change in Control Defined. For
purposes of this Article, “Change in Control” shall have the same meaning as
such term or similar term is defined in a Participant’s individual agreement
with the Company which relates to such Participant’s compensation and benefits
upon the occurrence of a change in ownership of the Participating Company or
similar event.
(a) In
the event there is no such agreement, “Change in Control” shall
mean:
(i) The
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of twenty percent (20%) or more of either (A) the then
outstanding shares of Common Stock of the Company (the “Outstanding Company
Common Stock”) or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that
the following acquisitions shall not constitute an acquisition of control: any
acquisition directly from the Company (excluding an acquisition by virtue of the
exercise of a conversion privilege), any acquisition by the Company, any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or any
acquisition by any corporation pursuant to a reorganization, merger, share
exchange or consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (A), (B) and (C) of
subsection (iii) of this section are satisfied; or
(ii) Individuals who, as of the
Effective Date, constitute the Board of Directors (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board of Directors;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) 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, share exchange or consolidation, in each case, unless,
following such reorganization, merger, share exchange or consolidation,
(A) more than fifty percent (50%) of, respectively, the then outstanding
shares of common stock of the corporation resulting from such reorganization,
merger, share exchange or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such reorganization,
merger, share exchange or consolidation in substantially the same proportions as
their ownership, immediately prior to such reorganization, merger, share
exchange or consolidation, of the Outstanding Company Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person (excluding the
Company, any employee benefit plan or related trust of the Company, or such
corporation resulting from such reorganization, merger, share exchange or
consolidation and any Person beneficially owning, immediately prior to such
reorganization, merger, share exchange or consolidation, directly or indirectly,
twenty percent (20%) or more of the Outstanding Company Common Stock or
Outstanding Voting Securities, as the case may be) beneficially owns, directly
or indirectly, twenty percent (20%) or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger, share exchange or consolidation or the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (C) at least a majority of
the members of the board of directors of the corporation resulting from such
reorganization, merger, share exchange or consolidation were members of the
Incumbent Board at the time of the execution of the initial agreement providing
for such reorganization, merger, share exchange or consolidation;
or
(iv) Approval by the shareholders
of the Company and consummation of (A) a complete liquidation or
dissolution of the Company or (B) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a corporation,
with respect to which following such sale or other disposition (1) more
than fifty percent (50%) of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (2) no Person
(excluding the Company and any employee benefit plan or related trust of the
Company, or such corporation and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or indirectly, twenty percent
(20%) or more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, twenty percent (20%) or more of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (3) at least a majority of the
members of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial agreement or action
of the Board providing for such sale or other disposition of assets of the
Company; or
(v) The closing, as defined in the
documents relating to, or as evidenced by a certificate of any state or federal
governmental authority in connection with, a transaction approval of which by
the shareholders of the Company would constitute a “Change in Control” under
subsection (iii) or (iv) of this Section.
(b) Notwithstanding
(a) above, if the Participant’s employment is terminated before a Change in
Control as defined in this Section and the Participant reasonably demonstrates
that such termination (i) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to effect a “Change
in Control” and who effectuates a “Change in Control” or (ii) otherwise
occurred in connection with, or in anticipation of, a “Change in Control” which
actually occurs, then for all purposes of this Agreement, the date of a “Change
in Control” with respect to the Participant shall mean the date immediately
prior to the date of such termination of the Participant’s
employment.
ARTICLE
X
ADMINISTRATION
10.1 The Committee. The Plan shall be
administered and interpreted by the Committee which shall have full authority,
discretion and power necessary or desirable for such administration and
interpretation. The express grant in this Plan of any specific power to the
Committee shall not be construed as limiting any power or authority of the
Committee. In its sole and complete discretion the Committee may adopt, alter,
suspend and repeal any such administrative rules, regulations, guidelines, and
practices governing the operation of the Plan as it shall from time to time deem
advisable. In addition to any other powers and, subject to the provisions of the
Plan, the Committee shall have the following specific powers: (a) to
determine the terms and conditions upon which Awards may be made; (b) to
determine the Participants to whom Awards shall be made; (c) to determine
all terms and provisions of each Agreement, which need not be identical for
types of Awards nor for the same type of Award to different Participants;
(d) to construe and interpret all terms, conditions and provisions of the
Plan and all Agreements; (e) to establish, amend, or waive rules or
regulations for the Plan’s administration; (f) to accelerate the length of
a Performance Period or the termination of any Period of Restriction; and
(g) to make all other determinations and take all other actions necessary
or advisable for the administration or interpretation of the Plan. The Committee
may seek the assistance or advice of any persons it deems necessary to the
proper administration of the Plan.
10.2 Committee Decisions. Unless
strictly and expressly prohibited by law, all determinations and decisions made
by the Committee pursuant to the provisions of this Plan shall be final,
conclusive, and binding upon all persons, including Participants, Designated
Beneficiaries, the Company, its shareholders and employees.
10.3 Rule 16b-3, Section 162(m)
and Section 409A Requirements. Notwithstanding any other provision of the Plan,
the Committee may impose such conditions on any Award as it may deem to be
advisable or required to satisfy the requirements of Rule 16b-3,
Section 162(m) or Section 409A, if applicable.
ARTICLE
XI
GENERAL
PROVISIONS
11.1 Withholding. The Company shall
have the right to deduct or withhold, or require a Participant to remit to the
Company, any taxes, subject to the statutory minimum, required by law to be
withheld from Awards made under this Plan. In the event an Award is paid in the
form of Common Stock, the Participant may remit to the Company the amount of any
taxes required to be withheld from such payment in cash, or, in lieu thereof,
the Company may withhold (or the Participant may be provided the opportunity to
elect to tender) the number of shares of Common Stock equal in Fair Market Value
to the amount required to be withheld.
11.2 Terms of Awards. Each Award
granted under the Plan shall be evidenced in a corresponding Award Agreement
provided in writing to the Participant, which shall specify the terms,
conditions and any rules applicable to the Award, including but not limited to
the effect of death, Disability, or other termination of employment of the
Participant on the Award.
11.3 Guidelines Applicable to all
Awards. All Awards awarded to a Participant under the Plan and not previously
paid shall be immediately forfeited and canceled in their entirety if the
Participant, without the prior written consent of the Company, and while
employed by the Company, becomes associated with, employed by, renders services
to, consults with, acquires ownership of more than five percent of any class of
stock of, or acquires beneficial ownership of more than five percent of the
earnings or profits of any corporation, partnership, proprietorship, trust, or
other entity which, in the Committee’s judgment, competes directly or
indirectly with the Company or any subsidiary in any of their lines of
business.
11.4 Non-transferability. No Award
granted under the Plan may be sold, transferred, pledged, assigned or otherwise
alienated or hypothecated, except by will or the laws of descent and
distribution. Further, no lien, obligation, or liability of the Participant may
be assigned to any right or interest of the Participant in an Award under this
Plan.
11.5 No Right to Employment. Neither
the Plan, nor any Award made, or any other action taken, hereunder shall be
construed as giving any Participant or other person any right of employment or
continued employment with the Participating Company.
11.6 Rights as Shareholder. Subject to
the terms and conditions of each particular Award, no Participant or Designated
Beneficiary shall be deemed a shareholder of the Company nor have any rights as
such with respect to any shares of Common Stock to be provided under the Plan
until he or she has become the holder of such shares.
11.7 Construction of the Plan. Except
to the extent superseded by the laws of the United States, the Plan and all
Agreements shall be governed, construed, interpreted and administered in
accordance with the laws of the Commonwealth of Kentucky. In the event any
provision of the Plan or any Agreement shall be held invalid, illegal or
unenforceable, in whole or in part, for any reason, such determination shall not
affect the validity, legality or enforceability of any remaining provision,
portion of provision or the Plan overall, which shall remain in full force and
effect as if the Plan had been absent the invalid, illegal or unenforceable
provision or portion thereof.
11.8 Amendment of Plan or Awards. The
Committee or the Board of Directors may amend, suspend, or terminate the Plan or
any portion thereof at any time, provided such amendment is made with
shareholder approval if and to the extent such approval is necessary to comply
with any legal requirement, including for these purposes any approval
requirement which is a requirement for the performance-based compensation
exception under Code Section 162(m). In no event shall the Committee
increase the amount payable pursuant to an Award after it has been granted. In
addition, no amendment shall be made to an outstanding Award without written
consent of the affected Participant. Notwithstanding the preceding, the
Committee may amend or modify the Plan or any outstanding Award to the extent
necessary to cause the Plan or such Award to comply with the requirements of
Section 409A of the Code, the Listed Company Manual of the New York Stock
Exchange or Listing Standard 4350 (C) (i) (A) of NASDAQ.
11.9 Exemption from Computation of
Compensation for Other Purposes. By acceptance of an applicable Award under this
Plan, subject to the conditions of such Award, each Participant shall be
considered in agreement that all shares of Stock awarded under this Plan shall
be considered extraordinary, special incentive compensation and will not be
included as “earnings,” “wages,” “salary” or “compensation” in any pension,
welfare, life insurance, or other employee benefit arrangement of the Company
except as otherwise specifically provided in such arrangement.
11.10 Legend. In its sole and complete
discretion, the Committee may elect to legend certificates representing Shares
sold or awarded under the Plan and to make appropriate references to the
restrictions imposed on such Shares.
11.11 Special Provisions for Certain
Participants. All Award Agreements for Participants subject to Section 16(b) of
the Exchange Act shall be deemed to include any such additional terms,
conditions, limitations and provisions as Rule 16b-3 requires, unless the
Committee in its discretion determines that any such Award should not be
governed by Rule 16b-3. All performance-based Awards to Covered
Participants shall be deemed to include any such additional terms, conditions,
limitations and provisions as are necessary to comply with the performance-based
compensation exemption of Code Section 162(m), unless the Committee, in its
discretion, determines that any such Award is not intended to qualify for the
exemption for performance-based compensation under Code
Section 162(m).
11.12 Unfunded Plan. The Plan shall be
unfunded and the Company shall not be required to segregate any assets in
connection with any Awards under the Plan. Any liability of the Company to any
person with respect to any Award under the Plan or any Award Agreement shall be
based solely upon the contractual obligations that may be created as a result of
the Plan or any such award or agreement. No such obligation of the Company shall
be deemed to be secured by any pledge of, encumbrance on, or other interest in,
any property or asset of the Company or any Subsidiary. Nothing contained in the
Plan or any Award Agreement shall be construed as creating in respect of any
Participant (or beneficiary thereof or any other person) any equity or other
interest of any kind in any assets of the Company or any Subsidiary or creating
a trust of any kind or a fiduciary relationship of any kind between the Company,
any Subsidiary and/or any such Participant, any beneficiary thereof or any other
person.
11.13 Conflict with Employment
Agreement. Except as specified in Article IX or otherwise restricted under
Section 11.10, to the extent any provision of this Plan conflicts with any
provision of a written employment agreement between an Employee and the Company,
the material terms of which have been approved by the Board, the provisions of
the employment agreement shall control.
11.14 Gender and Number. Where the
context admits, words in the masculine gender shall include the feminine gender,
the plural shall include the singular and the singular shall include the
plural.
11.15 Severability. In the event any
provision of this Plan shall be held to be illegal or invalid for any reason,
such illegality or invalidity shall not affect the remaining parts of this Plan,
and this Plan shall be construed and endorsed as if such illegal or invalid
provision had never been contained in this Plan.
11.16 Effect of Headings. The
descriptive headings of the Articles and Sections of this Plan are inserted for
convenience of reference and identification only and do not constitute a part of
this Plan for purposes of interpretation.
11.17 No Liability. No member of the
Board or the Committee or any officer or Employee shall be personally liable for
any action, omission or determination made in good faith in connection with this
Plan. To the full extent permitted by law, the Company shall indemnify and hold
harmless the members of the Committee, the Board and the officers and Employees,
and each of them, from and against any and all loss which results from liability
to which any of them may be subjected by reason of any act or conduct in their
official capacities in connection with the administration of this Plan,
including all expenses reasonably incurred in their defense, in case the Company
fails to provide such defense. By participating in this Plan, each Employee
agrees to release and hold harmless the Company and its Subsidiaries (and their
respective directors, officers and employees), the Board and the Committee, from
and against any tax or other liability, including without limitation, interest
and penalties, incurred by the Employee in connection with his participation in
this Plan.
IN
WITNESS WHEREOF, the Company has caused this instrument to be executed by the
authorized officers as of this 1st day
of January, 2010.
DELTA NATURAL GAS COMPANY,
INC
BY: /s/ Glenn
R.
Jennings
TITLE: Chairman of the Board,
President and
Chief
Executive Officer
ATTEST:
BY: /s/
John B.
Brown
TITLE: Chief Financial Officer,
Treasurer and Secretary