EXHIBIT 10.7
UTi WORLDWIDE INC.
AMENDED AND RESTATED
2004 NON-EMPLOYEE DIRECTORS SHARE INCENTIVE PLAN
1. PURPOSE . The purpose
of this UTi Worldwide Inc. 2004 Non-Employee Directors Share
Incentive Plan (the “Plan”), as amended and restated
herein on December 8, 2007, is to advance the interests of UTi
Worldwide Inc., a British Virgin Islands corporation (the
“Company”), and its shareholders (members) (referred to
herein as “shareholders”) by (a) encouraging
increased share ownership by the Company’s directors who are
not employees of the Company or any of its subsidiaries,
(b) enhancing the Company’s ability to attract and
retain the services of experienced, able and knowledgeable persons
to serve as directors, and (c) providing additional incentive
for directors to contribute their best efforts to the
Company’s success. Notwithstanding the foregoing, the
amendments contained in this amendment and restatement that reflect
the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”), are effective
January 1, 2008.
2. AWARDS . The Plan
permits the granting of the following types of awards
(“Awards” or individually, an “Award”),
according to the sections of the Plan listed here:
| |
|
|
|
|
|
|
|
Section 5 |
|
Restricted Share Units and Restricted
Shares |
|
|
|
Section 6 |
|
Elective Grants |
|
|
|
Section 7 |
|
Deferred Share Units |
The date
of grant of any Award is referred to herein as the “Grant
Date.”
3. ADMINISTRATION AND
AGREEMENTS
(a)
Plan Administration . This Plan shall be administered by the
Company’s Board of Directors (the “Board”). The
Board shall have full authority, consistent with this Plan, to
construe and interpret this Plan and any agreements defining the
rights and obligations of the Company and Eligible Directors (as
defined below) under the Plan, to promulgate, amend and rescind
such rules and regulations with respect to this Plan as it deems
desirable and to make all other determinations necessary or
desirable for the administration of this Plan. Unless arbitrary and
capricious, all decisions, determinations and interpretations of
the Board shall be binding upon all Eligible Directors, the
Company, and all other interested persons. The Board may, in its
discretion, delegate any or all of its authority under the Plan to
a committee consisting of two or more non-employee directors of the
Company, so long as allowable under applicable law. If such Board
authority is so delegated to a committee, all references to the
Board in this Plan shall mean and relate to such committee to the
extent of the powers so delegated. The Company shall pay or
reimburse any member of the Board, as well as any employee or
consultant who takes action in connection with the Plan, for all
expenses incurred with respect to the Plan, and shall indemnify
each and every one of them for any claims, liabilities, and costs
(including reasonable attorneys’ fees) arising out of their
good faith performance of duties under the Plan. The Company may
obtain liability insurance for this purpose.
(b)
Award Agreements . Awards made pursuant to this Plan shall
be evidenced by a written agreement executed by the Company and the
Eligible Director receiving such Award. Each such agreement shall
state the terms and conditions of the Award, not inconsistent with
this
Plan, as
the Board in its sole discretion shall determine and approve. The
Company shall maintain records as to all Awards granted under the
Plan.
4. SHARES SUBJECT TO THE
PLAN . The shares of stock to be issued pursuant to Awards
shall be authorized shares of the Company’s voting ordinary
shares (“Shares” or, individually, a
“Share”), either previously unissued or previously
issued but reacquired by the Company. The aggregate number of
Shares to be issued pursuant to Awards shall be Six Hundred
Thousand (600,000), 1 subject to
adjustment as provided in Section 8 below. Any Share subject
to an Award which is cancelled, terminated, forfeited, or otherwise
expires shall again be available for subsequent Awards under this
Plan.
5. RESTRICTED SHARE UNITS
AND RESTRICTED SHARES
(a)
Eligible Director . As used herein, “Eligible
Director” means any of the Company’s directors who are
not employees of the Company or any subsidiary of the Company and
have not been employees of the Company or any subsidiary of the
Company during the twelve (12) months preceding (i) the
date such person first became a director for purposes of Section
5(c) below or (ii) the date of an Annual Meeting (as defined
below) for purposes of Section 5 (d) below (collectively,
“Eligible Directors” and individually, an
“Eligible Director”).
(b)
Grants . The Company shall grant to Eligible
Directors the right to receive Shares after certain vesting
requirements are met (“Restricted Share Units”) or, in
the Board’s sole discretion, restricted Shares
(“Restricted Shares”) in accordance with the terms and
conditions set forth in this Section 5. Subject to the
requirements set forth in Sections 5(c), 5(d) and 5(e) below,
the Board shall have the sole discretion to determine whether
Restricted Share Units or Restricted Shares will be granted under
this Section 5 at any given time.
(c)
Initial Awards . The Company shall grant, to each person who
first becomes an Eligible Director after the date this Plan becomes
effective pursuant to Section 13 below (but, excluding each
person who was already serving as an Eligible Director on the date
of the Annual Meeting at which this Plan is first approved by the
Company’s shareholders) on the date such person first becomes
an Eligible Director, an initial Award (the “Initial
Award”) of that number of Restricted Share Units (or, if
determined by the Board, Restricted Shares) determined by dividing
$75,000 2 or such other
amount as determined by the Board in its sole discretion from time
to time (the “Initial Award Amount”), by the Fair
Market Value (as defined below) on the Grant Date. If an Eligible
Director first becomes an Eligible Director on a date other than
the date of an annual meeting of the Company’s shareholders
(an “Annual Meeting”), the Initial Award Amount then in
effect shall be reduced to an amount equal to the product of the
Initial Award Amount times a fraction, (i) the numerator of
which shall be the difference between 365 and the number of days
elapsed since the Annual Meeting immediately preceding such
Eligible Director’s election and (ii) the denominator of
which shall be 365. If the number of Restricted Share Units or
Restricted Shares in
|
|
|
| 1 |
|
On March 7, 2006, the Board approved a 3-for-1 division of
the Company’s ordinary shares of no par value (the
“Stock Split”). Pursuant to Section 8 of the Plan,
the number of ordinary shares authorized for issuance under the
Plan was automatically adjusted from 200,000 ordinary shares to
600,000 ordinary shares on March 27, 2006 as a result of the
Stock Split. |
| |
| 2 |
|
On June 12, 2006, the Board amended the Plan to increase
this amount from $65,000 to $75,000 effective the day after the
2006 Annual Meeting of Shareholders (Members). |
2
an
Initial Award is less than a whole number, such number shall be
rounded to the nearest whole number.
(d)
Automatic Awards . On the date of each Annual Meeting,
commencing with the Annual Meeting at which this Plan is first
approved by the Company’s shareholders (subject to the
limitations contained in this Section 5(d)), the Company shall
grant to each Eligible Director as of the date of such meeting an
Award (an “Automatic Award”) of that number of
Restricted Share Units (or, if determined by the Board, Restricted
Shares) determined by dividing $75,000 3 or such other
amount as determined by the Board in its sole discretion from time
to time, by the Fair Market Value on the Grant Date, provided that
such Eligible Director continues as a director after such Annual
Meeting. If an Eligible Director receives an Initial Award on the
date of an Annual Meeting, then such Eligible Director shall not be
entitled to an Automatic Award pursuant to this Section 5(d) with
respect to the same Annual Meeting. Notwithstanding anything in
this Section 5(d) to the contrary, if an Eligible Director received
an initial grant of options pursuant to Section 5(b) of the
Company’s previously existing Non-Employee Director Share
Option Plan within twelve (12) months of the Annual Meeting
pursuant to which this Plan is first approved by the
Company’s shareholders, then such Eligible Director shall not
be entitled to receive an Automatic Award pursuant to this Section
5(d) on the date of the Annual Meeting at which this Plan is so
approved by the shareholders. If the number of Restricted Share
Units or Restricted Shares in an Automatic Award is less than a
whole number, such number shall be rounded to the nearest whole
number.
(e)
Chairman Awards . On the date of each Annual Meeting,
commencing with the Annual Meeting at which this Plan is first
approved by the Company’s shareholders, the Company shall
grant to the Chairman of the Board, if the Chairman of the Board is
then an Eligible Director, as of the date of such meeting, an Award
of that number of Restricted Share Units (or, if determined by the
Board, Restricted Shares) determined by dividing $12,000 or such
other amount as determined by the Board in its sole discretion from
time to time, by the Fair Market Value on the Grant Date, provided
that such person continues to be both an Eligible Director and
Chairman of the Board after the Annual Meeting (a “Chairman
Award”). A Chairman Award made pursuant to this Section 5(e)
shall be in addition to any Initial Awards or Automatic Awards an
Eligible Director might otherwise be entitled to receive pursuant
to Sections 5(c) and 5(d) above. If the number of Restricted Share
Units or Restricted Shares in a Chairman Award is less than a whole
number, such number shall be rounded to the nearest whole
number.
(f)
Definition of Fair Market Value . For purposes of this Plan,
“Fair Market Value” as of a certain date (the
“Determination Date”) means: (i) the closing price
of a Share on the New York Stock Exchange or the American Stock
Exchange (collectively, the “Exchange”), on the
Determination Date, or, if Shares were not traded on the
Determination Date, then on the nearest preceding trading day
during which a sale occurred; or (ii) if Shares are not traded
on the Exchange but are quoted on NASDAQ or a successor quotation
system, (A) the last sales price (if Shares are then listed as
a National Market Issue under The Nasdaq National Market System) or
(B) the mean between the closing representative bid and asked
prices (in all other cases) for the Shares on the Determination
Date as reported by NASDAQ or such successor quotation system; or
(iii) if such
|
|
|
| 3 |
|
On June 12, 2006, the Board amended the Plan to increase
this amount from $65,000 to $75,000 effective the day after the
2006 Annual Meeting of Shareholders (Members). |
3
Shares
are not traded on the Exchange or quoted on NASDAQ but are
otherwise traded in the over-the-counter, the mean between the
representative bid and asked prices on the Determination Date; or
(iv) if subsections (i)-(iii) do not apply, the fair market
value established in good faith by the Board.
(g)
No Award Where Prohibited . No person shall be granted an
Award under this Plan if at the time of such Award, the Award is
prohibited by applicable law or by the policies of the employer of
such person or the policies of any other company of which such
person is a member of the board of directors, officer, executive, a
general partner or a manager.
(h)
Vesting and Forfeiture . Initial Awards made pursuant to
Section 5(c) above shall become vested and non-forfeitable on the
date immediately preceding the Annual Meeting which follows the
Grant Date of the Initial Award, provided that the Eligible
Director is then serving as an Eligible Director on the particular
vesting date. Automatic Awards made pursuant to Section 5(d) and
Chairman Awards made pursuant to Section 5(e) above shall become
vested and non-forfeitable on the date immediately preceding the
Annual Meeting which follows the Annual Meeting on which such Award
was made, provided that on such date the Eligible Director is then
an Eligible Director and, in the case of a Chairman Award, is also
serving as Chairman of the Board. Notwithstanding the foregoing, in
the event the date of an Annual Meeting is delayed by more than
thirty (30) days from the first anniversary of the preceding
year’s Annual Meeting, then the Initial Awards, Automatic
Awards and Chairman Awards outstanding on such thirtieth day shall
become vested and non-forfeitable. Notwithstanding the preceding
sentences, outstanding Initial Awards, Automatic Awards and
Chairman Awards shall become fully vested and non-forfeitable upon
a Change in Control or upon termination of an Eligible
Director’s membership on the Board due to death or upon such
other circumstances as the Board may determine in its sole
discretion. Any Shares underlying Awards granted pursuant to
Sections 5(c), (d) and (e) above that do not become
vested and non-forfeitable pursuant to this Section 5(h) shall be
forfeited.
(i)
Definition of Change in Control . For purposes of this Plan,
a “Change in Control” of the Company shall be deemed to
have occurred if:
(i) a
sale, transfer, or other disposition of all or substantially all of
the Company’s assets and properties is closed or
consummated;
(ii) any
“person”, “entity” or “group”
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act), other than the Company or any majority-owned
subsidiary of the Company, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting
power of the Company’s then outstanding securities that have
the right to vote in the election of directors generally, provided,
however, that the following shall not constitute a “Change in
Control” of the Company:
| |
(1) |
|
any acquisition directly from the Company or any subsidiary
thereof (excluding any acquisition resulting from the exercise of a
conversion or exchange privilege in respect of outstanding
convertible or exchangeable securities); or |
4
| |
(2) |
|
any acquisition by an employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity controlled by
the Company; |
(iii) during
any period of two consecutive years during the term of this Plan,
individuals who at the beginning of such period constitute the
Board cease for any reason to constitute at least a majority
thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in
advance by directors representing at least two-thirds of the
directors then in office who were directors at the beginning of the
period; or
(iv) the
Company is dissolved or liquidated or a merger, reorganization, or
consolidation involving the Company is closed or consummated, other
than a merger, reorganization, or consolidation in which holders of
the combined voting power of the Company’s then outstanding
securities that have the right to vote in the election of directors
generally immediately prior to such transaction own, either
directly or indirectly, fifty percent (50%) or more of the combined
voting power of the securities entitled to vote in the election of
directors generally of the reorganized, merged or consolidated
entity (or its parent company) immediately following such
transaction.
(j)
Issuance of Restricted Shares Prior to Vesting . The Company
shall issue stock certificates that evidence Restricted Shares
pending the lapse of applicable restrictions, and that bear a
legend making appropriate reference to such restrictions. Except as
set forth in the applicable Award Agreement or the Board otherwise
determines, the Company or a third party that the Company
designates shall hold such Restricted Shares. The Company may
require that an Eligible Director who receives Restricted Shares
execute an assignment separate from certificate or such other
documents as it deems necessary or desirable.
(k)
Issuance of Shares upon Vesting . As soon as
practicable after the vesting of an Award made pursuant to this
Section 5 but no later than the fifteenth (15th) day of the
third (3rd) month following the calendar year in which the Eligible
Director becomes vested in the Award, the Company shall release to
the Eligible Director, free from vesting restrictions, one Share
for each vested Restricted Share or issue one Share free from
vesting restrictions for each vested Restricted Share Unit, unless
an Award Agreement provides other
|
