Exhibit 10.5
UNUM GROUP
(f/k/a UNUMPROVIDENT CORPORATION)
AMENDED AND RESTATED STOCK PLAN OF
1999
ARTICLE I
Purpose
1.1 General. The
purpose of the Unum Group Amended and Restated Stock Plan of 1999
(the “Plan”) is to promote the success, and enhance the
value, of Unum Group (the “Corporation”), by linking
the personal interests of its employees, officers, producers and
directors to those of Corporation stockholders and by providing
such persons with an incentive for outstanding performance. The
Plan is further intended to provide flexibility to the Corporation
in its ability to motivate, attract, and retain the services of
employees, officers, producers and directors upon whose judgment,
interest, and special effort the successful conduct of the
Corporation’s operation is largely dependent. Accordingly,
the Plan permits the grant of incentive awards from time to time to
selected employees, officers, producers and directors.
ARTICLE 2
Effective Date
2.1 Effective
Date. The Plan was effective as of January 1, 1999
(the “Effective Date”), was amended and restated by the
Board on February 18, 2005 effective as of the approval of the
stockholders on may 12, 2005, and further amended by the Committee
on August 15, 2007.
2.2 Termination of
Plan. No Awards may be granted under the Plan after the
ten-year anniversary of the Effective Date, but the Plan shall
remain in effect as long as any Awards under it are
outstanding.
ARTICLE 3
Definitions
3.1 Definitions. When
a word or phrase appears in this Plan with the initial letter
capitalized, and the word or phrase does not commence a sentence,
the word or phrase shall generally be given the meaning ascribed to
it in this Section or in Section 1.1 unless a clearly
different meaning is required by the context. The following words
and phrases shall have the following meanings:
(a) “Award” means any
Option, Stock Appreciation Right, Restricted Stock Award, or
Dividend Equivalent Award, or any other right or interest relating
to Stock or cash, granted to a Participant under the
Plan.
(b) “Award Agreement”
means any written agreement, contract, or other instrument or
document evidencing an Award.
(c) “Board” means the
Board of Directors of the Corporation.
(d) “Change in Control”
means and includes the occurrence of any of the following
events:
(i) during
any period of two consecutive years, individuals who, at the
beginning or such period, constitute the Board (the
“Incumbent Directors”) cease for any reason to
constitute at least
a majority of the Board, provided
that any person becoming a director and whose election or
nomination for election was approved by a vote of at least
two-thirds of the Incumbent Directors then on the Board (either by
a specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for director,
without written objection to such nomination) shall be an Incumbent
Director; provided , however , that no individual
initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest (as described in
Rule 14a-11 under the Act) (“Election Contest”) or
other actual or threatened solicitation of proxies or consents by
or on behalf of any “person” (as such term is defined
in Section 3(a)(9) of the Act and as used in Sections 13(d)(3)
and 14(d)(2) of the Act) other than the Board (“Proxy
Contest”), including by reason of any agreement intended to
avoid or settle any Election or Contest or Proxy Contest, shall be
deemed an Incumbent Director;
(ii)
any person is or
becomes a “beneficial owner” (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the
Company representing 20% (30% with respect to deferred compensation
subject to Internal Revenue Code Section 409A) or more of the
combined voting power of the Company’s then outstanding
securities eligible to vote for the election of the Board (the
“Company Voting Securities”); provided ,
however , that the event described in this paragraph
(ii) shall not be deemed to be a Change in Control of the
Company by virtue of any of the following acquisitions: (A) by
the Company of any subsidiary, (B) by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any subsidiary, (C) by an underwriter temporarily holding
securities pursuant to an offering of such securities,
(D) pursuant to a Non-Qualifying Transaction (as defined in
paragraph (iii), or (E) a transaction (other than one
described in (iii) below) in which Company Voting Securities
are acquired from the Company, if a majority of the Incumbent
Directors approve a resolution providing expressly that the
acquisition pursuant to this clause (E) does not constitute a
Change in Control of the Company under this paragraph
(ii);
(iii)
the consummation of
a merger, consolidation, statutory share exchange or similar form
of corporate transaction involving the Company or any of its
subsidiaries that requires the approval of the Company’s
stockholders, whether for such transaction or the issuance of
securities in the transaction (a “Reorganization”), or
sale or other disposition of all or substantially all of the
Company’s assets to an entity that is not an affiliate of the
Company (a “Sale”), unless immediately following such
Reorganization or Sale: (A) more than 50% of the total voting
power of (x) the corporation resulting from such
Reorganization or the corporation which has acquired all or
substantially all of the assets of the Company (in either case, the
“Surviving Corporation”), or (y) if applicable,
the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to
elect directors of the Surviving Corporation (the “Parent
Corporation”), is represented by the Company Voting
Securities that were outstanding immediately prior to such
Reorganization or Sale (or, if applicable, is represented by shares
into which such Company Voting Securities were converted pursuant
to such Reorganization or Sale), and such voting power among the
holders thereof is in substantially the same proportion as the
voting power of such Company Voting Securities among the holders
thereof immediately prior to the Reorganization or Sale,
(B) no person (other than any employee benefit plan (or
related trust) sponsored or maintained by the Surviving Corporation
or the Parent Corporation) is or becomes the beneficial owner,
directly or indirectly, of 20% (30% with respect to deferred
compensation subject to Internal Revenue Code Section 409A) or
more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation) and
(C) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) following the consummation
of the Reorganization or Sale were Incumbent Directors at the time
of the Board’s approval of the
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execution of the initial agreement
providing for such Reorganization or Sale (any Reorganization or
Sale which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a
“Non-Qualifying Transaction”); or
(iv)
the stockholders of
the Company approve a plan of complete liquidation or dissolution
of the Company.
Notwithstanding the foregoing, a
Change in Control of the Company shall not be deemed to occur
solely because any person acquires beneficial ownership of more
than 20% (30% with respect to deferred compensation subject to
Internal Revenue Code Section 409A) of the Company Voting
Securities as a result of the acquisition of Company Voting
Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided , that if
after such acquisition by the Company such person becomes the
beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control of the
Company shall then occur.
(e) “Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
(f) “Committee” means
the committee of the Board described in Article 4.
(g) “Corporation” means
UnumProvident Corporation, a Delaware corporation.
(h) “Covered Employee”
means a covered employee as defined in Code
Section 162(m)(3).
(i) “Disability” means
the Participant is (1) unable to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than
twelve (12) months, or (ii) by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three
(3) months under an accident and health plan covering
employees of the Participant’s employer. The Committee may
require such medical or other evidence as it deems necessary to
judge the nature and duration of the Participant’s condition.
Notwithstanding the above, with respect to an Incentive Stock
Option, Disability shall mean Permanent and Total Disability as
defined in Section 22(e)(3) of the Code.
(j) “Dividend
Equivalent” means a right granted to a Participant under
Article 11.
(k) “Effective Date” has
the meaning assigned such term in Section 2.1.
(l) “Fair Market Value,”
on any date, means (i) if the Common Stock is listed on a
securities exchange or traded over the Nasdaq National Market, the
average of the high and low market prices reported in The Wall
Street Journal at which a Share of Common Stock shall have been
sold on such day or on the next preceding trading day if such date
was not a trading day, or (ii) if the Common Stock is not
listed on a securities exchange or traded over the Nasdaq National
Market, Fair Market Value shall be determined by the Committee in
its good faith discretion using a reasonable valuation method which
shall include consideration of the following factors, as
applicable: (i) the value of the Corporation’s tangible
and intangible assets; (ii) the present value of the
Corporation’s future cash-flows; (iii) the market value
of stock or equity interests in similar corporations and other
entities engaged in substantially similar trades or businesses, the
value of which can be readily determined objectively (such as
through trading prices on an established securities market or an
amount paid in
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an arm’s-length private
transaction); (iv) control premiums or discounts for lack of
marketability; (v) recent arm’s length transactions
involving the sale or transfer of such stock or equity interests;
and (vi) other relevant factors.
(m) “Incentive Stock
Option” means an Option that is intended to meet the
requirements of Section 422 of the Code or any successor
provision thereto.
(n) “Non-Qualified Stock
Option” means an Option that is not an Incentive Stock
Option.
(o) “Option” means a
right granted to a Participant under Article 7 of the Plan to
purchase Stock at a specified price during specified time periods.
An Option may be either an Incentive Stock Option or a
Non-Qualified Stock Option.
(p) “Parent” means a
corporation which owns or beneficially owns a majority of the
outstanding voting stock or voting power of the Corporation.
Notwithstanding the above, with respect to Incentive Stock Options,
the term shall have the same meaning as set forth in
Section 424(e) of the Code.
(q) “Participant” means
a person who, as an employee, officer, Producer or director of the
Corporation or any Parent or Subsidiary, has been granted an Award
under the Plan.
(r) “Plan” means the
UnumProvident Corporation Stock Plan of 1999, as amended and or
restated from time to time.
(s) “Producer” means a
producer of insurance business for the benefit of the Corporation
or its subsidiaries. For purposes of this Plan, Producers are
deemed to be consultants of the Corporation or its Parent or
Subsidiaries.
(t) “Restricted Stock
Award” means Stock granted to a Participant under Article 10
that is subject to certain restrictions and to risk of
forfeiture.
(u) “Retirement” means a
Participant’s voluntary termination of employment with the
Corporation, Parent or Subsidiary at or after age 65 or after
attaining age 55 with at least 15 years of service with the
Corporation or a Parent or Subsidiary or with an entity that has
been acquired by the Corporation or a Parent or Subsidiary, or with
the approval of the Committee.
(v) “Stock” means the
$.10 par value common stock of the Corporation and such other
securities of the Corporation as may be substituted for Stock
pursuant to Article 12.
(w) “Stock Appreciation
Right” or “SAR” means a right granted to a
Participant under Article 8 to receive a payment equal to the
difference between the Fair Market Value of a share of Stock as of
the date of exercise of the SAR over the grant price of the SAR,
all as determined pursuant to Article 8.
(x) “Subsidiary” means
any corporation, limited liability company, partnership or other
entity of which a majority of the outstanding voting stock or
voting power is beneficially owned directly or indirectly by the
Corporation. Notwithstanding the above, with respect to Incentive
Stock Options, the term shall have the meaning set forth in
Section 424(f) of the Code.
(y) “1933 Act” means the
Securities Act of 1933, as amended from time to time.
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(z) “1934 Act” means the
Securities Exchange Act of 1934, as amended from time to
time.
ARTICLE 4
Administration
4.1 Committee. The
Plan shall be administered by a committee (the
“Committee”) appointed by the Board (which Committee
shall consist of two or more directors) or, at the discretion of
the Board from time to time, the Plan may be administered by the
Board. It is intended that the directors appointed to serve on the
Committee shall be “non-employee directors” (within the
meaning of Rule 16b-3 promulgated under the 1934 Act) and
“outside directors” (within the meaning of Code
Section 162(m) and the regulations thereunder) to the extent
that Rule 16b-3 and, if necessary for relief from the limitation
under Code Section 162(m) and such relief is sought by the
Corporation, Code Section 162(m), respectively, are
applicable. However, the mere fact that a Committee member shall
fail to qualify under either of the foregoing requirements shall
not invalidate any Award made by the Committee which Award is
otherwise validly made under the Plan. The members of the Committee
shall be appointed by, and may be changed at any time and from time
to time in the discretion of, the Board. During any time that the
Board is acting as administrator of the Plan, it shall have all the
powers of the Committee hereunder, and any reference herein to the
Committee (other than in this Section 4.1) shall include the
Board.
4.2 Action by
the Committee. For purposes of administering the Plan,
the following rules of procedure shall govern the Committee. A
majority of the Committee shall constitute a quorum. The acts of a
majority of the members present at any meeting at which a quorum is
present, and acts approved unanimously in writing by the members of
the Committee in lieu of a meeting, shall be deemed the acts of the
Committee. Each member of the Committee is entitled to, in good
faith, rely or act upon any report or other information furnished
to that member by any officer or other employee of the Corporation
or any Parent or Subsidiary, the Corporation’s independent
certified public accountants, or any executive compensation
consultant or other professional retained by the Corporation to
assist in the administration of the Plan.
4.3 Authority
of Committee. Except as provided below the Committee has
the exclusive power, authority and discretion to:
(a) Designate
Participants;
(b) Determine the type or types of
Awards to be granted to each Participant;
(c) Determine the number of Awards
to be granted and the number of shares of Stock to which an Award
will relate;
(d) Determine the terms and
conditions of any Award granted under the Plan, including but not
limited to, the exercise price, grant price, or purchase price, any
restrictions or limitations on the Award, any schedule for lapse of
forfeiture restrictions or restrictions on the exercisability of an
Award, and accelerations or waivers thereof, based in each case on
such considerations as the Committee in its sole discretion
determines;
(e) Accelerate the vesting or lapse
restrictions of any outstanding Award, based in each case on such
considerations as the Committee it its sole discretion determines,
subject however, to the restrictions in Sections 7.1 (b), 8.1(b),
and 9.3.
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(f) Determine whether, to what
extent, and under what circumstances an Award may be settled in, or
the exercise price of an Award may be paid in, cash, Stock, other
Awards, or other property, or an Award may be canceled, forfeited,
or surrendered;
(g) Prescribe the form and content
of each Award Agreement, which need not be identical for each
Participant;
(h) Decide all other matters that
must be determined in connection with an Award;
(i) Establish, adopt or revise any
rules and regulations as it may deem necessary or advisable to
administer the Plan;
(j) Make all other decisions and
determinations that may be required under the Plan or as the
Committee deems necessary or advisable to administer the
Plan;
(k) Amend the Plan or any Award
Agreement as provided herein; and
(l) Adopt such modifications,
procedures, and subplans as may be necessary or desirable to comply
with provisions of the laws of non-U.S. jurisdictions in which the
Corporation or any Parent or Subsidiary may operate, in order to
assure the viability of the benefits of Awards granted to
Participants located in such other jurisdiction and to meet the
objectives of the Plan.
Notwithstanding the above, the Board
or the Committee may expressly delegate to a special committee
consisting of one or more directors who are also officers of the
Corporation some or all of the Committee’s authority under
subsections (a) through (g) above with respect to those
eligible Participants who, at the time of the grant are not, and
are not anticipated to become, either (I) Covered Employees or
(ii) persons subject to the insider trading rules of
Section 16 of the 1934 Act. Further, the Committee may
delegate its general administrative duties under the Plan to an
officer or employee or committee of officers or employees of the
Company.
4.4. Decisions
Binding. The Committee’s interpretation of the
Plan, any Awards granted under the Plan, any Award Agreement and
all decisions and determinations by the Committee with respect to
the Plan are final, binding, and conclusive on all parties. No
member of the Committee shall be liable for any act done in good
faith.
ARTICLE 5
Shares Subject To The
Plan
5.1. Number
of Shares. The aggregate number of shares of Stock reserved and
available for Awards or which may be used to provide a basis of
measurement for or to determine the value of an Award (such as with
a Stock Appreciation Right) shall be 17,500,000 of which not more
than thirty-five percent (35%) may be granted as Awards of
Restricted Stock or unrestricted Stock Awards, and not more than
ten percen
