NASH-FINCH COMPANY
2000 STOCK INCENTIVE PLAN
(Amended and Restated Effective
July 14, 2008)
The
purpose of the Nash-Finch Company 2000 Stock Incentive Plan (the
“ Plan ”) is to support the maximization of
long-term value creation for Nash-Finch Company (the “
Company ”) and its stockholders by enabling the
Company and its Subsidiaries to attract and retain persons of
ability to perform services for the Company and its Subsidiaries by
providing an incentive to such individuals through equity
participation in the Company and by rewarding such individuals who
contribute to the achievement by the Company of its economic
objectives. The Plan is hereby amended and restated in its
entirety, effective as of July 14, 2008.
This
Plan is intended to comply with all applicable law, including the
requirements of Section 409A of the Code and Department of Treasury
regulations and other interpretive guidance issued thereunder,
including, without limitation, any such regulations or other
guidance that may be issued after the effective date of this
amendment and restatement of the Plan
(“Section 409A”), and shall be operated and
interpreted in accordance with this intention. This Plan has been
operated in reasonable, good faith compliance with
Section 409A (within the meaning of Internal Revenue Service
Notices 2005-1, 2006-79 and 2007-86) during the period beginning on
January 1, 2005 and ending on the effective date of this
amendment and restatement of the Plan.
The
following terms will have the meanings set forth below, unless the
context clearly otherwise requires:
2.1
“ Board ” means the Board of Directors of the
Company.
2.2
“ Broker Exercise Notice ” means a written
notice pursuant to which a Participant, upon exercise of an Option,
irrevocably instructs a broker or dealer to sell a sufficient
number of shares or loan a sufficient amount of cash to pay all or
a portion of the exercise price of the Option and/or any related
withholding tax obligations and remit such sums to the Company and
directs the Company to deliver stock certificates to be issued upon
such exercise directly to such broker or dealer.
2.3
“ Change in Control ” means an event described
in Section 13.1 of the Plan.
2.4
“ Code ” means the Internal Revenue Code of
1986, as amended.
2.5
“ Committee ” means the group of individuals
administering the Plan, as provided in Section 3 of the
Plan.
2.6
“ Common Stock ” means the common stock of the
Company, $1.66-2/3 par value, or the number and kind of shares of
stock or other securities into which such common stock may be
changed in accordance with Section 4.3 of the Plan.
2.7
“Disability” or “Disabled” means
that a Participant is, 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:
(a) unable to
engage in any substantial gainful activity, or
(b) receiving
income replacement benefits for a period of not less than
3 months under any accident and health plan covering
Employees.
2.8
“ Eligible Recipients ” means all employees of
the Company or any Subsidiary and any non-employee directors of the
Company or any Subsidiary.
2.9
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
2.10
“ Fair Market Value ” means, with respect to the
Common Stock, as of any date (or, if no shares were traded or
quoted on such date, as of the next preceding date on which there
was such a trade or quote) (a) the mean between the reported
high and low sale prices of the Common Stock during the regular
trading session if the Common Stock is listed, admitted to unlisted
trading privileges or reported on any foreign or national
securities exchange or on the Nasdaq Global Market or an equivalent
foreign market on which sale prices are reported; (b) if the
Common Stock is not so listed, admitted to unlisted trading
privileges or reported, the closing bid price as reported by the
Nasdaq Capital Market, OTC Bulletin Board or the National Quotation
Bureau, Inc. or other comparable service; or (c) if the Common
Stock is not so listed or reported, such price as the Committee
determines in good faith in the exercise of its reasonable
discretion.
2.11
“ Incentive Award ” means an Option, Stock
Appreciation Right, Restricted Stock Award, Performance Unit or
Stock Bonus granted to an Eligible Recipient pursuant to the
Plan.
2.12
“ Incentive Stock Option ” means a right to
purchase Common Stock granted to an Eligible Recipient pursuant to
Section 6 of the Plan that qualifies as an “incentive
stock option” within the meaning of Section 422 of the
Code.
2.13
“ Non-Statutory Stock Option ” means a right to
purchase Common Stock granted to an Eligible Recipient pursuant to
Section 6 of the Plan that does not qualify as an Incentive
Stock Option.
2.14
“ Option ” means an Incentive Stock Option or a
Non-Statutory Stock Option.
2.15
“ Participant ” means an Eligible Recipient who
receives one or more Incentive Awards under the Plan.
2
2.16
“ Performance Criteria ” means the performance
criteria that may be used by the Committee in granting Performance
Units or Restricted Stock Awards contingent upon achievement of
performance goals, consisting of specified levels of, or relating
to:
(a) customer satisfaction as measured by a
Company sponsored customer survey;
(b) employee engagement or employee
relations as measured by a Company sponsored survey;
(e) financial performance as measured by
net sales, operating income, income before income taxes, net
income, net income per share (basic or diluted), earnings before
interest, taxes depreciation and amortization (EBITDA) (with or
without adjustments prescribed in any Company credit facility),
profitability as measured by return ratios (including return on
assets, return on equity, return on investment and return on
sales), cash flows, market share, cost reduction goals, margins
(including one or more of gross, operating and net income margins),
stock price, total return to stockholders, economic value added,
working capital and productivity improvements;
(f) retail
store performance as determined by independent assessment;
and
(g) operational performance as measured by
on-time delivery, fill rate, selector accuracy, cost per case,
sales per square foot, sales per labor hour and other, similar,
objective productivity measures.
The Committee
may select one criterion or multiple criteria for measuring
performance, and the measurement may be based upon Company,
Subsidiary or business unit performance, either absolute or by
relative comparison to other companies or any other external
measure of the selected criteria. The Committee may also determine
that any of these performance goals shall be calculated by
including or excluding any one or more specific items or categories
of items (including projections) as designated by the
Committee.
2.17
“ Performance Unit ” means a right granted to an
Eligible Recipient pursuant to Section 9 of the Plan to
receive a payment from the Company, in the form of stock, cash or a
combination of both, upon the achievement of Performance Criteria
or other established employment, service, performance or other
goals during a specified period.
2.18
“ Previously Acquired Shares ” means shares of
Common Stock that are already owned by the Participant or, with
respect to any Incentive Award, that are to be issued upon the
grant, exercise or vesting of such Incentive Award.
2.19
“ Restricted Stock Award ” means an award of
Common Stock granted to an Eligible Recipient pursuant to
Section 8 of the Plan that is subject to the restrictions on
transferability and the risk of forfeiture imposed by the
provisions of such Section 8.
3
2.20
“Retirement” means, with respect to a
Participant, separation from service with the Company or any
Subsidiary for any reason on or after the earlier of the attainment
of (i) age 65 or (ii) age 55 with 10 years of
service with the Company or any Subsidiary.
2.21
“ Securities Act ” means the Securities Act of
1933, as amended.
2.22
“ Stock Appreciation Right ” means a right
granted to an Eligible Recipient pursuant to Section 7 of the
Plan to receive a payment from the Company, in the form of stock,
cash or a combination of both, equal to the difference between the
Fair Market Value of one or more shares of Common Stock and the
exercise price of such shares under the terms of such Stock
Appreciation Right.
2.23
“ Stock Bonus ” means an award of Common Stock
granted to an Eligible Recipient pursuant to Section 10 of the
Plan.
2.24
“ Subsidiary ” means any entity that is directly
or indirectly controlled by the Company or any entity in which the
Company has a significant equity interest, as determined by the
Committee.
2.25
“ Tax Date ” means the date any withholding tax
obligation arises under the Code or other applicable tax statute
for a Participant with respect to an Incentive Award.
3.1
The Committee . The Plan will be administered by the Board
or by a committee of the Board. So long as the Company has a class
of its equity securities registered under Section 12 of the
Exchange Act, any committee administering the Plan will consist
solely of two or more members of the Board who are
“non-employee directors” within the meaning of
Rule 16b-3 under the Exchange Act and, if the Board so
determines in its sole discretion, who are “outside
directors” within the meaning of Section 162(m) of the Code.
Such a committee, if established, will act by majority approval of
the members (but may also take action with the written consent of
all of the members of such committee), and a majority of the
members of such a committee will constitute a quorum. As used in
the Plan, “Committee” will refer to the Board or to
such a committee, if established. To the extent consistent with
applicable corporate law of the Company’s jurisdiction of
incorporation, the Committee may delegate to any officers of the
Company the duties, power and authority of the Committee under the
Plan pursuant to such conditions or limitations as the Committee
may establish; provided, however, that only the Committee may
exercise such duties, power and authority with respect to Eligible
Recipients who are subject to Section 16 of the Exchange Act.
The Committee may exercise its duties, power and authority under
the Plan in its sole and absolute discretion without the consent of
any Participant or other party, unless the Plan specifically
provides otherwise. Each determination, interpretation or other
action made or taken by the Committee pursuant to the provisions of
the Plan will be final, conclusive and binding for all purposes and
on all persons, including, without limitation, the Company, the
stockholders of the Company, the participants and their respective
successors-in-interest. No member of the Committee will be liable
for any action or determination made in good faith with respect to
the Plan or any Incentive Award granted under the Plan.
4
3.2
Authority of the Committee .
(a) In accordance
with and subject to the provisions of the Plan, the Committee will
have the authority to determine all provisions of Incentive Awards
as the Committee may deem necessary or desirable and as consistent
with the terms of the Plan, including, without limitation, the
following: (i) the Eligible Recipients to be selected as
Participants; (ii) the nature and extent of the Incentive Awards to
be made to each Participant (including the number of shares of
Common Stock to be subject to each Incentive Award, any exercise
price, the manner in which Incentive Awards will vest or become
exercisable and whether Incentive Awards will be granted in tandem
with other Incentive Awards) and the form of written agreement, if
any, evidencing such Incentive Award; (iii) the time or times
when Incentive Awards will be granted; (iv) the duration of
each Incentive Award; and (v) the restrictions and other
conditions to which the payment or vesting of Incentive Awards may
be subject. In addition, the Committee will have the authority
under the Plan in its sole discretion to pay the economic value of
any Incentive Award in the form of cash, Common Stock or any
combination of both.
(b) The Committee
will have the authority under the Plan to amend or modify the terms
of any outstanding Incentive Award in any manner, including,
without limitation, the authority to modify the number of shares or
other terms and conditions of an Incentive Award, extend the term
of an Incentive Award or accelerate the exercisability or vesting
or otherwise terminate any restrictions relating to an Incentive
Award; provided, however, that the amended or modified terms are
permitted by the Plan as then in effect and that any Participant
adversely affected by such amended or modified terms has consented
to such amendment or modification. No amendment or modification to
an Incentive Award, whether pursuant to this Section 3.2 or
any other provisions of the Plan, will be deemed to be a re-grant
of such Incentive Award for purposes of this Plan.
(c) In the event
of (i) any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend,
stock split, combination of shares, rights offering, extraordinary
dividend or divestiture (including a spin-off) or any other change
in corporate structure or shares; (ii) any purchase,
acquisition, sale, disposition or write-down of a significant
amount of assets or a significant business; (iii) any change
in accounting principles or practices, tax laws or other such laws
or provisions affecting reported results; (iv) any uninsured
catastrophic losses or extraordinary non-recurring items as
described in Accounting Principles Board Opinion No. 30 or in
management’s discussion and analysis of financial performance
appearing in the Company’s annual report to stockholders for
the applicable year; or (v) any other similar change, in each
case with respect to the Company or any other entity whose
performance is relevant to the grant or vesting of an Incentive
Award, the Committee (or, if the Company is not the surviving
corporation in any such transaction, the board of directors of the
surviving corporation) may, without the consent of any affected
Participant, amend or modify the vesting criteria (including
Performance Criteria) of any outstanding Incentive Award that is
based in whole or in part on the financial performance of the
Company (or any Subsidiary or division thereof) or such other
entity so as equitably to reflect such event, with the desired
result that the criteria for evaluating such financial performance
of the Company or such other entity will be substantially
the
5
same (in the
sole discretion of the Committee or the board of directors of the
surviving corporation) following such event as prior to such event;
provided, however, that the amended or modified terms are permitted
by the Plan as then in effect.
(d)
Notwithstanding any other provision of this Plan other than
Section 4.3, the Committee may not, without prior approval of
the Company’s stockholders, seek to effect any re-pricing of
any previously granted, “underwater” Option by:
(i) amending or modifying the terms of the Option to lower the
exercise price; (ii) canceling the underwater Option and
granting either (A) replacement Options having a lower
exercise price; (B) Restricted Stock Awards; or
(C) Performance Units in exchange; or (iii) repurchasing
the underwater Options and granting new Incentive Awards under this
Plan. For purposes of this Section 3.2(d), an Option will be
deemed to be “underwater” at any time when the Fair
Market Value of the Common Stock is less than the exercise price of
the Option.
4. Shares
Available for Issuance .
4.1
Maximum Number of Shares Available . Subject to adjustment
as provided in Section 4.3 of the Plan, the maximum number of
shares of Common Stock that will be available for issuance under
the Plan will be 2,100,000 shares of Common Stock, plus any shares
of Common Stock which, as of the date the Plan is approved by the
stockholders of the Company, are reserved for issuance under the
Company’s 1994 Stock Incentive Plan, as amended, and which
are not thereafter issued or which have been issued but are
subsequently forfeited and which would otherwise have been
available for further issuance under such plan. Notwithstanding any
other provisions of the Plan to the contrary, (a) no
Participant in the Plan may be granted any Options or Stock
Appreciation Rights, or any other Incentive Awards with a value
based solely on an increase in the value of the Common Stock after
the date of grant, relating to more than 120,000 shares of Common
Stock in the aggregate in any fiscal year of the Company; provided,
however, that a Participant who is first appointed or elected as an
officer or hired as an employee by the Company or who receives a
promotion that results in an increase in responsibilities or duties
may be granted, during the fiscal year of such appointment,
election, hiring or promotion, Options relating to up to 200,000
shares of Common Stock and (b) the 1,000,000 additional shares
of Common Stock that were reserved for issuance under the Plan
effective February 22, 2005 shall be granted solely pursuant
to Performance Units and will consist of shares of the
Company’s treasury stock. All of the foregoing limitations in
clauses (a) and (b) are subject to adjustment as provided
in Section 4.3 of the Plan.
4.2
Accounting for Incentive Awards . Shares of Common Stock
that are issued under the Plan or that are subject to outstanding
Incentive Awards will be applied to reduce the maximum number of
shares of Common Stock remaining available for issuance under the
Plan. Any shares of Common Stock that are subject to an Incentive
Award that lapses, expires, is forfeited in whole or part
(including shares subject to the Incentive Award that are withheld
to satisfy withholding or employment-related tax obligations) or
for any reason is terminated unexercised or unvested and any shares
of Common Stock that are subject to an Incentive Award that is
settled or paid in cash or any form other than shares of Common
Stock will automatically again become available for issuance under
the Plan.
6
4.3
Adjustments to Shares and Incentive Awards . In the event of
any reorganization, merger, consolidation, recapitalization,
liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, divestiture or
extraordinary dividend (including a spin-off) or any other change
in the corporate structure or shares of the Company, the Committee
(or, if the Company is not the surviving corporation in any such
transaction, the board of directors of the surviving corporation)
will make appropriate adjustment (which determination will be
conclusive) as to the number and kind of securities or other
property (including cash) available for issuance or payment under
the Plan and, in order to prevent dilution or enlargement of the
rights of Participants, (a) the number and kind of securities
or other property (including cash) subject to outstanding Options,
and (b) the exercise price of outstanding Options.
Participants
in the Plan will be those Eligible Recipients who, in the judgment
of the Committee, have contributed, are contributing or are
expected to contribute to the creation of value for the Company and
its stockholders. Eligible Recipients may be granted from time to
time one or more Incentive Awards, singly or in combination or in
tandem with other Incentive Awards, as may be determined by the
Committee in its sole discretion. Incentive Awards will be deemed
to be granted as of the date specified in the grant resolution of
the Committee, which date will be the date of any related agreement
with the Participant.
6.1
Grant . An Eligible Recipient may be granted one or more
Options under the Plan, and such Options will be subject to such
terms and conditions, consistent with the other provisions of the
Plan, as may be determined by the Committee in its sole discretion.
The Committee may designate whether an Option is to be considered
an Incentive Stock Option or a Non-Statutory Stock Option. To the
extent that any Incentive Stock Option granted under the Plan
ceases for any reason to qualify as an “incentive stock
option” for purposes of Section 422 of the Code, such
Incentive Stock Option will continue to be outstanding for purposes
of the Plan but will thereafter be deemed to be a Non-Statutory
Stock Option.
6.2
Exercise Price . The per share price to be paid by a
Participant upon exercise of an Option will be determined by the
Committee in its discretion at the time of the Option grant;
provided, however, that such price will not be less than 100% of
the Fair Market Value of one share of Common Stock on the date of
grant or, with respect to an Incentive Stock Option, 110% of the
Fair Market Value if, at the time the Incentive Stock Option is
granted, the Participant owns, directly or indirectly, more than
10% of the total combined voting power of all classes of stock of
the Company or any parent or subsidiary corporation of the
Company.
|
