Exhibit 10(c)
QUIXOTE CORPORATION
2001 EMPLOYEE STOCK INCENTIVE
PLAN
As Amended June 26,
2009
1.
PURPOSE . The purposes of this plan (the
“Plan”) are to encourage selected employees of Quixote
Corporation (the “Company”) and its Subsidiaries, who
are capable of having an impact on the performance of the Company,
to acquire a long-term proprietary interest in the growth and
performance of the Company, to generate an increased incentive to
contribute to the Company’s future success and prosperity
(thus enhancing the value of the Company for the benefit of its
stockholders), and to enhance the ability of the Company and its
Subsidiaries to attract and retain qualified individuals upon whom
the sustained progress, growth, and profitability of the Company
depend.
2.
DEFINITIONS
. As used in this Plan, terms
defined immediately after their use shall have the respective
meanings provided by such definitions and the terms set forth below
shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
(a)
“Affiliate” has the
meaning specified in Rule 12b-2 promulgated under the 1934
Act.
(b)
“Award” means options or
shares of Restricted Stock granted under the Plan.
(c)
“Award Agreement” has
the meaning specified in Section 4(c)(v).
(d)
“Board” means the Board
of Directors of the Company.
(e)
“Cause” includes
termination based on the commission of any act or acts involving
dishonesty, breach of fiduciary duty, fraud, illegality or moral
turpitude.
(f)
“Change in Control” has
the meaning specified in Section 13.
(g)
“Code” means the
Internal Revenue Code of 1986, as amended. References to a
particular section of the Code shall include references to
successor provisions.
(h)
“Committee” means the
committee of the Board appointed pursuant to
Section 4.
(i)
“Continuing Members” has
the meaning specified in Section 13b(ii).
(j)
“Disability” means a
mental or physical condition which, in the opinion of the
Committee, renders a Grantee unable or incompetent to carry out the
job responsibilities which such Grantee held or the tasks to which
such Grantee was assigned at the time the disability was incurred,
and which is expected to be permanent or for an indefinite duration
exceeding one year.
(k)
“Effective Date” means
the date upon which this Plan is approved by the stockholders of
the Company.
(l)
“Fair Market Value” of
the Stock of the Company means, as of any applicable date, except
as otherwise determined by the Committee, (i) if the Stock is
listed on The New York Stock Exchange, the closing sale price of
the Stock on the immediately preceding date as reported on The New
York Stock Exchange Composite Tape, or if no such reported sale of
the security shall have occurred on such date, on the next
preceding date on which there was such a reported sale or
(ii) if such Stock is traded on the Nasdaq National Market,
the average of the highest reported bid and the lowest reported
asked price per share of the Stock on the immediately preceding
date on the Nasdaq National Market. If the Stock ceases to be
listed on The New York Stock Exchange or traded on the Nasdaq
National Market, as applicable, the Board shall designate an
alternative method of determining the Fair Market Value of the
security.
(m)
“Grant Date” means the
date on which an Award shall be duly granted, as determined in
accordance with Section 6(a)(i).
(n)
“Grantee” means an
individual who has been granted an Award.
(o)
“Immediate Family” has
the meaning specified in Section 7.
(p)
“Including” or
“includes” means “including, without
limitation,” or “includes, without
limitation.”
(q)
“1934 Act” means the
Securities Exchange Act of 1934, as amended. References to a
particular section of, or rule under, the 1934 Act shall
include references to successor provisions.
(r)
“Option Price” means the
per share purchase price of Stock subject to an option.
(s)
“Permissible Transferee”
has the meaning specified in Section 7.
(t)
“Plan” has the meaning
specified in the introductory paragraph.
(u)
“Restricted Period”
means the period, beginning with the first day of the month in
which Restricted Stock is granted, during which restrictions on the
transferability of the Restricted Stock are in effect.
(v)
“Restricted Stock” means
shares of Stock granted pursuant to Section 6(d).
(w)
“Retirement” means a
termination of employment with the Company and its Subsidiaries by
a Grantee, other than for Cause or death, any time after attaining
age 55, provided that the sum of the Grantee’s age and years
of service on the date of termination equals or exceeds sixty-five
(65).
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(x)
“SEC” means the U.S.
Securities and Exchange Commission.
(y)
“Section 16
Grantee” means a person subject to potential liability under
Section 16(b) of the 1934 Act with respect to
transactions involving equity securities of the Company.
(z)
“Share Withholding” has
the meaning specified in Section 12(a).
(aa)
“Stock” means the
Company’s common stock authorized by the Company’s
Certificate of Incorporation.
(bb)
“Subsidiary” means any
entity in which the Company directly or through intervening
subsidiaries owns at least a majority interest of the total
combined voting power or value of all classes of stock or, in the
case of an unincorporated entity, at least a majority in the
capital and profits.
(cc)
“Tax Date” has the
meaning specified in Section 12(b)(ii).
(dd)
“Taxable Event” has the
meaning specified in Section 12(a).
(ee)
“Tendered Restricted
Stock” has the meaning specified in
Section 8.
3.
SCOPE OF THE PLAN.
(a)
Subject to the provisions of
Section 3(d) and Section 20, the maximum number of
shares of Stock that are available and reserved for delivery on
account of the exercise of Awards under this Plan as of the
Effective Date is a total of one million one hundred and
twenty-five thousand (1,125,000) shares of Stock (of which Two
Hundred Thousand (200,000) shares of Stock shall be reserved for
the grant of incentive stock options), and one hundred fifty
thousand (150,000) shall be reserved for the grant of Restricted
Stock.
(b)
Such shares may be treasury shares,
newly issued shares, or shares purchased on the open market
(including private purchases) in accordance with applicable
securities laws, or any combination of the foregoing, as may be
determined from time to time by the Board or the
Committee.
(c)
Subject to adjustment as provided in
Section 20, following the Effective Date the maximum number of
shares of Stock for which Awards may be granted to any Grantee in
any calendar year shall not exceed one hundred thousand (100,000)
shares.
(d)
To the extent an Award shall expire
or terminate for any reason without having been exercised in full
or shall be forfeited without in either case, the Grantee having
enjoyed any of the benefits of stock ownership (other than voting
rights or dividends that are also forfeited), the shares of Stock
(including Restricted Stock) associated with such Award shall
become available for other Awards.
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(e)
For purposes of this
Section 3,
(i)
if an Award is denominated in shares
of Stock, the number of shares covered by such Award, or to which
such Award relates, shall be counted on the date of grant of such
Award against the aggregate number of shares of Stock available for
granting Awards under this Plan;
(ii)
all outstanding shares of Stock
issued under this Plan, even if the Stock is subject to
restrictions, shall be counted on the date of grant of any Award
against the aggregate number of shares of Stock available for
granting Awards under this Plan;
(iii)
the shares of Stock underlying
outstanding options and similar Awards shall be counted while the
Award is outstanding against the aggregate number of shares of
Stock available for granting Awards under this Plan; and
(iv)
in the event of a stock-for-stock
exercise of an option, the gross number of shares of Stock subject
to the option exercised, not the net number of shares actually
issued upon exercise shall be counted against the aggregate number
of shares of Stock available for granting Awards under this
Plan.
4.
ADMINISTRATION
.
(a)
Subject to Section 4(b), this
Plan shall be administered by a committee of the Board
(“Committee”) which shall consist of not less than two
persons who are Directors of the Company. Membership on the
Committee may be subject to such limitations as the Board deems
appropriate to permit transactions in Stock pursuant to the Plan to
(i) be exempt from liability under Section 16(b) of
the 1934 Act pursuant to Rule 16b-3 thereunder and
(ii) satisfy the performance-based compensation exception to
the $1 million limit under Section 162(m) of the
Code.
(b)
The Board may, in its discretion,
reserve to itself or delegate to the Chief Executive Officer of the
Company or another committee of the Board, any or all of the
authority and responsibility of the Committee with respect to
Awards to Grantees who are not Section 16 Grantees at the time
any such delegated authority or responsibility is exercised.
Such other committee may consist of two or more Directors who may,
but need not be, officers or employees of the Company or of any of
its Subsidiaries. To the extent that the Board has reserved
to itself or delegated to the Chief Executive Officer or such other
committee the authority and responsibility of the Committee, all
references to the Committee in the Plan shall be to the Board, the
Chief Executive Officer or such other committee.
(c)
The Committee shall have full and
final authority, in its discretion, but subject to the express
provisions of this Plan, as follows:
(i)
to grant Awards of Stock;
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(ii)
to determine (A) when Awards
may be granted, and (B) whether or not specific Awards shall
be identified with other specific Awards, and if so, whether they
shall be exercisable cumulatively with or alternatively to such
other specific Awards;
(iii)
to interpret this Plan and to make
all determinations necessary or advisable for the administration of
this Plan;
(iv)
to prescribe, amend, and rescind
rules and regulations relating to this Plan, including
rules with respect to the exercisability and
non-forfeitability of Awards upon the termination of employment of
a Grantee;
(v)
to determine the terms and
provisions and any restrictions or conditions (including specifying
such performance criteria as the Committee deems appropriate, and
imposing restrictions with respect to Stock acquired upon exercise
of an option, which restrictions may continue beyond the
Grantee’s termination of employment) of the written
agreements by which all Awards shall be evidenced (“Award
Agreements”) which need not be identical.
(vi)
to impose, incidental to an Award,
conditions with respect to competitive employment or other
activities, to the extent such conditions do not conflict with this
Plan;
(vii)
to delegate its duties and
responsibilities under this Plan, except its duties and
responsibilities with respect to Section 16 Grantees, and
(A) the acts of such delegates shall be treated hereunder as
acts of the Committee, and (B) such delegates shall report to
the Committee regarding the delegated duties and
responsibilities;
(viii)
subject to Section 6(a)(ii), to
extend the time during which any Award or group of Awards may be
exercised;
(ix)
to impose such additional
conditions, restrictions, and limitations upon the grant, exercise
or retention of Awards as the Committee may, before or concurrently
with the grant thereof, deem appropriate, including requiring
simultaneous exercise of related identified Awards, and limiting
the percentage of Awards which may from time to time be exercised
by a Grantee; and
(x)
to certify attainment of any
performance criteria to which Awards are subject, if
any.
The determination of the Committee
on all matters relating to this Plan or any Award Agreement shall
be conclusive and final. No member of the Committee shall be liable
for any action or determination made in good faith with respect to
this Plan or any Award.
5.
ELIGIBILITY.
Awards may be granted to any
officer or full-time employee of the Company or any of its
Subsidiaries. In selecting the individuals to whom Awards may
be granted, as well as in determining the number of shares of Stock
subject to, and the other terms and
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conditions applicable to, each Award, the
Committee shall take into consideration such factors as it deems
relevant in promoting the purposes of this Plan.
6.
CONDITIONS TO
GRANTS.
(a)
General Conditions
:
(i)
The Grant Date of an Award shall be
the date on which the Committee grants the Award or such later date
as specified by the Committee at the time of granting the
Award.
(ii)
The term of each Award shall be a
period of not more than ten years from the Grant Date, and shall be
subject to earlier termination as herein established.
(iii)
A Grantee may, if otherwise
eligible, be granted additional Awards in any
combination.
(b)
Grant of Incentive Stock
Options .
(i)
Options granted under this
Section 6(b) shall be “incentive stock
options,” that satisfy the requirements applicable to
“incentive stock options” described in section
422(b) of the Code. No incentive stock option shall be
issued to a Grantee who holds 10% or more of the outstanding voting
securities of the Company on the Grant Date.
(ii)
No later than the Grant Date of any
option, the Committee shall determine the Option Price of such
option. The Option Price of an option shall not be less than
100% of the Fair Market Value of the Stock on the Grant Date.
Such price shall be subject to adjustment as provided in
Section 20.
(iii)
The Award Agreement may provide that
the option may be exercisable with Restricted Stock.
(iv)
The Fair Market Value (determined at
the time the option is granted) of the Stock with respect to which
incentive stock options are exercisable for the first time by a
Grantee during any calendar year (under the Plan and under any
other incentive stock options of the Company) shall not exceed
$100,000.
(v)
The grant of any incentive stock
option shall be conditioned upon the Grantee agreeing to advise the
Company when the Grantee sells or transfers any shares of Stock
acquired pursuant to the exercise of an incentive stock option, and
such agreement shall be incorporated in the applicable Award
Agreement. The Company may legend any certificate
representing Stock acquired pursuant to exercise of an incentive
stock option to reflect such restriction.
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(c)
Grant of Non-Qualified Stock
Options.
(i)
Options granted under this
Section 6(c) shall be “non-qualified stock
options,” and are not intended to be “incentive stock
options” as that term is described in section 422(b) of
the Code.
(ii)
No later than the Grant Date of any
option, the Committee shall determine the Option Price of such
option. The Option Price of an option shall not be less than
100% of the Fair Market Value of the Stock on the Grant
Date.
(iii)
The Award Agreement may provide that
the option may be exercisable with Restricted Stock.
(d)
Grant of Shares of Restricted
Stock.
(i)
The Committee may in its discretion
grant shares of Restricted Stock to any individual eligible under
Section 5 to receive Awards, and shall establish the terms and
conditions, including such performance criteria, as shall be
applicable to such Restricted Stock; provided, however, that the
restriction period for any Restricted Stock Award shall be no less
than three years or at least one year if the Restricted Stock Award
is performance based.
(ii)
The Committee shall, in its
discretion, determine the amount, if any, that a Grantee shall pay
for shares of Restricted Stock. Awards shall be granted for no cash
consideration or for such minimal cash consideration as may be
required by applicable law. If any such cash consideration is
required, payment shall be made in full by the Grantee before the
delivery of the shares and in any event no later than 10 days after
the Grant Date for such shares.
(iii)
The Committee may, but need not,
provide that all or any portion of a Grantee’s Award of
Restricted Stock, or Restricted Stock acquired upon exercise of an
option shall be forfeited:
(A)
except as otherwise specified in the
Award Agreement, upon the Grantee’s termination of employment
for any reason specified in the Award Agreement within a specified
time period after the Grant Date, or
(B)
if the Company or the Grantee does
not achieve specified performance objectives (if any) within a
specified time period after the Grant Date and before the
Grantee’s termination of employment, or
(C)
upon failure to satisfy such other
restrictions as the Committee may specify in the Award Agreement;
provided that, subject to Sections 13 and 14, in no case shall such
Award become nonforfeitable before the first anniversary of the
Grant Date.
(iv)
If a share of Restricted Stock is
forfeited, then:
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(A)
if the Grantee was required to pay
for such share or acquired such Restricted Stock upon the exercise
of an option, the Grantee shall be deemed to have resold such share
of Restricted Stock to the Company at the lesser of (1) the
amount paid or, if the Restricted Stock was acquired on exercise of
an option, the Option Price paid by the Grantee for such share of
Restricted Stock, or (2) the Fair Market Value of a share of
Stock on the date of such forfeiture;
(B)
the Company shall pay to the Grantee
the amount determined under clause (A) of this sentence as
soon as is administratively practical; and
(C)
such share of Restricted Stock shall
cease to be outstanding, and shall no longer confer on the Grantee
thereof any rights as a stockholder of the Company, from and after
the later of the date the event causing the forfeiture occurred or
the date of the Company’s tender of the payment specified in
clause (B) of this sentence, whether or not such tender is
accepted by the Grantee.
(v)
The Committee may provide that any
share of Restricted Stock shall be held (together with a stock
power executed in blank by the Grantee) in escrow by the Secretary
of the Company until the expiration of the Restricted Period and/or
such shares become nonforfeitable or are forfeited. Any share of
Restricted Stock shall bear an appropriate legend specifying that
such share is non-transferable and subject to the restrictions set
forth in the Plan and the Award Agreement. If any shares of
Restricted Stock become nonforfeitable, and any applicable
Restricted Period has ended, the Company shall cause certificates
for such shares to be issued or reissued without such
legend.
(vi)
The Committee may provide one or
more Restricted Periods applicable to Restricted Stock, at its
discretion. Such Restricted Period shall be measured from the first
day of the month in which Restricted Stock is granted with respect
to such Restricted Period.
(vii)
Each grant of Restricted Stock shall
be evidenced by a written instrument stating the number of shares
of Restricted Stock granted, the Restriction Period, the
restrictions applicable to such Restricted Stock, the nature and
terms of payment of consideration, if any, the consequences of
forfeiture that will apply to such Restricted Stock, and any other
terms, conditions and rights with respect to such grant.
(viii)
Any other provision of this Plan to
the contrary notwithstanding, the Committee may at any time shorten
any Restricted Period, if it determines that conditions, including
but not limited to, changes in the economy, changes in competitive
conditions, changes in laws or government or regulations, changes
in generally accepted accounting principles, changes in the
Company’s accounting policies, acquisitions or dispositions,
or the occurrence of other unusual, unforeseen, or extraordinary
events, so warrant.
7.
NON-TRANSFERABILITY
. Except for those assignments
and transfers that
