Exhibit 10.iii.b
THE MOSAIC COMPANY
2004 OMNIBUS STOCK AND INCENTIVE
PLAN
(AS AMENDED THROUGH JULY 21,
2009)
Section 1.
Purpose
The purpose of the Plan is to
promote the interests of the Company and its stockholders by aiding
the Company in attracting and retaining employees, officers,
consultants, agents, advisors, independent contractors and
directors capable of assuring the future success of the Company, to
offer such persons incentives to put forth maximum efforts for the
success of the Company’s business and to afford such persons
an opportunity to acquire a proprietary interest in the
Company.
Section 2.
Definitions
As used in the Plan, the following
terms shall have the meanings set forth below:
(a) “Affiliate” shall
mean (i) any entity that, directly or indirectly through one
or more intermediaries, is controlled by the Company and
(ii) any entity in which the Company has a significant equity
interest, in each case as determined by the Committee.
(b) “Award” shall mean
any Option, Stock Appreciation Right, Restricted Stock, Restricted
Stock Unit, Performance Award, Dividend Equivalent, Other Stock
Grant or Other Stock-Based Award granted under the Plan.
(c) “Award Agreement”
shall mean any written agreement, contract or other instrument or
document evidencing any Award granted under the Plan. Each Award
Agreement shall be subject to the applicable terms and conditions
of the Plan and any other terms and conditions (not inconsistent
with the Plan) determined by the Committee.
(d) “Board” shall mean
the Board of Directors of the Company.
(e) “Code” shall mean
the Internal Revenue Code of 1986, as amended from time to time,
and any regulations promulgated thereunder.
(f) “Committee” shall
mean a committee of Directors designated by the Board to administer
the Plan, which shall initially be the Compensation Committee of
the Board or a subcommittee thereof. The Committee shall be
comprised of not less than such number of Directors as shall be
required to permit Awards granted under the Plan to qualify under
Rule 16b-3 and Section 162(m) of the Code, and each
member of the Committee shall be a “Non-Employee
Director.”
(g) “Company” shall mean
The Mosaic Company, a Delaware corporation, and any successor
corporation.
(h) “Director” shall
mean a member of the Board, including any Non-Employee
Director.
(i) “Dividend
Equivalent” shall mean any right granted under
Section 6(e) of the Plan.
(j) “Eligible Person”
shall mean any employee, officer, consultant, agent, advisor,
independent contractor or director providing services to the
Company or any Affiliate who the Committee determines to be an
Eligible Person.
(k) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
(l) “Fair Market Value”
shall mean, with respect to any property (including, without
limitation, any Shares or other securities), the fair market value
of such property determined by such methods or procedures as shall
be established from time to time by the Committee. Notwithstanding
the foregoing and unless otherwise determined by the Committee, the
Fair Market Value of a Share as of a given date shall be, if
the Shares are then listed on the New York Stock Exchange, the
closing sale price of one Share as reported on the New York Stock
Exchange on such date or, if the Shares are not traded on the New
York Stock Exchange on such date, on the most recent preceding date
when the Shares were so traded.
(m) “Incentive Stock
Option” shall mean an option granted under Section 6(a)
of the Plan that is intended to qualify as an “incentive
stock option” in accordance with the terms of
Section 422 of the Code or any successor provision.
(n) “Non-Employee
Director” shall mean any Director who is not also an employee
of the Company or an Affiliate within the meaning of
Rule 16b-3 and an “outside director” within the
meaning of Section 162(m) of the Code.
(o) “Non-Qualified Stock
Option” shall mean an option granted under Section 6(a)
of the Plan that is not an Incentive Stock Option.
(p) “Option” shall mean
an Incentive Stock Option or a Non-Qualified Stock
Option.
(q) “Other Stock Grant”
shall mean any right granted under Section 6(f) of the
Plan.
(r) “Other Stock-Based
Award” shall mean any right granted under Section 6(g)
of the Plan.
(s) “Participant” shall
mean an Eligible Person designated to be granted an Award under the
Plan.
(t) “Performance Award”
shall mean any right granted under Section 6(d) of the
Plan.
(u) “Performance Goal”
shall mean one or more of the following performance goals, either
individually, alternatively or in any combination, applied on a
corporate, subsidiary or business unit basis: revenue, cash flow,
gross profit, earnings before interest and taxes, earnings before
interest, taxes, depreciation and amortization and net earnings,
earnings per share, margins (including one or more of gross,
operating and net income margins), returns (including one or more
of return on assets, equity, investment, capital and revenue and
total stockholder
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return), stock price, economic value added,
working capital, market share, cost reductions, workforce
satisfaction and diversity goals, employee retention, customer
satisfaction, completion of key projects and strategic plan
development and implementation. Such goals may reflect absolute
entity or business unit performance or a relative comparison to the
performance of a peer group of entities or other external measure
of the selected performance criteria. Pursuant to rules and
conditions adopted by the Committee on or before the earlier of
(i) the 90 th day of the applicable performance period or
(ii) the day upon which 25% of the applicable performance
period shall have been completed, for which Performance Goals are
established, the Committee may appropriately adjust any evaluation
of performance under such goals to exclude the effect of certain
events, including any of the following events: asset write-downs;
litigation or claim judgments or settlements; changes in tax law,
accounting principles or other such laws or provisions affecting
reported results; severance, contract termination and other costs
related to exiting certain business activities; and gains or losses
from the disposition of businesses or assets or from the early
extinguishment of debt.
(v) “Person” shall mean
any individual or entity, including a corporation, partnership,
limited liability company, association, joint venture or
trust.
(w) “Plan” shall mean
The Mosaic Company 2004 Omnibus Stock and Incentive Plan, as
amended from time to time, the provisions of which are set forth
herein.
(x) “Reload Option”
shall mean any Option granted under Section 6(a)(v) of the
Plan.
(y) “Restricted Stock”
shall mean any Share granted under Section 6(c) of the
Plan.
(z) “Restricted Stock
Unit” shall mean any unit granted under Section 6(c) of
the Plan evidencing the right to receive a Share (or a cash payment
equal to the Fair Market Value of a Share) at some future
date.
(aa) “Rule 16b-3”
shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as
amended, or any successor rule or regulation.
(bb) “Section 162(m)”
shall mean Section 162(m) of the Code and the applicable
Treasury Regulations promulgated thereunder.
(cc) “Securities Act”
shall mean the Securities Act of 1933, as amended.
(dd) “Share” or
“Shares” shall mean a share or shares of common stock,
$0.01 par value per share, of the Company or such other securities
or property as may become subject to Awards pursuant to an
adjustment made under Section 4(c) of the Plan.
(ee) “Stock Appreciation
Right” shall mean any right granted under Section 6(b)
of the Plan.
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Section 3. Administration
(a) Power and Authority of the
Committee . The Plan shall be administered by the Committee.
Subject to the express provisions of the Plan and to applicable
law, the Committee shall have full power and authority to:
(i) designate Participants; (ii) determine the type or
types of Awards to be granted to each Participant under the Plan;
(iii) determine the number of Shares to be covered by (or the
method by which payments or other rights are to be determined in
connection with) each Award; (iv) determine the terms and
conditions of any Award or Award Agreement; (v) amend the
terms and conditions of any Award or Award Agreement and accelerate
the exercisability of any Option or waive any restrictions relating
to any Award; (vi) determine whether, to what extent and under
what circumstances Awards may be exercised in cash, Shares,
promissory notes ( provided , however , that the par
value of any Shares to be issued pursuant to such exercise shall be
paid in the form of cash, services rendered, personal property,
real property or a combination thereof, and provided,
further , that the acceptance of such promissory notes does not
conflict with Section 402 of the Sarbanes-Oxley Act of 2002),
other securities, other Awards or other property, or canceled,
forfeited or suspended; (vii) determine whether, to what
extent and under what circumstances cash, Shares, promissory notes
( provided , however , that the acceptance of such
promissory notes does not conflict with Section 402 of the
Sarbanes-Oxley Act of 2002), other securities, other Awards, other
property and other amounts payable with respect to an Award under
the Plan shall be deferred either automatically or at the election
of the holder thereof or the Committee ( provided ,
however , that the par value of any Shares and Restricted
Stock shall be paid in the form of cash, services rendered,
personal property, real property or a combination thereof prior to
their issuance); (viii) interpret and administer the Plan and
any instrument or agreement, including an Award Agreement, relating
to the Plan; (ix) establish, amend, suspend or waive such
rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan, including
the right to delegate authority under the Plan, subject to
Section 162(m); and (x) make any other determination and
take any other action that the Committee deems necessary or
desirable for the administration of the Plan. Unless otherwise
expressly provided in the Plan, all actions taken and all
designations, determinations, interpretations and other decisions
under or with respect to the Plan or any Award shall be within the
sole discretion of the Committee, may be made at any time and shall
be final, conclusive and binding upon any Eligible Person and any
holder or beneficiary of any Award.
(b) Power and Authority of the
Board . Notwithstanding anything to the contrary contained
herein, but subject to the requirements of Section 162(m), the
Board may, at any time and from time to time, without any further
action of the Committee, exercise the powers and duties of the
Committee under the Plan.
Section 4. Shares Available
for Awards
(a) Shares Available .
Subject to adjustment as provided in Section 4(c) of the Plan,
the aggregate number of Shares that may be issued under the Plan
shall be 25,000,000. Shares to be issued under the Plan may be
either authorized but unissued Shares or Shares re-acquired and
held in treasury. Notwithstanding the foregoing, the number of
Shares available for granting Incentive Stock Options under the
Plan shall not exceed 25,000,000, subject to adjustment
as
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provided in Section 4(c) of the Plan and
subject to the provisions of Section 422 or 424 of the Code or
any successor provision.
(b) Accounting for Awards .
For purposes of this Section 4, if an Award entitles the
holder thereof to receive or purchase Shares, 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 available for granting Awards under the Plan. Any
Shares that are used by a Participant as full or partial payment to
the Company of the purchase price relating to an Award, including
in connection with the exercise of an SAR or Shares tendered in
connection with the grant of a Reload Option, or in connection with
the satisfaction of tax obligations relating to an Award, shall
again be available for granting Awards under the Plan. In addition,
if any Shares covered by an Award or to which an Award relates are
not purchased or are forfeited, or if an Award otherwise terminates
without delivery of any Shares, then the number of Shares counted
against the aggregate number of Shares available under the Plan
with respect to such Award, to the extent of any such forfeiture or
termination, shall again be available for granting Awards under the
Plan.
(c) Adjustments . In the
event that the Committee shall determine that any dividend or other
distribution (whether in the form of cash, Shares, other securities
or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company or other similar
corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan,
then the Committee shall, in its sole discretion and in such manner
as it may deem equitable, adjust any or all of (i) the number
and type of Shares (or other securities or other property) that
thereafter may be made the subject of Awards, (ii) the number
and type of Shares (or other securities or other property) subject
to outstanding Awards, (iii) the purchase price or exercise
price with respect to any Award and (iv) the limitations
contained in Section 4(d) of the Plan; provided ,
however , that the number of Shares covered by any Award or
to which such Award relates shall always be a whole number.
Notwithstanding the above, in the event (i) of any
reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company or any other similar corporate transaction or event
or (ii) the Company shall enter into a written agreement to
undergo such a transaction or event, the Committee may, in its sole
discretion, cancel any or all outstanding Awards and pay to the
holders of any such Awards that are otherwise vested, in cash, the
value of such Awards based upon the price per share of capital
stock received or to be received by other stockholders of the
Company in such event.
(d) Award Limitations Under the
Plan .
(i) Section 162(m)
Limitation for Certain Types of Awards . No Eligible Person may
be granted any Award or Awards under the Plan, the value of which
Award or Awards is based solely on an increase in the value of the
Shares after the date of grant of such Award or Awards, for more
than 1,000,000 Shares (subject to adjustment as provided for in
Section 4(c) of the Plan), in the aggregate in any fiscal
year. The
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foregoing annual limitation
specifically includes the grant of any Award or Awards representing
“qualified performance-based compensation” within the
meaning of Section 162(m) of the Code.
(ii) Section 162(m)
Limitation for Performance Awards . The maximum amount payable
pursuant to all Performance Awards to any Participant in the
aggregate in any fiscal year shall be $5,000,000 in value, whether
payable in cash, Shares or other property. This limitation does not
apply to any Award subject to the limitation contained in
Section 4(d)(i) of the Plan.
Section 5.
Eligibility
Any Eligible Person shall be
eligible to be designated a Participant. In determining which
Eligible Persons shall receive an Award and the terms of any Award,
the Committee may take into account the nature of the services
rendered by the respective Eligible Persons, their present and
potential contributions to the success of the Company or such other
factors as the Committee, in its discretion, shall deem relevant.
Notwithstanding the foregoing, an Incentive Stock Option may only
be granted to full-time or part-time employees (which term as used
herein includes, without limitation, officers and directors who are
also employees), and an Incentive Stock Option shall not be granted
to an employee of an Affiliate unless such Affiliate is also a
“subsidiary corporation” of the Company within the
meaning of Section 424(f) of the Code or any successor
provision.
Section 6.
Awards
(a) Options . The Committee
is hereby authorized to grant Options to Eligible Persons with the
following terms and conditions and with such additional terms and
conditions not inconsistent with the provisions of the Plan as the
Committee shall determine:
(i) Exercise Price . The
purchase price per Share purchasable under an Option shall be
determined by the Committee; provided , however ,
that such purchase price shall not be less than 100% of the Fair
Market Value of a Share on the date of grant of such Option;
provided, further , that the Committee may designate a per
share exercise price below Fair Market Value on the date of grant
(A) to the extent necessary or appropriate, as determined by
the Committee, to satisfy applicable legal or regulatory
requirements of a foreign jurisdiction or (B) if the Option is
granted in substitution for a stock option previously granted by an
entity that is acquired by or merged with the Company or an
Affiliate.
(ii) Option Term . The term
of each Option shall be fixed by the Committee at the time of
grant.
(iii) Time and Method of
Exercise . The Committee shall determine the time or times at
which an Option may be exercised in whole or in part and the method
or methods by which, and the form or forms (including, without
limitation, cash, Shares, promissory notes ( provided ,
however , that the par value of any Shares to be issued
pursuant to such exercise shall be paid in the form of cash,
services rendered, personal property, real property or a
combination thereof, and provided, further , that
the
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acceptance of such promissory notes
does not conflict with Section 402 of the Sarbanes-Oxley Act
of 2002), other securities, other Awards or other property, or any
combination thereof, having a Fair Market Value on the exercise
date equal to the applicable exercise price) in which, payment of
the exercise price with respect thereto may be made or deemed to
have been made.
(iv) Incentive Stock Options
. Notwithstanding anything in the Plan to the contrary, the
following additional provisions shall apply to the grant of stock
options which are intended to qualify as Incentive Stock
Options:
(A) The Committee will not grant
Incentive Stock Options in which the aggregate Fair Market Value
(determined as of the time the option is granted) of the Shares
with respect to which Incentive Stock Options are exercisable for
the first time by any Participant during any calendar year (under
this Plan and all other plans of the Company and its Affiliates)
shall exceed $100,000.
(B) All Incentive Stock Options must
be granted within ten years from the earlier of the date on which
this Plan was adopted by the Board or the date this Plan was
approved by the stockholders of the Company.
(C) Unless sooner exercised, all
Incentive Stock Options shall expire and no longer be exercisable
no later than 10 years after the date of grant; provided ,
however , that in the case of a grant of an Incentive Stock
Option to a Participant who, at the time such Option is granted,
owns (within the meaning of Section 422 of the Code) stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or of its Affiliate, such Incentive
Stock Option shall expire and no longer be exercisable no later
than 5 years from the date of grant.
(D) The purchase price per Share for
an Incentive Stock Option shall be not less than 100% of the Fair
Market Value of a Share on the date of grant of the Incentive Stock
Option; provided , however , that, in the case of the
grant of an Incentive Stock Option to a Participant who, at the
time such Option is granted, owns (within the meaning of
Section 422 of the Code) stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company
or of its Affiliate, the purchase price per Share purchasable under
an Incentive Stock Option shall be not less than 110% of the Fair
Market Value of a Share on the date of grant of the Inventive Stock
Option.
(E) Any Incentive Stock Option
authorized under the Plan shall contain such other provisions as
the Committee shall deem advisable, but shall in all events be
consistent with and contain all provisions required in order to
qualify the Option as an Incentive Stock Option.
(v) Reload Options . The
Committee may grant Reload Options, separately or together with
another Option and subject to the terms and conditions established
by the Committee, pursuant to which the Participa
