Exhibit 10.1
ZEP INC.
EMPLOYEE STOCK PURCHASE
PLAN
(Effective As Of October 31,
2007)
ARTICLE I -
INTRODUCTION.
1.1 ESTABLISHMENT AND EFFECTIVE
DATE. Zep Inc. (the “Company”) hereby adopts the Zep
Inc. Employee Stock Purchase Plan (“Plan”). The Plan
shall be effective as of October 31, 2007 (subject to approval
by the stockholders of the Company as provided in Section 2.7)
and shall remain effective until amended or terminated as provided
in Article VI.
1.2. STATEMENT OF PURPOSE. The
purpose of the Zep Inc. Employee Stock Purchase Plan is to provide
eligible employees of the Company and its Subsidiaries, who wish to
become stockholders, an opportunity to purchase Common Stock of the
Company. The Board of Directors of the Company believes that
employee participation in ownership will be to the mutual benefit
of both the employees and the Company.
1.3. INTERNAL REVENUE CODE
CONSIDERATIONS. The Plan is intended to constitute an
“employee stock purchase plan” within the meaning of
Section 423 of the Internal Revenue Code of 1986, as
amended.
ARTICLE II - CERTAIN
DEFINITIONS.
2.1 “ADMINISTRATOR”
means the individual or committee (which may be a committee of the
Board) appointed by the Board to administer the Plan, as provided
in Section 6.5 hereof.
2.2 “BOARD” means the
Board of Directors of the Company.
2.3 “CODE” means the
Internal Revenue Code of 1986, as amended.
2.4 “COMPANY” means Zep
Inc., a Delaware corporation.
2.5 “COMPENSATION” means
the total remuneration paid, during the period of reference, to an
Employee by the Employer, including regular salary or wages,
overtime payments, bonuses, commissions and vacation pay, to which
has been added (a) any elective deferral amounts by which the
Employee has had his current remuneration reduced for the purposes
of funding a contribution to any plan sponsored by the Employer and
satisfying the requirements of section 401(k) of the Code,
(b) any amounts by which the Employee’s compensation has
been reduced pursuant to a compensation reduction agreement between
the Employee and the Employer for the purpose of funding benefits
through any cafeteria plan sponsored by the Employer meeting the
requirements of section 125 of the Code, and (c) any amounts
by which the Employee’s compensation is reduced pursuant to a
deferral agreement under a nonqualified deferred compensation plan.
There shall be excluded from “Compensation” for the
purposes of the Plan, whether or not reportable as income by the
Employee, expense reimbursements of all types, payments in lieu of
expenses, the Employer contributions to any qualified retirement
plan or other program of deferred compensation (except as provided
above), the Employer contributions to Social Security or
worker’s compensation, the
costs paid by the Employer in connection with
fringe benefits and relocation, including gross-ups, and any
amounts accrued for the benefit of the Employee, but not paid,
during the period of reference.
2.6 “CONTINUOUS SERVICE”
means the period of time during which the Employee has been
employed by the Company or a Subsidiary and during which there has
been no interruption of Employee’s employment by the Company
or a Subsidiary. For this purpose, periods of Excused Absence shall
not be considered to be interruptions of Continuous Service.
Continuous Service includes service with Acuity Brands, Inc. (or
its subsidiaries) or an Employer prior to the Effective Date and
may include periods of service with a corporation or other entity
acquired by the Company after the Effective Date.
2.7 “EFFECTIVE DATE” for
the Plan shall mean October 31, 2007, if by or within twelve
months of that date, the Plan is or has been approved by the
affirmative vote of the holders of the majority of outstanding
Common Stock of the Company entitled to vote.
2.8 “ELIGIBLE EMPLOYEE”
means each Employee whose customary employment is for 20 hours or
more per week, other than:
(a) an Employee who is deemed for
purposes of Section 423(b)(3) of the Code to own stock
possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company;
or
(b) an Employee subject to the laws
of a country which would prohibit the Employee’s
participation in the Plan; or
(c) an Employee who is a
Section 16 reporting officer of Zep Inc.
2.9 “EMPLOYEE” means
each person employed by an Employer.
2.10 “EMPLOYER” means
the Company and each Subsidiary.
2.11 “EXCUSED ABSENCE”
means absence pursuant to a leave of absence granted by the Company
or any other entity constituting the Company, absence due to
disability or illness, absence by reason of a Layoff, or absence by
reason of active duty in the armed forces of the United States. In
no event may an Excused Absence exceed six (6) months in
length (or, if longer and if applicable, the period of the
individual’s active duty in the armed forces of the United
States and such period thereafter, as such individual’s right
to reemployment by the Company is protected by law), and any
absence shall cease to be an Excused Absence upon the earlier of
(a) the last day of the calendar month in which the duration
of the absence reaches six (6) months or (b) the last day
of the calendar month in which the leave expires by its terms, the
layoff ends by recall or permanent separation from service, or
recovery from illness or disability occurs.
2.12 “FAIR MARKET VALUE”
means, with respect to Stock, the fair market value of such stock,
as determined in good faith by the Administrator; provided,
however, that
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(a) if the Stock is admitted to
trading on a national securities exchange, Fair Market Value on any
date shall be the last sale price reported for the Stock on such
exchange on such date or, if no sale was reported on such date, on
the last date preceding such date on which a sale was reported,
and
(b) if the Stock is not listed on
any securities exchange, but nevertheless is publicly traded and
reported (through the OTC Bulletin Board or otherwise), Fair Market
Value on such date shall be the closing sales price on such date
(or, if there are no sales on such date, on the next preceding
day).
For purposes of subsection (a), if
the Stock is traded on more than one securities exchange then the
largest U.S. exchange on which Stock is traded shall be referenced
to determine Fair Market Value.
2.13 “INITIAL OFFERING
DATE” is defined in Section 2.15 below.
2.14 “OFFERING” means
the offering of shares of Stock under the Plan.
2.15 “OFFERING DATE”
means the first business day of each Purchase Period during which
the Plan is in effect; provided, however, that the initial Offering
Date (“Initial Offering Date”) shall be the first
business day after the Effective Date as of which the Administrator
determines that participation in the Plan can be offered to
Eligible Employees.
2.16 “PARTICIPANT” means
each Eligible Employee who elects to participate in the
Plan.
2.17 “PLAN” means the
Zep Inc. Employee Stock Purchase Plan, as the same is set forth
herein and as the same may hereafter be amended.
2.18 “PURCHASE
AGREEMENT” means the document prescribed by the Administrator
pursuant to which an Eligible Employee has enrolled to be a
Participant or such electronic equivalent as may be permitted by
the Administrator.
2.19 “PURCHASE DATE”
means the last business day of each Purchase Period.
2.20 “PURCHASE PERIOD”
means the one-month period beginning on the first day of each month
and ending on the last day of the month; provided, however, the
initial Purchase Period (“Initial Purchase Period”) may
be a short period beginning on the Initial Offering Date and ending
on the last business day of the Purchase Period in which the
Initial Offering Date falls. The Administrator shall have the
authority to change the duration and/or frequency of Purchase
Periods with respect to future purchases and/or to suspend the Plan
for one or more Purchase Periods, and shall announce any such
change prior to the scheduled beginning of the first Purchase
Period to be affected by the change.
2.21 “PURCHASE PRICE”
means such term as it is defined in Section 4.3
hereof.
2.22 “STOCK” means the
Common Stock, par value $.01 per share, of the Company.
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2.23 “STOCK PURCHASE
ACCOUNT” means an account consisting of all amounts withheld
from an Employee’s Compensation or otherwise paid into the
Plan for the purpose of purchasing shares of Stock for such
Employee under the Plan, reduced by all amounts applied to the
purchase of Stock for such Employee under the Plan.
2.24 “SUBSIDIARY” shall
mean a corporation described in Section 424(f) of the Code
that has, with the permission of the Administrator, been designated
to be eligible to participate in the Plan. The participating
Subsidiaries on the Effective Date are listed on Schedule A
attached hereto.
ARTICLE III - ADMISSION TO
PARTICIPATION.
3.1 INITIAL PARTICIPATION. Only
Eligible Employees may participate in the Plan. Eligible Employees
who are covered by a collective bargaining agreement may
participate in the Plan unless the representative for such
collectively bargained employees elects for such group of employees
not to participate in the Plan. Any Eligible Employee may elect to
be a Participant and may become a Participant by executing and
filing with the Administrator a Purchase Agreement at such time in
advance and on such forms as prescribed by the Administrator, or
through telephone or other electronic arrangements as may be
established by the Administrator. The effective date of an Eligible
Employee’s participation shall be the Offering Date next
following the date on which the Administrator receives from the
Eligible Employee a properly filed Purchase Agreement; provided,
however, that the Initial Offering Date may precede receipt of the
Eligible Employee’s Purchase Agreement. Participation in the
Plan will continue automatically from one Purchase Period to
another unless notice is given pursuant to
Section 3.2.
3.2 VOLUNTARY DISCONTINUANCE OF
PARTICIPATION. Any Participant may voluntarily withdraw from the
Plan by filing a Notice of Withdrawal with the Administrator at
such time in advance and on such forms, or using such other
procedures, as the Administrator may specify. Upon such withdrawal,
there shall be paid to the Participant the amount, if any, standing
to his credit in his Stock Purchase Account which has not yet been
used to purchase Stock. The delivery of certificates representing
the shares of Stock held for such Participant under the Plan shall
be handled in the manner provided in Section 4.6.
3.3 INVOLUNTARY DISCONTINUANCE OF
PARTICIPATION. If a Participant ceases to be an Eligible Employee
other than by death, the entire amount, if any, standing to the
Participant’s credit in his Stock Purchase Account shall be
refunded to him. Notwithstanding the foregoing, should a
Participant cease to be an Eligible Employee (as a result of the
restrictions in Section 2.8(c)), such Participant may continue
to participate only through the end of the Purchase Period during
which he becomes ineligible to participate. The delivery of
certificates representing the shares of Stock held for such
Participant under the Plan shall be handled in the manner provided
in Section 4.6.
3.4 READMISSION TO PARTICIPATION.
Any Eligible Employee who has previously been a Participant, who
has discontinued participati
