Exhibit 4.1
AZZ incorporated
AMENDED AND RESTATED 2005
LONG-TERM INCENTIVE PLAN
ARTICLE I
THE PLAN
1.1
Name. This Plan shall be known as the
“Amended and Restated AZZ incorporated 2005 Long-Term
Incentive Plan.” Capitalized terms used herein are
defined in Article XII hereof.
1.2
Purpose. The purpose of the Plan is to promote
the growth and general prosperity of the Company by permitting the
Company to award to its Employees and Directors shares of Common
Stock of the Company and options to purchase Common Stock in the
form of Incentive Stock Options, Non-qualified Stock Options,
Performance Awards, Restricted Stock, Stock Appreciation Rights and
Stock Unit Awards. The Plan is designed to help the
Company and its Affiliates attract and retain superior personnel
for positions of substantial responsibility, to provide Employees
and Directors with an additional incentive to contribute to the
long-term performance and success of the Company and to align
Employees’ and Directors’ long-term financial interests
with those of the Company’s stockholders. The
Company intends that Incentive Stock Options granted pursuant to
Article III shall qualify as “incentive stock options”
within the meaning of Section 422 of the Code.
1.3
Effective Date. The Plan shall become effective
upon the Effective Date; provided, however, that if the
shareholders of the Company have not approved the Plan by the date
that is twelve months after the Effective Date, the Plan and all
grants made under the Plan shall be void and of no force or
effect.
1.4
Eligibility to Participate. Any Employee or
Director shall be eligible to participate in the
Plan. Subject to the following provisions, the Committee
may make Awards in accordance with such determinations as the
Committee from time to time in its sole discretion shall make;
provided, however, that Incentive Stock Options may be granted only
to persons who are Employees.
1.5
Shares Subject to the Plan. The shares of Common
Stock to be issued pursuant to the Plan shall be either authorized
and unissued shares of Common Stock or shares of Common Stock
issued and thereafter acquired by the Company in open market
transactions or otherwise.
1.6
Maximum Number of Plan Shares. Subject to
adjustment pursuant to the provisions of Section 9.2, and subject
to any additional restrictions elsewhere in the Plan, the maximum
aggregate number of shares of Common Stock that may be issued and
sold hereunder shall not exceed 1,000,000 shares, and the maximum
aggregate number of Plan Shares with respect to which Awards may be
granted to any person during any calendar year shall not exceed
100,000 shares.
1.7
Shares Granted Under Plan. Plan Shares with
respect to which an Option has been exercised or Restricted Stock
or Stock Unit Awards have vested and Plan Shares which have been
issued in connection with Performance Awards shall not again be
available for grant hereunder. If Options or Stock
Appreciation Rights terminate for any reason without being wholly
exercised, if Restricted Stock or Stock Unit Awards are forfeited
prior to vesting or if Plan Shares are not issued under Performance
Awards, the number of Plan Shares underlying such Award shall not
count towards the maximum aggregate number of Plan Shares that may
be issued under the Plan as set forth in Section 1.6, and new
Awards may be granted hereunder covering the number of Plan Shares
to which such termination, forfeiture or lapse
relates. Notwithstanding the foregoing, to the extent
required for Awards intended to constitute “qualified
performance-based compensation” under Code Section 162(m) to
satisfy the requirements for deductibility under Code Section
162(m), Plan Shares subject to an Option or Stock Appreciation
Right that is cancelled shall not again be available under the Plan
for purposes of Section 1.6 and such other purposes, if any, as are
required to satisfy such requirements under Code Section
162(m).
Upon the
exercise of a Stock Appreciation Right, only the number of shares
of Common Stock actually issued in connection with the exercise of
such Stock Appreciation Right (and not the corresponding number of
shares of Common Stock related to the Stock Appreciation Right (or
portion thereof) being exercised) shall be treated as issued under
the Plan and, for the purpose of the limitation set forth in
Section 1.6 of the Plan in regard to the number of shares of Common
Stock issuable under the Plan, the remaining number of shares of
Common Stock related to such exercised Stock Appreciation Right (or
portion thereof) shall again be available for issuance under the
Plan. In the event that the Company distributes cash in
lieu of issuing shares of Common Stock in connection with the
exercise of a Stock Appreciation Right, the corresponding number of
shares of Common Stock related to the Stock Appreciation Right (or
portion thereof) being exercised shall again be available for
issuance under the Plan.
1.8
Conditions Precedent. The Company shall not
issue any certificate for Plan Shares pursuant to the Plan prior to
fulfillment of all of the following conditions:
|
|
the admission
of the Plan Shares to listing on all stock exchanges on which the
Common Stock is then listed, unless the Committee determines in its
sole discretion that such listing is neither necessary nor
advisable;
|
|
|
the completion
of any registration or other qualification of the offer or sale of
the Plan Shares under any federal or state law or under the rulings
or regulations of the Securities and Exchange Commission or any
other governmental regulatory body that the Committee shall in its
sole discretion deem necessary or advisable; and
|
|
|
the obtaining
of any approval or other clearance from any federal or state
governmental agency that the Committee shall in its sole discretion
determine to be necessary or advisable.
|
1.9
Reservation of Shares of Common Stock. During
the term of the Plan, the Company shall at all times reserve and
keep available such number of shares of Common Stock as shall be
necessary to satisfy the requirements of the Plan as to the number
of Plan Shares. In addition, the Company shall from time
to time, as is necessary to accomplish the purposes of the Plan,
seek or obtain from any regulatory agency having jurisdiction any
requisite authority that is necessary to issue Plan Shares
hereunder. The inability of the Company to obtain from
any regulatory agency having jurisdiction the authority deemed by
the Company’s counsel to be necessary to the lawful issuance
of any Plan Shares shall relieve the Company of any liability in
respect of the nonissuance of Plan Shares as to which the requisite
authority shall not have been obtained.
1.10
Tax Withholding and Reporting.
|
|
Condition
Precedent. The issuance of Plan Shares pursuant
to the exercise of any Option or Stock Appreciation Right or in
connection with a Performance Award, and the vesting of
any Restricted Stock or Stock Unit Award, is subject to the
condition that if at any time the Committee shall determine, in its
discretion, that the satisfaction of withholding tax or other
withholding liabilities under any federal, state, or local law is
necessary or desirable as a condition of, or in connection with
such issuance, vesting or payment, then the issuance, vesting or
payment shall not be effected unless the withholding shall have
been effected or obtained in a manner acceptable to the
Committee.
|
|
|
Manner of
Satisfying Withholding Obligation. When the Committee requires an
Awardee to pay to the Company an amount required to be withheld
under applicable income tax laws in connection with paragraph (a)
above, such payment shall be made, as the Committee may in each
case in its discretion determine, (i) in cash, (ii) by check, (iii)
by delivery to the Company of shares of Common Stock already owned
by
|
|
|
the Awardee
having a Fair Market Value on the Tax Date equal to the amount
required to be withheld, (iv) through the withholding by the
Company (“Company Withholding”) of a portion (but no
more than the portion as so calculated) of the Plan Shares acquired
upon the exercise of an Option or Stock Appreciation Right having a
Fair Market Value on the Tax Date equal to the amount required to
be withheld, or (v) in any other form of valid consideration
permitted by the Committee in its discretion.
|
|
|
Notice of
Disposition of Stock Acquired Pursuant to Incentive
Stock Options.
The Company may require as a condition to the issuance
of Plan Shares covered by any Incentive Stock Option that the party
exercising the Option give a written representation to the Company,
satisfactory in form and substance to its counsel and upon which
the Company may reasonably rely, that he shall report to the
Company any disposition of such shares prior to the expiration of
the holding periods specified by Section 422(a)(l) of the
Code. If and to the extent the realization of income in
such a disposition imposes upon the Company federal, state, or
local withholding tax requirements or any such withholding is
required to secure for the Company an otherwise available tax
deduction, the Company shall have the right to require that the
recipient remit to the Company an amount sufficient to satisfy
those requirements; and the Company may require as a condition to
the issuance of Plan Shares covered by an Incentive Stock Option
that the party exercising such Option give a satisfactory written
representation promising to make such a remittance.
|
|
|
Tax
Reporting. The Company shall file, and shall
furnish the Awardee a copy of, all federal, state, and local tax
information returns that it deems to be required in connection with
the grant, exercise, or vesting of any Award.
|
1.11
Exercise of Options.
|
|
Method of
Exercise. Each Option shall be exercisable in
accordance with the terms of the Option Agreement pursuant to which
the Option was granted. No Option may be exercised for a
fraction of a Plan Share.
|
|
|
Payment of
Purchase Price. The purchase price of any Plan
Shares purchased pursuant to an Option shall be paid at the time of
exercise of the Option, as the Committee may in each case in its
discretion determine, (i) in cash, (ii) by certified or
cashier’s check, (iii) in shares of Common Stock held for at
least six months, (iv) by delivery of a copy of irrevocable
instructions from the Optionee to a broker or dealer, reasonably
acceptable to the Company, to sell certain of the Plan Shares
purchased upon exercise of the Option or to pledge them as
collateral for a loan and promptly to deliver to
|
|
|
the Company the
amount of sale or loan proceeds necessary to pay such purchase
price or (v) in any other form of valid consideration permitted by
the Committee in its discretion. If any portion of the purchase
price or a note given at the time of exercise is paid in shares of
Common Stock, those shares shall be valued at their then Fair
Market Value.
|
1.12
Acceleration in Certain Events. The Committee
may accelerate the exercisability or other vesting of any Award in
whole or in part at any time. Notwithstanding the
provisions of any Award Agreement, the following provisions shall
apply:
|
|
Mergers,
Consolidation, Etc. In the event that the Company,
pursuant to action by the Board, at any time enters an agreement
whereby the Company will merge into, consolidate with, or sell or
otherwise transfer all or substantially all of its assets to
another corporation or other entity and provision is not made
pursuant to the terms of such transaction for the assumption by the
surviving, resulting, or acquiring corporation or other entity of
outstanding Awards, or for the substitution of new Awards with
substantially equivalent benefit therefor, each outstanding Award
shall become fully (100 percent) vested upon approval of the merger
or consolidation by the shareholders or owners of all constituent
entities as required by the applicable laws of their respective
domiciles. The Committee shall advise each Awardee in writing of
the manner and terms under which such fully vested Awards shall be
exercised, if applicable.
|
|
|
Change in
Control. Anything contained herein to the
contrary notwithstanding, (1) an Awardee shall become fully (100
percent) vested in each of his or her Awards upon the occurrence of
a Change in Control (as defined below) or a threatened Change in
Control (as determined by the Committee in its sole discretion);
and (2) no Award held by an Awardee at the time a Change in Control
or threatened Change in Control occurs or at any time thereafter
shall terminate for any reason before the end of the Award’s
express term. For purposes of this section, “Change in
Control” means one or more of the following
events:
|
|
|
Any person
within the meaning of Section 13(d) and 14(d) of the Exchange Act,
other than the Company (including its Subsidiaries, directors or
executive officers) has become the beneficial owner, within the
meaning of Rule 13d-3 promulgated under the Exchange Act, of 50
percent or more of the combined voting power of the Company’s
then outstanding Common Stock and any other class or classes of the
Company’s outstanding securities ordinarily entitled to vote
in elections of directors (collectively, “Voting
Securities”) (other than through the purchase of Voting
Securities from the Company); or
|
|
|
Shares
representing 50 percent or more of the combined voting power of the
Company’s Voting Securities are purchased pursuant to a
tender offer or exchange offer (other than an offer by the Company
or its subsidiaries or affiliates); or
|
|
|
As a result of,
or in connection with, any reorganization, tender offer or exchange
offer, merger or other business combination, sale of assets, actual
or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by
or on behalf of a person (within the meaning of Section 14d of the
Exchange Act) other than the Board, or any combination of the
foregoing transactions (a “Transaction”), the persons
who were Directors of the Company before the Transaction shall
cease to constitute a majority of the Board of the Company or of
any successor to the Company; or
|
|
|
Following the
effective date of the Plan, the Company is merged or consolidated
with another corporation and as a result of such merger or
consolidation less than 50 percent of the outstanding Voting
Securities of the surviving or resulting corporation shall then be
owned in the aggregate by the former shareholders of the Company;
or
|
|
|
The Company
transfers more than 50 percent of its assets, or the last of a
series of transfers results in the transfer of more than 50 percent
of the assets of the Company, to another entity that is not
wholly-owned by the Company. For purposes of this
subsection (v), the determination of what constitutes a transfer
and what constitutes over 50 percent of the assets of the Company
shall be made by the Committee, as constituted immediately prior to
the events that would constitute a Change in Control if 50 percent
of the Company’s assets were transferred in connection with
such events, in its sole discretion.
|
|
|
During any two
consecutive years, individuals who, at the beginning of such period
constituted the entire Board, ceased to constitute a majority of
the Directors, unless the election of each was approved by at least
two-thirds of the Directors still in office who were Directors at
the beginning of the period.
|
1.13
Written Notice Required. Any Option or Stock
Appreciation Right shall be deemed to be exercised for purposes of
the Plan when written notice of exercise has been received by the
Company at its principal office from the person entitled to
exercise the Option or Stock Appreciation Right and payment for the
Plan Shares with respect to which the Option is exercised (if
applicable) has been received by the Company in accordance with
Section 1.11.
1.14
Compliance with Securities Laws. Plan Shares
shall not be issued with respect to any Award unless the issuance
and delivery of the Plan Shares (and the exercise of an Option or
Stock Appreciation Right, if applicable) shall comply with all
relevant provisions of state and federal law (including without
limitation (i) the Securities Act and the rules and regulations
promulgated thereunder and (ii) the requirements of any stock
exchange upon which the Plan Shares may then be listed) and shall
be further subject to the approval of counsel for the Company with
respect to such compliance. The Committee may also require an
Awardee to furnish evidence satisfactory to the Company, including
without limitation a written and signed representation letter and
consent to be bound by any transfer restrictions imposed by law,
legend, condition, or otherwise, that the Plan Shares are being
acquired only for investment and without any present intention to
sell or distribute the shares in violation of any state or federal
law, rule, or regulation. Further, each Awardee shall
consent to the imposition of a legend on the certificate
representing the Plan Shares issued pursuant to an Award,
restricting their transfer as required by law or this
section.
1.15
Employment or Service of Awardee. Nothing in the
Plan or in any Award shall confer upon any Employee any right to
continued employment by the Company or any of its Subsidiaries or
limit in any way the right of the Company or any Subsidiary at any
time to terminate or alter the terms of that
employment. Nothing in the Plan or in any Award shall
confer upon any Director any right to continued service as a
Director of the Company or any of its Subsidiaries or limit in any
way the right of the Company or any Subsidiary at any time to
terminate or alter the terms of that service.
1.16
Rights of Awardees Upon Termination of Employment or
Service. The provisions in this Section 1.16 shall
be subject to the provisions of Sections 6.1 and 8.1 the provisions
of any Award Agreement. In the event an Awardee ceases
to be an Employee or Director, or for any reason other than death,
Retirement, Permanent Disability, or Cause or pursuant to a right
of termination under an Employee’s employment agreement with
the Company, (i) the Committee shall have the ability to accelerate
the vesting of the Awardee’s Awards, in its sole discretion,
and (ii) any Option or Stock Appreciation Right held by such
Awardee shall be exercisable (to the extent exercisable on the date
of termination of employment or rendition of services, or, if the
vesting of such Option or Stock Appreciation Right has been
accelerated, to the extent exercisable following such acceleration)
at any time within three months after the date of termination of
employment or rendition of services, unless by its terms the Option
or Stock Appreciation Right expires earlier or unless, with respect
to a Nonqualified Stock Option or Stock Appreciation Right, the
Committee agrees, in its sole discretion, to extend its term
further; provided, however, that the term of any such Option or
Stock Appreciation Right shall not be extended beyond its initial
term. In the event an Awardee ceases to serve as an Employee or
Director due to death, Permanent Disability, Retirement, or Cause
or pursuant to a right of termination under an Employee’s
employment agreement with the Company, (i) the Committee shall have
the ability to accelerate the vesting of the Awardee’s
Awards, in its sole discretion, and (ii) the Awardee’s
Options or Stock Appreciation Right may be exercised as
follows:
|
|
Death. Except as otherwise limited by the Committee at
the time of the grant of an Option or Stock Appreciation Right, if
an Awardee dies while serving as an Employee or Director or within
three months after ceasing to be an Employee or Director, his
Options and/or Stock Appreciation Rights shall become fully (100
percent) vested on the date of his death and shall expire twelve
months thereafter, unless by their terms they expire sooner or
unless, with respect to a Nonqualified Stock Option or Stock
Appreciation Right, the Committee agrees, in its sole discretion,
to extend its term further; provided, however, that the term of any
such Nonqualified Stock Option shall not be extended beyond its
initial term. During such period, the Option or Stock Appreciation
Right may be fully exercised, to the extent that it remains
unexercised on the date of death, by the Awardee’s personal
representative or by the distributees to whom the Awardee’s
rights under the Option or Stock Appreciation Right pass by will or
by the laws of descent and distribution.
|
|
|
Retirement. If an Awardee ceases to serve as an Employee or
Director as a result of Retirement, (i) the Committee shall have
the ability to accelerate the vesting of the Awardee’s
Awards, in its sole discretion, and (ii) the Awardee’s
Options and/or Stock Appreciation Rights shall be exercisable (to
the extent exercisable on the effective date of such Retirement or,
if the vesting of such Options and/or Stock Appreciation Rights has
been accelerated, to the extent exercisable following such
acceleration) only at any time within three months after the
effective date of such Retirement, unless by their terms the
Options and/or Stock Appreciation Rights expire earlier or unless,
with respect to a Nonqualified Stock Option or Stock Appreciation
Right, the Committee agrees, in its sole discretion, to extend its
term further; provided that the term of any such Option or Stock
Appreciation Right shall not be extended beyond its initial
term.
|
|
|
Disability. If an Awardee ceases to serve as an Employee or
Director as a result of Permanent Disability, the Awardee’s
Awards shall become fully (100 percent) vested and shall expire
twelve months thereafter, unless by their terms they expire sooner
or, unless, with respect to a Nonqualified Stock Option or Stock
Appreciation Right, the Committee agrees, in its sole discretion,
to extend its term; provided, however, that the term of any such
Option or Stock Appreciation Right shall not be extended beyond its
initial term.
|
|
|
Cause. If an Awardee ceases to be employed by the
Company or a Subsidiary or ceases to serve as a Director because
the Awardee’s employment or service relationship with the
Company or a Subsidiary is terminated for Cause, the
Awardee’s Awards (other than Restricted Stock or Stock Unit
Award that has already vested), and any rights related thereto,
shall automatically expire on the date of such
termination. If any facts that would constitute Cause
for termination
|
|
|
or removal of
an Awardee are discovered after the Awardee’s employment or
service relationship with the Company has ended, any Awards then
held by the Awardee (other than Restricted Stock or Stock Unit
Award that has already vested) may be immediately terminated by the
Committee. Notwithstanding the foregoing, if an Awardee
is an Employee employed pursuant to a written employment agreement
with the Company or a Subsidiary, the Awardee’s relationship
with the Company or a Subsidiary shall be deemed terminated for
Cause for purposes of the Plan only if the Awardee is considered
under the circumstances to have been terminated “for
cause” for purposes of such written agreement or the Awardee
voluntarily ceases to be an Employee in breach of his employment
agreement with the Company or a Subsidiary.
|
|
|
Notice. If an Awardee’s employment agreement with the
Company or an Affiliate is terminated by either the Company, an
Affiliate, or the Awardee by providing a required or permitted
notice of termination thereunder, the Awards that are exercisable
as of the date of termination shall remain exercisable for a period
of twelve months (three months if Incentive Stock Options) after
the date of termination and shall expire at the end of such
twelve-month period (three-month period if Incentive Stock
Options).
|
1.17
Transferability of Awards. Except as may be
agreed upon by the Committee in accordance with this section,
Awards (other than Restricted Stock or Stock Unit Award that has
fully vested) shall not be transferable other than by will or the
laws of descent and distribution or, with respect to Nonqualified
Stock Options or Stock Appreciation Rights, pursuant to the terms
of a qualified domestic relations order as defined by the Code or
Title I of ERISA, or the rules thereunder. Incentive
Stock Options may be exercised during the lifetime of an Optionee
only by that Optionee or by his legally authorized
representative. The designation by an Awardee of a
beneficiary shall not constitute a transfer of the
Award. The Committee may, in its discretion, provide in
an Award Agreement that Nonqualified Stock Options or Stock
Appreciation Rights may be transferred to members of the
Awardee’s immediate family, trusts for the benefit of the
Awardee and/or such immediate family members, and partnerships in
which the Awardee and/or such immediate family members are the only
partners, provided that there is no consideration for the
transfer.
1.18
Information to Awardees. The Company shall
furnish to each Awardee a copy of the annual report, proxy
statements and all other reports sent to the Company’s
shareholders, unless the Awardee otherwise receives the same as a
shareholder of the Company. Upon written request, the
Company shall furnish to each Awardee a copy of its most recent
Annual Report or Form 10-K and each quarterly report to
shareholders issued since the end of the Company’s most
recent fiscal year.
ARTICLE II
ADMINISTRATION
2.1
Committee. The Plan shall be administered by the
Compensation Committee of the Board of Directors consisting of not
fewer than two members of the Board. The Committee shall
be appointed by the Board. Each member of the Committee
shall satisfy the independ
|
