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Exhibit
10.4
ZEP INC.
LONG-TERM INCENTIVE
PLAN
(Effective as of
October 31, 2007)
The purposes of the Zep Inc.
Long-Term Incentive Plan (the “Plan”) are to provide
additional incentives to those officers, key executives and
directors of Zep Inc. (the “Company”) and key employees
of its Subsidiaries (as hereinafter defined) whose substantial
contributions are essential to the continued growth and
profitability of the Company’s businesses, to strengthen
their commitment to the Company and its Subsidiaries, to further
motivate those officers, other executives and directors to perform
their assigned responsibilities diligently and skillfully, and to
attract and retain competent and dedicated individuals whose
efforts will result in the long term growth and profitability of
the Company and, over time, appreciation in the market value of its
stock. To accomplish these purposes, the Plan provides that the
Company may grant to Eligible Employees, Incentive Stock Options,
Nonqualified Stock Options, Stock Appreciation Rights, Restricted
Stock, Restricted Stock Units, Performance Units and Performance
Shares (as each term is hereinafter defined) and to eligible
Directors, Nonqualified Stock Options, Stock Appreciation Rights,
Restricted Stock and Restricted Stock Units.
In connection with the
spin-off (the “Spin-off”) of the Company by Acuity
Brands, Inc. (“Acuity Brands”), effective
October 31, 2007, Options and Awards will be granted under
this Plan as Conversion Awards to former employees of Acuity Brands
and its Subsidiaries who remain or become employees of the Company
and its Subsidiaries.
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Definitions For purposes of the Plan: |
(a) “Acuity
Brands” means Acuity Brands, Inc., a Delaware corporation, or
any successor corporation.
(b) “Acuity Brands
Conversion Awards” means Options or Awards that are issued in
substitution of, or in connection with, stock options or grants of
restricted stock or restricted stock units that were granted under
the Acuity Brands Long-Term Incentive Plan to employees of Acuity
Brands and its Subsidiaries who became employees of the Company and
its Subsidiaries (or who were otherwise considered Transferred
Individuals under the Employee Benefits Agreement) as of the date
of the Spin-off of the Company to the stockholders of Acuity
Brands. As provided in Sections 6(j) and 7(c), the Acuity
Brands Conversion Awards shall have the same material terms and
conditions under the Plan as such awards had under the Acuity
Brands Long-Term Incentive Plan.
(c) “Acuity Brands
Long-Term Incentive Plan” means the long-term incentive plan
sponsored by Acuity Brands, known as the Acuity Brands, Inc.
Long-Term Incentive Plan.
(d) “Adjusted Fair
Market Value” means in the event of a Change in Control,
the
greater of (i) the highest price
per share paid to holders of the Shares in any transaction (or
series of transactions) constituting or resulting in a Change in
Control or (ii) the highest Fair Market Value of a Share
during the ninety (90) day period ending on the date of a
Change in Control.
(e) “Agreement”
means the written agreement between the Company and an Optionee or
Grantee evidencing the grant of an Option or Award and setting
forth the terms and conditions thereof. The Committee may, but need
not, require that the Participant execute a copy of the Agreement
before the Agreement becomes effective.
(f) “Award” means
a grant of a Stock Appreciation Right, Restricted Stock, Restricted
Stock Units, Performance Awards, or any or all of them.
(g) “Board” means
the Board of Directors of the Company.
(h) “Business
Unit” means any of the operating units of the Company, or its
Subsidiaries, designated as a Business Unit by the
Committee.
(i) “Change in
Capitalization” means any increase or reduction in the number
of Shares, or any change (including, but not limited to, a change
in value) or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a
reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights
or debentures, stock dividend, stock split or reverse stock split,
extraordinary cash dividend, property dividend, combination or
exchange of shares, repurchase of shares, public offering, private
placement, change in corporate structure or otherwise.
(j) “Change in
Control” means any of the following events:
(i) The acquisition (other
than from the Company) by any “Person” (as the term is
used for purposes of Sections 13(d) or 14(d) of the Exchange
Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%) or
more of the combined voting power of the Company’s then
outstanding voting securities; or
(ii) The individuals who, as
of October 31, 2007, are members of the Board (the
“Incumbent Board”), cease for any reason to constitute
at least two-thirds of the Board; provided, however, that if the
election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall,
for purposes of this Agreement, be considered as a member of the
Incumbent Board; or
(iii) Consummation of a
merger or consolidation involving the Company if the stockholders
of the Company, immediately before such merger or consolidation do
not, as a result of such merger or consolidation, own, directly or
indirectly, more than sixty percent (60%) of the combined
voting power of the then outstanding voting securities of the
corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the
combined voting power of the voting securities of the Company
outstanding immediately before such merger or consolidation;
or
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(iv) Consummation of a
complete liquidation or dissolution of the Company or an agreement
for the sale or other disposition of all or substantially all of
the assets of the Company.
Notwithstanding the
foregoing, a Change in Control shall not be deemed to occur
pursuant to Section 2(j)(i), solely because twenty percent
(20%) or more of the combined voting power of the
Company’s then outstanding securities is acquired by
(i) a trustee or other fiduciary holding securities, under one
or more employee benefit plans maintained by the Company or any of
its subsidiaries or (ii) any corporation which, immediately
prior to such acquisition, is owned directly or indirectly by the
stockholders of the Company in the same proportion as their
ownership of stock in the Company immediately prior to such
acquisition.
(k) “Code” means
the Internal Revenue Code of 1986, as amended.
(l) “Committee”
means a committee consisting of two or more non-employee members of
the Board who are appointed by the Board to administer the Plan and
to perform the functions set forth herein. The Board or the
Committee may designate a subcommittee of members of the Committee
to act on certain matters where such designation is necessary or
desirable.
(m) “Company”
means Zep Inc., a Delaware corporation, or any successor
corporation.
(n) “Director”
means any individual who is a member of the Board of Directors of
the Company; provided, however, that any Director who is employed
by the Company or any Employer shall not be considered a Director,
but instead shall be considered an employee for purposes of the
Plan.
(o) “Disability”
means a physical or mental incapacity which impairs the
Optionee’s or Grantee’s ability to substantially
perform his duties for a period of one hundred eighty
(180) consecutive days. The determination of Disability shall
be made by the Committee based upon the information provided to
it.
(p) “Eligible
Employee” means any officer or other employee of the Company
or a Subsidiary designated by the Committee as eligible to receive
Options or Awards, subject to the conditions set forth
herein.
(q) “Employee Benefits
Agreement” means the Employee Benefits Agreement between
Acuity Brands and the Company, dated as of October 31, 2007,
which provides for the treatment of the employee plans in
connection with the Spin-off of the Company from Acuity
Brands.
(r) “Employment
Agreement” means with respect to a Participant who is an
employee, the written agreement between the Company or a Subsidiary
and the employee providing for the terms of such employee’s
employment with the Company or a Subsidiary, as it may be amended
from time to time.
(s) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
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(t) “Fair Market
Value” means the fair market value of the Shares as
determined in good faith by the Committee; provided, however, that
(A) if the Shares are admitted to trading on a national
securities exchange, Fair Market Value on any date shall be the
last sale price reported for the Shares 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 Shares are not listed on any securities exchange, but
nevertheless are 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 Shares are traded on more than one securities exchange
then the largest U.S. exchange on which the Shares are traded shall
be referenced to determine Fair Market Value.
(u) “Grantee”
means a person to whom an Award has been granted under the
Plan.
(v) “Incentive Stock
Option” means an Option within the meaning of
Section 422 of the Code.
(w) “Named Executive
Officer” means an Eligible Employee who as of the date of
grant, vesting and/or payout of an Award or Option is deemed by the
Committee to be a “covered employee” as defined in Code
Section 162(m) and the regulations and rulings
thereunder.
(x) “Nonqualified Stock
Option” means an Option which is not an Incentive Stock
Option.
(y) “Option”
means an Incentive Stock Option, a Nonqualified Stock Option, or
either or both of them.
(z) “Optionee”
means a person to whom an Option has been granted under the
Plan.
(aa)
“Participant” means an Eligible Employee or Director
who has an outstanding Award or Option under the Plan.
(bb) “Performance
Awards” means Performance Units, Performance Shares or either
or both of them.
(cc) “Performance
Cycle” means the time period specified by the Committee at
the time a Performance Award is granted during which the
performance of the Company, a Subsidiary or a Business Unit will be
measured.
(dd) “Performance
Shares” means Restricted Stock granted under Section 8
of the Plan.
(ee) “Performance
Unit” means Performance Units granted under Section 8 of
the Plan.
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(ff) “Restricted
Stock” means Shares issued or transferred to a Participant
which are subject to restrictions. Restricted Stock may be awarded
subject to restrictions which lapse over time without regard to the
performance of the Company, a Subsidiary or a Business Unit,
pursuant to Section 7 hereof, or may be awarded as Performance
Shares pursuant to Section 8 hereof.
(gg) “Restricted Stock
Units (or RSUs)” means a right granted under Section 7
of the Plan to receive a number of Shares, or a cash payment for
each such Share equal to the Fair Market Value of a Share, on a
specified date.
(hh) “Retirement”
means the voluntary termination of employment by the Grantee or
Optionee at any time on or after the Grantee or Optionee attains
age 65.
(ii) “Shares”
means the common stock, par value $.01 per share, of the Company
(including any new, additional or different stock or securities
resulting from a Change in Capitalization).
(jj) “Stock
Appreciation Right” (or “SAR”) means a right
granted under Section 9 of the Plan to receive for each Share
subject to an Award a cash payment or Shares equal to the excess,
if any, of (i) the Fair Market Value of a Share on the
exercise date, over (ii) the exercise price of the
SAR.
(kk) “Subsidiary”
means any corporation in an unbroken chain of corporations,
beginning with the Company (or Acuity Brands, in the case of Acuity
Brands Conversion Awards), if each of the corporations other than
the last corporation in the unbroken chain owns stock possessing
50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. The term
“Subsidiary” shall also include a partnership in which
the Company or a Subsidiary owns 50% or more of the profits
interest or capital interest in the partnership.
(ll) “Successor
Corporation” means a corporation, or a parent or subsidiary
thereof within the meaning of Section 424(a) of the Code,
which issues or assumes an Option in a transaction to which
Section 424(a) of the Code applies.
(mm) “Ten-Percent
Stockholder” means an Eligible Employee who, at the time an
Incentive Stock Option is to be granted to him, owns (within the
meaning of Section 422(b)(6) of the Code) stock possessing
more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company.
(nn) “Termination for
Cause” means the Optionee or Grantee has terminated
employment and has been found by the Committee to be guilty of
theft, embezzlement, fraud or misappropriation of the
Company’s property or any action which, if the individual
were an officer of the Company, would constitute a breach of
fiduciary duty, provided that if an Optionee or Grantee has an
Employment Agreement, “Cause” shall mean Cause as
defined in such Agreement.
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(a) The Plan shall be
administered by the Committee, which shall hold such meetings as
may be necessary for the proper administration of the Plan. No
member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to
the Plan, or any Agreements, Options or Awards under the Plan, and
all members of the Committee shall be fully indemnified by the
Company with respect to any such action, determination or
interpretation.
(b) Subject to the express
terms and conditions set forth herein, the Committee shall have the
power from time to time:
(i) to determine those
Eligible Employees and Directors to whom Options shall be granted
under the Plan and the number of Incentive Stock Options and/or
Nonqualified Stock Options to be granted to each Eligible Employee
or Director and to prescribe the terms and conditions (which need
not be identical) of each Option, including the purchase price per
Share subject to each Option, and to make any amendment or
modification to any Agreement consistent with the terms of the
Plan;
(ii) to select those Eligible
Employees and Directors to whom Awards shall be granted under the
Plan and to determine the amount of Shares payable, the number of
SARs, Performance Units, Performance Shares, RSUs, and/or shares of
Restricted Stock, to be granted pursuant to each Award, the terms
and conditions of each Award, including the restrictions or
performance criteria relating to such Award, the maximum value of
each Award, and to make any amendment or modification to any
Agreement consistent with the terms of the Plan;
(iii) to delegate to the
Chief Executive Officer the authority to grant Options or Awards
with respect to Shares to employees of the Company from a pool of
Shares established by the Committee, provided that such grants are
made in accordance with applicable law.
Provided, however, that the
Board can exercise any of the powers set forth in this
Section 3(b), subject to any limitations imposed by Code
Section 162(m) or Rule 16b-3 under the Exchange
Act.
(c) Subject to the express
terms and conditions set forth herein, the Committee shall have the
power from time to time:
(i) to construe and interpret
the Plan and the Options and Awards granted thereunder and to
establish, amend and revoke rules and regulations for the
administration of the Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to
the extent it shall deem necessary or advisable to make the Plan
fully effective, and all decisions and determinations by the
Committee in the exercise of this power shall be final, binding and
conclusive upon the Company, a Subsidiary, and the Optionees and
Grantees, as the case may be;
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(ii) to determine the
duration and purposes for leaves of absence which may be granted to
an Optionee or Grantee on an individual basis without constituting
a termination of employment or service for purposes of the
Plan;
(iii) to exercise its
discretion with respect to the powers and rights granted to it as
set forth in the Plan; and
(iv) generally, to exercise
such powers and to perform such acts as are deemed necessary or
advisable to promote the best interests of the Company with respect
to the Plan.
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Shares Subject to Program |
(a) Subject to adjustment as
provided in (d) below, the aggregate number of Shares which
are available for issuance pursuant to Options or Awards under the
Plan is Four Million Three Hundred Thousand
(4,300,000) Shares. Except for Awards of Options or SARs, or
Awards that must be settled in cash, the number of Shares reserved
under the Plan that may be granted in the form of other Awards
(“Full Value Grants”) will be counted against the
4,300,000 Plan maximum so that the maximum is reduced by one and
one-half (1.5) Shares for each Share subject to the Full Value
Grants . The number of Incentive Stock Options that may be issued
under the Plan is up to 2,000,000. Shares to be issued under the
Plan shall be made available from Shares currently authorized but
unissued or Shares currently held (or subsequently acquired) by the
Company as treasury shares, including Shares purchased in the open
market or in private transactions.
(b) The following rules shall
apply for purposes of the determination of the number of Shares
available for grant under the Plan:
(i) If, for any reason, any
Shares awarded or subject to purchase under the Plan are not
delivered or purchased, or are reacquired by the Company, for
reasons including, but not limited to, a forfeiture of Restricted
Stock or termination, expiration or cancellation of an Option,
Stock Appreciation Right, Restricted Stock Units, or Performance
Shares (“Returned Shares”), such Returned Shares shall
not be charged against the aggregate number of Shares available for
issuance pursuant to Options or Awards under the Plan and shall
again be available for issuance pursuant to an Option or Award
under the Plan (with Returned Shares relating to Full Value Grants
counting as 1.5 shares).
(ii) Each Performance Share
awarded that may be settled in Shares shall be counted as one and
one-half Shares subject to an Award. Performance Shares that may
not be settled in Shares (or that may be settled in Shares but are
not) shall not result in a charge against the aggregate number of
Shares available for issuance. Each Stock Appreciation Right to be
settled in Shares shall be counted as one Share subject to an
Award, regardless of the number of Shares that are actually issued
upon exercise and settlement of the Stock Appreciation Right. Stock
Appreciation Rights that may only be settled in cash and may not be
settled in Shares shall not result in a charge against the
aggregate number of Shares available for issuance. In addition, if
a Stock Appreciation Right is granted in connection with an Option
and the exercise of the Stock Appreciation Right results in the
loss of the Option right, the Shares that otherwise
would
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have been issued upon the exercise of
such related Option shall not result in a charge against the
aggregate number of Shares available for issuance.
(iii) Each Restricted Stock
Unit that may be settled in Shares shall be counted as one and
one-half Shares subject to an award. Restricted Stock Units that
may only be settled in cash and may not be settled in Shares shall
not result in a charge against the aggregate number of Shares
available for issuance.
(c) For purposes of Options
or Awards to an individual who is a Named Executive Officer, the
following rules shall apply to Options or Awards under the
Plan:
(i) The maximum number of
Options and Stock Appreciation Rights that, in the aggregate, may
be granted pursuant to Awards in any one fiscal year of the Company
to any one Participant shall be five hundred thousand
(500,000).
(ii) The maximum aggregate
number of Shares of Restricted Stock, number of Restricted Stock
Units and Performance Shares or Units that may be granted pursuant
to Awards in any one fiscal year of the Company to any one
Participant shall be one hundred fifty thousand
(150,000) Shares.
(d) In the event of any
Change in Capitalization, the Committee shall make such adjustment
in the number and class of Shares which may be delivered under the
Plan, and in the number and class of and/or price of Shares subject
to outstanding Options or Awards granted under the Plan, as may be
determined to be appropriate and equitable by the Committee to
prevent dilution or enlargement of rights; provided, however, that
the number of Shares subject to any Option or Award shall always be
a whole number and the Committee shall make such adjustments as are
necessary to insure Options or Awards of whole Shares. Equitable
adjustments shall be made by the Committee, as it determines are
necessary and appropriate, in:
(i) the limitation on the
aggregate number of Shares that may be awarded as set forth in
Section 4(a), including, without limitation, with respect to
Incentive Stock Options;
(ii) the limitations on the
aggregate number of Shares that may be awarded to any one single
Participant as set forth in Section 4(c);
(iii) the number and class of
Shares that may be subject to an Option or Award, and which have
not been issued or transferred under an outstanding Option or
Award;
(iv) the Option Price under
outstanding Options and Stock Appreciation Rights and the number of
Shares to be transferred in settlement of outstanding Options or
Stock Appreciation Rights; and
(v) the terms, conditions or
restrictions of any Option or Award or Agreement, including the
price payable for the acquisition of Shares; provided, however,
that all such adjustments made in respect of each ISO shall be
accomplished so that such Option shall continue to be an incentive
stock option within the meaning of Code
Section 422.
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Subject to the provisions of
the Plan, the Committee shall have full and final authority to
select those Eligible Employees and Directors who will receive
Options and/or Awards; provided, however, that no Eligible Employee
shall receive any Incentive Stock Options unless he is an employee
of the Company or a Subsidiary (other than a Subsidiary that is a
partnership) at the time the Incentive Stock Option is
granted.
The Committee may grant
Options in accordance with the Plan and the terms and conditions of
the Option shall be set forth in an Agreement. Options may be
granted based upon the achievement of such Performance Measures (as
listed on Appendix A) as the Committee may determine and subject to
such other terms and conditions as the Committee may specify. The
Committee shall have sole discretion in determining the number of
Shares underlying each Option to grant a Participant; provided,
however, that in the case of any Incentive Stock Option granted
under the Plan, the aggregate Fair Market Value (determined at the
time such Option is granted) of the Shares to which Incentive Stock
Options are exercisable for the first time by the Participant
during any calendar year (under the Plan and all other incentive
stock option plans of the Company and any Subsidiary) shall not
exceed $100,000. Each Option and Agreement shall be subject to the
following conditions:
(a) Purchase Price.
The purchase price or the manner in which the purchase price is to
be determined for Shares under each Option shall be set forth in
the Agreement, provided, that the purchase price per Share under
each Option (other than Acuity Brands Conversion Awards) shall not
be less than 100% of the Fair Market Value of a Share on the date
the Option is granted (110% in the case of an Incentive Stock
Option granted to a Ten-Percent Stockholder).
(b) Duration. Options
granted hereunder shall be for such term as the Committee shall
determine, provided that no Option shall be exercisable after the
expiration of ten (10) years from the date it is granted (five
(5) years in the case of an Incentive Stock Option granted to
a Ten-Percent Stockholder). The Committee may, subsequent to the
granting of any Option, extend the term thereof, but in no event
shall the term as so extended exceed the maximum term provided for
in the preceding sentence.
(c)
Non-Transferability. Unless the Committee otherwise provides
for transferability in the Agreement, no Option granted hereunder
shall be transferable by the Optionee, otherwise than by will or
the laws of descent and distribution, and an Option may be
exercised during the lifetime of such Optionee only by the Optionee
or his guardian or legal representative. The terms of such Option
shall be final, binding and conclusive upon the beneficiaries,
executors, administrators, heirs and successors of the
Optionee.
(d) Vesting. Subject
to Section 6(h) hereof, each Option shall be exercisable in
such installments (which need not be equal or the same for each
Optionee) and at such times (which may include performance
requirements) as may be designated by the Committee, but not less
than a year from the grant date except as otherwise provided in the
last sentence in this Section 6(d), and set forth in the
Agreement. To the extent not exercised, installments
shall
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accumulate and be exercisable, in whole
or in part, at any time after becoming exercisable, but not later
than the date the Option expires. The Committee may accelerate the
exercisability of any Option or portion thereof at any
time.
(e) Method of
Exercise. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of
the Company at the Company’s principal executive office (or
in such other manner and to such other person or address as may be
designated by the Committee), specifying the number of Shares to be
purchased and accompanied by payment therefor and otherwise in
accordance with the Agreement pursuant to which the Option was
granted. The purchase price for any Shares purchased pursuant to
the exercise of an Option shall be paid in full upon such exercise,
as determined by the Committee in its discretion or as provided in
the Agreement, in cash, by check, or by transferring Shares to the
Company or by attesting to the ownership of Shares upon such terms
and conditions as determined by the Committee. The written notice
pursuant to this Section 6(e) may also provide instructions
from the Optionee to the Company that upon receipt of the purchase
price in cash from the Optionee’s broker or dealer,
designated as such on the written notice, in payment for any Shares
purchased pursuant to the exercise of an Option, the Company shall
issue such Shares directly to the designated broker or dealer. Any
Shares the Optionee transfers to the Company or attests to owning
as payment of the purchase price under an Option shall be valued at
their Fair Market Value on the day preceding the date of exercise
of such Option. If requested by the Committee, the Optionee shall
deliver the Agreement evidencing the Option to the Secretary of the
Company who shall endorse thereon a notation of such exercise and
return such Agreement to the Optionee. No fractional Shares shall
be issued upon exercise of an Option and the number of Shares that
may be purchased upon exercise shall be rounded to the nearest
number of whole Shares.
(f) Rights of
Optionees. No Optionee shall be deemed for any purpose to be
the owner of any Shares subject to any Option unless and until
(i) the Option shall have been exercised pursuant to the terms
thereof, (ii) the Company shall have issued and delivered the
Shares to the Optionee and (iii) the Optionee’s name
shall have been entered as a stockholder of record on the books of
the Company. Thereupon, the Optionee shall have full voting,
dividend and other ownership rights with respect to such
Shares.
(g) Termination of
Employment. The Agreement shall set forth the terms and
conditions of the Option upon the termination of the
Optionee’s employment with the Company, a Subsidiary or a
Business Unit (including an Optionee’s ceasing to be employed
by a Subsidiary or Business Unit as a result of the sale of such
Subsidiary or Business Unit or an interest in such Subsidiary or
Business Unit), as the Committee may, in its discretion, determine
at the time the Option is granted or thereafter, provided, however
no Option shall be exercisable beyond its maximum term as
describ
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