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THE ENSTAR GROUP, INC.
DEFERRED COMPENSATION AND STOCK PLAN
FOR NON-EMPLOYEE DIRECTORS
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2005)
The purposes of
The Enstar Group, Inc. Deferred Compensation and Stock Plan For
Non-Employee Directors as amended and restated (the
“Plan”) are to enable the Company to attract and retain
qualified persons to serve as Non-Employee Directors, to solidify
the common interests of its Non-Employee Directors and shareholders
by enhancing the equity interest of Non-Employee Directors in the
Company, and to encourage the highest level of Non-Employee
Director performance by providing such Non-Employee Directors with
a proprietary interest in the Company’s performance and
progress by permitting Non-Employee Directors to receive all or a
portion of their Retainer and Meeting Fees in Common Stock and to
defer all or a portion of their Retainer and Meeting Fees in Stock
Units.
This Plan is
effective for amounts deferred in years beginning after
December 31, 2004 and for amounts deferred in years beginning
before January 1, 2005.
Whenever used in
the Plan, the following terms shall have the respective meanings
set forth below:
3.1
“Account” means, with respect to each Participant, the
Participant’s separate individual bookkeeping account
established and maintained by the Company for the exclusive purpose
of accounting for the Participant’s Stock Units deferred
hereunder after December 31, 2004.
3.2
“Beneficiary” means, with respect to each Participant,
the recipient or recipients designated by the Participant who are,
upon the Participant’s death, entitled in accordance with the
Plan’s terms to receive the benefits to be paid with respect
to the Participant.
3.3
“Board” means the Board of Directors of the
Company.
3.4
“Code” means the Internal Revenue Code of 1986, as
amended.
3.5
“Committee” means any committee of the
Board.
3.6
“Common Stock” means the common stock, par value $.01
per share, of the Company.
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3.7
“Company” means The Enstar Group, Inc., a Georgia
corporation, and any successor thereto.
3.8
“Director” means an individual who is a member of the
Board.
(a) before
the adoption of this amended and restated Plan, the average of the
high and low bid prices of the Common Stock in the Over-the-Counter
market on the date in question or, if bids for the Common Stock
shall not have been made on such date, then the first day prior
thereto on which bids were made in the Over-the-Counter market for
the Common Stock; provided, however that if the Common Stock is no
longer traded in the Over-the-Counter market, then Market Value
shall mean the fair market value of the Common Stock as determined
in good faith by the Board; and
(b) as of the
date this amended and restated Plan is adopted by the Board, the
closing price of the Common Stock on the date in question as
reported on a national exchange on which the Common Stock is traded
or, if the Common Stock is no longer traded on a national exchange,
then Market Value shall mean the fair market value of the Common
Stock as determined in good faith by the Board.
3.10
“Non-Employee Director” means any person who serves on
the Board and who is not an officer or employee of the Company or
any of its subsidiaries.
3.11
“Participant” means any Non-Employee Director who has
made an election to receive all or a portion of such Non-Employee
Director’s Retainer and Meeting Fees in shares of Common
Stock and/or to defer payment of all or a portion of such Retainer
and Meeting Fees in Stock Units.
3.12
“Retainer and Meeting Fees” means the retainer and
meeting fees payable to Non-Employee Directors for service on the
Board and attendance at Board and Committee meetings, as such
retainer and meetings fees shall be established from time-to-time
by the Board, but excluding any reimbursement received by
Non-Employee Directors for expenses incurred in performance of
service as a Director.
3.13
“Separation From Service” means the Director’s
separation from service as defined in the Treasury Department
guidance promulgated under Section 409(A) of the
Code.
3.14
“Stock Unit” means a measure of value, expressed as a
share of Common Stock, credited to a Participant under this Plan
who has elected hereunder to receive all or a portion of such
Participant’s Retainer and Meeting Fees in Common Stock and
has elected hereunder to defer receipt of such Common Stock in
accordance with the provisions hereof. No certificates shall be
issued with respect to such Stock Units, but the Company shall
maintain an Account in the name of the Participant to which the
Stock Units shall relate.
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ARTICLE 4
ELECTION TO RECEIVE COMMON STOCK FOR RETAINER AND
MEETING FEES AND TO DEFER
RETAINER AND MEETING FEES IN STOCK UNITS
On or before
December 31 of any year, for calendar years subsequent to
2004, a Non-Employee Director may elect: (a) to receive all or
a specified portion of the Director’s Retainer and Meeting
Fees for the following fiscal year in shares of Common Stock;
(b) to defer payment with respect to such Retainer and Meeting
Fees in Stock Units; (c) the date as of which he will begin
receiving payment of Stock Units, which may be as of the first
business day of any calendar quarter after the Director’s
Separation from Service and (d) the form of benefits in which
his entire Account will be paid, whether in (i) a lump sum or
(ii) quarterly or annual installments over a period not to
exceed 10 years from the commencement date. Notwithstanding
the foregoing, the initial elections under (c) and
(d) above as to the time and form of payment of Stock Units
shall be made on or before December 31, 2005 or such later
date as is permitted under guidance issued under Section 409A
of the Code. If a Director fails to make a timely election under
Section 4.1(c) or (d), the Director’s Stock Units shall
be distributed in a lump sum on the first business day of the
calendar quarter next following the Director’s Separation
from Service.
All such elections
shall be made upon the form of election prescribed by the Company
for such purpose and shall be effective upon receipt by the Company
of such election form duly executed by the Participant.
A Non-Employee
Director elected to fill a vacancy on the Company’s Board and
who was not a Director on the preceding December 31, or whose
term of office did not begin until after that date, may make the
elections described in this Section 4.1 within 30 days
after the date the Director joins the Board and any election under
Section 4.1(b), (c) or (d) shall first be effective
for compensation for services performed as a Director during and
after the fiscal quarter immediately following the fiscal quarter
in which such Director joined the Board and filed such
election.
4.2 REVOCATION
OR MODIFICATION OF ELECTION
An effective
election pursuant to Section 4.1 may not be revoked or
modified with respect to the Retainer and Meeting Fees payable for
a calendar year or portion of a calendar year for which such
election is effective. An effective election as to
Section 4.1(a) or (b) (cash or stock and deferral) may be
revoked or modified for any subsequent calendar year by the filing
of an election on or before December 31 preceding the calendar
year for which such revocation or modification is to be effective.
No such revocation or modification shall affect the deferral of
receipt of Retaine
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