UNFUNDED DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE
DIRECTORS
(Amended and Restated December 31, 2008)
1. Purpose . This Plan is intended to allow
Non-Employee Directors of Valmont to defer a portion of their
compensation received as directors. The Plan was originally adopted
effective January 1, 1984. This amendment and restatement is
intended to bring the Plan in compliance with Code § 409A and
is effective December 31, 2008, except as otherwise set forth
herein. For the period January 1, 2005 through December 31, 2008,
the Plan has been administered in good faith compliance with Code
§ 409A.
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2.
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Definitions . The following definitions shall apply
to the Plan:
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2.1 “ Change of
Control Event. ” The term “Change of Control
Event” means a Change in Ownership of Valmont, a Change in
Effective Control of Valmont, or a Change in the Ownership of a
Substantial Portion of Valmont’s Assets. For purpose of this
Plan:
(a) “ Change in
Ownership of Valmont. ” A “Change in Ownership of
Valmont” occurs on the date that any one person or entity, or
more than one person or entity acting as a Group acquires ownership
of stock of Valmont that, together with stock held by such person,
entity or Group, constitutes more than fifty percent (50%) of the
total fair market value of Valmont or of the total voting power of
the stock of Valmont; provided, however, if any one person or
entity, or more than one person or entity acting as a Group, is
considered to own more than fifty percent (50%) of the total fair
market value or total voting power of the stock of Valmont, the
acquisition of additional stock by the same person, entity or Group
is not considered to cause a Change in Ownership of Valmont (or a
Change in Effective Control of Valmont).
(b) “ Change in
Effective Control of Valmont. ” A “Change in
Effective Control of Valmont” occurs on the date that
either:
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(i)
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Any
one person or entity, or more than one person or entity acting as a
Group, acquires or has acquired during the twelve (12) month period
ending on the date of the most recent acquisition by such person,
entity or Group ownership of stock of Valmont possessing
thirty-five percent (35%) or more of the total voting power of the
stock of Valmont; or
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(ii)
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A
majority of the members of Valmont’s board of directors is
replaced during any twelve (12) month period by directors whose
appointment or election is not endorsed by a majority of the
members of Valmont’s board of directors prior to the date of
the appointment or election.
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(c) “ Change in
the Ownership of a Substantial Portion of Valmont’s
Assets. ” A “Change in the Ownership of a
Substantial Portion of Valmont’s Assets” occurs on the
date that any one person or entity, or more than one person or
entity acting as a Group, acquires or has acquired during the
twelve (12) month period ending on the date of the most recent
acquisition by such person, entity or Group, assets from Valmont
that have a total gross fair market
value equal to or more than forty percent (40%) of the total gross
fair market value of all of the assets of Valmont immediately prior
to such acquisition or acquisitions. For purposes of this Section,
the term “gross fair market value” means the value of
the assets of Valmont, or the value of the assets being disposed
of, determined without regard to any liabilities associated with
such assets. However, a Change in the Ownership of a Substantial
Portion of Valmont’s Assets does not occur if the assets are
transferred to one of the following (as determined immediately
after the asset transfer):
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(i)
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A
shareholder of Valmont in exchange for or with respect to such
shareholder’s stock;
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(ii)
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An
entity, fifty percent (50%) or more of the total value or voting
power of which is owned, directly or indirectly, by Valmont;
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(iii)
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A
person, or more than one person acting as a Group, that owns,
directly or indirectly, fifty percent (50%) or more of the total
value or voting power of all the outstanding stock of Valmont;
or
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(iv)
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An
entity, at least fifty percent (50%) of the total value or voting
power of which is owned, directly or indirectly, by a person
described in paragraph (iii).
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For purposes of this Section, the term “Group” shall
have the meaning within Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 and shall include the owners of a
corporation that enter into a merger, consolidation, purchase or
acquisition of stock, or similar business transaction with Valmont,
but shall not include persons or entities who would otherwise be
considered a Group solely because such persons or entities purchase
or own stock of Valmont at the same time or as a result of the same
public offering. The attribution rules of Code Section 318(a) shall
apply in determining stock ownership.
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2.2
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“ Code ” means the Internal Revenue Code of
1986, as amended.
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2.3 “
Committee ” means the Compensation Committee of the
Board of Directors of Valmont (“Board”).
2.4 “
Disability ” means the Participant is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months.
2.5 “ Fees
” means with respect to any Non-Employee Director, such fees
for professional services as a director of Valmont, including, but
not limited to, retainers, meeting fees, lead director fees, and
committee chairman fees to the extent that the amount is otherwise
includible in gross income; provided, however, $1,000 of fees for
each meeting shall not be included in “Fees” for
purposes of this Plan.
2.6 “
Deferred Equity-Based Compensation ” means
Equity-Based Compensation deferred by a Participant pursuant to
Section 4 below.
2.7 “
Equity-Based Compensation ” means awards which may be,
or are, received by a Non-Employee Director pursuant to the Valmont
2008 Stock Plan, or any successor or similar plan
thereto.
2.8 “
Non-Employee Director ” means a director of Valmont
who is not employed by Valmont or any of its affiliates.
2.9 “
Participant ” means a Non-Employee Director who has
satisfied the eligibility requirements set forth in Section 3 of
the Plan elects to participate in the Plan and who has not been
paid his or her total benefits from the Plan.
2.10 “
Plan ” means this plan which shall be called the
Unfunded Deferred Compensation Plan for Non-Employee
Directors.
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2.11
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“ Plan Year
” means the calendar year.
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2.12 “
Valmont ” means Valmont Industries, Inc., a Delaware
corporation, and any successor thereto.
3.
Eligibility and Participation .
Each Non-Employee Director who participates in the Plan as of
December 31, 2008 shall be eligible to continue participation. Each
Non-Employee Director shall be eligible to participate in the Plan.
Each Non-Employee Director shall continue to participate in this
Plan until all the benefits payable to the Non-Employee Director
under this Plan have been paid.
4.
Deferrals . Each individual who is a Non-Employee
Director as of December 31, 2008, must make a new deferral election
prior to December 31, 2008, which shall supersede any prior
deferral election by the Participant. Prior to the beginning of
each Plan Year, a Non-Employee Director may elect to have all or a
portion of his or her Fees for such Plan Year contributed to this
Plan. In addition, prior to the beginning of each Plan Year, a
Non-Employee Director may make a deferral election with respect to
any Equity-Based Compensation that may be received by the
Non-Employee Director in such Plan Year. A Participant’s
deferral election and payment election for Equity-Based
Compensation shall be separate from
