[ ] | Preliminary Proxy Statement |
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[X] | Definitive Proxy Statement |
[ ] | Definitive Additional Materials |
[ ] | Soliciting Material Pursuant to § 240.14a-12 |
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[ ] | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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[ ] | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. | ||
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1. | To elect two Class I directors to hold office for a three-year term expiring at our annual meeting of stockholders following our |
2. | To consider and act upon ratification and approval of the selection of RSM US LLP as our independent registered public accounting firm for our |
3. | To consider and act upon approval of our 2018 omnibus incentive plan; and |
To consider and act upon any other matters which may properly come before the meeting. |
BY ORDER OF THE BOARD OF DIRECTORS, | ||
Charles J. Schmaderer | ||
Secretary | ||
The election of two Class I directors to hold office for a three-year term expiring at our annual meeting of stockholders following our |
The ratification and approval of the selection of the accounting firm of RSM US LLP as our independent registered public accounting firm for our |
· · | The approval of our 2018 omnibus incentive plan; and Any other matters that may |
"FOR" the election of each nominee for director named in this proxy statement who is to be voted on by the holders of our common stock; |
"FOR" the ratification and approval of RSM US LLP as our independent registered public accounting |
· | "FOR" the approval of our 2018 omnibus incentive plan. |
submitting a valid, later-dated proxy; |
notifying our corporate secretary in writing that you have revoked your proxy; or |
completing a written ballot at the annual meeting. |
Name | Age | Position With our Company | Director Since |
NOMINEES | |||
Class I: New term to expire at the annual meeting following our 2018 fiscal year | |||
Jeremy W. Hobbs | 54 | Director | 2006 |
Stanley Mayer | 70 | Director | 2002 |
DIRECTORS CONTINUING IN OFFICE | |||
Class II: Term to expire at the annual meeting following our 2016 fiscal year | |||
Christopher H. Atayan | 55 | Chief Executive Officer, Chairman, Director | 2004 |
Raymond F. Bentele | 78 | Director | 2002 |
Class III: Term to expire at the annual meeting following our 2017 fiscal year | |||
Kathleen M. Evans | 68 | President, Director | 1986 |
John R. Loyack | 52 | Director | 2003 |
Timothy R. Pestotnik | 55 | Director | 1998 |
Name | Age | Position With our Company | Director Since |
NOMINEES | |||
Class I: New term to expire at the annual meeting following our 2021 fiscal year | |||
Jeremy W. Hobbs | 57 | Director | 2006 |
Stanley Mayer | 73 | Director | 2002 |
DIRECTORS CONTINUING IN OFFICE | |||
Class II: Term to expire at the annual meeting following our 2019 fiscal year | |||
Christopher H. Atayan | 58 | Chief Executive Officer, Chairman, Director | 2004 |
Raymond F. Bentele | 81 | Director | 2002 |
Class III: Term to expire at the annual meeting following our 2020 fiscal year | |||
Andrew C. Plummer | 44 | President, Chief Financial Officer, Director | 2018 |
John R. Loyack | 55 | Director | 2003 |
Timothy R. Pestotnik | 58 | Director | 1998 |
· | to enable the 2018 Plan to comply with the stockholder approval requirements for equity-based plans under the listing standards of the NYSE American; |
· | to enable equity-based awards under the 2018 Plan to be exempt from the short-swing profit disgorgement provisions of SEC Rule 16b-3; and |
· | for certain types of options granted under the 2018 Plan, known as incentive stock options, to be made eligible for the favorable income tax treatment afforded to optionees under Section 421 of the Internal Revenue Code. |
New Plan Benefits | ||||||||
AMCON Distributing Company 2018 Omnibus Incentive Plan | ||||||||
Name and position | Dollar Value ($) | Number of Units | ||||||
Christopher H. Atayan, Chief Executive Officer & Chairman | 831,600 | 9,900 | ||||||
Andrew C. Plummer, President & Chief Financial Officer | 172,200 | 2,050 | ||||||
Executive Group | 1,003,800 | 11,950 | ||||||
Non-Executive Director Group | 84,000 | 1,000 | ||||||
Non-Executive Officer Employee Group | 176,400 | 2,100 |
(1) | The amounts in this column reflect the grant date fair value, computed in accordance with FASB ASC 718, for awards of restricted stock units ("RSUs") approved by the compensation committee of our board of directors on October 23, 2018, based on the assumptions that (a) the RSUs were granted on that date, and (b) the closing price for the shares of common stock underlying the RSUs on that date was $84.00 per share. These amounts do not reflect whether the recipient has actually realized or will realize a financial benefit from the awards. |
each person known to us to own beneficially more than 5% of the aggregate number of the outstanding shares of our common stock; |
our chief executive officer, our principal financial officer and each of the other named executive officers; |
each of our directors and director nominees; and |
our executive officers and directors as a group. |
Name of Beneficial Owner | Number of Shares and Nature of Beneficial Ownership | Percent of Shares Outstanding | ||||||||
Common Stock | Series A Convertible Preferred Stock | Series B Convertible Preferred Stock | ||||||||
Name of Beneficial Owner | Number of Shares and Nature of Beneficial Ownership | Percent of Shares Outstanding | Number of Shares and Nature of Beneficial Ownership | Percent of Shares Outstanding | Number of Shares and Nature of Beneficial Ownership | Percent of Shares Outstanding | ||||
Directors and Executive Officers: | ||||||||||
Christopher H. Atayan (1) | 304,313 | 41.95% | 100,000 | 100% | 8,000 | 50% | 334,013 | 54.10% | ||
Kathleen M. Evans | 24,457 | 3.85% | -- | -- | ||||||
Kathleen M. Evans (2) | 24,457 | 3.96% | ||||||||
Andrew C. Plummer | 12,658 | 1.99% | -- | -- | 18,808 | 3.05% | ||||
Eric J. Hinkefent (2) | 10,335 | 1.62% | -- | -- | ||||||
Raymond F. Bentele | 2,096 | * | -- | -- | 2,163 | * | ||||
Jeremy W. Hobbs (3) | 1,761 | * | -- | -- | 1,700 | * | ||||
John R. Loyack | 2,916 | * | -- | -- | 2,983 | * | ||||
Stanley Mayer | 2,466 | * | -- | -- | 2,533 | * | ||||
Timothy R. Pestotnik | 1,049 | * | -- | -- | 1,116 | * | ||||
All directors and executive officers (9 persons as a group) (4) | 362,051 | 49.81% | -- | -- | ||||||
All directors and executive officers (8 persons as a group) | 387,773 | 62.81% |
* | Signifies less than 1% |
(1) |
(2) |
(3) | The shares reported do not include 9,886 shares of common stock held by the Western Wind Foundation, of which Mr. Hobbs is a director. Mr. Hobbs disclaims beneficial ownership of the shares held by Western Wind Foundation. The information provided is based in part on the Schedule 13D filed with the SEC on July 22, 2009. |
Director Fee | $45,000 | |
Audit Committee Membership Fee (1) | $5,000 | |
Committee Chairman Fee (2) | $5,000 | |
Lead Director Fee | $50,000 |
(1) | Provided to all members of the audit committee, including the chairman. |
(2) | Provided to directors serving as chairman of the audit committee, the compensation committee and the nominating and corporate governance committee. |
Name | Fees Earned or Paid in Cash ($) (1) | Stock Awards ($) (2) | Option Awards ($) (3) | Non-Equity Incentive Plan Compensation ($) | Nonqualified Deferred Compensation Earnings ($) | All Other Compensation ($) | Total ($) | Fees Earned or Paid in Cash ($) (1) | Stock Awards ($) (2) | All Other Compensation ($) | Total ($) |
Raymond F. Bentele | 50,000 | -- | -- | 50,000 | 50,000 | 16,800 | -- | 66,800 | |||
Jeremy W. Hobbs | 45,000 | -- | -- | 45,000 | 45,000 | 16,800 | -- | 61,800 | |||
John R. Loyack | 60,000 | -- | -- | 60,000 | 60,000 | 16,800 | -- | 76,800 | |||
Stanley Mayer | 50,000 | -- | -- | 50,000 | 50,000 | 16,800 | -- | 66,800 | |||
Timothy R. Pestotnik | 100,000 | -- | -- | 100,000 | 100,000 | 16,800 | -- | 116,800 |
(1) | The amounts in this column include director fees, committee chairman fees, audit committee membership fees, and lead director fees received for service as a director, committee chairman, audit committee member or lead director, as shown below. |
Name | Director Fee $ | Committee Chairman Fee $ | Audit Committee Membership Fee $ | Lead Director Fee $ | Total Fees Paid in Cash $ | |
Mr. Bentele | 45,000 | 5,000 | -- | -- | 50,000 | |
Mr. Hobbs | 45,000 | -- | -- | -- | 45,000 | |
Mr. Loyack | 45,000 | 10,000 | 5,000 | -- | 60,000 | |
Mr. Mayer | 45,000 | -- | 5,000 | -- | 50,000 | |
Mr. Pestotnik | 45,000 | -- | 5,000 | 50,000 | 100,000 |
Name | Director Fee $ | Committee Chairman Fee $ | Audit Committee Membership Fee $ | Lead Director Fee $ | Total Fees Paid in Cash $ |
Mr. Bentele | 45,000 | 5,000 | -- | -- | 50,000 |
Mr. Hobbs | 45,000 | -- | -- | -- | 45,000 |
Mr. Loyack | 45,000 | 10,000 | 5,000 | -- | 60,000 |
Mr. Mayer | 45,000 | -- | 5,000 | -- | 50,000 |
Mr. Pestotnik | 45,000 | -- | 5,000 | 50,000 | 100,000 |
(2) |
Attract and retain talented professionals, while emphasizing the challenges and rewards associated with a fast paced, stimulating, entrepreneurial environment. |
Align individual and strategic goals with those of our stockholders and customers. We believe that it is primarily the dedication, creativity, competence and experience of our entire workforce that enables us to compete, given the realities of the wholesale/retail industries in which we operate. History has demonstrated that our business is neither easily nor quickly mastered by people attempting to migrate from other industries. Hence, we attempt to retain our experienced, long-term employees, avoid employee turnover, create a cadre of dedicated professionals focused on increasing stockholder value, align the interests of our employees and stockholders and foster an ownership mentality in our executives by giving our employees a meaningful stake in our success through our equity incentive and cash bonus programs. |
Achieve meaningful results and add value to our company through a results-oriented reward structure. We attempt to link compensation closely to results by structuring a significant portion of executive compensation as at-risk compensation. |
Tailor individual incentives within different segments of our organization depending on the priorities and needs existing at the time. This facilitates individual focus to capitalize on opportunities and to correct weaknesses in a particular segment of our organization. Our branches and retail stores therein require empowered, capable, local management expertise to operate effectively. We attempt to encourage accountability in our division-level executives by using bonus targets tied to divisional or regional results and other, individually tailored, objectives. |
Integrate strategic goals and objectives throughout all facets of our organization. This enables quicker, more effective execution of our strategic corporate objectives. Our ability to modify and tailor the components of our cash bonus program allows us to revise these components from year to year and executive to executive as our strategic goals evolve. |
Simplicity is an important element of our compensation structure. With clear and unambiguous goals individuals can employ their best efforts. | ||
base salary; |
performance-based compensation; |
long-term equity incentive compensation; and |
perquisites and other personal benefits. | ||
Developing and implementing our company's strategic plan |
Increasing our company's enterprise value in a conservative, low-risk fashion |
Developing and maintaining relationships within the financial community to ensure our company's access to capital and credit |
Setting the proper "tone at the top" reflecting our company's operation in a highly regulated environment as a publicly traded reporting company |
Providing executive leadership to deploy our assets in a balanced fashion, recognizing the need to maximize liquidity, reduce debt, and generate cash flow |
Developing |
Implement facility and equipment strategy to support foodservice growth | ||
Reducing long-term debt |
Initiating a strategic plan for information technology |
Initiating opportunities to repurchase shares of our capital stock when appropriate |
· | Ensuring our company's compliance with appropriate internal controls for financial reporting |
· | Implement strategic plan to enhance our geographic footprint |
· |
· | Developing and implementing strategies for the enhancement of foodservice capabilities |
· | Initiating a strategic posture for a company-wide culture of growth |
· | Initiating a strategic posture in the Company's markets to facilitate opportunities for growth of the wholesale division capabilities through acquisition |
· | Developing and implementing a management structure to facilitate long term growth | |
Name and Principal Position | Fiscal Year | Salary ($) | Bonus ($) | Stock Awards ($) (1) | Option Awards ($) | Non-Equity Incentive Plan Compensation ($) | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | All other Compensa-tion ($) (2) | Total ($) |
Christopher H. Atayan, Chief Executive Officer & Chairman | 2015 | 521,760 | 652,088 | 830,610 | -- | -- | -- | 10,600 | 2,015,058 |
2014 | 506,480 | 633,100 | 824,670 | -- | -- | -- | 20,600 | 1,984,850 | |
2013 | 491,730 | 614,663 | 821,997 | -- | -- | -- | -- | 1,928,390 | |
Kathleen M. Evans, President | 2015 | 397,840 | 137,917 | -- | -- | -- | -- | 150,797 | 686,554 |
2014 | 386,250 | 133,900 | -- | -- | -- | -- | 23,307 | 543,457 | |
2013 | 375,000 | 130,000 | -- | -- | -- | -- | 23,107 | 528,107 | |
Andrew C. Plummer, Vice President, Secretary & Chief Financial Officer | 2015 | 215,530 | 134,706 | 171,995 | -- | -- | -- | 10,593 | 532,824 |
2014 | 209,250 | 130,781 | 170,765 | -- | -- | -- | 10,387 | 521,183 | |
2013 | 203,160 | 126,975 | 170,212 | -- | -- | -- | 11,515 | 511,862 | |
Eric J. Hinkefent, President of Chamberlin's Natural Foods, Inc. & Health Food Associates, Inc. | 2015 | 163,910 | 97,813 | -- | -- | -- | -- | 20,630 | 282,353 |
2014 | 163,910 | 52,759 | -- | -- | -- | -- | 22,492 | 239,161 | |
2013 | 163,910 | 102,444 | -- | -- | -- | -- | 23,028 | 289,382 |
Name and Principal Position | Fiscal Year | Salary ($) | Bonus ($) | Stock Awards ($) (2) | Option Awards ($) | Non-Equity Incentive Plan Compensation ($) | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | All other Compensation ($) (3) | Total ($) |
Christopher H. Atayan, Chief Executive Officer & Chairman | 2018 | 570,040 | 712,550 | 831,600 | -- | -- | -- | 11,000 | 2,125,190 |
2017 | 553,440 | 691,800 | 895,950 | -- | -- | -- | 10,800 | 2,151,990 | |
2016 | 537,320 | 671,650 | 907,335 | -- | -- | -- | 10,600 | 2,126,905 | |
Kathleen M. Evans, Former President (1) | 2018 | 434,730 | 150,706 | -- | -- | -- | -- | 23,907 | 609,343 |
2017 | 422,070 | 146,317 | -- | -- | -- | -- | 23,707 | 592,094 | |
2016 | 409,780 | 142,057 | -- | -- | -- | -- | 23,507 | 575,344 | |
Andrew C. Plummer, President & Chief Financial Officer | 2018 | 297,750 | 186,094 | 172,200 | -- | -- | -- | 11,053 | 667,097 |
2017 | 289,080 | 180,675 | 185,525 | -- | -- | -- | 11,698 | 666,978 | |
2016 | 251,530 | 157,206 | 187,883 | -- | -- | -- | 10,600 | 607,219 |
(1) | Retired as an executive officer and director effective October 12, 2018. |
(2) | The amounts in this column reflect the grant date fair value, computed in accordance with FASB ASC 718, for awards granted to our named executive officers of restricted stock units for services provided in the applicable fiscal year. These amounts do not reflect whether the recipient has actually realized or will realize a financial benefit from the awards. Assumptions used in the calculation of these amounts use the closing stock price on the date of grant. |
The amounts in this column for our |
Name | Auto Allowance ($) (a) | Life Insurance Premiums ($) (b) | Company Profit Sharing Plan Contributions ($) (c) | Vacation Payout ($) (d) | Total ($) | Auto Allowance ($) (a) | Life Insurance Premiums ($) (b) | Company Profit Sharing Plan Contributions ($) (c) | Total ($) |
Mr. Atayan | -- | -- | 10,600 | -- | 10,600 | -- | 11,000 | 11,000 | |
Ms. Evans | 12,000 | 907 | 10,600 | 127,290 | 150,797 | 12,000 | 907 | 11,000 | 23,907 |
Mr. Plummer | -- | -- | 10,593 | -- | 10,593 | -- | 11,053 | 11,053 | |
Mr. Hinkefent | 12,000 | -- | 8,630 | -- | 20,630 |
(a) | Reflects a cash allowance provided as compensation for the use of the executive's automobile on company business. |
(b) | Reflects life insurance premiums paid by our company with respect to term life insurance policies. |
(c) | Reflects company matching contributions under our 401(k) profit sharing plan. Employees may contribute up to 100% of their compensation into this plan, subject to Internal Revenue Service limits. Our company matches 50% of the first 4% of compensation contributed and 100% of the next 2% of compensation contributed for a maximum company match equal to 4% of employee compensation. |
Name | Grant Date | All Other Stock Awards: Number of Shares of Stock or Units (#) | All Other Option Awards: Number of Securities Underlying Options (#) | Exercise or Base Price of Option Awards ($ / Sh) | Grant Date Fair Value of Stock and Option Awards ($) (2) |
Mr. Atayan | 10/ | 9,900 (1) | -- | -- | |
Ms. Evans | -- | -- | -- | -- | -- |
Mr. Plummer | 10/ | 2,050 (1) | -- | -- | |
(1) | Consists of awards of restricted stock units under our |
(2) | These amounts reflect the grant date fair value, computed in accordance with FASB ASC 718, for awards of restricted stock units granted to our named executive officers using the closing stock price on the date of grant. The amounts reported do not reflect whether the recipient has actually realized or will realize a financial benefit from the awards. |
Name | Option Awards | Stock Awards | ||
Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($) (1) | Number of Shares Acquired on Vesting (#) (2) | Value Realized on Vesting ($) | |
Mr. Atayan | -- | -- | 3,300 | 215,985 (3) |
-- | -- | 3,300 | 235,629 (4) | |
-- | -- | 3,300 | 235,629 (5) | |
Ms. Evans | -- | -- | -- | -- |
Mr. Plummer | -- | -- | 683 | 44,768 (3) |
-- | -- | 683 | 48,766 (4) | |
-- | -- | 684 | 48,766 (5) |
Name | Option Awards | Stock Awards | |||
Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($) (1) | Number of Shares Acquired on Vesting (#) (2) | Value Realized on Vesting ($) | ||
Mr. Atayan | 25,000 | 1,218,125 | -- | -- | |
-- | -- | 3,300 | 226,347 (3) | ||
-- | -- | 3,700 | 253,709 (4) | ||
-- | -- | 3,567 | 244,839 (5) | ||
Ms. Evans | -- | -- | -- | -- | |
Mr. Plummer | -- | -- | 683 | 46,847 (3) | |
-- | -- | 900 | 61,713 (4) | ||
-- | -- | 734 | 50,382 (5) | ||
Mr. Hinkefent | -- | -- | 600 | 41,184 (5) |
(1) | Determined by subtracting the exercise price of the options exercised from the estimated fair market value of the underlying shares of our common stock on the |
(2) | Represents shares of common stock acquired on vesting of restricted stock units or "RSUs" (prior to any reduction of shares to provide for the payment of applicable tax withholding amounts). The award recipient has the right to receive, on the vesting date, either (i) an amount of cash equal to the fair market value of the shares of common stock underlying the recipient's RSUs then vesting or (ii) the number of shares of common stock underlying the recipient's RSUs then vesting. |
(3) | Determined based on the estimated fair market value of our common stock on the October |
(4) | Determined based on the estimated fair market value of our common stock on the October |
(5) | Determined based on the estimated fair market value of our common stock on the October |
Option Awards | Stock Awards | ||||||||
Number of Securities Underlying Unexercised Options (#) | Number of Securities Underlying Unexercised Options (#) | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($) (5) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) | |
Name | Exercisable | Unexercisable | |||||||
Mr. Atayan | -- | -- | -- | -- | -- | 3,700 (1) | 296,000 | -- | -- |
-- | -- | -- | -- | -- | 6,600 (2) | 528,000 | -- | -- | |
-- | -- | -- | -- | -- | 9,900 (3) | 792,000 | -- | -- | |
Ms. Evans | -- | -- | -- | -- | -- | -- | -- | -- | -- |
Mr. Plummer | -- | -- | -- | -- | -- | 900 (1) | 72,000 | -- | -- |
-- | -- | -- | -- | -- | 1,367 (2) | 109,360 | -- | -- | |
-- | -- | -- | -- | -- | 2,050 (3) | 164,000 | -- | -- | |
Mr. Hinkefent | 1,000 | 500 (4) | -- | 62.33 | 10/23/22 | -- | -- | -- | -- |
Option Awards | Stock Awards | ||||||||
Number of Securities Underlying Unexercised Options (#) | Number of Securities Underlying Unexercised Options (#) | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested (#) | Market Value of Shares or Units of Stock That Have Not Vested ($) (4) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) | |
Name | Exercisable | Unexercisable | |||||||
Mr. Atayan | -- | -- | -- | -- | -- | 3,300 (1) | 286,935 | -- | -- |
-- | -- | -- | -- | -- | 6,600 (2) | 573,870 | -- | -- | |
-- | -- | -- | -- | -- | 9,900 (3) | 860,805 | -- | -- | |
Ms. Evans | -- | -- | -- | -- | -- | -- | -- | -- | -- |
Mr. Plummer | -- | -- | -- | -- | -- | 684 (1) | 59,474 | -- | -- |
-- | -- | -- | -- | -- | 1,367 (2) | 118,861 | -- | -- | |
-- | -- | -- | -- | -- | 2,050 (3) | 178,248 | -- | -- |
(1) | Subject to earlier forfeiture under the limited circumstances specified in our |
(2) | Subject to earlier forfeiture under the limited circumstances specified in our |
(3) | Subject to earlier forfeiture under the limited circumstances specified in our |
Determined based on the closing market price of our common stock on September 30, |
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted-average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
(a) | (b) | (c) | |
Equity compensation plans approved by security holders (1) | 33,800 | $77.85 | 5,068 |
Equity compensation plans not approved by security holders | -- | -- | -- |
Total. . . . . . . . . . . . . . . . . . . . . . | 33,800 | $77.85 | 5,068 |
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted-average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
(a) | (b) | (c) | |
Equity compensation plans approved by security holders (1) | 21,100 | $64.16 | 63,412 |
Equity compensation plans not approved by security holders | -- | -- | -- |
Total. . . . . . . . . . . . . . . . . . . . . . | 21,100 | $64.16 | 63,412 |
(1) | Consists of (i) our 2007 omnibus incentive plan, described under "Executive Compensation and Related Matters—2007 Omnibus Incentive Plan," and (ii) our 2014 omnibus incentive plan, described under "Executive Compensation and Related Matters—2014 Omnibus Incentive Plan." The weighted average exercise price in column (b) reflects the weighted average exercise price of outstanding stock options. |
During any period prior to termination of employment that the officer fails to perform full-time duties as a result of disability, total compensation, including base salary, bonus and any benefits, will continue unaffected until either the officer returns to the full-time performance of duties or employment is terminated. |
If employment is terminated by our company for cause or by the officer other than for good reason, we will pay the officer his or her full base salary through the date of termination plus all other amounts to which the officer is then entitled under any of our compensation or benefit plans. |
If employment terminates by reason of death, benefits will be determined in accordance with our retirement, survivor's benefits, insurance and other applicable programs and plans then in effect. |
If employment is terminated by our company (other than for cause or disability) or by the officer for good reason, the officer will be entitled to the following benefits: |
All accrued compensation and benefits. |
A severance payment in the form of a cash lump sum distribution equal to current annual compensation (as that term is defined in the Agreement) multiplied by two, which payment is subject to pro rata reduction to the extent that the officer is age 65 or over during the three years immediately following the termination of employment. |
Life and health insurance benefits (for 24 months after termination or until the officer turns 65 if earlier) that are substantially similar to those received immediately prior to the date of termination or, if more favorable to the officer, immediately prior to the event date. These benefits will be provided at a cost to the officer that is no greater than the amount paid for such benefits by active employees who participate in such company-sponsored welfare benefit plan or, if less, the amount paid for such benefits by the officer immediately prior to the event date. |
Prior to Change of Control | After Change of Control | |||||
Benefit | Termination due to Death | Termination due to Disability | Termination w/o Cause | Termination w/o Cause or for Good Reason | Termination due to Death or Disability | Automatically with or w/o Termination |
Christopher H. Atayan | ||||||
Severance payment (1) | -- | -- | -- | $2,558,280 | -- | -- |
Continuation of insurance coverage (2) | -- | -- | -- | 36,000 | -- | -- |
Vesting of restricted stock units (3) | $1,721,610 | $1,721,610 | $1,721,610 | $1,721,610 | $1,721,610 | $1,721,610 |
Total for Mr. Atayan | $1,721,610 | $1,721,610 | $1,721,610 | $4,315,890 | $1,721,610 | $1,721,610 |
Andrew C. Plummer | ||||||
Vesting of restricted stock units (3) | $356,582 | $356,582 | $356,582 | $356,582 | $356,582 | $356,582 |
Total for Mr. Plummer | $356,582 | $356,582 | $356,582 | $356,582 | $356,582 | $356,582 |
Prior to Change of Control | After Change of Control | |||||||||||||||||||||||
Benefit | Termination due to Death | Termination due to Disability | Termination w/o Cause | Termination w/o Cause or for Good Reason | Termination due to Death or Disability | Automatically with or w/o Termination | ||||||||||||||||||
Christopher H. Atayan | ||||||||||||||||||||||||
Severance payment (1) | -- | -- | -- | $ | 2,341,207 | -- | -- | |||||||||||||||||
Continuation of insurance coverage (2) | -- | -- | -- | 31,200 | -- | -- | ||||||||||||||||||
Vesting of restricted stock units (3) | $ | 1,616,000 | $ | 1,616,000 | $ | 1,616,000 | $ | 1,616,000 | $ | 1,616,000 | $ | 1,616,000 | ||||||||||||
Total for Mr. Atayan | $ | 1,616,000 | $ | 1,616,000 | $ | 1,616,000 | $ | 3,988,407 | $ | 1,616,000 | $ | 1,616,000 | ||||||||||||
Andrew C. Plummer | ||||||||||||||||||||||||
Vesting of restricted stock units (3) | $ | 345,360 | $ | 345,360 | $ | 345,360 | $ | 345,360 | $ | 345,360 | $ | 345,360 | ||||||||||||
Total for Mr. Plummer | $ | 345,360 | $ | 345,360 | $ | 345,360 | $ | 345,360 | $ | 345,360 | $ | 345,360 | ||||||||||||
Eric J. Hinkefent | ||||||||||||||||||||||||
Salary benefits (4) | $ | 89,555 | $ | 89,555 | -- | -- | $ | 89,555 | -- | |||||||||||||||
Severance payment (5) | -- | -- | $ | 233,541 | $ | 233,541 | -- | -- | ||||||||||||||||
Vesting of stock options and restricted stock units (3) | $ | 8,835 | $ | 8,835 | -- | -- | $ | 8,835 | $ | 8,835 | ||||||||||||||
Total for Mr. Hinkefent | $ | 98,390 | $ | 98,390 | $ | 233,541 | $ | 233,541 | $ | 98,390 | $ | 8,835 |
(1) | Represents the amount calculated pursuant to the change of control agreement equal to the product of two times the sum of: |
(2) | Represents the amount calculated pursuant to the change of control agreement equal to our estimated incremental cost for life and health insurance benefits provided to Mr. Atayan for 24 months following termination (or until he turns 65 if earlier), after giving effect to the portion paid by him. |
(3) | Represents the value of restricted stock units |
Type of Fee | Fiscal 2014 | Fiscal 2015 | Fiscal 2017 | Fiscal 2018 | ||||||||||||
Audit Fees (1) | $ | 336,590 | $ | 338,155 | $ | 338,424 | $ | 337,939 | ||||||||
Audit-Related Fees (2) | 14,300 | 14,300 | 13,750 | 13,750 | ||||||||||||
Tax Fees (3) | 59,848 | 57,790 | 61,676 | 55,403 | ||||||||||||
All Other Fees | -- | -- | -- | -- | ||||||||||||
Total | $ | 410,738 | $ | 410,245 | $ | 413,850 | $ | 407,092 |
(1) | Audit Fees, including those for audits, include the aggregate fees billed to us during our |
(2) | Audit Related Fees include the aggregate fees billed to us during our |
(3) | Tax Fees include the aggregate fees billed to us during our |
John R. Loyack | Stanley Mayer | Timothy R. Pestotnik |
· | If the stockholder proposal is intended for inclusion in our proxy materials for that meeting pursuant to SEC Rule 14a-8, our company must receive the proposal no later than July 19, |
· | If the stockholder proposal is to be presented without inclusion in our proxy materials for that meeting, our bylaws require that our company receive notice of the proposal no later than November |
· | If the stockholder is to make a nomination for that meeting, our bylaws require that our company receive notice of the proposed nominee no later than November |
BY ORDER OF THE BOARD OF DIRECTORS, | ||
Charles J. Schmaderer | ||
Secretary | ||
1.1 | Establishment. AMCON Distributing Company, a corporation organized and existing under the laws of the state of Delaware (the "Company"), hereby establishes the AMCON Distributing Company 2018 Omnibus Incentive Plan (the "Plan") for certain employees and non-employee directors of the Company. |
1.2 | Purpose. The purpose of the Plan is to encourage employees and non-employee directors of the Company and its affiliates and subsidiaries to acquire or increase a proprietary and vested interest in the growth and performance of the Company. The Plan also is designed to assist the Company in attracting and retaining employees and non-employee directors by providing them with the opportunity to participate in the success and profitability of the Company. |
1.3 | Duration. The Plan shall commence on the Effective Date and shall remain in effect, subject to the right of the Board to amend or terminate the Plan at any time pursuant to Section 15 hereof, until all Shares subject to the Plan shall have been issued, purchased or acquired according to the Plan's provisions. Unless the Plan shall be reapproved by the stockholders of the Company and the Board renews the continuation of the Plan, no Awards shall be issued pursuant to the Plan after the tenth (10th) anniversary of the Effective Date. |
1.4 | Plan Subject to Stockholder Approval. Although the Plan is effective on the Effective Date, the Plan's continued existence is subject to the Plan being approved by the Company's stockholders within 12 months of the Effective Date. If the Company's stockholders do not approve the Plan within such 12-month period, the Plan will become null and void. Any Awards granted under the Plan after the Effective Date but before the approval of the Plan by the Company's stockholders will become null and void if the Company's stockholders do not approve this Plan within 12 months of the Effective Date. |
2.1 | The following terms shall have the meanings set forth below. |
(i) | Any Person is or becomes the Beneficial Owner (within the meaning set forth in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Company (not including for this purpose any securities acquired directly from the Company or its Affiliates or held by an employee benefit plan of the Company) representing 50% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (x) of paragraph (iii) of this definition; or |
(ii) | The following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on the Effective Date, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended; or |
(iii) | There is consummated a merger or consolidation of the Company with any other corporation, OTHER THAN (x) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company at least 50% of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (y) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including for this purpose any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of the combined voting power of the Company's then outstanding securities; or |
(iv) | The stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale. |
2.2 | General Interpretive Principles. (i) Words in the singular shall include the plural and vice versa, and words of one gender shall include the other gender, in each case, as the |
3.1 | Composition of Committee. The Plan shall be administered by the Committee. To the extent the Board considers it desirable for transactions relating to Awards to be eligible to qualify for an exemption under Rule 16b-3, the Committee shall consist of two or more directors of the Company, all of whom qualify as "non-employee directors" within the meaning of Rule 16b-3. |
3.2 | Authority of Committee. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: |
(a) | select the Service Providers to whom Awards may from time to time be granted hereunder; |
(b) | determine the type or types of Awards to be granted to eligible Service Providers; |
(c) | determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; |
(d) | determine the terms and conditions of any Award; |
(e) | determine whether, and to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards or other property; |
(f) | determine whether, and to what extent, and under what circumstance Awards may be canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; |
(g) | correct any defect, supply an omission, reconcile any inconsistency and otherwise interpret and administer the Plan and any instrument or Award Agreement relating to the Plan or any Award hereunder; |
(h) | to grant Awards in replacement of Awards previously granted under this Plan or any other compensation plan of the Company, provided that any such replacement grant that would be considered a repricing shall be subject to stockholder approval; |
(i) | with the consent of the Holder, to amend any Award Agreement at any time; provided that the consent of the Holder shall not be required for any amendment (i) that, in the Committee's determination, does not materially adversely affect the rights of the Holder, or (ii) which is necessary or advisable (as determined by the Committee) to carry out the purpose of the Award as a result of any new applicable law or change in an existing applicable law, or (iii) to the extent the Award Agreement specifically permits amendment without consent; |
(j) | modify and amend the Plan, establish, amend, suspend, or waive such rules, regulations and procedures of the Plan, and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and |
(k) | make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. |
3.3 | Committee Delegation. The Committee may delegate to any member of the Board or committee of Board members such of its powers as it deems appropriate, including the power to sub-delegate, except that, pursuant to such delegation or sub-delegation, only a member of the Board (or a committee thereof) may grant Awards from time to time to specified categories of Service Providers in amounts and on terms to be specified by the Board or the Committee; provided that no such grants shall be made other than by the Board or the Committee to individuals who are then Section 16 Persons. A majority of the members of the Committee may determine its actions and fix the time and place of its meetings. |
3.4 | Determination Under the Plan. Unless otherwise expressly provided in the Plan, all designations, determinations, adjustments, interpretations, and other decisions under or with respect to the Plan, any Award or Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all persons, including the Company, any Participant, any Holder, and any stockholder. No member of the Committee shall be liable for any action, determination or interpretation made in good faith, and all members of the Committee shall, in addition to their rights as directors, be fully protected by the Company with respect to any such action, determination or interpretation. |
4.1 | Number of Shares. Subject to adjustment as provided in Section 4.3 and subject to the maximum amount of Shares that may be granted to an individual in a calendar year as set forth in Section 5.5, no more than a total of 60,000 Shares are authorized for issuance under the Plan in accordance with the provisions of the Plan and subject to such |
4.2 | Unused and Forfeited Stock. Any Shares that are subject to an Award under this Plan that are not used because the terms and conditions of the Award are not met, including any Shares that are subject to an Award that expires or is terminated for any reason, shall again be available for grant under the Plan. If a SAR is settled in Shares, only the number of Shares delivered in settlement of a SAR shall cease to be available for grant under the Plan, regardless of the number of Shares with respect to which the SAR was exercised. If any Shares subject to an Award granted hereunder are withheld or applied as payment in connection with the exercise of an Award (including the withholding of Shares on the exercise of an Option that is settled in Shares) or the withholding or payment of taxes related thereto, such Shares shall again be available for grant under the Plan. Notwithstanding the foregoing, any Shares used for full or partial payment of the purchase price of the Shares with respect to which an Option is exercised and any Shares retained by the Company pursuant to Section 16.2 that were originally Incentive Stock Option Shares must still be considered as having been granted for purposes of determining whether the Share limitation provided for in Section 4.1 has been reached for purposes of Incentive Stock Option grants. |
4.3 | Adjustments in Authorized Shares. If, without the receipt of consideration therefore by the Company, the Company shall at any time increase or decrease the number of its outstanding Shares or change in any way the rights and privileges of such Shares such as, but not limited to, the payment of a stock dividend or any other distribution upon such Shares payable in Stock, or through a stock split, spin-off, extraordinary cash dividend, subdivision, consolidation, combination, reclassification or recapitalization involving the Stock, or any similar corporate event or transaction, such that an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan then in relation to the Stock that is affected by one or more of the above events, (i) the numbers, rights, privileges and kinds of Shares that may be issued under this Plan or under particular forms of Awards, (ii) the number and kind of Shares subject to outstanding Awards, and (iii) the Option Exercise Price or SAR exercise price applicable to outstanding Awards, shall be increased, decreased or changed in like manner as if they had been issued and outstanding, fully paid and non-assessable at the time of such occurrence. The manner in which Awards are adjusted pursuant to |
4.4 | General Adjustment Rules. |
(a) | If any adjustment or substitution provided for in this Section 4 shall result in the creation of a fractional Share under any Award, such fractional Share shall be rounded up to the nearest whole Share and fractional Shares shall not be issued. |
(b) | In the case of any such substitution or adjustment affecting an Option (including a Nonqualified Stock Option) or a SAR such substitution or adjustments shall be made in a manner that is in accordance with the substitution and assumption rules set forth in Treasury Regulations 1.424-1 and the applicable guidance relating to Code section 409A. |
4.5 | Reservation of Rights. Except as provided in this Section 4, a Participant shall have no rights by reason of (i) any subdivision or consolidation of shares of stock of any class, (ii) the payment of any dividend or (iii) any other increase or decrease in the number of shares of stock of any class. Any issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to any Award (including the Option Exercise Price of Shares subject to an Option). The grant of an Award pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets. |
5.1 | Basis of Grant. Participants in the Plan shall be those Service Providers, who, in the judgment of the Committee, have performed, are performing, or during the term of their incentive arrangement will perform, important services in the management, operation and development of the Company, and significantly contribute, or are expected to significantly contribute, to the achievement of long-term corporate economic objectives. |
5.2 | Types of Grants; Limits. Participants may be granted from time to time one or more Awards; provided, however, that the grant of each such Award shall be separately approved by the Committee or its designee, and receipt of one such Award shall not result in the automatic receipt of any other Award. Written or electronic notice shall be given to such Participant, specifying the terms, conditions, right and duties related to such Award. Under no circumstance shall Incentive Stock Options be granted to (i) non-employee directors or (ii) any person not permitted to receive Incentive Stock Options under the Code. |
5.3 | Award Agreements. Each Participant shall enter into an Award Agreement(s) with the Company, in such form as the Committee shall determine and which is consistent with the provisions of the Plan, specifying the applicable Award terms, conditions, rights and duties. Unless otherwise explicitly stated in the Award Agreement, Awards shall be deemed to be granted as of the date specified in the grant resolution of the Committee, which date shall be the date of any related agreement(s) with the Participant. Unless explicitly provided for in a particular Award Agreement that the terms of the Plan are being superseded, in the event of any inconsistency between the provisions of the Plan and any such Award Agreement(s) entered into hereunder, the provisions of the Plan shall govern. |
5.4 | Restrictive Covenants. The Committee may, in its sole and absolute discretion, place certain restrictive covenants in an Award Agreement requiring the Participant to agree to refrain from certain actions. Such restrictive covenants, if contained in the Award Agreement, will be binding on the Participant. |
5.5 | Maximum Annual Award. The maximum number of Shares with respect to which an Award or Awards may be granted to any Participant in any one taxable year of the Company (the "Maximum Annual Participant Award") shall not exceed 20,000 Shares (subject to adjustment pursuant to Sections 4.3 and 4.4); provided, however, any Shares required to satisfy Substitute Awards shall not count against the Maximum Annual Participant Award. |
6.1 | Grant of Options. A Participant may be granted one or more Options. The Committee in its sole discretion shall designate whether an Option is an Incentive Stock Option or a Nonqualified Stock Option. The Committee may grant both an Incentive Stock Option and a Nonqualified Stock Option to the same Participant at the same time or at different times. Incentive Stock Options and Nonqualified Stock Options, whether granted at the same or different times, shall be deemed to have been awarded in separate grants, shall be clearly identified, and in no event shall the exercise of one Option affect the right to exercise any other Option or affect the number of Shares for which any other Option may be exercised. |
6.2 | Option Agreements. Each Option granted under the Plan shall be evidenced by an Option Award Agreement which shall be entered into by the Company and the Participant to whom the Option is granted (the "Optionee"), and which shall contain, or be subject to, the following terms and conditions, as well as such other terms and conditions not inconsistent therewith, as the Committee may consider appropriate in each case. |
(a) | Number of Shares. Each Option Award Agreement shall state that it covers a specified number of Shares, as determined by the Committee. To the extent that the aggregate Fair Market Value of Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Optionee during any calendar year exceeds $100,000 or, if different, the |
(b) | Price. Each Option Award Agreement shall state the Option Exercise Price at which each Share covered by an Option may be purchased. Such Option Exercise Price shall be determined in each case by the Committee, but in no event other than with respect to the issuance of a Substitute Award shall the Option Exercise Price for each Share covered by an Option be less than the Fair Market Value of the Stock on the Option's Grant Date, as determined by the Committee; provided, however, that the Option Exercise Price for each Share covered by an Incentive Stock Option granted to an Eligible Employee who then owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any parent or Subsidiary corporation of the Company must be at least 110% of the Fair Market Value of the Stock subject to the Incentive Stock Option on the Option's Grant Date. |
(c) | Duration of Options. Each Option Award Agreement shall state the period of time, determined by the Committee, within which the Option may be exercised by the Holder (the "Option Period"). The Option Period must expire, in all cases, not more than ten years from the Option's Grant Date; provided, however, that the Option Period of an Incentive Stock Option granted to an Eligible Employee who then owns Stock possessing more than 10% of the total combined voting power of all classes of Stock of the Company must expire not more than five years from the Option's Grant Date. Each Option Award Agreement shall also state the periods of time, if any, as determined by the Committee, when incremental portions of each Option shall become exercisable. If any Option or portion thereof is not exercised during its Option Period, such unexercised portion shall be deemed to have been forfeited and have no further force or effect. |
(d) | Termination of Service, Death, Disability, etc. |
(i) | Each Option Agreement shall state the period of time, if any, determined by the Committee, within which the Vested Option may be exercised after an Optionee ceases to be a Service Provider and may provide for different periods of time depending upon whether such cessation as a Service Provider was on account of the Participant's death, Disability, voluntary resignation, retirement, cessation as a director, or the Company having terminated such Optionee's employment with or without Cause. |
(ii) | In the case of a Participant that is an Employee, a termination of service shall not occur if the Participant is on military leave, sick leave or other bona fide leave of absence (such as temporary employment by the government) if the period of such leave does not exceed six (6) months, or |
(iii) | In the case of a Participant that is both an Employee and a director of the Company, the Participant's cessation as an Employee but continuation as a director of the Company will not constitute a termination of service under the Plan. Unless an Option Agreement provides otherwise, a Participant's change in status between serving as an employee and/or director will not be considered a termination of the Participant serving as a Service Provider for purposes of any Option expiration period under the Plan. |
(iv) | If, within the period of time specified in the Option Award Agreement following the Option Holder's termination of employment, an Option Holder is prohibited by law or a Company's insider trading policy from exercising any Nonqualified Stock Option, the period of time during which such Option may be exercised will automatically be extended until the 30th day following the date the prohibition is lifted. Notwithstanding the immediately preceding sentence, in no event shall the Option exercise period be extended beyond the tenth anniversary of the Option's Grant Date. |
(e) | Transferability. Except as otherwise determined by the Committee, Options shall not be transferable by the Optionee except by will or pursuant to the laws of descent and distribution. Each Vested Option shall be exercisable during the Optionee's lifetime only by him or her, or in the event of Disability or incapacity, by his or her guardian or legal representative. Shares issuable pursuant to any Option shall be delivered only to or for the account of the Optionee, or in the event of Disability or incapacity, to his or her guardian or legal representative. |
(f) | Exercise, Payments, etc. |
(i) | Unless otherwise provided in the Option Award Agreement, each Vested Option may be exercised by delivery to the Corporate Secretary or Chief Financial Officer of the Company or their designees a written or electronic notice specifying the number of Shares with respect to which such Option is exercised and payment of the Option Exercise Price. Such notice shall be in a form satisfactory to the Committee or its designee and shall specify the particular Vested Option that is being exercised and the number of Shares with respect to which the Vested Option is being exercised. The exercise of the Vested Option shall be deemed effective upon receipt of such notice by the Corporate Secretary or Chief Financial Officer of the Company or their designees and payment to the Company. The purchase of such Stock shall take place at the principal offices of the Company upon delivery of such notice, at which time the purchase price of the Stock shall be paid in full by any of the methods or any combination of the methods set forth in clause (ii) below. |
(ii) | The Option Exercise Price may be paid by cash or certified bank check and, in the Committee's sole discretion by any of the following additional methods: |
A. | By delivery to the Company Shares then owned by the Holder, the Fair Market Value of which equals the purchase price of the Stock purchased pursuant to the Vested Option, properly endorsed for transfer to the Company; provided, however, that Shares used for this purpose must have been held by the Holder for such minimum period of time as may be established from time to time by the Committee; and provided further that the Fair Market Value of any Shares delivered in payment of the purchase price upon exercise of the Options shall be the Fair Market Value as of the exercise date, which shall be the date of delivery of the Stock used as payment of the Option Exercise Price; |
B. | For any Holder other than an Executive Officer or except as otherwise prohibited by the Committee, by payment through a broker in accordance with procedures permitted by Regulation T of the Federal Reserve Board; |
C. | For any Nonqualified Stock Option, by a "net exercise" arrangement pursuant to which the Company will not require a payment of the Option Exercise Price but will reduce the number of shares of common stock issued upon the exercise by the largest number of whole shares that has a fair market value on the date of exercise that does not exceed the aggregate Option Exercise Price. With respect to any remaining balance of the aggregate option price, the Company will accept a cash payment from the Holder; or |
D. | Any combination of the methods of consideration payment provided in this clause (ii). |
(g) | Date of Grant. Unless otherwise specifically specified in the Option Award Agreement, an option shall be considered as having been granted on the date specified in the grant resolution of the Committee. |
(h) | Withholding. |
(A) | Nonqualified Stock Options. Upon any exercise of a Nonqualified Stock Option, the Optionee shall make appropriate arrangements with the Company to satisfy any applicable withholding for federal and state income tax and payroll laws, including payment of such taxes through delivery of Stock or by withholding Stock to be issued under the Option, as provided in Section 16 hereof. |
(B) | Incentive Stock Options. In the event that an Optionee makes a disposition (as defined in section 424(c) of the Code) of any Stock acquired pursuant to the exercise of an Incentive Stock Option prior to the later of (i) the expiration of two years from the date on which the Incentive Stock Option was granted or (ii) the expiration of one year from the date on which the Option was exercised, the Participant shall send written or electronic notice to the Company at its principal office (Attention: Corporate Secretary) of the date of such disposition, the number of shares disposed of, the amount of proceeds received from such disposition, and any other information relating to such disposition as the Company may reasonably request. The Optionee shall, in the event of such a disposition, make appropriate arrangements with the Company to provide for the amount of additional withholding under applicable Federal and state income tax laws. |
(i) | Adjustment of Options. Subject to the limitations set forth below and those contained in Sections 6 and 15, the Committee may make any adjustment in the Option Exercise Price, the number of Shares subject to, or the terms of, an outstanding Option and a subsequent granting of an Option by amendment or by substitution of an outstanding Option. Such amendment, substitution, or re-grant may result in terms and conditions (including Option Exercise Price, number of Shares covered, vesting schedule or exercise period) that differ from the terms and conditions of the original Option; provided, however, except as permitted under Section 11, the Committee may not, without stockholder approval (i) amend an Option to reduce its Option Exercise Price, (ii) cancel an Option and regrant an Option with a lower Option Exercise Price than the original Option Exercise Price of the cancelled Option, (iii) cancel an option in exchange for cash or another Award, or (iv) take any other action (whether in the form of an amendment, cancellation or replacement grant) that has the effect of "repricing" an Option, as defined under applicable NYSE rules or the rules of the established stock exchange or quotation system on which the Company Stock is then listed or traded if such Exchange's or quotation system's rules define what constitutes a repricing. Other than with respect to a modification that a reasonable person would not find to be a material adverse change in an Optionee's rights under an Option, the Committee also may not adversely affect the rights of any Optionee to previously granted Options without the consent of such Optionee. If such action is |
(j) | Modification, Extension and Assumption of Options. Within the limitations of the Plan, the Committee may modify, extend or assume outstanding Options or may accept the cancellation of outstanding Options (whether granted by the Company or another issuer) in return for the grant of new Options or a different type of award for the same or a different number of Shares and at the same or a different Option Exercise Price (if applicable). The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, impair the Optionee's rights or increase the Optionee's obligations under such Option. |
6.3 | Stockholder Privileges. No Holder shall have any rights as a stockholder with respect to any Shares covered by an Option until the Holder becomes the holder of record of such Stock, and no adjustments shall be made for dividends or other distributions or other rights as to which there is a record date preceding the date such Holder becomes the holder of record of such Stock, except as provided in Section 4. |
7.1 | Grant of SARs. Subject to the terms and conditions of this Plan, a SAR may be granted to a Participant at any time and from time to time as shall be determined by the Committee in its sole discretion. |
(a) | Number of Shares. The Committee shall have complete discretion to determine the number of SARs granted to any Participant, subject to the limitations imposed in this Plan and by applicable law. |
(b) | Exercise Price and Other Terms. Except with respect to SARs issued in connection with a Substitute Award, all SARs shall be granted with an exercise price no less than the Fair Market Value of the underlying Shares on the SARs' Date of Grant. The Committee, subject to the provisions of this Plan, shall have complete discretion to determine the terms and conditions of SARs granted under this Plan. |
(c) | Duration of SARs. Each SAR Award Agreement shall state the period of time, determined by the Committee, within which the SARs may be exercised by the Holder (the "SAR Period"). The SAR Period must expire, in all cases, not more than ten years from the SAR Grant Date. |
7.2 | SAR Award Agreement. Each SAR granted under the Plan shall be evidenced by a written or electronic SAR Award Agreement which shall be entered into by the Company and the Participant to whom the SAR is granted (the "SAR Holder"), and which shall |
7.3 | Exercise of SARs. SARs shall be exercisable on such terms and conditions as the Committee in its sole discretion shall determine; provided, however, that no SAR granted to a Section 16 Person shall be exercisable until at least six (6) months after the Date of Grant or such shorter period as may be permissible while maintaining compliance with Rule 16b-3. |
7.4 | Expiration of SARs. Each SAR Award Agreement shall expire on the earlier of (i) the tenth anniversary of the SARs Date of Grant or (ii) after the period of time, if any, determined by the Committee, within which the SAR may be exercised after a SAR Holder ceases to be a Service Provider. The SAR Award Agreement may provide for different periods of time following a SAR Holder cessation as a Service Provider during which the SAR may be exercised depending upon whether such cessation as a Service Provider was on account of the Participant's death, Disability, voluntary resignation, cessation as a director, or the Company having terminated such SAR Holder's employment with or without Cause. |
7.5 | Adjustment of SARs. Subject to the limitations set forth below and those contained in Sections 7 and 15, the Committee may make any adjustment in the SAR exercise price, the number of Shares subject to, or the terms of, an outstanding SAR and a subsequent granting of an SAR by amendment or by substitution of an outstanding SAR. Such amendment, substitution, or re-grant may result in terms and conditions (including SAR exercise price, number of Shares covered, vesting schedule or exercise period) that differ from the terms and conditions of the original SAR; provided, however, except as permitted under Section 10, the Committee may not, without stockholder approval (i) amend a SAR to reduce its exercise price, (ii) cancel a SAR and regrant a SAR with a lower exercise price than the original SAR exercise price of the cancelled SAR, (iii) cancel a SAR in exchange for cash or another Award or (iv) take any other action (whether in the form of an amendment, cancellation or replacement grant) that has the effect of "repricing" a SAR, as defined under applicable NYSE rules or the rules of the established stock exchange or quotation system on which the Company Stock is then listed or traded. The Committee also may not adversely affect the rights of any SAR Holder to previously granted SARs without the consent of such SAR Holder. If such action is affected by the amendment, the effective date of such amendment shall be the date of the original grant. Any adjustment, modification, extension or renewal of a SAR shall be effected such that the SAR is either exempt from, or is compliant with, Code section 409A. |
7.6 | Payment of SAR Amount. Upon exercise of a SAR, a Holder shall be entitled to receive payment from the Company in an amount determined by multiplying (i) the positive difference between the Fair Market Value of a Share on the date of exercise over the exercise price per Share by (ii) the number of Shares with respect to which the SAR is exercised. At the Committee's discretion, the payment upon a SAR exercise may be in |
8.1 | Restricted Stock Awards Granted by Committee. Coincident with or following designation for participation in the Plan and subject to the terms and provisions of the Plan, the Committee, at any time and from time to time, may grant Restricted Stock to any Service Provider in such amounts as the Committee shall determine. |
8.2 | Restricted Stock Unit Awards Granted by Committee. Coincident with or following designation for participation in the Plan and subject to the terms and provisions of the Plan, the Committee may grant a Service Provider Restricted Stock Units in connection with or separate from a grant of Restricted Stock. Upon the vesting of Restricted Stock Units, the Holder shall be entitled to receive the full value of the Restricted Stock Units payable in Shares or, if determined by the Committee, cash. |
8.3 | Restrictions. A Holder's right to retain Shares of Restricted Stock or be paid with respect to Restricted Stock Units shall be subject to such restrictions, including him or her continuing to perform as a Service Provider for a restriction period specified by the Committee, or the attainment of specified performance goals and objectives, as may be established by the Committee with respect to such Award. The Committee may in its sole discretion require different periods of service or different performance goals and objectives with respect to (i) different Holders, (ii) different Restricted Stock or Restricted Stock Unit Awards, or (iii) separate, designated portions of the Shares constituting a Restricted Stock Award. Any grant of Restricted Stock or Restricted Stock Units shall contain terms such that the Award is either exempt from Code section 409A or complies with such section. |
8.4 | Privileges of a Stockholder, Transferability. Unless otherwise provided in the Award Agreement, a Participant shall have all voting, dividend, liquidation and other rights with respect to Shares of Restricted Stock, provided however that any dividends paid on Shares of Restricted Stock prior to such Shares becoming vested shall be held in escrow by the Company and subject to the same restrictions on transferability and forfeitability as the underlying Shares of Restricted Stock. Any voting, dividend, liquidation or other rights shall accrue to the benefit of a Holder only with respect to Shares of Restricted Stock held by, or for the benefit of, the Holder on the record date of any such dividend or voting date. A Participant's right to sell, encumber or otherwise transfer such Restricted Stock shall, in addition to the restrictions otherwise provided for in the Award Agreement, be subject to the limitations of Section 12.2 hereof. The Committee may determine that a Holder of Restricted Stock Units is entitled to receive dividend equivalent payments on such units. If the Committee determines that Restricted Stock Units shall receive dividend equivalent payments, such feature will be specified in the applicable Award Agreement. Restricted Stock Units shall not have any voting rights. |
8.5 | Enforcement of Restrictions. The Committee may in its sole discretion require one or more of the following methods of enforcing the restrictions referred to in Section 8.2 and 8.3: |
(a) | placing a legend on the stock certificates, or the Restricted Stock Unit Award Agreement, as applicable, referring to restrictions; |
(b) | requiring the Holder to keep the stock certificates, duly endorsed, in the custody of the Company while the restrictions remain in effect; |
(c) | requiring that the stock certificates, duly endorsed, be held in the custody of a third party nominee selected by the Company who will hold such Shares of Restricted Stock on behalf of the Holder while the restrictions remain in effect; or |
(d) | inserting a provision into the Restricted Stock Award Agreement prohibiting assignment of such Award Agreement until the terms and conditions or restrictions contained therein have been satisfied or released, as applicable. |
8.6 | Termination of Service, Death, Disability, etc. In the event of the death or Disability of a Participant, all service period and other restrictions applicable to Restricted Stock Awards then held by him or her shall lapse, and such Awards shall become fully nonforfeitable. Subject to Section 11, in the event a Participant ceases to be a Service Provider for any other reason, any Restricted Stock Awards as to which the service period or other vesting conditions have not been satisfied shall be forfeited. |
9.1 | Awards Granted by Committee. Coincident with or following designation for participation in the Plan, a Participant may be granted Performance Shares or Performance Units. |
9.2 | Terms of Performance Shares or Performance Units. The Committee shall establish maximum and minimum performance targets to be achieved during the applicable Performance Period. Each grant of a Performance Share or Performance Unit Award shall be subject to additional terms and conditions not inconsistent with the provisions of the Plan. The Committee shall determine what, if any, payment is due with respect to an Award and whether such payment shall be made in cash, Stock or some combination. |
9.3 | Bonus Shares. Subject to the terms of the Plan, the Committee may grant Bonus Shares to any Participant, in such amount and upon such terms and at any time and from time to time as shall be determined by the Committee. |
9.4 | Deferred Shares. Subject to the terms and provisions of the Plan, Deferred Shares may be granted to any Participant in such amounts and upon such terms, and at any time and from time to time, as shall be determined by the Committee. The Committee may impose |
10.1 | Terms of Performance Awards. Except as provided in Section 11, Performance Awards will be issued or granted, or become vested or payable, only after the end of the relevant Performance Period. The performance goals to be achieved for each Performance Period and the amount of the Award to be distributed upon satisfaction of those performance goals shall be conclusively determined by the Committee. When the Committee determines whether a performance goal has been satisfied for any Performance Period, the Committee, where the Committee deems appropriate, may make such determination using calculations which alternatively include and exclude one, or more than one, "extraordinary items" as determined under U.S. generally accepted accounting principles, and the Committee may determine whether a performance goal has been satisfied for any Performance Period taking into account the alternative which the Committee deems appropriate under the circumstances. The Committee also may take into account any other unusual or non-recurring items, including the charges or costs associated with restructurings of the Company, discontinued operations, and the cumulative effects of accounting changes and, further, may take into account any unusual or non-recurring events affecting the Company, changes in applicable tax laws or accounting principles or such other factors as the Committee may determine reasonable and appropriate under the circumstances (including any factors that could result in the Company's paying non-deductible compensation to an Employee or non-employee director). |
10.2 | Performance Goals. If an Award is subject to this Section 10, then the lapsing of restrictions thereon, or the vesting thereof, and the distribution of cash, Shares or other property pursuant thereto, as applicable, shall be subject to the achievement of one or more objective performance goals established by the Committee, which shall be based on the attainment of one or any combination of the following metrics, and which may be established on an absolute or relative basis for the Company as a whole or any of its subsidiaries, operating divisions or other operating units: |
(a) | Earnings measures (either in the aggregate or on a per-Share basis), including or excluding one or more of interest, taxes, depreciation, amortization or similar financial accounting measurements; |
(b) | Operating profit (either in the aggregate or on a per-Share basis); |
(c) | Operating income (either in the aggregate or on a per-Share basis); |
(d) | Net earnings on either a LIFO or FIFO basis (either in the aggregate or on a per- Share basis); |
(e) | Net income or loss (either in the aggregate or on a per-Share basis); |
(f) | Cash flow provided by operations (either in the aggregate or on a per-Share basis); |
(g) | Cash flow returns, including cash flow returns on invested capital (cash flow from operating activities minus capital expenditures, the difference of which is divided by the difference between total assets and non-interest bearing current liabilities); |
(h) | Ratio of debt to debt plus equity; |
(i) | Net borrowing; |
(j) | Credit quality or debt ratings; |
(k) | Inventory levels, inventory turn or shrinkage; |
(l) | Revenues; |
(m) | Free cash flow (either in the aggregate or on a per-Share basis); |
(n) | Reductions in expense levels, determined either on a Company-wide basis or with respect to any one or more business units; |
(o) | Operating and maintenance cost management and employee productivity; |
(p) | Gross margin; |
(q) | Return measures (including return on assets, investment, equity, or sales); |
(r) | Productivity increases; |
(s) | Share price (including attainment of a specified per-Share price during the Incentive Period; growth measures and total stockholder return or attainment by the Shares of a specified price for a specified period of time); |
(t) | Growth or rate of growth of any of the above business criteria; |
(u) | Achievement of business criteria or operational goals, consisting of one or more objectives based on meeting specified revenue, market share, market penetration, business development, geographic business expansion goals, objectively |
(v) | Accomplishment of mergers, acquisitions, dispositions, public offerings, or similar extraordinary business transactions; |
10.3 | Adjustments. The Committee may adjust upwards or downwards the amount payable pursuant to any Award, and may waive the achievement of the applicable performance goals if determined appropriate by the Committee. |
12.1 | Employment. Nothing contained in the Plan or in any Award granted under the Plan shall confer upon any Participant any right with respect to the continuation of his or her services as a Service Provider or interfere in any way with the right of the Company, subject to the terms of any separate employment or consulting agreement to the contrary, at any time to terminate such services or to increase or decrease the compensation of the Participant from the rate in existence at the time of the grant of an Award. Whether an authorized leave of absence, or absence in military or government service, shall constitute a termination of Participant's services as a Service Provider shall be determined by the Committee at the time. |
12.2 | Nontransferability. Except as provided in Section 12.3, no right or interest of any Holder in an Award granted pursuant to the Plan shall be assignable or transferable during the lifetime of the Participant, either voluntarily or involuntarily, or be subjected to any lien, directly or indirectly, by operation of law, or otherwise, including execution, levy, garnishment, attachment, pledge or bankruptcy. In the event of a Participant's death, a Holder's rights and interests in all Awards shall, to the extent not otherwise prohibited hereunder, be transferable by testamentary will or the laws of descent and distribution, and payment of any amounts due under the Plan shall be made to, and exercise of any Options or SARs may be made by, the Holder's legal representatives, heirs or legatees. If, in the opinion of the Committee, a person entitled to payments or to exercise rights with respect to the Plan is disabled from caring for his or her affairs because of a mental condition, physical condition or age, payment due such person may be made to, and such rights shall be exercised by, such person's guardian, conservator, or other legal personal representative upon furnishing the Committee with evidence satisfactory to the Committee of such status. "Transfers" shall not be deemed to include transfers to the Company or "cashless exercise" procedures with third parties who provide financing for the purpose of (or who otherwise facilitate) the exercise of Awards consistent with applicable laws and the authorization of the Committee. |
12.3 | Permitted Transfers. Pursuant to conditions and procedures established by the Committee from time to time, the Committee may permit Awards to be transferred without consideration other than nominal consideration to, exercised by and paid to certain persons or entities related to a Participant, including members of the Participant's immediate family, charitable institutions, or trusts or other entities whose beneficiaries or beneficial owners are members of the Participant's immediate family and/or charitable institutions (a "Permitted Transferee"). In the case of initial Awards, at the request of the Participant, the Committee may permit the naming of the related person or entity as the Award recipient. Any permitted transfer shall be subject to the condition that the Committee receive evidence satisfactory to it that the transfer is being made for estate and/or tax planning purposes on a gratuitous or donative basis and without consideration (other than nominal consideration). Notwithstanding the foregoing, Incentive Stock Options shall only be transferable to the extent permitted in section 422 of the Code, or such successor provision thereto, and the treasury regulations thereunder. |
13.1 | Investment Representations. The Company may require any person to whom an Option or other Award is granted, as a condition of exercising such Option or receiving Stock under the Award, to give written assurances in substance and form satisfactory to the Company and its counsel to the effect that such person is acquiring the Stock subject to the Option or the Award for his or her own account for investment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with federal and applicable state securities laws. Legends evidencing such restrictions may be placed on the certificates evidencing the Stock. |
13.2 | Compliance with Securities Laws. |
(a) | Each Award shall be subject to the requirement that, if at any time counsel to the Company shall determine that the listing, registration or qualification of the Shares subject to such Award upon any securities exchange or under any state or federal law, or the consent or approval of any governmental or regulatory body, is necessary as a condition of, or in connection with, the issuance or purchase of Shares thereunder, such Award may not be accepted or exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained on conditions acceptable to the Committee. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification. |
(b) | Each Holder who is a director or an Executive Officer is restricted from taking any action with respect to any Award if such action would result in a (i) violation of section 306 of the Sarbanes-Oxley Act of 2002, and the regulations promulgated thereunder, whether or not such law and regulations are applicable to the Company, or (ii) any policies adopted by the Company restricting transactions in the Stock. |
13.3 | Stock Restriction Agreement. The Committee may provide that Shares issuable upon the exercise of an Option shall, under certain conditions, be subject to restrictions whereby the Company has (i) a right of first refusal with respect to such Shares, (ii) specific rights or limitations with respect to the Participant's ability to vote such Shares, or (iii) a right or obligation to repurchase all or a portion of such Shares, which restrictions may survive a Participant's cessation or termination as a Service Provider. |
15.1 | Amendment, Modification, and Termination. The Board may at any time terminate, and from time to time may amend or modify, the Plan; provided, however, that no amendment or modification may become effective without approval of the amendment or modification by the stockholders if stockholder approval is required to enable the Plan to satisfy any applicable statutory or regulatory requirements, to comply with the requirements for listing on any exchange where the Shares are listed, or if the Company, on the advice of counsel, determines that stockholder approval is otherwise necessary or desirable. |
15.2 | Adjustment Upon Certain Unusual or Nonrecurring Events. The Board may make adjustments in the terms and conditions of Awards in recognition of unusual or nonrecurring events (including the events described in Section 4.3) affecting the Company or the financial statements of the Company or of changes in applicable laws, regulations, or accounting principles, whenever the Board determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan. |
15.3 | Awards Previously Granted. Notwithstanding any other provision of the Plan to the contrary (but subject to a Holder's employment being terminated for Cause and Section 15.2), no termination, amendment or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan, without the written consent of the Holder of such Award. |
16.1 | Withholding Requirement. The Company's obligations to deliver Shares upon the exercise of an Option, or upon the vesting of any other Award, shall be subject to the Participant's satisfaction of all applicable federal, state and local income and other tax withholding requirements. |
16.2 | Withholding with Stock. The Committee may, in its sole discretion, permit the Holder to pay applicable amounts of tax withholding by electing to transfer to the Company, or to have the Company withhold from the Shares otherwise issuable to the Holder, Shares having a value not to exceed the amount being withheld under federal, state or local law or such lesser amount as may be elected by the Holder. The Committee may require that any shares transferred to the Company have been held or owned by the Participant for a minimum period of time. All elections shall be subject to the approval or disapproval of the Committee. The value of Shares to be withheld shall be based on the Fair Market Value of the Stock on the date that the amount of tax to be withheld is to be determined |
(a) | All elections must be made prior to the Tax Date; |
(b) | All elections shall be irrevocable; and |
(c) | If the Participant is an officer or director of the Company within the meaning of section 16 of the 1934 Act, the Participant must satisfy the requirements of section 16 of the 1934 Act and any applicable rules thereunder with respect to the use of Stock to satisfy such tax withholding obligation. |
18.1 | Requirements of Law. The issuance of Stock and the payment of cash pursuant to the Plan shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or stock exchanges as may be required. Notwithstanding any provision of the Plan or any Award, Holders shall not be entitled to exercise, or receive benefits under any Award, and the Company shall not be obligated to deliver any Shares or other benefits to a Holder, if such exercise, receipt of benefits or delivery would constitute a violation by the Holder or the Company of any applicable law or regulation. |
18.2 | Code Section 409A. |
(a) | This Plan is intended to meet or to be exempt from the requirements of Code section 409A, and shall be administered, construed and interpreted in a manner that is in accordance with and in furtherance of such intent. Any provision of this Plan that would cause an Award to fail to satisfy Code section 409A or, if applicable, an exemption from the requirements of that section, shall be amended (in a manner that as closely as practicable achieves the original intent of this Plan) to comply with Code section 409A or any such exemption on a timely basis, |
(b) | If an Award provides for payments or benefits that (i) constitute a "deferral of compensation" within the meaning of Code section 409A and (ii) are triggered upon a termination of employment, then to the extent required to comply with Code section 409A, the phrase termination of employment, separation from service (or words and phrases of similar import) shall be interpreted to mean a "separation from service" within the meaning of Code section 409A. |
(c) | If a Participant was a "specified employee," then to the extent required in order to comply with Code section 409A, all payments, benefits or reimbursements paid or provided under any Award that constitute a "deferral of compensation" within the meaning of Code section 409A, that are provided as a result of a "separation from service" within the meaning of Code section 409A and that would otherwise be paid or provided during the first six months following such separation from service shall be accumulated through and paid or provided (together with interest at the applicable federal rate under section 7872(f)(2)(A) of the Code in effect on the date of the separation from service) on the first business day that is more than six months after the date of the separation from service (or, if the Participant dies during such six-month period, within 90 days after the Participant's death). |
(d) | If a Consultant is entitled under an Award to compensation for consulting services and the Award or payment constitutes a "deferral of compensation" within the meaning of Code section 409A, the compensation must be paid no later than the earlier of (i) the date specified for payment under the Award, or (ii) within 60 days following the end of the calendar month in which the Participant performs the services to which the compensation relates, provided that all required documentation is timely submitted. |
(e) | To the extent that payment of an amount that constitutes a "deferral of compensation" within the meaning of Code section 409A is contingent upon the Participant executing a release of claims against the Company, the release must be executed by the Participant and become effective and irrevocable in accordance with its terms no later than the earlier of (i) the date set forth in the Award, or (ii) 55 days following separation from service. |
(f) | To the extent that any payment of an amount that constitutes a "deferral of compensation" within the meaning of Code section 409A and is scheduled to be paid in the form of installment payments, such payment form shall be deemed to be a right to a series of separate payments as described in Treasury Regulations § 1.409A-2(b)(2)(iii). |
(g) | To the extent that any Award is subject to Code section 409A, any substitution of such Award may only be made if such substitution is made in a manner permitted and compliant with Code section 409A. |
(h) | In no event will the Company or any Affiliate have any liability to any Participant with respect to any penalty or additional income tax imposed under Code section 409A even if there is a failure on the part of the Company or Committee to avoid or minimize such section penalty or additional income tax. |
18.3 | Rule 16b-3. Each transaction under the Plan is intended to comply with all applicable conditions of Rule 16b-3, to the extent Rule 16b-3 reasonably may be relevant or applicable to such transaction. To the extent any provision of the Plan or any action by the Committee under the Plan fails to so comply, such provision or action shall, without further action by any person, be deemed to be automatically amended to the extent necessary to effect compliance with Rule 16b-3; provided, however, that if such provision or action cannot be amended to effect such compliance, such provision or action shall be deemed null and void to the extent permitted by law and deemed advisable by the Committee. |
18.4 | Governing Law. The Plan and all agreements hereunder shall be construed in accordance with and governed by the laws of the state of Delaware without giving effect to the principles of the conflict of laws to the contrary. |
AMCON DISTRIBUTING COMPANY | |||
By: | |||
President | |||
AMCON DISTRIBUTING COMPANY | ||
IMPORTANT ANNUAL MEETING INFORMATION |
Using a black ink pen, mark your votes with an X as shown in this example. Please do not write outside the designated areas. | S |
Annual Meeting Proxy Card |
q PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. q |
A | Proposals |
1. | Election of two Class I directors: | For | Withhold | For | Withhold | |||||
01 – Jeremy W. Hobbs | 02 |
☐ | ||||||||||
For | Against | Abstain | For | Against | Abstain | ||||||
2. Ratification and approval of the selection of RSM US LLP as the | ☐ | ☐ | ☐ | 3. Approval of the Company's 2018 Omnibus Incentive Plan | ☐ | ☐ |
B | Non-Voting Items | |||||||||
Change of Address - Please print your new address below. | Comments - Please print your comments below. | Meeting Attendance | ||||||||
Mark the box to the right if you plan to attend the Annual Meeting. |
C | Authorized Signatures |
Sign exactly as your name appears on your stock certificate. Where shares are held in the name of two or more persons, all should sign individually. A corporation should sign by authorized officer and affix corporate seal. | ||||||||||
Date (mm/dd/yyyy) | Signature 1 | Signature 2 | ||||||||
q PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. q |
REVOCABLE PROXY — AMCON DISTRIBUTING COMPANY |