3.
APPROVAL OF THE 2009 EMPLOYEE STOCK PURCHASE PLAN
We
have
maintained an employee stock purchase plan since 1993. The purpose of the
employee stock purchase plan is to offer an inducement to eligible
employees to
remain with us by providing them with an opportunity to purchase
shares of our
stock on favorable terms. Certain "highly compensated" employees, as
defined by the regulations of the Internal Revenue Service, may not
participate
in the employee stock purchase plan.
Our
current
employee stock purchase plan was approved at the annual meeting of
shareholders
in 2006. The shares authorized in 2006 will be exhausted in fiscal 2009 if
not replenished.
Believing
that we benefit from the employee stock purchase plan, on January
8, 2009, the
Board of Directors unanimously adopted the 2009 Employee Stock Purchase
Plan
(the "Stock Purchase Plan"), subject to approval by the shareholders
at the
annual meeting. The material terms of the Stock Purchase Plan remain
substantially the same as those contained in prior plans, except
that it makes
available for purchase an additional 400,000 shares and the offering
period is
reduced from a year to a calendar quarter. We expect the number of shares
will be adequate to permit participation by eligible employees through
calendar
year 2010.
The
Stock
Purchase Plan will be administered by the Compensation Committee. The
Compensation Committee is authorized to make determinations with
respect to the
administration and interpretation of the Stock Purchase Plan, and
to make such
rules as may be necessary to carry out its provisions. The
Compensation Committee may designate other persons to administer
the plan as
necessary for the proper administration of the plan.
Eligibility
to participate in the Stock Purchase Plan is limited to those who:
·
|
Customarily
worked at least 20 hours per week during the six-month
period prior to the
beginning of the calendar year;
|
·
|
Have
continuously been employed by us for at least six months
prior to the
beginning of the calendar year; and
|
·
|
Are
not a "highly compensated employee" within the meaning
of Section 414(q)
of the Internal Revenue Code.
|
Participation
in the plan is voluntary, and an eligible employee may elect to participate
by
authorizing us to withhold from the participant’s compensation a whole even
percentage between and including 2%-10% of their post-tax pay and
to apply those
amounts to purchase shares of our common stock. A participant may
increase, decrease or stop the amount to be deducted from his or
her
compensation once per year. Participants may terminate their
participation in the plan at any time and receive the cash held in
their
account. No participant may purchase in any calendar year more than
1,000 shares, or shares with a fair market value as of the first
trading day of
the calendar year of more than $10,000.
A
copy of the
Stock Purchase Plan is included as
Appendix
A
to this proxy statement and the foregoing discussion is qualified
in
its entirety by reference to that Appendix. Shareholders are encouraged
to read
the plan in its entirety.
See
"Plan
Benefits" below for a description of certain awards to be made under
the
plan.
Federal
Income Tax Consequences
The
following
is a brief summary of certain federal income tax aspects of the shares
purchased
under the Stock Purchase Plan. This summary is not intended to be
exhaustive and does not describe state or local tax consequences.
The
plan is
intended to be eligible for the favorable tax treatment provided
by Sections 421
and 423 of the Internal Revenue Code. There are no tax deductions
available for amounts paid by participants to acquire shares under
the plan.
A participant will realize no income upon the purchase of common
stock
under the plan, and we will not be entitled to any deduction at the
time of
purchase of the shares. Taxable income will not be recognized until there
is a sale or other disposition of the shares acquired under the
plan.
In
the event
that the shares are sold or otherwise disposed of more than two years
after the
beginning of the calendar year in which the shares were purchased
and more than
one year from the date of transfer of the shares to the participant,
then the
participant generally will recognize ordinary income measured as
the lesser of
(i) the actual gain or (ii) an amount equal to 15% of the fair market
value of
the shares as of the first day of the calendar year in which such
shares were
acquired. Any additional gain will be long-term capital gain. If the
shares are sold or otherwise disposed of before the expiration of
this holding
period, the participant will recognize ordinary income generally
measured as the
excess of the fair market value of the shares on the date the shares
are
purchased over the purchase price. Any additional gain or loss on the
disposition will be long-term or short-term capital gain or loss,
depending on
the holding period.
We
are not
entitled to a deduction for amounts taxed to a participant, except
to the extent
a participant recognizes ordinary income. In all other cases no deduction
is allowed.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE APPROVAL OF THE 2009
EMPLOYEE
STOCK PURCHASE PLAN.
PLAN
BENEFITS
Participation
in the 2009 Employee Stock Purchase Plan will be within the discretion
of our
eligible employees. As a result, we cannot determine, and therefore
have not
disclosed, the benefits or amounts that will be awarded in the future
under each
of the plans. The closing price of our common stock on the record
date of
February 25, 2009 was $6.36.
The
following
table sets forth the benefits and awards received by or allocated
to the persons
listed below under our previously existing equity incentive plan
and employee
stock purchase plan for fiscal 2008. As previously indicated, the
benefits and awards to be issued under the 2009 Employee Stock
Purchase Plan are
not currently determinable and, therefore, the information set
forth in this
table is not necessarily indicative of the types or amounts of
benefits or
awards that the persons identified in the table will receive in
the future under
such plans.
Equity
Plan
|
2008
Equity
Incentive Plan
|
2006
Employee
Stock Purchase Plan
|
Name
and
Position
|
Number
of Securities
Underlying
Options
Granted
|
Number
of Securities
Purchased
|
NEOs
|
168,900
|
—
|
All
current executive officers as a group
|
70,900
|
—
|
All
current directors who are not executive officers as a
group
|
—
|
—
|
All
employees, including all current officers who are not executive
officers,
as a group
|
489,920
|
108,367
|
SHAREHOLDER
PROPOSALS
Our
Bylaws require shareholders to provide advance notice prior to bringing
business
before an annual meeting or to nominate a candidate for director
at the meeting.
To properly bring business or propose a director at the 2010 annual
meeting, the shareholder must give written notice to the address
on the first
page of this proxy statement. To be timely, a shareholder’s notice must be
received on or before December 25, 2009, or in the event that the
date of the
meeting associated with this notice is changed more than 30 days
from April 24,
2009, by a date not later than 120 days prior to April 24, 2010 or
10 calendar
days following the date on which public announcement of the date
of the meeting
is first made. These procedures apply to any matter that a
shareholder wishes to raise at the 2010 annual meeting, other than
those raised
pursuant to 17 C.F.R. §240.14a-8 of the Rules and Regulations of the Securities
and Exchange Commission. A shareholder proposal that does not meet
the above requirements will be considered untimely, and any proxy
solicited by
the Board of Directors may confer discretionary authority to vote
on such
proposal.
PROXY
SOLICITATION
The
cost
of soliciting proxies pursuant to this proxy statement will be borne
by the
Company. The transfer agent and registrar for our common stock,
Computershare, as a part of its regular services and for no additional
compensation other than reimbursement for out-of-pocket expenses,
has been
engaged to assist in the proxy solicitation. Proxies may be solicited
through the mail and through telephonic or telegraphic communications
to, or by
meetings with, shareholders or their representatives by directors,
officers, and
other employees who will receive no additional compensation for this
service.
We
request
persons such as brokers, nominees, and fiduciaries holding stock
in their names
for the benefit of others, or holding stock for others who have
the right to
give voting instructions, to forward proxy material to their principals
and to
request authority for the execution of the proxy, and we will reimburse
such
persons for their reasonable expenses.
ANNUAL
REPORT ON FORM 10-K
We
filed our
Annual Report on Form 10-K for the fiscal year ended September 24, 2008
with the Securities and Exchange Commission on December 8, 2008. We
filed a Form 10-K/A amending the Form 10-K on January 22,
2009. Copies of both the Form 10-K and Form 10-K/A are being provided
with this Proxy Statement but are not to be considered as part
of the proxy
solicitation materials or as having been incorporated by
reference. Copies of both reports can also be obtained on our web
site (
www.steaknshake.com
)
or from the SEC’s website at
www.sec.gov
.
OTHER
MATTERS
As
of the
date of this proxy statement, the Board of Directors has no knowledge
of any
matters to be presented for consideration at the annual meeting other
than those
set forth above. If any other matters should properly come before the
meeting, the proxies will be voted in accordance with the recommendations
of the
Board of Directors.
APPENDIX
A
THE
STEAK N SHAKE COMPANY
2009
EMPLOYEE STOCK PURCHASE PLAN
WITNESSETH:
WHEREAS
,
The Steak n Shake
Company (“Corporation”) desires to provide eligible employees of the Corporation
and its subsidiaries interest in the Corporation through the purchase
of shares
of common stock of the Corporation (“Common Stock”);
WHEREAS
,
the Corporation
desires to offer further inducement to eligible employees to remain
as employees
by providing a form of additional compensation, for services which
the employees
have rendered or will hereafter render, through the purchase of Common
Stock at
a discounted rate.
NOW,
THEREFORE
, the
Corporation hereby establishes this Employee Stock Purchase Plan
(the “Plan”)
pursuant to the provisions of Section 423 of the Internal Revenue
Code of 1986,
as amended, as follows:
ARTICLE
I
ESTABLISHMENT
OF PLAN
The
Plan was
approved by the Board of Directors on January 8, 2009 and its implementation
is
conditioned upon the approval of the holders of a majority of the
issued and
outstanding Common Stock of the Corporation who are either present
or
represented and entitled to vote at a meeting of shareholders of
the Corporation
duly held within twelve (12) months after the date the Plan is adopted
by the
Board of Directors.
ARTICLE
II
DEFINITIONS
AND CONSTRUCTION
Section
2.01.
Definitions
.
When
the initial
letter of a word or phrase is capitalized, the meaning of such word
or phrase
shall be as follows:
(a)
“Account”
means the record of
a Participant’s interest in the Plan, as maintained by the Custodian, consisting
of the sum of the Participant’s payroll deductions under the Plan and the number
of shares of Common Stock issued to the Participant by the
Corporation.
(b)
“Board
of Directors”
means the
board of directors of the Corporation as it shall exist from time
to
time.
(c)
“Code”
means
the Internal
Revenue Code of 1986, as amended.
(d)
“Committee”
means the
committee appointed by the Board of Directors under Section 7.01
to administer
the Plan.
(e)
“Common
Stock”
means the
shares of the Common Stock, $.50 stated value, of the
Corporation. Stock issued hereunder may be authorized and unissued
shares or issued shares acquired by the Corporation on the market
or
otherwise.
(f)
“Corporation”
means
The Steak
n Shake Company, an Indiana corporation, and its successors and
assigns.
(g)
“Custodian”
means any party
designated by the Board of Directors pursuant to Section 7.02 to
act as
custodian of the Plan.
(h)
“Effective
Date”
means January
1, 2009.
(i)
“Eligible
Employee”
means any
person employed by the Corporation or any of its subsidiaries during
the Plan
Term except for:
(1)
Certain
highly compensated employees of the Corporation or any of its subsidiaries
as
determined by the Board of Directors;
(2)
Employees
who have been continuously employed for less than six (6) months;
or
(3)
Employees
whose employment averages less than twenty (20) hours per week during
the prior
six month period.
(j)
“Fair
Market Value”
means the
closing sale price of a share of Common Stock as reported on the
New York Stock
Exchange or if no shares are traded on a particular date, the closing
price on
the prior trading day.
(k)
“Offering
Date”
means the
first business day following the last day in each calendar quarter
during the
Plan Term in which the Corporation offers Common Stock for purchase
hereunder.
(l)
“Participant”
means an
Eligible Employee who (i) authorizes the Corporation to make payroll
deductions
from the Plan Compensation for the purpose of purchasing Common Stock
pursuant
to the Plan; (ii) has commenced participation in the Plan pursuant
to Section
3.01, and (iii) has not incurred a withdrawal, voluntary or involuntary,
pursuant to Article VI.
(m)
“Payday”
means the date on
which an Eligible Employee receives any Plan Compensation.
(n)
“Plan”
means The Steak n Shake
Company 2009 Employee Stock Purchase Plan.
(o)
“Plan
Compensation”
means all
cash payments made by the Corporation or any subsidiary to an employee
through
their respective payroll systems for services as employees, including
wages,
salary, tip income, incentive compensation and bonuses, but excluding
therefrom
profit sharing payments, stock incentive program payments and all
other fringe
benefit payments.
(p)
“Plan
Term”
means the period
from January 1, 2009 to and including February 28, 2013.
(q)
“Purchase
Price”
means the
price per share of Common Stock for purchase by Participants as defined
in
Section 5.02.
(r)
“Section”
means when not
preceded by the word “Code,” means a section of this Plan.
Section
2.02.
Construction
and
Governing Law.
(a)
|
This
Plan shall be construed, enforced and administered and
the validity
thereof determined in accordance with the Code and the
regulations
thereunder, and in accordance with the laws of the State
of Indiana when
such laws are not inconsistent with the
Code.
|
(b)
|
This
Plan is intended to qualify as an employee stock purchase
plan under Code
Section 423 and the regulations thereunder. The provisions of
the Plan shall be construed so as to fulfill this
intention.
|
ARTICLE
III
PARTICIPATION
Section
3.01.
Participation.
Any
person
who is an Eligible Employee as of any Offering Date under the Plan
may become a
Participant in the Plan for that calendar year by completing and
delivering to
the Committee such forms as the Committee shall require to authorize
payroll
deductions and to request participation in the Plan within the time
period
established by the Committee.
Section
3.02.
Payroll
Deductions.
(a)
|
Payroll
deductions for a Participant shall commence on the first
Payday of the
calendar year after an Eligible Employee becomes a Participant
and shall
continue for that calendar year and for each calendar
year thereafter
until the earlier of (i) the termination of the Plan,
as provided in
Section 8.02, or (ii) the date the Participant suspends
his or her payroll
deductions pursuant to paragraph (b) of this Section
3.02. Each
Participant shall authorize the Corporation to make deductions
from the
Participant’s Plan Compensation on each Payday during the calendar
year in
which he or she is a Participant in the Plan at even
rates between and
including 2% and 10% of the Participant’s Plan
Compensation.
|
(b)
|
A
Participant may increase, decrease or suspend his or
her payroll deduction
one time only during each calendar year of participation
effective as of
any Payday by filing written notice with the Committee
at least fourteen
(14) days prior to such Payday. A Participant’s suspension of
payroll deductions shall not automatically result in
withdrawal from
participation in the Plan. If a Participant, on any scheduled
Payday, shall receive no pay or his or her net pay shall
be insufficient,
after all required deductions, to permit withholding
the payroll deduction
in full authorized hereunder, the Corporation or its
subsidiary shall (i)
suspend the deduction, if no pay is received by the Participant,
until the
next Payday in which Participant’s net pay is sufficient for such
withholding, or (ii) if the pay is insufficient for a
full deduction
hereunder, effect a partial deduction equal to the net
pay available for
such deduction; provided, however, that no withdrawal
shall be deemed to
have occurred in either event. If no deduction or if a partial
deduction is effected, no carryover of the balance of
the authorized
deduction shall occur.
|
Section
3.03.
Participant’s
Account.
On
each
Payday, the Corporation or its subsidiary, as the case may be,
shall deduct the
authorized amount from each Participant’s Plan Compensation and, as soon as
administratively reasonable, shall transfer the amount of such
deductions to the
Custodian. The Custodian shall credit the Account of each Participant
with the amount of the Participant’s payroll deduction under the Plan effective
as of the Payday on which it was deducted. No interest shall be paid
on amounts held in a Participant’s Account.
ARTICLE
IV
COMMON
STOCK
The
shares
subject to issuance under this Plan shall be Common Stock. The total
number of shares of Common Stock which may be purchased under this
Plan shall
not exceed in the aggregate of Four Hundred Thousand (400,000) shares,
of which
not more than Two Hundred Thousand (200,000) shares of Common Stock
shall be
issued in any one calendar year during the Plan Term, except as such
numbers of
shares of Common Stock shall be or have been adjusted in accordance
with
Sections 5.01(a) and 8.01 of this Plan. In the event the aggregate
number of shares of Common Stock issuable for any calendar year shall
exceed Two
Hundred Thousand (200,000) shares of Common Stock (adjusted pursuant
to Sections
5.01(a) and 8.01 of the Plan), the Committee shall reduce proportionately,
disregarding fractions of shares of Common Stock, each Participant’s purchase
hereunder for the applicable quarter to the extent necessary so that
the
aggregate number of shares of Common Stock will not exceed the maximum
authorized shares of Common Stock for issuance during the calendar
year. The offerings hereunder shall be increments in each calendar
quarter during the Plan Term. Common Stock required to satisfy
purchases pursuant to the Plan shall be provided out of the Corporation’s
authorized and unissued shares or treasury shares.
ARTICLE
V
PURCHASE
OF COMMON
STOCK
Section
5.01.
The
Offering.
(a)
|
On
each Offering Date, the Corporation shall offer an aggregate
of Fifty
Thousand (50,000) shares of Common Stock for purchase by
Participants
during the current calendar quarter pursuant to the terms
of the
Plan. The number of shares of Common Stock offered quarterly
hereunder shall be increased by the aggregate number of
shares of Common
Stock, if any, which were offered but not purchased during
prior calendar
quarters and shall be subject to further adjustment in
accordance with
Section 8.01 of the Plan.
|
(b)
|
Notwithstanding
any provision in this Plan to the contrary, no Eligible
Employee shall
become a Participant in any quarterly offering. If the
Participant owns of record or beneficially, as of the Offering
Date,
shares in the Corporation possessing five percent (5%)
or more of the
total combined voting power or value of all classes of
shares of the
Corporation within the meaning of Code Section
423(b)(3).
|
Section
5.02.
Purchase
Price
.
The
Purchase
Price for Common Stock purchased during each calendar year shall
be equal to 85%
of the Fair Market Value per share of the Common Stock on the last
trading day
of Common Stock of each of the Company’s calendar quarters in which the
quarterly offering is made.
Section
5.03.
Purchase
of Common Stock; Limitations
.
(a)
|
Within
ten (10) days following the end of each fiscal quarter
during the Plan
Term, the Committee shall determine the Purchase Price
per share of Common
Stock in accordance with Section 5.02 herein. Each Participant
during the prior fiscal quarter shall thereupon automatically
purchase
from the Corporation and the Corporation, upon payment
of the purchase
price by the Custodian, shall cause to be issued to the
Participant, as
promptly as administratively possible, that whole number
of shares of
Common Stock which such Participant’s Account shall enable such
Participant to purchase at the Purchase Price. No fractional
shares shall be issued and the Participant shall receive
in cash the
balance of his or her Account after purchase of the whole
number of shares
of Common Stock hereunder or, if the Participant’s authorization for
deduction continues for the next calendar quarter, the
balance of the
Account shall carryover to the next calendar
year.
|
(b)
|
No
Eligible Employee may purchase annually more than 1,000
shares of Common
Stock, or Common Stock having a fair market value as of
each Offering Date
in excess of Ten Thousand Dollars ($10,000), whichever
is
less.
|
(c)
|
A
Participant shall have no interest in, or rights as a shareholder
with
respect to, Common Stock subject to purchase under this
Plan until such
shares of Common Stock have been issued to the
Participant.
|
ARTICLE
VI
WITHDRAWAL
Section
6.01.
Voluntary
Withdrawal.
A
Participant
may withdraw from participation in the Plan as of any Payday
by delivering
written notice to the Committee at least fourteen (14) days prior
to such
Payday. The Committee shall promptly notify the Custodian of
the withdrawal of
any Participant. As soon as administratively reasonable after
the effective date
of a Participant’s withdrawal from the Plan, the balance of the Participant’s
Account shall be paid to him or her in cash. A Participant’s
withdrawal from participation in the Plan shall not prevent his
or her further
participation in the Plan in any succeeding calendar year during
the Plan
Term. Any Eligible Employee who withdraws from the Plan shall be
entitled to resume payroll deductions and become a Participant
as of the next
annual enrollment period, as provided in Section 3.01.
|
Section
6.02.
Involuntary
Withdrawal.
|
Upon
termination of a Participant’s employment with the Corporation or its
subsidiaries for any reason, including resignation, discharge, disability
or
retirement, the balance of the Participant’s Account shall be paid to the
Participant or, in the case of the Participant’s death, to the Participant’s
beneficiary as provided in Section 6.04. The Corporation or the Custodian
shall
pay such amount as soon as administratively reasonable after the
Committee has
received notification of such termination of employment.
No
payroll
deductions or Account balances paid to a Participant who withdraws
from
participation in the Plan for any reason, voluntary or involuntary,
or paid to
any beneficiary in accordance with Section 6.04, shall be credited
with
interest.
|
Section
6.04.
Participant’s
Beneficiary.
|
(a)
|
A
Participant may file with the Committee a written designation
of a
beneficiary who is to receive any Common Stock or cash
credited to the
Participant’s Account under the Plan in the event of the Participant’s
death. Such designation of beneficiary may be changed by the
Participant at any time by written notice to the
Committee.
|
(b)
|
Upon
the death of a Participant, and on receipt by the Committee
of reasonable
proof of the identity and existence of the Participant’s designated
beneficiary, the Committee shall cause delivery of the
shares or cash as
provided in Section 6.04(a), if any, to such beneficiary
as soon as
administratively reasonable. If a Participant dies without a
surviving designated beneficiary, the Committee shall cause
delivery of
such shares or cash to the estate or a representative of
the estate of the
Participant.
|
(c)
|
No
designated beneficiary and no heir or beneficiary of the
estate of a
deceased Participant shall acquire any interest in the
Common Stock or
cash credited to the Participant’s Account under the Plan prior to the
death of the Participant.
|
ARTICLE
VII
PLAN
ADMINISTRATION
Section
7.01.
Administrative
Committee
(a)
|
The
Plan shall be administered, at the expense of the Corporation,
by the
Compensation Committee.
|
(b)
|
The
Compensation Committee shall be vested with full authority
to make,
administer and interpret such rules and regulations as
it deems necessary
to administer the Plan. Any determination, construction,
interpretation, administration, or application of the Plan
by the
Committee shall be final, conclusive and binding on all
Participants,
beneficiaries and any and all other persons claiming under
or through any
Participant.
|
Section
7.02.
Custodian.
(a)
|
The
Board of Directors, in its sole discretion, shall appoint
a
Custodian. The Custodian may be removed by the Board of
Directors at any time.
|
(b)
|
The
Custodian shall keep or cause to be kept accurate and detailed
accounts of
all contributions, receipts, disbursements and transfers
of shares of
Common Stock under the Plan, and all accounts, books and
records relating
thereto shall be open to inspection and audit at all reasonable
times by
any person designated by the Board of Directors or the
Committee.
|
Section
7.03.
Custodian.
The
Custodian
shall maintain complete and accurate records of the number of shares
in each
Participant’s Account and shall deliver certificates representing such shares
to
the Participant annually upon receipt of a written request therefor
from the
Committee. The Certificates for shares of Common Stock to be delivered
to
Participants under the Plan shall be registered in the name of the
Participant,
or, if the Participant so directs by written notice delivered to
the Committee
at least ten (10) days prior to the end of the calendar year, in
the names of
the Participant and one such other person as may be designated by
the
Participant, as joint tenants with rights of survivorship, to the
extent
permitted by applicable law. The Committee shall timely notify the
Custodian of its receipt of any such written notice.
Section
7.04.
Transferability.
Neither
payroll deductions credited to a Participant’s Account nor any rights with
regard to the purchase or receipt of Common Stock under the Plan
may be
assigned, transferred, pledged or otherwise disposed of in any way
by the
Participant, except with respect to the death of the Participant
as provided in
Sections 6.02 and 6.04. Any such attempted assignment, transfer,
pledge, or other disposition shall be without effect, except that
the Committee,
in its sole discretion, may treat such act as an election to withdraw
from the
Plan in accordance with Section 6.01.
Section
7.05.
Separate
Accounting for Payroll Deductions.
No
payroll
deductions received or held by the Corporation or the Custodian under
this Plan
may be used by the Corporation or the Custodian for any corporate
purpose, and
the Corporation and Custodian shall separately account for such payroll
deductions.
Section
7.06.
Only
Employees
Eligible to Participate.
Notwithstanding
any
other provision of the Plan, to be eligible to purchase Common Stock
hereunder,
a Participant shall be an employee at all times during the six (6)
months prior
to the Offering Date, and must remain an employee at all times during
the
calendar year of participation in the Plan.
Section
7.07.
Equal
Rights and
Privileges.
Notwithstanding
any
other provision of the Plan, all Eligible Employees shall have the
same rights
and privileges under the Plan, as required by Code Section 423 and
the
regulations thereunder, and the Committee shall administer the Plan
and
interpret and apply the provisions of the Plan accordingly.
Section
7.08.
Claims
Procedures.
(a)
|
Any
person who believes that he or she is entitled to any benefits
under this
Plan shall present such claim in writing to the Committee. The
Committee shall within sixty (60) days provide adequate
notice in writing
to any claimant as to the decision on any such claim. If such
claim has been denied, in whole or in part, such notice
shall set forth:
(i) the specific reasons for such denial; (ii) specific
reference to any
pertinent provisions of the Plan on which denial is based;
(iii) a
description of any additional material or information necessary
for the
claimant to perfect the claim and an explanation of why
such material or
information is necessary; and (iv) an explanation of the
Plan’s review
procedure. Such notice shall be written in a manner calculated
to be understood by the claimant. Within sixty (60) days after
receipt by the claimant of the notification of denial,
the claimant shall
have the right to present a written appeal to the Committee. If
such appeal is not filed within said sixty (60) day period,
the decision
of the Committee shall be final and binding. The Committee
shall act as a fiduciary in making a full and fair review
of such
denial. The claimant or his or her duly authorized
representative may review any Plan documents which are
pertinent to the
claim and may submit issues and comments to the Committee
in
writing.
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(b)
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A
decision by the Committee shall be made promptly, and in
any event not
later than sixty (60) days after its receipt of the appeal;
provided,
however, if the Committee decides that a hearing at which
the claimant or
his or her duly authorized representative may be present
is necessary, and
such a hearing is held, such decision shall be rendered
as soon as
possible, but not later than one hundred twenty (120) days
after its
receipt of the appeal. Any such decision of the Committee shall
be in writing and provide adequate notice to the claimant
setting forth
the specific reasons for any denial and written in a manner
calculated to
be understood by the claimant. Any such decision by the
Committee shall be final.
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ARTICLE
VIII
ADJUSTMENT
OF STOCK, AMENDMENT
AND TERMINATION
Section
8.01.
Adjustment
of
Stock.
In
the event
of a stock dividend, spinoff, stock split or combination of shares,
recapitalization or merger in which the Corporation is the surviving
corporation
or other change in the Corporation’s capital stock (including, but not limited
to, the creation or issuance to shareholders generally of rights,
options or
warrants for the purchase of Common Stock or preferred stock of the
Corporation), the number and kind of shares of stock or securities
of the
Corporation to be subject to the Plan, the maximum number of shares
or
securities which may be delivered under the Plan, the selling price
and other
relevant provisions shall be appropriately adjusted by the Committee,
whose
determination shall be binding on all persons.
If
the
Corporation is a party to a consolidation or a merger in which the
Corporation
is not the surviving corporation, a transaction that results in the
acquisition
of substantially all of the Corporation’s outstanding stock by a single person
or entity, or a sale or transfer of substantially all of the Corporation’s
assets, the Committee may take such actions with respect to the Plan
as the
Committee deems appropriate.
Notwithstanding
anything in the Plan to the contrary, the Committee may take the
foregoing
actions without the consent of any Participant, and the Committee’s
determination shall be conclusive and binding on all persons for
all
purposes.
Section
8.02.
Amendment
and
Termination.
(a)
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The
Board of Directors of the Company may from time to time,
alter, amend,
suspend, or discontinue the Plan in any way which shall
not adversely
affect the rights of Participants hereunder; provided,
however, that the
Board of Directors may not, without approval by the holders
of a majority
of the issued and outstanding shares of the Common
Stock:
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(1)
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increase
the maximum number of shares of Common Stock which may
be issued under the
Plan (other than to reflect adjustment permitted under
Section 8.01
hereof);
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(2)
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change
the class of shares which may be issued under the
Plan;
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(3)
|
change
the designation of the persons or class of persons eligible
to receive
Common Stock under the Plan (except as permitted under
Section 2.01(i)(l)
hereof); or
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(4)
|
change
the provision of Section 5.02 concerning the Purchase
Price.
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(b)
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Unless
earlier terminated by the Board of Directors pursuant to
paragraph (a) of
this Section 8.02, this Plan will terminate on the earlier
of: (i)
February 28, 2011, or (ii) the date on which the authorized
remaining
Common Stock reserved for this Plan are not sufficient
to enable each
Participant on such date to purchase at least one share
of Common
Stock. No purchases of Common Stock shall be made after the
termination of the Plan. Upon termination of the Plan, all
accounts in a Participant’s account that are not used to purchase stock
shall be refunded.
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ARTICLE
IX
MISCELLANEOUS
Section
9.01.
Notices.
All
notices
or other communications by a Participant to the Committee under
or in connection
with the Plan shall be deemed to have been duly given when received
by the
Director of Benefits of the Corporation or when received in the
form and at the
location or by the person specified by the Committee. Any notices
or other
communications by the Committee to a Participant under or in
connection with the
Plan shall be deemed to have been duly given when mailed by the
Committee to the
address of the Participant on the business records of the Corporation
or its
subsidiaries.
Section
9.02.
No
Right To Continued
Employment.
Neither
enrollment in the Plan, the purchase of Common Stock hereunder, nor
participation otherwise in the Plan shall impose any obligation on
the
Corporation or any subsidiary to continue to employ any person.
Section
9.03.
Prior
Plans.
Should
this
Plan be approved by the Company’s shareholders the Company shall not make any
additional awards under the 2006 Employee Stock Purchase Plan and
those
Participants with account balances under the 2006 Plan shall have
their balances
transferred to the 2009 Plan.
Section
9.04.
Governing
Law.
This
Plan
shall be governed by the laws of the state of Indiana.