DAR » Topics » Article 2. Definitions

This excerpt taken from the DAR 8-K filed May 17, 2005.

Article 2.    Definitions

        Whenever capitalized in the Plan, the following terms shall have the meanings set forth below.

2.1      "Annual Award Limit" shall have the meaning set forth in Section 4.3.

2.2     “Awardmeans, individually or collectively, any Stock Option, Stock Appreciation Right, Restricted Stock (including any Performance Stock), Restricted Stock Unit (including any Performance Unit), Dividend Equivalent, Cash-Based Award, Other Stock-Based Award or Non-employee Director Award that is granted under the Plan.

2.3     “Award Agreementmeans either (a) a written agreement entered into by the Company and a Participant setting forth the terms and provisions applicable to an Award granted under this Plan, or (b) a written statement issued by the Company to a Participant describing the terms and provisions of such Award.

2.4     “Beneficial Owneror Beneficial Ownershipshall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.

2.5      "Board of Directors" means the Board of Directors of the Company.

2.6      "Cash-Based Award" means any right granted under Article 11.

2.7      "Change of Control" means the occurrence of any of the following events:


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  1. Any Person becomes the Beneficial Owner of twenty percent (20%) or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of its Directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this Section 2.7, the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company, including without limitation, a public offering of securities; (ii) any acquisition by the Company or any of its Subsidiaries; (iii) any acquisition by any employee benefit plan or related trust sponsored or maintained by the Company or any of its Subsidiaries; or (iv) any acquisition by any Person pursuant to a transaction which complies with clauses (i), (ii), and (iii) of Section 2.7(c).

  2. Individuals who constitute the Board of Directors as of the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a Director subsequent to the Effective Date whose election to the Board of Directors, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the Directors then comprising the Incumbent Board, shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election or removal of the Directors of the Company or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors;

  3. Consummation of a reorganization, merger, or consolidation to which the Company is a party or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, following such Business Combination: (i) all or substantially all of the individuals and entities who were the Beneficial Owners of Outstanding Company Voting Securities immediately prior to such Business Combination are the Beneficial Owners, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors (or election of members of a comparable governing body) of the entity resulting from the Business Combination (including, without limitation, an entity which as a result of such transaction owns all or substantially all of the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries) (the “Successor Entity”) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Voting Securities; (ii) no Person (excluding any Successor Entity or any employee benefit plan or related trust of the Company, such Successor Entity, or any of their Subsidiaries) is the Beneficial Owner, directly or indirectly, of twenty percent (20%) or more of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors (or comparable governing body) of the Successor Entity, except to the extent that such ownership existed prior to the Business Combination; and (iii) at least a majority of the members of the board of directors (or comparable governing body) of the Successor Entity were members of the Incumbent Board (including persons deemed to be members of the Incumbent Board by reason of the proviso of Section 2.7(b)) at the time of the execution of the initial agreement or of the action of the Board of Directors providing for such Business Combination; or

  4. Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.

2.8      "Code" means the U.S. Internal Revenue Code of 1986, as amended from time to time.

2.9     “Committeemeans the compensation committee of the Board of Directors, or any other committee designated by the Board of Directors to administer this Plan.

2.10      "Company" means Darling International Inc., a Delaware corporation, and any successor thereto.


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2.11     “Covered Employeemeans for any Plan Year, a Participant designated by the Company as a potential “covered employee,” as such term is defined in Section 162(m) of the Code and the regulations promulgated thereunder, or any successor statute.

2.12      "Director" means any individual who is a member of the Board of Directors of the Company.

2.13     "Dividend Equivalent" means any right granted under Article 9.

2.14      "Effective Date" has the meaning set forth in Section 1.1.

2.15      "Employee" means any employee of the Company or its Subsidiaries.

2.16      "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time.

2.17     “Extraordinary Itemsmeans (a) extraordinary, unusual, and/or nonrecurring items of gain or loss; (b) gains or losses on the disposition of a business; (c) changes in tax or accounting regulations or laws; (d) the effect of a merger or acquisition; (e) the effects of FAS 87; or (f) the effects of FAS 133: all of which must be identified in the audited financial statements, including footnotes, or Management’s Discussion and Analysis section of the Company’s annual report on Form 10-K, as promulgated under the regulations of the Securities and Exchange Commission.

2.18     “Fair Market Valuemeans the (i) closing price of a Share on the American Stock Exchange (or if the Shares are listed on another national securities exchange or quoted on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”), on such exchange or system), or if there was no trading of Shares on such date, on the next preceding date on which there was trading in the Shares, (ii) if the Shares are not then listed on a national stock exchange but are then traded on an over-the-counter market, the average of the bid and asked prices for the Shares in such over-the-counter market on such date or if there was no trading of Shares on such date, on the next preceding date on which there was trading in the Shares, or (iii) if Shares are not then listed on a national exchange or NASDAQ or traded on an over-the-counter market, such value as the Committee in its sole discretion establishes for purposes of granting Awards under the Plan.

2.19     “Incentive Stock Optionmeans a Stock Option to purchase Shares granted under Article 5 to an Employee and that is designated as an “incentive stock option” and that is intended to meet the requirements of Code Section 422, as it may be amended or modified.

2.20     "Non-Employee Director" means a Director who is not an Employee.

2.21      "Non-Employee Director Award" means any Award granted to a Non-Employee Director under Article 10.

2.22     “Nonqualified Stock Optionmeans a Stock Option that is not intended to meet the requirements of Code Section 422, or that otherwise does not meet such requirements.

2.23      "Other Stock-Based Award" means any right granted under Article 8.

2.24      "Participant" means any eligible person as set forth in Section 1.4 to whom an Award is granted.

2.25     “Performance-Based Compensationmeans compensation under an Award that is intended to constitute “qualified performance based compensation” within the meaning of the regulations promulgated under Section 162(m) of the Code or any successor provision.


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2.26     “Performance Measuresmeans measures as described in Section 12.1 on which the performance goals are based and which are approved by the Company’s shareholders pursuant to this Plan in order to qualify Awards as Performance-Based Compensation.

2.27     “Performance Periodmeans the period of time during which the performance goals must be met in order to determine the degree of payout and/or vesting with respect to an Award.

2.28      "Performance Stock" means a Share of Restricted Stock as described in Section 7.3.

2.29     "Performance Unit" means a Restricted Stock Unit as described in Section 7.3.

2.30     “Personshall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) thereof.

2.31    "Plan" means the Darling International Inc. 2004 Omnibus Incentive Plan.

2.32     “Plan Yearmeans the Company’s fiscal year, which is the 52/53 week fiscal year ending on the Saturday nearest to December 31.

2.33      "Prior Plans" means the Company's 1994 Employee Flexible Stock Option Plan and Non-Employee Directors Stock Option Plan.

2.34      Restricted Stock" means any Share granted under Article 7.

2.35     "Restricted Stock Unit" means any right granted under Article 7.

2.36    "Share" means a share of common stock of the Company, $0.01 par value per share.

2.37    "Stock Appreciation Right"means any right granted under Article 6.

2.38    "Stock Option" means any right granted under Article 5.

2.39     “Subsidiarymeans any corporation or other entity, whether domestic or foreign, in which a Person has or obtains directly or indirectly, the ability to vote to seat a majority of the board of directors or comparable governing body.

2.40      “Ten Percent Shareholdermeans an individual who owns (after the application of the attribution rules of Section 424(d) of the Code) more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company, its “parent corporation” or any “subsidiary corporation” (as such terms are defined in Section 424 of the Code).

2.41     “Third Party Service Providermeans any consultant, agent, advisor, or independent contractor who renders services to the Company or a Subsidiary that (a) are not in connection with the offer and sale of the Company’s securities in a capital raising transaction, and (b) do not directly or indirectly promote or maintain a market for the Company’s securities.



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This excerpt taken from the DAR DEF 14A filed Apr 21, 2005.

Article 2.    Definitions

        Whenever capitalized in the Plan, the following terms shall have the meanings set forth below.

2.1      "Annual Award Limit" shall have the meaning set forth in Section 4.3.

2.2     “Awardmeans, individually or collectively, any Stock Option, Stock Appreciation Right, Restricted Stock (including any Performance Stock), Restricted Stock Unit (including any Performance Unit), Dividend Equivalent, Cash-Based Award, Other Stock-Based Award or Non-employee Director Award that is granted under the Plan.

2.3     “Award Agreementmeans either (a) a written agreement entered into by the Company and a Participant setting forth the terms and provisions applicable to an Award granted under this Plan, or (b) a written statement issued by the Company to a Participant describing the terms and provisions of such Award.

2.4     “Beneficial Owneror Beneficial Ownershipshall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.

2.5      "Board of Directors" means the Board of Directors of the Company.

2.6      "Cash-Based Award" means any right granted under Article 11.

2.7      "Change of Control" means the occurrence of any of the following events:


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  1. Any Person becomes the Beneficial Owner of twenty percent (20%) or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of its Directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this Section 2.7, the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company, including without limitation, a public offering of securities; (ii) any acquisition by the Company or any of its Subsidiaries; (iii) any acquisition by any employee benefit plan or related trust sponsored or maintained by the Company or any of its Subsidiaries; or (iv) any acquisition by any Person pursuant to a transaction which complies with clauses (i), (ii), and (iii) of Section 2.7(c).

  2. Individuals who constitute the Board of Directors as of the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a Director subsequent to the Effective Date whose election to the Board of Directors, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the Directors then comprising the Incumbent Board, shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election or removal of the Directors of the Company or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors;

  3. Consummation of a reorganization, merger, or consolidation to which the Company is a party or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, following such Business Combination: (i) all or substantially all of the individuals and entities who were the Beneficial Owners of Outstanding Company Voting Securities immediately prior to such Business Combination are the Beneficial Owners, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors (or election of members of a comparable governing body) of the entity resulting from the Business Combination (including, without limitation, an entity which as a result of such transaction owns all or substantially all of the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries) (the “Successor Entity”) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Voting Securities; (ii) no Person (excluding any Successor Entity or any employee benefit plan or related trust of the Company, such Successor Entity, or any of their Subsidiaries) is the Beneficial Owner, directly or indirectly, of twenty percent (20%) or more of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors (or comparable governing body) of the Successor Entity, except to the extent that such ownership existed prior to the Business Combination; and (iii) at least a majority of the members of the board of directors (or comparable governing body) of the Successor Entity were members of the Incumbent Board (including persons deemed to be members of the Incumbent Board by reason of the proviso of Section 2.7(b)) at the time of the execution of the initial agreement or of the action of the Board of Directors providing for such Business Combination; or

  4. Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.

2.8      "Code" means the U.S. Internal Revenue Code of 1986, as amended from time to time.

2.9     “Committeemeans the compensation committee of the Board of Directors, or any other committee designated by the Board of Directors to administer this Plan.

2.10      "Company" means Darling International Inc., a Delaware corporation, and any successor thereto.


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2.11     “Covered Employeemeans for any Plan Year, a Participant designated by the Company as a potential “covered employee,” as such term is defined in Section 162(m) of the Code and the regulations promulgated thereunder, or any successor statute.

2.12      "Director" means any individual who is a member of the Board of Directors of the Company.

2.13     "Dividend Equivalent" means any right granted under Article 9.

2.14      "Effective Date" has the meaning set forth in Section 1.1.

2.15      "Employee" means any employee of the Company or its Subsidiaries.

2.16      "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time.

2.17     “Extraordinary Itemsmeans (a) extraordinary, unusual, and/or nonrecurring items of gain or loss; (b) gains or losses on the disposition of a business; (c) changes in tax or accounting regulations or laws; (d) the effect of a merger or acquisition; (e) the effects of FAS 87; or (f) the effects of FAS 133: all of which must be identified in the audited financial statements, including footnotes, or Management’s Discussion and Analysis section of the Company’s annual report on Form 10-K, as promulgated under the regulations of the Securities and Exchange Commission.

2.18     “Fair Market Valuemeans the (i) closing price of a Share on the American Stock Exchange (or if the Shares are listed on another national securities exchange or quoted on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”), on such exchange or system), or if there was no trading of Shares on such date, on the next preceding date on which there was trading in the Shares, (ii) if the Shares are not then listed on a national stock exchange but are then traded on an over-the-counter market, the average of the bid and asked prices for the Shares in such over-the-counter market on such date or if there was no trading of Shares on such date, on the next preceding date on which there was trading in the Shares, or (iii) if Shares are not then listed on a national exchange or NASDAQ or traded on an over-the-counter market, such value as the Committee in its sole discretion establishes for purposes of granting Awards under the Plan.

2.19     “Incentive Stock Optionmeans a Stock Option to purchase Shares granted under Article 5 to an Employee and that is designated as an “incentive stock option” and that is intended to meet the requirements of Code Section 422, as it may be amended or modified.

2.20     "Non-Employee Director" means a Director who is not an Employee.

2.21      "Non-Employee Director Award" means any Award granted to a Non-Employee Director under Article 10.

2.22     “Nonqualified Stock Optionmeans a Stock Option that is not intended to meet the requirements of Code Section 422, or that otherwise does not meet such requirements.

2.23      "Other Stock-Based Award" means any right granted under Article 8.

2.24      "Participant" means any eligible person as set forth in Section 1.4 to whom an Award is granted.

2.25     “Performance-Based Compensationmeans compensation under an Award that is intended to constitute “qualified performance based compensation” within the meaning of the regulations promulgated under Section 162(m) of the Code or any successor provision.


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2.26     “Performance Measuresmeans measures as described in Section 12.1 on which the performance goals are based and which are approved by the Company’s shareholders pursuant to this Plan in order to qualify Awards as Performance-Based Compensation.

2.27     “Performance Periodmeans the period of time during which the performance goals must be met in order to determine the degree of payout and/or vesting with respect to an Award.

2.28      "Performance Stock" means a Share of Restricted Stock as described in Section 7.3.

2.29     "Performance Unit" means a Restricted Stock Unit as described in Section 7.3.

2.30     “Personshall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) thereof.

2.31    "Plan" means the Darling International Inc. 2004 Omnibus Incentive Plan.

2.32     “Plan Yearmeans the Company’s fiscal year, which is the 52/53 week fiscal year ending on the Saturday nearest to December 31.

2.33      "Prior Plans" means the Company's 1994 Employee Flexible Stock Option Plan and Non-Employee Directors Stock Option Plan.

2.34      Restricted Stock" means any Share granted under Article 7.

2.35     "Restricted Stock Unit" means any right granted under Article 7.

2.36    "Share" means a share of common stock of the Company, $0.01 par value per share.

2.37    "Stock Appreciation Right"means any right granted under Article 6.

2.38    "Stock Option" means any right granted under Article 5.

2.39     “Subsidiarymeans any corporation or other entity, whether domestic or foreign, in which a Person has or obtains directly or indirectly, the ability to vote to seat a majority of the board of directors or comparable governing body.

2.40      “Ten Percent Shareholdermeans an individual who owns (after the application of the attribution rules of Section 424(d) of the Code) more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company, its “parent corporation” or any “subsidiary corporation” (as such terms are defined in Section 424 of the Code).

2.41     “Third Party Service Providermeans any consultant, agent, advisor, or independent contractor who renders services to the Company or a Subsidiary that (a) are not in connection with the offer and sale of the Company’s securities in a capital raising transaction, and (b) do not directly or indirectly promote or maintain a market for the Company’s securities.



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