**EXHIBIT10(m)**

 

6-24-2008

 

**BEMIS COMPANY, INC.**

**2007 STOCK INCENTIVE PLAN**

(As Amended andRestated Effective January 1, 2008)

 

1.                                       Purpose of Plan.

 

Under the BemisCompany, Inc. 2007 Stock Incentive Plan (the “Plan”), the Company maygrant both Options and Equity Units to Employees and Directors.  The Plan is designed to enable the Companyand its Subsidiaries to attract, retain and motivate Participants by providingthem the opportunity to acquire equity ownership in the Company.

 

2.                                       Definitions.

 

The following definedterms are used in this Plan:

 

2.1                                 “Board” meansthe Board of Directors of the Company.

 

2.2                                 “Broker ExerciseNotice” means a notice whereby a Participant, upon exercise of an Option,irrevocably instructs a broker or dealer to sell a sufficient number of sharesor loan a sufficient amount of money to pay all or a portion of the exerciseprice of the Option and/or any related withholding tax obligations and remitsuch sums to the Company and directs the Company to deliver stock certificatesto be issued upon such exercise directly to such broker or dealer.

 

2.3                                 “Change of ControlEvent” means an event described in Section 10.1 (including a Code§409A Event as defined in Section 10.2).

 

2.4                                 “Code” meansthe Internal Revenue Code of 1986, as amended.

 

2.5                                 “Committee”means the compensation committee appointed under Section 3 to administerthe Plan.

 

2.6                                 “Common Stock”means the common stock of the Company, par value $.10 per share, or the numberand kind of shares of stock or other securities into which such Common Stockmay be changed in accordance with Section 4.3.

 

2.7                                 “Company” meansBemis Company, Inc., a Missouri corporation.

 

2.8                                 “Control Group”means the Company and any trade or business under common control with theCompany within the meaning of Code §414(b) and (c).

 

2.9                                 “Director”means a member of the Board.

 

2.10                           A Participant has a “Disability” if, byreason of any medically determinable physical or mental impairment that can beexpected to result in death or to last for a continuous period of at least 12months:

 

 

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(a)                                  The Participant is unable to engage in anysubstantial gainful activity, or

 

(b)                                 The Participant has received income replacement benefits for a period ofat least three months under a Participating Employer’s accident and healthplan.

 

2.11                           “Employee”means a common law employee of the Company or a Subsidiary.

 

2.12                           “Equity Unit”means a right to receive a share of Common Stock, subject to terms establishedunder Section 7.

 

2.13                           “Exchange Act”means the Securities Exchange Act of 1934, as amended.

 

2.14                           “Expiration Date”means the date an Option is scheduled to expire and no longer be exercisable.

 

2.15                           “Fair Market Value”of a share of Common Stock as of a particular day means the closing price of ashare of the Company’s Common Stock on the New York Stock Exchange on such day,or if no sale has been made on such exchange on such day, on the last precedingday on which any such sale was made.

 

2.16                           “Incentive StockOption” means a right to purchase Common Stock granted to an Employeepursuant to Section 6.1 that qualifies as an “incentive stock option”within the meaning of Code § 422.

 

2.17                           “Non-QualifiedStock Option” means a right to purchase Common Stock granted to an Employeeor Director pursuant to Section 6.1 or 6.2 that does not qualify as anIncentive Stock Option.

 

2.18                           “Officer” meansan Employee who has been designated by the Board to serve as an executiveofficer of the Company.

 

2.19                           “Option” meansan Incentive Stock Option or a Non-Qualified Stock Option.

 

2.20                           “Participant”means an Employee or Director who has been designated as such.

 

2.21                           “Payment Date”is defined in Section 8.5.

 

2.22                           “Performance Period”means the period of time over which Equity Units are earned or become vested.

 

2.23                           “PreviouslyAcquired Shares” means shares of Common Stock that are already owned by aParticipant.

 

2.24                           “Securities Act”means the Securities Act of 1933, as amended.

 

2.25                           “Separation from Service”****is defined in applicable guidance underCode §409A, which generally provides that:

 

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(1)                                  a Participantwill be deemed to have a Separation from Service only if the Participant ceasesto perform any services for the Company and other members of the Control Group,or the Participant continues to provide only “insignificant” services;

 

(2)                                  service is “insignificant”if it is performed at a rate that is no more than 20% of the average level ofservices provided by the Participant for the preceding three full calendaryears;

 

(3)                                  a bona fideleave of absence will not be considered a Separation from Service for the firstsix months of such leave or until the Participant no longer has a right toreemployment by statute or contract, whichever is longer;

 

(4)                                  transfer to anemployer in which the Company or another member of the Control Group has atleast 50% ownership interest is not a Separation from Service; and

 

(5)                                  for purposes ofdetermining benefits earned by a Participant for service as a Director,Separation from Service occurs when he or she ceases to be a Director.

 

2.26                           “Subsidiary”means any entity in which the Company has a direct or indirect ownershipinterest sufficient so that the entity is a member of the Control Group.

 

2.27                           “Year” meansthe 12-month period ending each December 31.

 

3.                                       Plan Administration.

 

Except to the extentthe Plan explicitly reserves responsibility to the Board, the Plan shall beadministered by the compensation committee (the “Committee”) appointed by theBoard.  The Committee shall consistsolely of not less than two members of the Board who are considered (i) non-employeedirectors within the meaning of Exchange Act Rule 16b-3 and (ii) outsidedirectors within the meaning of Code § 162(m). If no such Committee is appointed, the Plan shall be administered by theBoard and all references to the Committee shall be deemed references to theBoard.  If the Board determines that anindividual appointed to the Committee does not meet any of the criteria for Committeemembership, the actions of the Committee taken prior to that determination dueto the appointment of that individual shall remain in effect unless the Boarddetermines otherwise.

 

The Committee (and inthe absence of a Committee, the Board) shall have the following authority,subject to the terms of the Plan:

 

(a)                                  To determine whichEmployees and Directors will be designated as Participants.

 

(b)                                 To determine the termsof each Option including the number of shares of Common Stock subject to theOption, the exercise price, the terms under which the Option will

 

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vest or becomeexercisable, the Expiration Date of the Option, and the period of time (if any)following Separation from Service that the option may be exercised.

 

(c)                                  To determine whetherthe Option will be granted as an Incentive Stock Option or as a Non-QualifiedStock Option, recognizing that Incentive Stock Options can be granted only toEmployees and not to non-employee Directors.

 

(d)                                 To determine the termsof each award of Equity Units, including any performance goals or otherrequirements that must be met for the underlying shares of Common Stock to bedistributed.

 

(e)                                  To modify theterms of any outstanding Option or Equity Unit in any manner permitted by thePlan as then in effect, or to cancel the Option or Equity Unit, subject to thefollowing:

 

(1)                                  Subjectto Section 4.3, outstanding Options granted under this Plan shall not berepriced.

 

(2)                                  Ifthe modification or cancellation adversely affects a Participant, it will notapply to that Participant without his or her consent, unless required by law ornecessary to avoid adverse tax treatment.

 

(f)                                    To delegate toone or more Employees all or any part of its authority under the Plan withregard to granting and administering Options or Equity Units for persons whoare not then subject to the reporting requirements of Section 16 of theExchange Act.  (However, Options orEquity Units so granted generally will not qualify as “performance-basedcompensation” for purposes of Code § 162(m).)

 

(g)                                 To exercisediscretionary authority to construe the terms of the Plan and to make alldecisions and interpretations necessary or advisable to operate the Plan.

 

4.                                       Shares Available forIssuance.

 

4.1                                 Maximum Number ofShares Available.  Subject to adjustment asprovided in Section 4.3, the maximum number of shares of Common Stock thatwill be available for issuance under the Plan will be 6,000,000 shares ofCommon Stock plus any shares of Common Stock which, as of the date the Plan isapproved by the shareholders of the Company, are reserved for issuance underthe Company’s 2001 Stock Incentive Plan and which are not thereafter issued.

 

4.2                                 Accounting forIncentive Awards.  Shares of Common Stock that areissued under the Plan or are subject to outstanding Options or Equity Unitswill be applied to reduce the maximum number of shares of Common Stockremaining available for issuance under the Plan.  Any shares of Common Stock that are subjectto an Option or Equity Unit that lapses, expires, is forfeited or for anyreason is terminated unexercised or unvested will automatically again becomeavailable for issuance under the Plan. However, shares withheld for the purpose of paying applicablewithholding taxes will not again become available for issuance under the Plan.

 

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4.3                                 Adjustments.  In the event of any reorganization, merger,consolidation, recapitalization, liquidation, reclassification, stock dividend,stock split, combination of shares, rights offering, divestiture orextraordinary dividend (including a spin-off) or any other change in thecorporate structure or shares of the Company, the Committee (or, if the Companyis not the surviving corporation in any such transaction, the board ofdirectors of the surviving corporation) will make appropriate adjustment (whichdetermination will be conclusive) as to the number and kind of securitiesavailable for issuance under the Plan and, in order to prevent dilution orenlargement of the rights of the Participants, the number, kind and, whereapplicable, exercise price of securities subject to outstanding Options orEquity Units.

 

5.                                       Participation.

 

TheBoard or Committee may designate any Employee or Director as a Participant.

 

6.                                       Options.

 

6.1                                 Grants to Employees.    The Committee may grant Options toEmployees, subject to such terms and conditions, consistent with the otherprovisions of the Plan, as may be determined by the Committee in its solediscretion.  The Committee may designatewhether an Option is to be considered an Incentive Stock Option or aNon-Qualified Stock Option.  Theaggregate number of shares on which Options may be granted to any one Employeeduring any calendar year may not exceed 25% of the 6,000,000 shares of CommonStock available for issuance under the Plan. If an Option granted to an Employee is canceled, said Option willnevertheless be included in applying said 25% limit.

 

6.2                                 Grants to Non-EmployeeDirectors.  The Committee may grantNon-Qualified Stock Options to Directors who are not Employees, subject to suchterms and conditions, consistent with the other provisions of the Plan, as maybe determined by the Committee in its sole discretion.

 

6.3                                 Exercise Price.  The per share price to be paid upon exerciseof an Option will be determined at the time of the Option grant.  The per share price to be paid by aParticipant upon exercise of an Option will be not less than 100% of the FairMarket Value of one share of Common Stock on the date of grant.

 

6.4                                 Exercisability andDuration.  An Option will becomeexercisable at such times and in such installments as may be determined by theCommittee at the time of grant.  Unlessotherwise determined by the Committee at the time of grant, the Expiration Dateof each Option will be 10 years from its date of grant.

 

6.5                                 Payment of ExercisePrice.  The total purchase price of the shares to bepurchased upon exercise of an Option will be paid entirely in cash (includingcheck, bank draft or money order); provided, however, that the Committee mayallow such payments to be made, in whole or in part, by tender of a BrokerExercise Notice, tender of Previously Acquired Shares, Attestation, or by acombination of such methods.  “Attestation”means delivery by a Participant to the Company of a written affidavit ofownership of Previously Acquired Shares the Fair Market Value of which is then

 

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applied to theexercise price of the Option in lieu of actual delivery of such PreviouslyAcquired Shares.  Upon receipt of suchAttestation of Previously Acquired Shares and payment for any portion of theexercise price not paid by Attestation, the Company shall deliver to theParticipant a stock certificate for the number of Option shares so exercised,minus the number of Previously Acquired Shares attested to in the writtenaffidavit, and minus any shares withheld to cover tax obligations.

 

6.6                                 Manner of Exercise.  An Option may be exercised by a Participantin whole or in part from time to time, subject to the conditions contained inthe Plan and in the agreement evidencing such Option, by delivering in person,by facsimile or electronic transmission or through the mail, a written noticeof exercise to the Company (Attention: Secretary) at its principal executive office in Neenah, Wisconsin andpaying in full the total exercise price for the shares of Common Stock to bepurchased in accordance with Section 6.5 of the Plan.  The Committee may permit a Participant toenter into a written plan pursuant to Exchange Act Rule 10b5-1 specifyingthe date or dates the Participant’s Options will automatically be exercised.

 

7.                                       Equity Units.

 

7.1                                 Grants.  An Employee or Director may be granted one ormore Equity Units under the Plan, and such Equity Units will be subject to suchterms and conditions, consistent with the other provisions of the Plan, as maybe determined by the Committee.  TheCommittee may impose such restrictions or conditions, not inconsistent with theprovisions of the Plan, to the vesting of such Equity Units as it deemsappropriate, including, without limitation, that the Participant remain in thecontinuous employ of the Company or any Subsidiary until the end of thePerformance Period established for said Equity Units or that the Participant orthe Company (or any Subsidiary or division thereof) satisfy certain performancegoals or criteria during the Performance Period.

 

7.2                                 Payments.  Upon satisfaction of all applicablerestrictions and conditions for payment, each Equity Unit will be payable inthe form of a share of Common Stock (less any applicable tax withholding).  Payment with respect to an Equity Unit willoccur as soon as administratively feasible in the Year after the Year in whichthe Performance Period for the Equity Unit ends.  Each Equity Unit may (but is not required to)include the right to receive periodic payments from the Company equivalent tothe dividends paid on the underlying Common Stock.  Any such dividend equivalents will be paid asof the dates the dividends are paid.

 

7.3                                 HoldingRequirement Applicable to Grants Made to Officers.  Equity Units granted to Officers are subjectto the holding requirement of this section. Upon payment of such grants, half of the net shares issued after anyrequired tax withholding must be held and may not be transferred by the Officerfor at least three years after the date any applicable restrictions orconditions for payment were satisfied. The other half of the shares may be sold or transferred immediately.  The Company may adopt appropriate proceduresto assure compliance with the holding requirement, such as placing a legend onthe share certificates or retaining possession of the certificates until thethree-year holding period expires.  If anOfficer has a Separation from Service, the holding requirement will no longerapply and the individual will be free to sell or transfer the shares.  The holding requirement does not apply togrants made to individuals who are not Officers.

 

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8.                                       Effect of Separationfrom Service.

 

8.1                                 Death or Disability.  If a Participant’s Separation from Serviceoccurs by reason of his or her death or Disability, then the provisions of (a) and(b) shall apply:

 

(a)                                  Options outstanding atthe time of said Separation from Service will not expire as a result of saidSeparation from Service but rather will vest and remain in effect for theremaining term of the Option.  However,the Committee in its sole discretion may provide at the time it grants anOption to a Participant that the Option will expire not later than a fixedperiod of time after the Participant’s Separation from Service.

 

(b)                                 All Equity Units thenheld by the Participant will vest.  TheCompany will transfer to the Participant (or to the beneficiary, legalrepresentative, heir, or legatee of a deceased Participant) a number of sharesof Common Stock equal to the number of the Participant’s outstanding EquityUnits, less any shares withheld to cover taxes. Said transfer shall occur as of a date or dates determined by theCommittee which shall not be later than December 31 of the Year in whichthe Participant died or was determined to have a Disability.  However, as permitted by Code  §409A, in cases where a Participant’s deathor Disability occurred in October, November, or December, payment shall beconsidered timely if made by the fifteenth day of the third month after themonth in which the Participant died or was determined to have a Disability.

 

8.2                                 Separation fromService After Attaining Applicable Age.  If aParticipant’s Separation from Service occurs after he or she has attained theapplicable age specified in (a) and for a reason other than theParticipant’s death or Disability, then the provisions of (a) through (e) shallapply:

 

(a)                                  The “applicable age”for purposes of this section is:

 

(1)                                  For any Participantwho is an Officer, the applicable age is 60 with respect to Options and 55 withrespect to Equity Units.

 

(2)                                  For any Participantwho is an Employee but not an Officer, the applicable age is 65.

 

(b)                                 Optionsoutstanding at the time of said Separation from Service will not expire as aresult of said Separation from Service but rather will vest and remain ineffect for the remaining term of the Option. However, the Committee in its sole discretion may provide at the time itgrants an Option to a Participant that the Option will expire not later than afixed period of time after the Participant’s Separation from Service.

 

(c)                                  A fraction ofeach outstanding grant of Equity Units will be vested.  The fraction of a grant that will be vestedis the number of Equity Units in that grant, multiplied by a fraction (i) thenumerator of which is the number of months from the beginning of thePerformance Period for that grant through the month in which the Participant’sSeparation from Service occurred and (ii) the denominator of which is thetotal

 

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numberof months in said Performance Period. Except as otherwise provided by the Committee, any Equity Units whichare not vested will be forfeited.

 

(d)                                 However, if aParticipant meets the requirements of (1), his or her Equity Units will bevested as provided in (2).

 

(1)                                  Therequirements of this paragraph (1) are met if the Participant satisfiesall three of the following requirements:

 

(A)                              The Participantis 60 or older on the date of his or her Separation from Service;

 

(B)                                The Participantwas born on or before January 1, 1954; and

 

(C)                                The Participantwas elected as an Officer prior to January 1, 2007.

 

(2)                                  If the Participant meets therequirements of (1):

 

                                                (A)                              If theParticipant’s Separation from Service occurs during the Year he or she attainedage 60:

 

(i)                                     All EquityUnits awarded to the Participant prior to the Year  he or she attained age 60 will be vested.

 

(ii)                                  All EquityUnits awarded to the Participant during the Year he or she attained age 60 willbe vested to the extent provided in section 8.2(c).

 

                                                (B)                                If theParticipant’s Separation from Service occurs during or after the Year he or sheattained age 61:

 

(i)                                     All EquityUnits awarded to the Participant prior to the Year he or she attained age 61will be vested.

 

(ii)                                  Equity Unitsawarded to the Participant in or after the Year he or she attained age 61 will be vested to the extent provided insection 8.2(c).

 

(C)                                However, theCommittee may, in its sole discretion, prescribe a longer or shorter vestingperiod with respect to Equity Units awarded to a Participant in the Year he orshe attains age 61 or any subsequent Year.

 

(e)                                  The Companywill transfer to the Participant a number of shares of Common Stock equal tothe number of the Participant’s vested Equity Units (determined as provided in (c) or(d), whichever is applicable, less any shares withheld to cover taxes.  Said

 

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transfershall occur as of a date or dates determined by the Committee which shall notbe earlier than the Participant’s Payment Date and shall not be later than December 31of the Year in which the Participant’s Payment Date occurred.  However, as permitted by Code §409A, if aParticipant’s Payment Date occurs during October, November, or December,payment shall be considered timely if made by the fifteenth day of the thirdmonth after the month in which the Participant’s Payment Date occurred.

 

8.3                                 Other Separation fromService.  If a Participant’s Separation from Serviceoccurs under circumstances not covered under sections 8.1 and 8.2 (i.e. not dueto death or Disability and before the applicable age specified in section8.2(a)), then the provisions of (a) through (c) shall apply:

 

(a)                                  If theSeparation from Service is not for “cause”, (i) Options held by theParticipant which are exercisable as of the date of Separation from Servicewill remain exercisable for a period of three months after such separation (butin no event after the expiration date of any such options), and (ii) Optionswhich are not yet exercisable as of the date of the Separation from Servicewill be forfeited immediately.  If theSeparation from Service is for “cause”, all options will be forfeitedimmediately upon Separation from Service, regardless of whether they were thenexercisable.

 

(b)                                 All EquityUnits then outstanding will be forfeited, and no payment will be made withrespect thereto.  However, if theSeparation from Service is not for “cause”, the Committee may, in its solediscretion, provide for vesting and payment with respect to all or a portion ofthe outstanding Equity Units.  Any suchpayment shall occur as of a date determined by the Committee which shall not beearlier than the Participant’s Payment Date and shall not be later than December 31of the Year in which the Participant’s Payment Date occurred.  However, as permitted by Code  §409A, if a Participant’s Payment Date occursduring October, November, or December, payment shall be considered timely ifmade by the fifteenth day of the third month after the month in which thePayment Date occurred.

 

When such a payment occurs,the Participant will receive one share of Common Stock for each vested EquityUnit, less any applicable withholding taxes. The Committee’s decision with respect to such payment will be not bebinding or precedential with regard to subsequent Separations from Service byother Participants.  The Committee may delegateits authority under this paragraph to the Company’s chief executiveofficer.  If the Separation from Serviceis for “cause”, then any outstanding Equity Units will be forfeited immediatelyand are not subject to discretionary payout.

 

(c)                                  For purposes ofthis section, the existence of “cause” will be determined by the Committee byreference to any employment or other agreement or policy applicable to theParticipant.  In addition, the Committeemay determine any of the following to constitute “cause”:   (i) dishonesty, fraud,misrepresentation, embezzlement or

 

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deliberateinjury or attempted injury, in  each caserelated to the Company or any Subsidiary, (ii) any unlawful or criminalactivity of a serious nature, (iii) any intentional and deliberate breachof a duty or duties that, individually or in the aggregate, are material inrelation to the Participant’s overall duties, or (iv) any material breachof any employment, service, confidentiality or noncompete agreement enteredinto with the Company or any Subsidiary.

 

8.4                                 Breach ofConfidentiality or Noncompete Agreements. Notwithstanding anything in the Plan to the contrary, in the event thata Participant materially breaches the terms of any confidentiality ornoncompete agreement entered into with the Company or any Subsidiary, whethersuch breach occurs before or after such Participant’s Separation from Service,the Committee in its sole discretion may immediately terminate all rights ofthe Participant under the Plan and any agreements evidencing an Option orEquity Unit grant then held by the Participant without notice of any kind.

 

8.5                                 Payment Date.  A Participant’s “Payment Date” is the firstday of the seventh month after the month in which the Participant’s Separationfrom Service occurred.  For example, if aParticipant’s  Separation from Serviceoccurs on May 15, 2007 her Payment Date is December 1, 2007, andpayment must occur on or after December 1, 2007 and on or before March 15,2008.  If another Participant’sSeparation from Service occurs January 31, 2008, his Payment Date is August 1,2008 and payment must occur on or after August 1, 2008 and on or before December 31,2008.

 

8.6                                 Non-Employee Directors.  Sections 8.1 through 8.5 are not applicableto Options or Equity Units granted to Directors who are not Employees.  If such an individual has a Separation fromService (i.e. ceases to be a Director):

 

(a)                                  He or she may exerciseany outstanding Options within 12 months after ceasing to be a Director (orwithin such other period as approved by the Board or Committee at the time theOptions were granted).

 

(b)                                 All Equity Units thenheld by the Participant will vest.  TheCompany will transfer to the Participant a number of shares of Common Stockequal to the number of the Participant’s outstanding Equity Units.  Said transfer shall occur as of a date ordates determined by the Company which shall not be later than December 31of the Year in which the Participant ceased to be a Director.  However, as permitted by Code §409A, if aParticipant’s Separation from Service occurs during October, November, orDecember, payment shall be considered timely if made by the fifteenth day ofthe third month after the month in which the Participant ceased to be aDirector.

 

8.7                                 Options NotExercisable After Expiration Date. Notwithstanding any provisions of this Section 8 to the contrary,no Option will be exercisable after its Expiration Date.

 

8.8                                 Provisions ApplicableIf a Participant’s Employer Ceases to be a Subsidiary.  For purposes of sections 8.2 and 8.3, if aParticipant’s employer ceases to be a Subsidiary of the Company due to a saleof stock which qualifies as a change of control for purposes of Code §409A, andthe Participant remains an employee of that employer, the Participant will beconsidered to have

 

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a Separation from Service as of the date theemployer ceases to be a Subsidiary.  Thepreceding sentence does not apply if, at the time the employer ceases to be aSubsidiary, the Participant transfers to employment with the Company or anotherSubsidiary.

 

9.                                       Payment of WithholdingTaxes.

 

9.1                                 General Rules.  TheCompany is entitled to (i) withhold and deduct from the shares of CommonStock payable under the Plan, from future wages of the Participant, or fromother amounts that may be due and owing to the Participant from the Company ora Subsidiary, or make other arrangements for the collection of, all legallyrequired amounts necessary to satisfy any and all federal, state and localwithholding and employment-related tax requirements attributable to an Optionor Equity Unit, including, without limitation, the grant, exercise or vestingof, or payment of dividends with respect to, an Equity Unit or a disqualifyingdisposition of stock received upon exercise of an Incentive Stock Option, or (ii) requirethe Participant promptly to remit the amount of such withholding to the Companybefore taking any action, including issuing any shares of Common Stock, withrespect to the Option or Equity Unit.

 

9.2                                 Special Rules.  The Committee may, in its sole discretion andupon terms and conditions established by the Committee, permit or require aParticipant to satisfy, in whole or in part, any withholding or employment-relatedtax obligation described in Section 9.1 of the Plan by electing to tenderPreviously Acquired Shares (including but not limited to the Shares theacquisition of which triggered the tax obligation), by withholding shares ofCommon Stock payable to the Participant under this Plan, or by payments madepursuant to a Broker Exercise Notice, or by a combination of such methods.

 

10.                                 Change of ControlEvent.

 

10.1                           Change of ControlEvent.  A “Change of Control Event” shall be deemedto have occurred if any of the following occurs:

 

(a)                                  Any “Person” (asdefined in Section 13(d) of the Exchange Act) acquires or becomes abeneficial owner (as defined in Exchange Act Rule 13d-3), directly orindirectly, of securities of the Company representing 20% or more of thecombined voting power of the Company’s then outstanding securities entitled tovote generally in the election of directors (Voting Securities) or 20% or moreof the outstanding shares of Common Stock; provided, however, that thefollowing shall not constitute a “Change of Control Event”:

 

(1)                                  any acquisitionor beneficial ownership by the Company or a Subsidiary;

 

(2)                                  any acquisitionor beneficial ownership by any employee benefit plan (or related trust)sponsored or maintained by the Company or a Subsidiary;

 

(3)                                  any transactionimmediately following which more than 80% respectively, of (i) thecombined voting power of the Company’s Voting Securities and (ii) theCommon Stock is then beneficially owned, directly or indirectly, by all or

 

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substantiallyall of the persons who beneficially owned Voting Securities and Common Stockimmediately prior to such transaction in substantially the same proportions astheir ownership immediately prior to such acquisition;

 

(b)                                 Continuing Directorsdo not constitute a majority of the members of the Board;

 

(c)                                  Consummation of areorganization, merger or consolidation of the Company (other than a merger orconsolidation with a subsidiary of the Company), unless immediately followingsuch reorganization, merger or consolidation, all or substantially all of thepersons who were the beneficial owners, respectively, of Voting Securities andCommon Stock immediately prior to such reorganization, merger or consolidationbeneficially own, directly or indirectly, more than 80% respectively of (i) thecombined voting power of the then outstanding Voting Securities and (ii) thethen outstanding shares of Common Stock of the corporation resulting from suchreorganization, merger or consolidation in substantially the same proportionsas their ownership of the Voting Securities and Common Stock as the case maybe, immediately prior to such reorganization, merger or consolidation;

 

(d)                                 Approval by theshareholders of the Company of a complete liquidation or dissolution of theCompany or the sale or other disposition of all or substantially all of theassets of the Company (in one or a series of transactions), other than to acorporation with respect to which, immediately following such sale or otherdisposition, more than 80%, respectively, of (i) the combined voting powerof the then outstanding Voting Securities and (ii) the then outstandingshares of Common Stock of such corporation is then beneficially owned, directlyor indirectly, by all or substantially all of the persons who were thebeneficial owners respectively of the Voting Securities and Common Stockimmediately prior to such sale or other disposition in substantially the sameproportions as their ownership of the Voting Securities and Common Stock, asthe case may be, immediately prior to such sale or other disposition;

 

(e)                                  The Company entersinto a letter of intent, an agreement in principle or a definitive agreementrelating to a “Change in Control Event” described in (a), (b), (c) or (d) thatultimately results in such a “Change of Control Event”, or a tender or exchangeoffer or proxy contest is commenced which ultimately results in such a “Changein Control Event”.

 

Notwithstandinganything stated above, a “Change of Control Event” shall not be deemed to occurwith respect to a Participant if the acquisition or beneficial ownership of the20% or greater interest referred to in (a) is by the Participant or by agroup, acting in concert, that includes the Participant or a majority of thethen combined voting power of the then outstanding Voting Securities (or votingequity interests) of the surviving corporation or of any corporation (or otherentity) acquiring all or substantially all of the assets of the Company shall,immediately after a reorganization, merger, consolidation or disposition ofassets referred to in (c) or (d), be beneficially owned, directly orindirectly, by the Participant or by a group, acting in concert, that includesthe Participant

 

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10.2                           Code §409A Event.  A “Code §409A Event” is a Change of ControlEvent (as defined in section 10.1) that qualifies as a change in control eventfor purposes of Code §409A and any applicable regulations.

 

10.3                           Continuing Directors.  Continuing Directors means:

 

(a)                                  individuals who, on January 1,2006, are Directors;

 

(b)                                 individuals elected asDirectors after January 1, 2006 for whose election proxies are solicitedby the Board; or

 

(c)                                  individuals elected orappointed by the Board to fill vacancies on the Board caused by death orresignation (but not by removal) or to fill newly-created directorships,provided that a Continuing Director shall not include an individual whoseinitial assumption of office occurs as a result of an actual or threatenedelection contest with respect to the threatened election or removal ofdirectors (or other actual or threatened solicitation of proxies or consents)by or on behalf of any person other than the Board.

 

10.4                           Acceleration ofVesting.  If a Change of Control Event occurs, (a) allOptions will become immediately exercisable in full and will remain exercisablefor the remainder of their terms, regardless of whether the Participants towhom such Options have been granted remain in the employ or service of theCompany or any Subsidiary; and (b) all Equity Units then held byParticipants will vest and be payable as follows:

 

(a)                                  If the Changeof Control Event qualifies as a Code §409A Event, all Equity Units then held byParticipants will vest and be payable immediately.

 

(b)                                 If the Change ofControl Event does not qualify as a Code §409A Event:

 

(1)                                  All Equity Units whichwould not have been vested immediately before the Change of Control Event ifthe Participant then had a Separation from Service will vest and be paid assoon as administratively feasible during the year in which the Change ofControl Event occurred.

 

(2)                                  All Equity Units whichwould have been vested immediately before the Change of Control Event if theParticipant then had a Separation from Service will vest and will be paid as ofwhichever of the following dates is earlier:

 

(A)                              As soon as administratively feasible in the Yearafter the Year in which the Performance Period for the Equity Unit ends.

 

(B)                                During the seventh month after the month inwhich the Participant’s Separation from Service occurs.

 

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10.5                           Cash Payment.  If a Code §409A Event occurs, then the Boardor Committee may, without the consent of any Participant affected thereby,terminate the Plan and all substantially similar plans.  Upon such termination, all Participants willreceive the following amounts as payment for their outstanding Options orEquity Units:

 

(a)                                  With respect to theshares of Common Stock subject to Options, as of the effective date of any suchChange of Control Event, cash in an amount equal to the excess of the FairMarket Value of such shares immediately prior to the effective date of suchChange of Control Event over the exercise price per share of such Option.

 

(b)                                 With respect to theEquity Units, cash in an amount equal to the Fair Market Value (determinedimmediately prior to the effective date of the Change of Control Event), of theshares of Common Stock represented by such Equity Units.

 

# Any such termination must occur during the 1 month period preceding orthe 12 month period following the Code §409A Event.  The cash payments must be completed within 12months after the Plan is terminated.

#  

10.6                           Gross-Up for Change ofControl Payments.  If, with respect to aParticipant, the acceleration of the vesting of an Option or Equity Unit asprovided in Section 10.4 (which acceleration could be deemed a “Payment”within the meaning of Code § 280G(b)(2)) or the payment of cash in exchange forall or part of an Option or Equity Unit as provided in Section 10.5,together with any other payments which such Participant has the right toreceive from the Company or any corporation that is a member of an “affiliatedgroup” (as defined in Code § 1504(a) without regard to Code § 1504(b)) ofwhich the Company is a member, would constitute an “excess parachute payment”(as defined in Code § 280G(b)(1)), and therefore be subject to the excise taximposed under Code § 4999, then the Participant shall be entitled to receive anadditional cash payment from the Company in an amount such that the Participantwould be in the same financial position as if there were no excise tax imposedon such payments.  That is, if any amountpaid pursuant to this Plan is subject to the excise tax imposed by Code § 4999,the Company shall pay the Participant an additional amount such that, afterpayment by the Participant of all income taxes and excise taxes imposed uponsuch additional payment, the Participant will retain a portion of theadditional payment equal to the excise tax. For this purpose, the Company shall assume that the Participant’s incomeis taxed at the highest federal and state marginal rate then in effect.

 

11.                                 Rights of EligibleRecipients and Participants; Transferability.

 

11.1                           Employment.  Nothing in the Plan will interfere with orlimit in any way the right of the Company or any Subsidiary to terminate theemployment of any Employee or Participant at any time, nor confer upon anyEmployee or Participant any right to continue in the employ of the Company orany Subsidiary.

 

11.2                           Rights as aShareholder.  As a holder of Options orEquity Units, a Participant will have no rights as a shareholder unless anduntil the Options are exercised or the Equity Units are paid in the form ofCommon Stock.  However, as part of anygrant of Equity Units, the Committee may

 

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provide that a Participant will be entitled toreceive cash distributions equivalent to the dividends paid from time to timeon the Common Stock underlying such Units.

 

11.3                           Restrictions onTransfer.  Any Option or Equity Unitgranted under this Plan shall by its terms be non-transferable by the granteeother than by will or the laws of descent and distribution and shall beexercisable during the grantee’s lifetime only by the grantee or by the grantee’sguardian or legal representative, except that a Non-Qualified Stock Option may,if the Option Agreement so provides, also be transferable to members of thegrantee’s immediate family, to a partnership whose members are only theoptionee and/or members of the grantee’s immediate family, or to a trust forthe benefit of only the grantee and/or members of the grantee’s immediatefamily.  “Immediate Family” for purposesof this section includes only the grantee’s spouse, parents, children, andother direct descendants of the grantee and his or her spouse (includingchildren and other descendants by adoption).

 

11.4                           Non-Exclusivity of thePlan.  Nothing contained in the Plan is intended tomodify or rescind any previously approved compensation plans or programs of theCompany or create any limitations on the power or authority of the Board toadopt such additional or other compensation arrangements as the Board may deemnecessary or desirable.

 

12.                                 Securities Law andOther Restrictions.

 

Notwithstandingany other provision of the Plan or any agreements entered into pursuant to thePlan, the Company will not be required to issue any shares of Common Stock underthis Plan, and a Participant may not sell, assign, transfer or otherwisedispose of shares of Common Stock issued pursuant to the Plan, unless (a) thereis in effect with respect to such shares a registration statement under theSecurities Act and any applicable state securities laws or an exemption fromsuch registration under the Securities Act and applicable state securitieslaws, and (b) there has been obtained any other consent, approval orpermit from any other regulatory body which the Committee, in its solediscretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon thereceipt of any representations or agreements from the parties involved, and theplacement of any legends on certificates representing shares of Common Stock,as may be deemed necessary or advisable by the Company in order to comply withsuch securities law or other restrictions.

 

13.                                 Plan Amendment,Modification and Termination.

 

The Board or Committeemay suspend or terminate the Plan or any portion thereof at any time, and mayamend the Plan from time to time in such respects as the Board or Committee maydeem advisable.  However, no amendmentsto the Plan will be effective without approval of the stockholders of theCompany if stockholder approval of the amendment is then required pursuant toCode § 422 or the rules of the New York Stock Exchange.  No termination, suspension or amendment ofthe Plan may adversely affect any outstanding award without the consent of theaffected Participant; provided, however, that this sentence will not impair theright of the Board or Committee to take whatever action it deems appropriateunder Sections 3(e), 4.3 and 10.5.

 

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14.                                 Effective Date andDuration of the Plan.

 

The Plan is effectiveupon approval by the Company’s shareholders. The Plan will terminate at midnight on December 31, 2015, and maybe terminated prior to such time to by Board action, and no Options or EquityUnits will be granted after such termination. Except as provided in section 10.5, awards outstanding upon terminationof the Plan may continue to be exercised, or become free of restrictions andpaid, in accordance with their terms.

 

15.                                 Miscellaneous.

 

15.1                           Governing Law.  The Plan will be construed in accordance withthe laws of Missouri.

 

15.2                           Successors and Assigns.  The Plan will be binding upon and inure tothe benefit of the successors and permitted assigns of the Company and theParticipants.’

 

15.3                           Code §409A.  The Plan is intended to satisfy allapplicable requirements of Code §409A and will be construed in light of that intent.  The Committee may modify the Plan and Optionsor Equity Units granted pursuant to the Plan to the extent the Committee deemsnecessary to comply with Code §409A, even if such modifications adverselyaffect outstanding Options and Equity Units, provided the Committee determinesthat such modifications are necessary to avoid adverse tax consequences.

 
|   | APPROVED IN BEHALF OF THE COMPANY                                                                                                                                                                                                                                                                        |
|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                     |
|   |                                                                                                                                                                                                                                                                                                     |
|   | By:                                                                                                                                                                                                                                                                                                      |   |
|   |      E. H. Seashore,  Vice President                                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                                                                                                     |
|   | Date Signed:                                               ,  2008 |

 

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