Exhibit 10.1
MGP INGREDIENTS, INC. SHORT-TERM INCENTIVE PLAN
This MGP INGREDIENTS, INC. SHORT-TERM INCENTIVE PLAN (Plan) is a program for measuring financial performance in terms of increases in Modified Economic Profit (MEP), and providing eligible Employees with incentive compensation based upon MEP results. The objective of the Plan is to encourage initiative, resourcefulness, teamwork, motivation, and efficiency on the part of all Participants that will result in financial success for both the stockholders of the Company and the Participants. The Plan provides annual incentive compensation for eligible Employees who are in a position to make substantial contributions toward achievement of the financial performance goals established pursuant to the Plan. The Plan replaces the Short-Term Incentive Plan which was first effective July 1, 2007 and which is terminated, effective June 30, 2009.
SECTION 1
ESTABLISHMENT OF PLAN
1.1 Plan Document
This instrument, as amended from time to time, constitutes the governing document of the Plan.
1.2 Effective Dates
The effective date of the Plan is July 1, 2009. The Plan will apply for Fiscal Year 2010 and each year thereafter, unless otherwise determined by the Committee.
1.3 Incentive Compensation Plan
The Plan is an annual compensation program for eligible Employees. Because the Plan does not provide welfare benefits and does not provide for the deferral of compensation to termination of employment, it is established with the intent and understanding that it is not an employee benefit plan within the meaning of the employee Retirement Income Security Act of 1974, as amended. It is intended that any award under the Plan will not be subject to Section 409A of the Code.
SECTION 2
DEFINITIONS
The following terms shall have the definition stated, unless the context requires a different meaning:
2.1 Beneficiary
Beneficiary means the individual, trust, or other entity designated by the Participant to receive any incentive compensation payable to the Participant under the Plan in the event of the Participants death. A Participant may designate or change a Beneficiary by filing a signed designation with the Secretary of the Company in a form approved by the Committee.
If a designation has not been completed properly and filed with the Company or is ineffective for any other reason, the Beneficiary shall be the Participants Surviving Spouse. If there is no effective designation and the Participant does not have a Surviving Spouse, the remaining benefits, if any, shall be paid to the Participants estate.
2.2 Board of Directors
Board or Board of Directors means the Board of Directors of the Company.
Code means the Internal Revenue Code of 1986, as amended.
A Change in Control shall mean:
If any of the events enumerated in clauses (i) through (iii) occur, the Board shall
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determine the effective date of the Change in Control resulting therefrom for purposes of the Plan.
Committee means the Human Resources and Compensation Committee of the Board of Directors and shall be comprised entirely of Directors who are considered outside directors under Section 162(m) of the Code.
Company means MGP Ingredients, Inc., a Kansas corporation.
Director means any individual who is a member of the Board.
Employee means a salaried, full-time Employee of the Company.
Fiscal Year means the financial reporting and taxable year of MGP Ingredients, Inc.
2.10 MEP
MEP refers to Modified Economic Profit and means adjusted net income from operations (net income from operations, plus depreciation less capital expenditures), net of taxes paid during the specified Fiscal Year (Adjusted NOPAT), minus a charge representing the weighted economic cost of capital (C) to the Company multiplied by the sum of average monthly total funded indebtedness plus average monthly total equity (TC). The formula for determining MEP is: MEP = Adjusted NOPAT (C x TC). MEP for a Fiscal Year shall be based upon the audited financial statements of the Company for the Fiscal Year; provided, the Committee may determine in its sole discretion whether the calculation of MEP should include or exclude, in whole or in part, any unusual or non-recurring item or adjusted to reflect any unusual or non-recurring item.
Participant means an Employee designated to participate in this Plan for a Plan Year pursuant to Section 4.
Plan Year means the Fiscal Year of the Company, as in effect at the time.
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Surviving Spouse means the spouse of the Participant at the time of the Participants death who survives the Participant. If the Participant and spouse die under circumstances that make the order of their deaths uncertain, it shall be presumed for purposes of this Plan that the Participant survived the spouse.
SECTION 3
ADMINISTRATION OF PLAN
The Plan shall be administered by the Committee. The Committee shall have full discretionary authority in the operation and administration of the Plan. The Committee must approve any award under the Plan and, subject to the limitations set forth below, may modify any award prior to its payment. The Committee shall act by vote or consent of a majority of its members. To the extent necessary or appropriate, the Committee will adopt rules, policies, and forms for the administration, interpretation, and implementation of the Plan. The Committee may delegate administrative authority and responsibility from time to time to and among other committees approved by the Committee and individual Employees of the Company, but all actions taken pursuant to delegated authority and responsibility shall be subject to review and change by the Committee.
A member of the Committee or individual or group to whom authority is delegated shall not participate in any action of the Committee directly affecting that member, individual or group.
The Committee and each member thereof, and any person acting pursuant to authority delegated by the Committee, shall be entitled, in good faith, to rely or act upon any report or other information furnished by any executive officer, other officer or employee of the Company or a subsidiary or affiliate, the Companys independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the Committee, any person acting pursuant to authority delegated by the Committee, and any officer or employee of the Company or a subsidiary or affiliate acting at the direction or on behalf of the Committee or a delegee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified, held harmless and protected by the Company with respect to any such action or determination.
SECTION 4
ELIGIBILITY
4.1 Participation
An Employee shall be a Participant in the Plan for a Plan Year upon designation as a Participant for that year by the Committee. When deemed appropriate by the Committee, the Committee may designate an effective date for the commencement of participation by an Employee that is subsequent to the first day of the Plan Year.
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Designated Participants shall be notified in writing and provided either a copy of the Plan or a written summary of the Plan.
Designation as a Participant for a Plan Year will continue in effect for each succeeding Plan Year that the Plan is in effect until participation is terminated by the Committee. The Committee may terminate participation by an Employee at any time with or without cause.
SECTION 5
MEASUREMENT OF COMPANY PERFORMANCE
For purposes of the Plan, financial performance of the Company shall be measured by MEP. In general, the Plan shall be administered so that the incentive compensation provided to a Participant under the Plan for each Plan Year is based on improved MEP performance relative to prior MEP performance, initially measured for the Fourth Quarter of Fiscal 2009 ( adjusted to eliminate assets held for sale and determined on an annualized basis).
MEP shall be determined for each Fiscal Year by the Committee, subject to Section 5.4.
5.3 MEP Growth Target
The MEP growth performance targets for each Plan Year shall be determined by the Committee and communicated to Participants.
The Committee may determine, in its sole discretion, whether the calculation of MEP should include or exclude, in whole or in part, any unusual or non-recurring item or adjusted to reflect any unusual or non-recurring item and may make such other adjustments as permitted by Section 9.
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SECTION 6
INCENTIVE COMPENSATION TARGETS
The target annual incentive compensation for each Participant for each Plan Year shall be determined by the Committee for each Plan Year in accordance with Section 7.2(a).
SECTION 7
DETERMINATION AND PAYMENT OF INCENTIVE AMOUNTS
MEP and MEP growth performance, including any necessary or appropriate adjustments required or permitted hereunder, shall be determined as soon as administratively practicable following the availability of financial results for the Plan Year.
Under rules established by the Committee, the incentive compensation for each Participant for each Plan Year shall be calculated by the following steps:
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The Committee shall exercise all of its power and duties as the Committee deems appropriate in its sole and absolute discretion. All decisions of the Committee shall be final and binding on all Participants and their respective heirs and representatives. In the event it is determined, in the judgment and discretion of the Committee, that any factor applicable in the ultimate determination of incentive compensation under the Plan for a Plan Year is not appropriate with respect to one or more Participants due to unusual events, unforeseen circumstances, or other factors deemed material and relevant, the applicable factor or the amount of the resulting incentive compensation may be adjusted or modified in any manner deemed appropriate by the Committee.
SECTION 10
AMENDMENT AND TERMINATION
The Plan may be amended in any manner or terminated at any time by action of the Board of Directors.
Neither the establishment nor maintenance of the Plan nor participation in the Plan shall provide any guarantee or other assurance that incentive compensation will be payable under the Plan. The success of MGP Ingredients, Inc., as determined hereunder, and adjusted as provided herein, and application of the administrative rules and determinations by the Committee shall determine the extent to which Participants are entitled to receive incentive compensation payments hereunder.
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Nothing in this Plan shall be deemed or interpreted to provide a Participant or any non-participating Employee with any contractual right to participate in or receive benefits of the Plan. No designation of an Employee as a Participant for all or any part of a Plan Year shall create a right to incentive compensation or other benefits of the Plan for any other Plan Year.
Participation in this Plan shall not be construed as constituting a commitment, guarantee, agreement, or understanding of any kind that the Company will continue to employ an individual, and this Plan shall not be construed or applied as any type of employment contract or obligation. Nothing herein shall abridge or diminish the rights of the Company to determine the terms and conditions of employment of any Participant or other employee or to terminate the employment of any Participant or other Employee with or without cause at any time.
Neither a Participant nor any beneficiary or other representative of a Participant shall have any right to assign, transfer, attach, or hypothecate any incentive compensation amount or credit, potential payment, or right to future payments of any incentive compensation amount or credit, or any other benefit provided under this Plan. Payment of any amount due or to become due under this Plan shall not be subject to the claims of creditors of the Participant or to execution by attachment or garnishment or any other legal or equitable proceeding or process.
The Company shall deduct from any payment made under this Plan all amounts required by federal, state, and local tax laws to be withheld and shall subject any payments made under the Plan to all applicable payroll taxes and assessments.
If the Committee determined that a person entitled to a payment hereunder is incompetent, it may cause benefits to be paid to another person for the use or benefit of the Participant or the Participants Beneficiary at the time or times otherwise payable hereunder, in total discharge of the Plans obligations to the Participant or Beneficiary.
It is intended that the Plan and awards issued hereunder will be exempt from Section 409A of the Code (and any regulations and guidelines issued thereunder) because the Plan and the awards do not provide for the deferral of compensation, and the Plan and such awards shall be interpreted on a basis consistent with such intent. The Plan and any award agreements issued thereunder may be amended in any respect deemed by the Board or the Committee to be necessary in order to preserve exemption with Section 409A of the Code.
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The provisions of the Plan shall be construed and governed under the laws of the State of Kansas.
IN WITNESS WHEREOF, MGP Ingredients, Inc. has caused this Plan to be executed by its duly authorized officer this 10th of December, 2009.
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MGP INGREDIENTS, INC. |
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/s/ Timothy W. Newkirk |
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By: Timothy W. Newkirk |
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Title: President and CEO |
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