Exhibit 4.3
2010 OMNIBUS STOCK INCENTIVE PLAN
Section 1. Purpose
The purpose of the FedEx Corporation 2010 Omnibus Stock Incentive Plan is to aid the Company
and its Affiliates in retaining, attracting and rewarding Non-Management Directors and designated
employees and to motivate them to exert their best efforts to achieve the long-term goals of the
Company and its Affiliates. The Company believes that the ownership or increased ownership of
Common Stock by employees and directors, or otherwise linking the compensation of employees and
directors to the value of Common Stock, will further align their interests with those of the
Companys other stockholders and will promote the long-term success of the Company and the creation
of long-term stockholder value. Accordingly, the Plan authorizes the grant of equity incentive
awards to designated employees of the Company and its Affiliates and to directors of the Company.
Section 2. Definitions and Rules of Construction
2.1
Definitions
. The following capitalized terms used in the Plan shall have the
respective meanings set forth below:
Affiliate
means (a) any Subsidiary and (b) any other entity that, directly or through one or
more intermediaries, is controlled by the Company, as determined by the Committee.
Award
means any Stock Option, Stock Appreciation Right, Restricted Share, Restricted Stock
Unit, Dividend Equivalent or Other Stock-Based Award, together with any related right or interest,
granted to a Participant under the Plan.
Award Agreement
means a written or electronic agreement between the Company and a
Participant setting forth the terms, conditions, restrictions and other provisions of an Award
granted to the Participant.
Board of Directors
means the Board of Directors of the Company.
Change of Control
has the meaning given such term in Section 20.1.
Code
means the Internal Revenue Code of 1986, as amended. For purposes of the Plan,
references to sections of the Code shall be deemed to include references to any applicable
regulations, including proposed regulations, and other guidance issued thereunder by the Department
of Treasury or the Internal Revenue Service, and any successor provisions and regulations.
Committee
means those members, not less than two, of the Compensation Committee of the Board
of Directors who are Independent Directors, or any successor committee or subcommittee of the Board
of Directors designated by the Board of Directors, which committee or subcommittee shall be
comprised of two or more members of the Board of Directors, each of whom is an Independent
Director.
Common Stock
means the common stock, par value $0.10 per share, of the Company and such
other securities of the Company as may be substituted for Common Stock pursuant to Section 19.1 or
19.2.
Company
means FedEx Corporation, a Delaware corporation.
Covered Employee
means an employee of the Company or an Affiliate who is a covered
employee within the meaning of Code Section 162(m)(3).
Disability
means permanent disability as determined by the Committee in its sole
discretion.
Dividend Equivalent
means the right granted to a Participant under Section 14 of the Plan to
receive a payment in an amount equal to the dividends paid on one outstanding Share with respect to
all or a portion of the Shares subject to a Full-Value Award held by such Participant.
Effective Date
has the meaning given such term in Section 3.1.
Eligible Person
means (a) any employee of the Company or an Affiliate, (b) any individual to
whom an offer of employment with the Company or an Affiliate is made, as determined by the
Committee (provided that such prospective employee may not receive any payment or exercise any
right with respect to an Award until such person has commenced such employment), and (c) any
Non-Management Director.
Exchange Act
means the Securities Exchange Act of 1934, as amended. A reference to any
provision of the Exchange Act or rule promulgated under the Exchange Act shall include reference to
any successor provision or rule.
Exercise Price
means (a) in the case of a Stock Option, the amount for which a Share may be
purchased upon exercise of such Stock Option, as set forth in the applicable Award Agreement, and
(b) in the case of a Stock Appreciation Right, the per Share amount, as specified in the applicable
Award Agreement, which is subtracted from the Fair Market Value of a Share in determining the
amount payable upon exercise of such SAR.
Fair Market Value
means, on any date, (a) the average of the high and low per Share sales
prices as reported on the New York Stock Exchange composite tape on that date or (b) if such method
is not practicable, the value of a Share as determined by the Committee using such other method as
it deems appropriate.
Full-Value Award
means any Award other than in the form of a Stock Option or Stock
Appreciation Right and which is settled by the issuance of Shares (or at the discretion of the
Committee, settled in cash or other consideration by reference to the value of Shares).
Grant Date
means the date on which the Committee completes the corporate action authorizing
the grant of an Award or such later date as is determined and specified by the Committee as part of
that authorization process.
Incentive Stock Option
or
ISO
means a Stock Option or portion thereof that is intended to
be and specifically designated as an incentive stock option within the meaning of Code Section
422 and meets the requirements thereof.
Independent Director
means a member of the Board of Directors who qualifies at any given
time as (a) an independent director under Section 303A of the New York Stock Exchange Listed
Company Manual, (b) an outside director within the meaning of Code Section 162(m), and (c) a
non-employee director as defined in Rule 16b-3.
Net Exercise
means a Participants ability (if authorized by the Committee) to exercise a
Stock Option by directing the Company to deduct from the Shares issuable upon exercise of his or
her Stock Option a number of Shares having an aggregate Fair Market Value equal to the sum of the
aggregate Exercise Price therefor plus the amount of the Participants tax withholding (if any),
whereupon the Company shall issue to the Participant the net remaining number of Shares after such
deduction.
Non-Management Director
means a member of the Board of Directors who is not an employee of
the Company or an Affiliate.
Non-Qualified Stock Option
or
NQSO
means a Stock Option or portion thereof that is not an
Incentive Stock Option.
Other Stock-Based Award
means an Award granted to a Participant under Section 15 of the
Plan.
Participant
means any Eligible Person who receives an Award under the Plan.
Performance Award
means an Award that includes performance conditions as specified by the
Committee pursuant to Section 12 of the Plan.
Performance Period
has the meaning given such term in Section 13.2.
Plan
means the FedEx Corporation 2010 Omnibus Stock Incentive Plan, as amended from time to
time.
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Qualified Performance-Based Award
means an Award that is either (a) in the form of
Restricted Shares, Restricted Stock Units or Other Stock-Based Awards, is intended to qualify for
the Section 162(m) Exemption, is made subject to performance goals based on Qualified Performance
Criteria as set forth in Section 13.3, and is designated by the Committee as a Qualified
Performance-Based Award pursuant to Section 13 of the Plan, or (b) a Stock Option or Stock
Appreciation Right having an Exercise Price equal to or greater than the Fair Market Value of a
Share as of the Grant Date.
Qualified Performance Criteria
means one or more of the business criteria listed in Section
13.3 upon which performance goals for certain Qualified Performance-Based Awards may be established
by the Committee.
Reporting Person
means an employee of the Company or an Affiliate who is subject to the
reporting requirements of Section 16(a) of the Exchange Act.
Restricted Shares
means Shares granted to a Participant under Section 10 of the Plan that
are subject to certain restrictions and conditions and to a risk of forfeiture.
Restricted Stock Unit
or
RSU
means the right to acquire one Share, or receive the
equivalent amount in cash, granted to a Participant under Section 11 of the Plan, which right is
subject to certain restrictions and conditions and to a risk of forfeiture.
Retirement
means with respect to any Participant, (a) the attainment by the Participant of
the age of 55
and
the cessation of the Participants Service, or (b) the Participants
retirement as determined by the Committee in its sole discretion.
Rule 16b-3
means Rule 16b-3 under the Exchange Act.
Section
162(m)
Exemption
means the exemption from the limitation of deductibility under
Section 162(m)(4)(C) of the Code.
Securities Act
means the Securities Act of 1933, as amended, and the rules promulgated
thereunder or any successor statute thereto.
Service
means a Participants employment with the Company or an Affiliate or a Participants
service as a Non-Management Director, as applicable.
Shares
means shares of Common Stock.
Stock Appreciation Right
or
SAR
means a right granted to a Participant under Section 9 of
the Plan to receive a payment equal to the excess of the Fair Market Value of a Share as of the
date of exercise of the SAR over the Exercise Price of the SAR.
Stock Option
means a right granted to a Participant under Section 8 of the Plan to purchase
a specified number of Shares at a specified price during a specified time period. A Stock Option
may be an Incentive Stock Option or a Non-Qualified Stock Option.
Subsidiary
means any corporation or other entity of which the Company possesses, directly or
through one or more intermediaries, 50% or more of the total combined voting power of such entity.
Substitute Awards
means Awards granted under Section 7.6 in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired by the Company or an
Affiliate.
2.2
Rules of Construction
. The section and other headings contained in the Plan
are for reference purposes only and shall not affect the meaning or interpretation of the Plan.
Unless the context clearly requires otherwise: (a) references to the plural include the singular
and to the singular include the plural; (b) the terms includes and including are not limiting;
(c) the term or has the inclusive meaning represented by the phrase and/or; and (d) any
grammatical form or variant of a term defined in the Plan shall be construed to have a meaning
corresponding to the definition of the term set forth herein. The terms hereof, hereto,
hereunder and similar terms in the Plan refer to the Plan as a whole and not to any particular
provision of the Plan.
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Section 3. Term of the Plan
3.1
Effective Date
. The Plan shall be effective as of the date on which it is
approved by the Companys stockholders (the Effective Date).
3.2
Term of the Plan
. Unless the Plan is earlier terminated in accordance with the
provisions hereof, no Award shall be granted under the Plan after June 30, 2020, but Awards granted
on or prior to such date shall continue to be governed by the terms and conditions of the Plan and
the applicable Award Agreement (including terms regarding amendments to or modifications of
outstanding Awards).
Section 4. Administration of the Plan
4.1
The Committee
. The Plan shall be administered by the Committee. No action of
the Committee under the Plan shall be void or deemed to be without authority due to a Committee
members failure to qualify as an Independent Director at the time the action was taken.
4.2
Committee Authority
. Subject to the express provisions of the Plan, the
Committee shall have full and exclusive power, authority and discretion to take any and all actions
necessary, appropriate or advisable for the administration of the Plan, including the following:
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(a)
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Select Eligible Persons to become Participants;
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(c)
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Delegate the granting of Awards as specified in Section 4.5;
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(d)
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Determine the type or types of Awards to be granted to each Participant
and the timing thereof;
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(e)
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Determine the number of Awards to be granted and the number of Shares
to which an Award will relate;
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(f)
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Determine the terms, conditions, restrictions and other provisions of
each Award;
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(g)
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Establish performance conditions for Performance Awards and Qualified
Performance-Based Awards, and verify the level of performance attained with respect
to such performance conditions;
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(h)
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Prescribe the form of each Award Agreement, which need not be identical
for each Participant;
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(i)
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Amend, modify, suspend, discontinue or terminate the Plan, waive any
restrictions or conditions applicable to any Award, or amend or modify the terms
and conditions of any outstanding Award;
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(j)
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Adopt sub-plans or supplements to, or alternative versions of, the Plan
as the Committee deems necessary or desirable to comply with the laws or
regulations of or to accommodate the tax policy or custom of, foreign
jurisdictions;
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(k)
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Establish, adopt or revise rules, guidelines and policies for the
administration of the Plan;
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(l)
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Construe and interpret the Plan, any Award Agreement and any other
documents and instruments relating to the Plan or any Award;
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(m)
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Correct any defect, supply any omission or reconcile any inconsistency
in the Plan or any Award Agreement; and
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(n)
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Make all other decisions and determinations and take such other actions
with respect to the Plan or any Award as the Committee may deem necessary,
appropriate or advisable for the administration of the Plan.
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The express grant of any specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority of the Committee.
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4.3
Grants to Non-Management Directors
.
(a)
Awards
. Notwithstanding any other provision of the Plan, including Sections 4.1
and 4.2, any Awards made under the Plan to Non-Management Directors shall be approved, or made
in accordance with a
policy or program approved, by the Board of Directors;
provided
,
however
,
(1) the Committee shall recommend such Awards, policy or program to the Board of Directors for
its approval and (2) the Committee retains full independent authority conferred under the Plan
with respect to all other aspects of Awards to Non-Management Directors. Solely with respect
to the grant of Awards to Non-Management Directors, all rights, powers and authorities vested
in the Committee under the Plan with respect thereto shall instead be exercised by the Board
of Directors and any reference in the Plan to the Committee shall be deemed to include a
reference to the Board of Directors.
(b)
Retainers and Meeting Fees
. Upon such terms and conditions as may be established
by the Board of Directors, each Non-Management Director may elect to have all or part of his
or her retainer and meeting fees paid in Shares under the Plan.
4.4
Actions and Interpretations by the Committee
. All interpretations, decisions,
determinations and actions under or with respect to the Plan shall be within the sole discretion of
the Committee, may be made at any time, and shall be final, conclusive and binding on all persons,
including Participants, persons claiming rights from or through a Participant, and stockholders.
The Committees determinations under the Plan need not be uniform and may be made selectively among
Participants, whether or not such Participants are similarly situated.
4.5
Delegation of Authority
.
(a) Subject to any applicable laws, rules or regulations (including Section 157(c) of
the Delaware General Corporation Law or any successor provision), the Committee may, by
resolution, expressly delegate to one or more officers of the Company the authority, within
specified parameters as to the number, types and terms of Awards, to (1) designate Eligible
Persons to be recipients of Awards and (2) determine the number of such Awards to be received
by any such Participants;
provided
,
however
, that such delegation may not be
made with respect to Awards to be granted to any Non-Management Director, any Eligible Person
who is a Reporting Person or any Eligible Person who is then a Covered Employee.
(b) The Committee may delegate to any appropriate officer or employee of the Company
or an Affiliate responsibility for performing ministerial and administrative functions under
the Plan.
(c) In the event that the Committees authority is delegated to any officer or
employee in accordance with Section 4.5(a) or (b), any actions undertaken by such person in
accordance with the Committees delegation of authority shall have the same force and effect
as if undertaken directly by the Committee, and any reference in the Plan to the Committee
shall, to the extent consistent with the terms and limitations of such delegation, be deemed
to include a reference to such officer or employee.
4.6
Limitation of Liability
. The Committee and each member thereof shall be
entitled to, in good faith, rely or act upon any report or other information furnished by any
officer or employee of the Company or an Affiliate, the Companys independent certified public
accountants, counsel or other advisors to the Company, or any consultant, attorney, accountant or
other advisor retained by the Committee to assist in the administration of the Plan. Neither the
Board of Directors nor the Committee, nor any member of either, shall be liable for any act,
omission, interpretation, decision, construction or determination made in good faith in connection
with the Plan or any Award.
Section 5. Shares Subject to the Plan; Maximum Awards
5.1
Number of Shares
. Subject to the Share counting rules set forth in Section 5.3
and to adjustment as provided in Section 19, the aggregate number of Shares reserved and available
for issuance pursuant to Awards granted under the Plan shall be 7,600,000, of which no more than
1,000,000 may be issued as Full-Value Awards.
5.2
Incentive Stock Options
. The maximum number of Shares that may be issued upon
exercise of Incentive Stock Options granted under the Plan shall be 7,600,000, subject to
adjustment as provided in Section 19.
5.3
Share Counting.
(a) The number of Shares covered by an Award, or to which an Award relates, shall be
subtracted from the Plan Share reserve as of the Grant Date.
(b) To the extent an Award is canceled, terminates, expires, is forfeited or lapses
for any reason (in whole or in part), any unissued or forfeited Shares subject to the Award
shall be added back to the Plan Share reserve and available again for issuance pursuant to
Awards granted under the Plan.
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(c) Any Shares related to Awards that are settled in cash or other consideration in
lieu of Shares shall be added back to the Plan Share reserve and available again for issuance
pursuant to Awards granted under the Plan.
(d) Shares withheld or deducted from an Award by the Company to satisfy tax
withholding requirements relating to Stock Options or Stock Appreciation Rights shall not be
added back to the Plan Share reserve and shall not again be available for issuance pursuant to
Awards granted under the Plan, but Shares withheld or deducted by the Company to satisfy tax
withholding requirements relating to Full-Value Awards shall be added back to the Plan Share
reserve and available again for issuance pursuant to Awards granted under the Plan. Shares
delivered by a Participant to the Company to satisfy tax withholding requirements shall be
treated in the same way as Shares withheld or deducted from an Award as specified above for
purposes of Share counting under this Section 5.3(d).
(e) To the extent that the full number of Shares subject to a Stock Option or a
Share-settled Stock Appreciation Right is not issued upon exercise of such Stock Option or
Stock Appreciation Right for any reason, including by reason of a net settlement or Net
Exercise, then all Shares that were covered by the exercised Stock Option or SAR shall not be
added back to the Plan Share reserve and shall not again be available for issuance pursuant to
Awards granted under the Plan.
(f) If the Exercise Price of a Stock Option is satisfied by delivering Shares to the
Company (by either actual delivery or attestation), such Shares shall not be added to the Plan
Share reserve and shall not be available for issuance pursuant to Awards granted under the
Plan.
(g) To the extent that the full number of Shares subject to a Performance Award or
Qualified Performance-Based Award (other than a Stock Option or Stock Appreciation Right) is
not issued by reason of failure to achieve maximum performance goals, the number of Shares not
issued shall be added back to the Plan Share reserve and shall be available again for issuance
pursuant to Awards granted under the Plan.
(h) Shares repurchased on the open market with the proceeds of a Stock Option exercise
shall not be added to the Plan Share reserve and shall not be available for issuance pursuant
to Awards granted under the Plan.
(i) Any Dividend Equivalent denominated in Shares shall be counted against the
aggregate number of Shares available for issuance pursuant to Awards under the Plan in such
amount and at such time as the Dividend Equivalent first constitutes a commitment to issue
Shares.
(j) Substitute Awards granted pursuant to Section 7.6 shall not count against the Plan
Share reserve and the Shares otherwise available for issuance under the Plan.
5.4
Source of Shares
. Shares issued under the Plan may consist, in whole or in
part, of authorized but unissued shares or treasury shares.
5.5
Fractional Shares
. No fractional Shares shall be issued under or pursuant to
the Plan or any Award and the Committee shall determine, in its sole discretion, whether cash shall
be given in lieu of fractional Shares or whether such fractional Shares shall be eliminated by
rounding up or down.
5.6
Maximum Awards
. Subject to adjustment as provided in Section 19:
(a)
Stock Options
. The maximum aggregate number of Shares subject to Stock Options
granted under the Plan to any one Participant during any fiscal year of the Company shall be
1,000,000.
(b)
SARs
. The maximum aggregate number of Shares subject to Stock Appreciation Rights
granted under the Plan to any one Participant during any fiscal year of the Company shall be
1,000,000.
(c)
Restricted Shares
. The maximum aggregate number of Restricted Shares granted
under the Plan to any one Participant during any fiscal year of the Company shall be 500,000.
(d)
RSUs
. The maximum aggregate number of Shares underlying Awards of Restricted
Stock Units granted under the Plan to any one Participant during any fiscal year of the
Company shall be 500,000.
(e)
Other Stock-Based Awards
. The maximum aggregate number of Shares underlying Other
Stock-Based Awards granted under the Plan to any one Participant during any fiscal year of the
Company shall be 500,000.
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(f)
Performance Awards
. The maximum aggregate number of Shares underlying Performance
Awards granted under the Plan to any one Participant during any fiscal year of the Company
shall be as set forth in Sections 5.6(a) (e) above.
(g)
Qualified Performance-Based Awards
. The maximum aggregate number of Shares
underlying Qualified Performance-Based Awards (other than Stock Options and Stock Appreciation
Rights ) granted under the Plan to any one Participant during any fiscal year of the Company
shall be as set forth in Sections 5.6(c) (e) above.
Section 6. Eligibility and Participation in the Plan; Limitation on Rights of Participants
6.1
Eligible Persons
. Only Eligible Persons are eligible to be designated by the
Committee to receive Awards and become Participants under the Plan.
6.2
Participation in the Plan
. The Committee shall from time to time, in its sole
and complete discretion and subject to the provisions of the Plan, designate those Eligible Persons
to whom Awards shall be granted and shall determine the nature and amount of each Award.
6.3
No Right to Receive Award or Be Treated Uniformly
.
(a) No Eligible Person or other person shall have any claim or right to receive an
Award under the Plan, and no Participant, having received an Award, shall have any claim or
right to receive a future Award.
(b) Neither the Company, its Affiliates nor the Committee has any obligation to treat
Eligible Persons or Participants uniformly under the Plan. Determinations made under the Plan
may be made by the Committee selectively among Eligible Persons and Participants, whether or
not such persons are similarly situated.
(c) The grant of an Award under this Plan shall not confer any rights upon the
Participant holding such Award other than such terms, and subject to such conditions, as are
specified in the Plan as being applicable to such type of Award or to all Awards or as are
expressly set forth in the Award Agreement relating to such Award.
6.4
No Right to Employment or Service
. Neither the Plan, any Award granted under
the Plan nor any Award Agreement (a) shall be deemed to constitute an employment contract or confer
or be deemed to confer upon any Eligible Person or Participant any right to remain employed by the
Company or an Affiliate, as the case may be, or to continue to provide services as a Non-Management
Director, or (b) interfere with or limit in any way the right of the Company or an Affiliate, as
the case may be, to terminate an Eligible Persons or Participants employment by the Company or an
Affiliate or service as a Non-Management Director for any reason at any time.
Section 7. Awards Generally
7.1
Form and Grant of Awards
. The Committee shall have the authority, in its sole
discretion, to determine the type or types of Awards to be granted under the Plan. Subject to the
provisions of the Plan (including Section 21), Awards may, in the sole discretion of the Committee,
be granted either alone or in addition to, in tandem with, or in substitution for any other Award
or any award granted under any other plan of the Company or any Affiliate. Awards granted in
addition to or in tandem with other Awards, or in addition to or in tandem with awards granted
under any other plan of the Company or any Affiliate, may be granted either at the same time as or
at a different time from the grant of such other Awards or awards.
7.2
No Cash Consideration for the Grant of Awards
. Unless otherwise determined by
the Committee and set forth in the applicable Award Agreement, Awards shall be granted for no cash
consideration or for such minimal cash consideration as may be required by applicable law.
7.3
Award Agreements
. Awards granted under the Plan shall be evidenced by an Award
Agreement that shall contain such terms, conditions, restrictions and provisions as the Committee
shall determine and that are not inconsistent with the Plan. The Committee may, in its sole
discretion, require as a condition to any Award Agreements effectiveness that such Award Agreement
be executed by the Participant, including by electronic signature or other electronic indication of
acceptance. The terms and conditions of Award Agreements need not be the same with respect to each
Participant.
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7.4
Forms of Payment Under Awards
. Subject to the provisions of the Plan, payment
or settlement of Awards may be made in such form or forms as the Committee shall determine and as
shall be set forth in the applicable Award Agreement, including Shares, cash, other securities of
the Company, other Awards, any other form of property as the Committee shall determine, or any
combination thereof. Payment of Awards may be made in a single payment or transfer, in
installments, or on a deferred basis (subject to the provisions of Section 24.10), as determined by
the Committee and subject to the provisions of the Plan.
7.5
Nontransferability of Awards; Beneficiaries
.
(a) Unless otherwise determined by the Committee and set forth in the applicable Award
Agreement, no Award, nor any interest in such Award, may be sold, pledged, assigned,
exchanged, encumbered, hypothecated, gifted, transferred or disposed of in any manner by the
Participant, other than by will or by the laws of descent and distribution. Unless otherwise
determined by the Committee and set forth in the applicable Award Agreement, all rights with
respect to Awards granted to a Participant under the Plan shall be exercisable during the
Participants lifetime only by such Participant or a duly appointed legal guardian or legal
representative of such Participant. Notwithstanding the foregoing, the Committee shall not
permit any Participant to transfer an Award to a third party for value.
(b) Notwithstanding the provisions of Section 7.5(a), the Committee, in its sole
discretion, may provide in the terms of an Award Agreement, or in any other manner prescribed
by the Committee, that a Participant shall have the right to designate, in the manner
determined by the Committee, a beneficiary or beneficiaries who shall be entitled to exercise
any rights and to receive any payments or distributions with respect to an Award following the
Participants death.
(c) A legal guardian, legal representative, beneficiary or other person claiming any
rights under the Plan from or through a Participant shall be subject to all terms and
conditions of the Plan and the relevant Award Agreement applicable to the Participant, except
as otherwise determined by the Committee, and to any additional terms and conditions deemed
necessary, appropriate or advisable by the Committee. If the Committee does not authorize the
designation of a beneficiary, or if so authorized, no beneficiary has been designated or
survives the Participant, an outstanding Award may be exercised by or shall become payable to
the legal representative of the Participants estate.
7.6
Substitute Awards
. The Committee may grant Awards under the Plan in assumption
of, or in substitution or exchange for, stock and stock-based awards held by employees and
directors of another entity who become Eligible Persons in connection with the acquisition (whether
by purchase, merger, consolidation or other corporate transaction) by the Company or an Affiliate
of the business or assets of the former employing entity (Substitute Awards). The Committee may
direct that the Substitute Awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances.
7.7
Issuance of Shares
. To the extent that the Plan or any Award Agreement
provides for the issuance of Shares, the issuance may be effected on a certificated or
non-certificated basis, subject to applicable law and the applicable rules of any stock exchange.
Section 8. Stock Options
8.1
Grant of Stock Options
. The Committee may grant Stock Options to any Eligible
Person selected by the Committee. Stock Options shall be designated, in the discretion of the
Committee, as an Incentive Stock Option or as a Non-Qualified Stock Option or a combination
thereof. Each Stock Option will be evidenced by an Award Agreement that shall set forth the number
of Shares covered by the Stock Option, the Exercise Price, the term of the Stock Option, the
vesting schedule, and such other terms, conditions and provisions as may be specified by the
Committee consistent with the terms of the Plan.
8.2
Exercise Price
. The Exercise Price of a Stock Option shall be determined by
the Committee,
provided
that the Exercise Price of a Stock Option (other than a Stock
Option issued as a Substitute Award) shall not be less than 100% of the Fair Market Value of a
Share on the Grant Date.
8.3
Exercise Term
. The Committee shall determine the period during which a Stock
Option may be exercised,
provided
that no Stock Option shall be exercisable for more than
ten years from the Grant Date of such Stock Option.
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8.4
Time and Conditions of Exercise
. The Committee shall establish the time or
times at which a Stock Option may be exercised in whole or in part, subject to Section 8.3. The
Committee also shall determine the performance or other conditions, if any, that must be satisfied
before all or part of a Stock Option may be exercised.
8.5
Incentive Stock Options
.
(a)
Eligibility.
Incentive Stock Options may be granted only to employees of (1) the
Company or (2) an Affiliate that is a subsidiary corporation within the meaning of Code
Section 424(f).
(b)
Annual Limit.
To the extent that the aggregate Fair Market Value of the Shares
with respect to which Incentive Stock Options are exercisable for the first time by a
Participant during any calendar year (under the Plan and any other stock option plan of the
Company) exceeds $100,000 or, if different, the maximum limitation in effect at the time of
grant under the Code (the Fair Market Value being determined as of the Grant Date for the
ISO), such portion in excess of $100,000 shall be treated as a Non-Qualified Stock Option.
(c)
Code Section 422.
The terms of any Incentive Stock Option granted under the Plan
shall comply in all respects with the provisions of Code Section 422. Any Stock Option or
portion thereof that is designated as an ISO that for any reason fails to meet the
requirements of an ISO shall be treated as a Non-Qualified Stock Option.
(d)
Disqualifying Dispositions.
If Shares acquired upon exercise of an Incentive
Stock Option are disposed of within two years following the Grant Date of the ISO or one year
following the transfer of such Shares to the Participant upon exercise, the Participant shall,
promptly following such disposition, notify the Company in writing of the date and terms of
such disposition and provide such other information regarding the disposition as the Company
may reasonably require.
8.6
No Reloads
. Award Agreements for Stock Options shall not contain any provision
entitling a Participant to the automatic grant of additional Stock Options in connection with the
exercise of the original Stock Option.
8.7
Exercise Procedures
. Stock Options may be exercised by Participants in
accordance with such rules and procedures as may be established by the Committee.
8.8
Payment of Exercise Price
. The full Exercise Price of a Stock Option shall be
payable in cash at the time the Stock Option is exercised (including payment through a cashless
exercise arrangement), together with any applicable withholding taxes. The Committee, in its sole
discretion, may provide in an Award Agreement or otherwise (subject to such terms, conditions,
provisions and restrictions set forth therein) that: (a) payment of all or any part of the
aggregate Exercise Price of a Stock Option may be made by tendering (actually or by attestation)
Shares already owned by the Participant; or (b) the Stock Option may be exercised through a Net
Exercise procedure.
Section 9. Stock Appreciation Rights
9.1
Grant of SARs
. The Committee may grant Stock Appreciation Rights to any
Eligible Person selected by the Committee. An SAR may be granted in tandem with a Stock Option or
alone (freestanding). Each SAR will be evidenced by an Award Agreement that shall set forth the
number of Shares covered by the SAR, the Exercise Price, the term of the SAR, the vesting schedule,
and such other terms, conditions and provisions as may be specified by the Committee consistent
with the terms of the Plan.
9.2
Freestanding SARs.
(a)
Exercise Price
. The Exercise Price of a freestanding Stock Appreciation Right
shall be determined by the Committee,
provided
that the Exercise Price of a
freestanding SAR (other than a freestanding SAR issued as a Substitute Award) shall not be
less than 100% of the Fair Market Value of a Share on the Grant Date.
(b)
Exercise Term
. The Committee shall determine the period during which a
freestanding Stock Appreciation Right may be exercised,
provided
that no freestanding
SAR shall be exercisable for more than ten years from the Grant Date of such SAR.
(c)
Time and Conditions of Exercise
. The Committee shall determine the time or times
at which a freestanding SAR may be exercised in whole or in part, subject to Section 9.2(b).
The Committee also shall determine the performance or other conditions, if any, that must be
satisfied before all or part of a freestanding SAR may be exercised.
- 9 -
9.3
Tandem Stock Options/SARs
. A Stock Appreciation Right may be granted in tandem
with a Stock Option, either at the time of grant or at any time thereafter during the term of the
Stock Option. A tandem Stock Option/SAR will entitle the Participant to elect, as to all or any
portion of the number of Shares subject to the Award, to exercise either the Stock Option or the
SAR, resulting in the reduction of the corresponding number of Shares subject to the right so
exercised as well as the tandem right not so exercised. An SAR granted in tandem with a Stock
Option shall have an Exercise Price equal to the Exercise Price of the Stock Option, will be vested
and exercisable at the same time or times that a related Stock Option is vested and exercisable,
and will expire no later than the time at which the related Stock Option expires.
9.4
Payment of SARs
. Upon the exercise of a Stock Appreciation Right, the
Participant shall be entitled to receive an amount determined by multiplying (a) the excess of the
Fair Market Value of a Share on the date of exercise over the Exercise Price by (b) the number of
Shares with respect to which the SAR is exercised. The payment upon exercise of an SAR may be in
cash, Shares valued at their Fair Market Value on the date of exercise, any other form of
consideration, or some combination thereof, as determined by the Committee and set forth in the
applicable Award Agreement, and shall be subject to any applicable withholding taxes.
Section 10. Restricted Shares
10.1
Grant of Restricted Shares
. The Committee may grant Restricted Shares to any
Eligible Person selected by the Committee, in such amounts as shall be determined by the Committee.
Each grant of Restricted Shares will be evidenced by an Award Agreement that shall set forth the
number of Restricted Shares covered by the Award and the terms, conditions, restrictions and other
provisions applicable to the Restricted Shares as may be specified by the Committee consistent with
the terms of the Plan.
10.2
Restrictions and Lapse of Restrictions
. Restricted Shares shall be subject to
such restrictions on transferability, risk of forfeiture and other restrictions as the Committee
may impose. These restrictions may lapse separately or in combination at such times, under such
circumstances, in such installments, upon the satisfaction of performance goals or continued
Service requirements, or otherwise, as determined by the Committee and set forth in the applicable
Award Agreement. If the vesting requirements applicable to all or any part of an Award of
Restricted Shares shall not be satisfied, the Restricted Shares with respect to which such
requirements are not satisfied shall be returned to the Company.
10.3
Issuance of Restricted Shares
. Restricted Shares shall be delivered to the
Participant at the time of grant either by book-entry registration or by delivering to the
Participant, or if required by the Committee, a custodian or escrow agent (including the Company or
its designee) designated by the Committee, a stock certificate or certificates registered in the
name of the Participant. If physical certificates representing the Restricted Shares are registered
in the name of the Participant, such certificates may, if the Committee so determines, bear an
appropriate legend referring to the terms, conditions and restrictions applicable to such
Restricted Shares.
10.4
Additional Shares Received With Respect to Restricted Shares
. Any Shares or
other securities of the Company received by a Participant as a stock dividend on, or in connection
with a stock split or combination, share exchange, reorganization, recapitalization, merger,
consolidation or otherwise with respect to, Restricted Shares shall have the same status, be
subject to the same restrictions and, if such Restricted Shares are represented by a certificate,
bear the same legend, if any, as such Restricted Shares.
10.5
Rights with Respect to Shares
. Unless otherwise determined by the Committee
and set forth in the applicable Award Agreement, a Participant who receives an Award of Restricted
Shares shall have all rights of ownership with respect to such Restricted Shares, including the
right to vote such Shares and to receive any dividends or other distributions paid or made with
respect thereto, subject, however, to the provisions of the Plan,
the applicable Award Agreement and, if such Restricted Shares are represented by a
certificate, any legend on the certificate for such Shares.
- 10 -
Section 11. Restricted Stock Units
11.1
Grant of RSUs
. The Committee may grant Restricted Stock Units to any Eligible
Person selected by the Committee, in such amounts as shall be determined by the Committee. Each
grant of RSUs will be evidenced by an Award Agreement that shall set forth the number of RSUs
covered by the Award and the terms, conditions, restrictions and other provisions applicable to the
RSUs as may be specified by the Committee consistent with the terms of the Plan.
11.2
Restrictions and Lapse of Restrictions
. Restricted Stock Units shall be
subject to such restrictions on transferability, risk of forfeiture and other restrictions as the
Committee may impose. These restrictions may lapse separately or in combination at such times,
under such circumstances, in such installments, upon the satisfaction of performance goals or
continued Service requirements, or otherwise, as determined by the Committee and set forth in the
applicable Award Agreement.
11.3
Settlement of RSUs
. Restricted Stock Units shall become payable to a
Participant at the time or times set forth in the Award Agreement, which may be upon or following
the vesting of the Award (subject to the provisions of Section 24.10). RSUs may be paid in cash,
Shares or a combination thereof, as determined by the Committee and set forth in the applicable
Award Agreement, subject to any applicable withholding taxes.
11.4
No Rights as a Stockholder
. The Participant shall have no rights as a
stockholder with respect to an Award of Restricted Stock Units until such time as Shares are paid
and delivered to the Participant in settlement of the RSUs pursuant to the terms of the Award
Agreement.
Section 12. Performance Awards
12.1
Grant of Performance Awards
. The Committee may specify that any Award granted
under the Plan shall constitute a Performance Award by conditioning the right of a Participant to
exercise the Award or have it settled, and the timing thereof, upon achievement or satisfaction of
such performance conditions as may be specified by the Committee. The Committee shall have the
complete discretion to determine the number of Performance Awards granted to each Participant,
subject to the provisions of Section 5.6, and to designate the terms, conditions and provisions of
such Performance Awards. Each Performance Award will be evidenced by an Award Agreement that shall
set forth the terms, conditions and other provisions applicable to the Performance Award as may be
specified by the Committee consistent with the terms of the Plan.
12.2
Performance Goals
. The Committee may use such business criteria and other
performance measures as it may deem appropriate in establishing any performance conditions for
Performance Awards, and may reserve the right to exercise its discretion to reduce or increase the
amounts payable under any Performance Award,
provided
that (a) such discretion shall be
limited as provided in Section 13.6 with respect to Qualified Performance-Based Awards and (b) no
discretion to reduce or increase the amounts payable (except pursuant to the provisions of Section
19) shall be reserved unless such reservation of discretion is expressly stated by the Committee at
the time it acts to authorize or approve the grant of such Performance Award.
Section 13. Qualified Performance-Based Awards
13.1
Stock Options and SARs
. The provisions of the Plan are intended to ensure
that all Stock Options and Stock Appreciation Rights granted hereunder to any Covered Employee
shall qualify for the Section 162(m) Exemption.
13.2
Other Awards
. When granting any Award under the Plan other than a Stock
Option or Stock Appreciation Right, the Committee may designate such Award as a Qualified
Performance-Based Award, based upon a determination that the Participant is or may be a Covered
Employee with respect to such Award, and the Committee wishes such Award to qualify for the Section
162(m) Exemption. If an Award is so designated, the Committee shall establish objective performance
goals for such Award no later than the earlier of (a) the date 90 days after the commencement of
the period of service to which the performance goal or goals relate as determined by the Committee
in its sole discretion (the Performance Period) and (b) the date on which 25% of such
Performance Period has elapsed and, in any event, at a time when the outcome of the
performance goals remains substantially uncertain. The Committee may establish different
Performance Periods for different Participants, and the Committee may establish concurrent or
overlapping Performance Periods.
- 11 -
13.3
Qualified Performance Criteria
. Performance goals for Qualified
Performance-Based Awards shall be based on one or more of the following Qualified Performance
Criteria for the Company, on a consolidated basis or for a specified Affiliate or other business
unit of the Company, or a division, region, department or function within the Company or an
Affiliate:
|
(a)
|
|
Revenues (net or gross);
|
|
(b)
|
|
Profit (including net profit, pre-tax profit, gross profit, operating
profit, economic profit, profit margins or other corporate profit measures);
|
|
(c)
|
|
Earnings (including earnings before interest and taxes, earnings before
interest, taxes, depreciation and amortization, earnings per share (basic or
diluted) or other corporate earnings measures);
|
|
(d)
|
|
Income (including net income (before or after taxes), operating income
or other corporate income measures);
|
|
(e)
|
|
Cash (including cash flow, free cash flow, operating cash flow, net
cash provided by operations, cash flow in excess of cost of capital or other cash
measures);
|
|
(f)
|
|
Return measures (including return on assets (gross or net), return on
equity, return on income, return on invested capital, return on operating capital,
return on sales, and cash flow return on assets, capital, investments, equity or
sales);
|
|
(g)
|
|
Operating margin or profit margin;
|
|
(h)
|
|
Contribution margin by business segment;
|
|
(i)
|
|
Share price or performance;
|
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(j)
|
|
Total stockholder return;
|
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(k)
|
|
Economic value increased;
|
|
(n)
|
|
Expenses (including expense management, expense ratio, expense
efficiency ratios, expense reduction measures or other expense measures);
|
|
(o)
|
|
Operating efficiency or productivity measures or ratios;
|
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(p)
|
|
Dividend payout levels;
|
|
(q)
|
|
Internal rate of return or increase in net present value; and
|
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(r)
|
|
Strategic business criteria consisting of one or more goals regarding,
among other things, acquisitions and divestitures, successfully integrating
acquisitions, customer satisfaction, employee satisfaction, safety standards,
strategic plan development and implementation, agency ratings of financial
strength, completion of financing transactions and new product development.
|
Performance goals with respect to the foregoing Qualified Performance Criteria may be
specified in absolute terms, in percentages, or in terms of growth from period to period or growth
rates over time, and may be measured relative to the performance of one or more specified
companies, or a published or special index, or a stock market index, as the Committee deems
appropriate. Performance goals need not be based on audited financial results.
13.4
Performance Goals
. Each Qualified Performance-Based Award (other than a Stock
Option or Stock Appreciation Right) shall be earned, vested and payable (as applicable) only upon
the achievement of the performance goals established by the Committee based upon one or more
Qualified Performance Criteria, together with the satisfaction of any other conditions, such as
continued Service, as the Committee may determine to be appropriate;
provided
,
however
, that the Committee may provide in the applicable Award Agreement, either at the
time of grant or by amendment thereafter, that achievement of such performance goals will be
waived, in whole or
in part, upon (a) the termination of employment of a Participant by reason of death or
Disability, or (b) the occurrence of a Change of Control. Performance Periods established by the
Committee for any Qualified Performance-Based Award may be as short as one year and may be any
longer period.
- 12 -
13.5
Calculation of Performance Goals
. The Committee may provide in any Qualified
Performance-Based Award, at the time the performance goals are established, that any evaluation of
performance shall exclude or otherwise objectively adjust for any specified event that occurs
during a Performance Period, including the following: (a) asset write-downs or impairment charges;
(b) litigation or claim judgments or settlements; (c) the effect of changes in tax laws, accounting
principles or other laws or provisions affecting reported results; (d) accruals and charges for
reorganization and restructuring programs; (e) acquisitions or divestitures; (f) foreign exchange
gains and losses; (g) extraordinary nonrecurring items as described in Financial Accounting
Standards Board Accounting Standards Codification Topic 225.20, Income Statement Extraordinary
and Unusual Items; and (h) extraordinary nonrecurring items as described in managements
discussion and analysis of financial condition and results of operations appearing in the Companys
annual report to stockholders for the applicable year. To the extent such inclusions or exclusions
affect Awards to Covered Employees, they shall be prescribed in a form that meets the requirements
of Code Section 162(m) for deductibility.
13.6
Certification of Performance Goals
. After the completion of the applicable
Performance Period, the Committee shall certify in writing the extent to which any performance
goals and any other material conditions relating to a Qualified Performance-Based Award (other than
a Stock Option or Stock Appreciation Right) have been satisfied, and the amount payable as a result
thereof, prior to payment, settlement or vesting of such Award. Except as specifically provided in
Section 13.4, no Qualified Performance-Based Award held by a Covered Employee or by an employee who
in the reasonable judgment of the Committee may be a Covered Employee on the date of payment, may
be amended, nor may the Committee exercise any discretionary authority it may otherwise have under
the Plan with respect to a Qualified Performance-Based Award, in any manner to waive the
achievement of the applicable performance goals based on Qualified Performance Criteria or to
increase the amount payable pursuant thereto or the value thereof, or otherwise in a manner that
would cause the Qualified Performance-Based Award to cease to qualify for the Section 162(m)
Exemption. Subject to the provisions of Section 12.2, the Committee may, however, exercise negative
discretion to determine that the portion of a Qualified Performance-Based Award actually earned,
vested or payable (as applicable) shall be less than the portion that would be earned, vested or
payable based solely upon application of the applicable performance goals.
13.7
Award Limits
. Section 5.6 sets forth the maximum number of Shares that may be
granted to any one Participant during any fiscal year of the Company in designated forms of Awards.
Section 14. Dividend Equivalents
14.1
Grant of Dividend Equivalents
. The Committee is authorized to grant Dividend
Equivalents with respect to Full-Value Awards granted hereunder, subject to such terms and
conditions as may be established by the Committee and set forth in the applicable Award Agreement.
Dividend Equivalents shall entitle the Participant to receive payments equal to dividends paid on
outstanding Shares with respect to all or a portion of the number of Shares subject to a Full-Value
Award, as determined by the Committee. The Committee may provide that Dividend Equivalents be paid
or distributed when accrued or be deemed to have been reinvested in additional Shares, or otherwise
reinvested;
provided
,
however
, that with respect to Dividend Equivalents payable on
Performance Awards, such Dividend Equivalents may be earned but shall not be paid until payment or
settlement of the underlying Performance Award.
14.2
Options and SARs
. Dividend Equivalents shall not be granted with respect to
Stock Options or Stock Appreciation Rights.
Section 15. Other Stock-Based Awards
The Committee is authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that are denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to Shares, as deemed by the Committee to be
consistent with the purposes of the Plan, including Shares awarded purely as a bonus and not
subject to any restrictions or conditions, Shares issued to Non-Management Directors pursuant to
the provisions of Section 4.3(b), Shares issued in lieu of other rights to cash compensation,
convertible or exchangeable debt securities, other rights convertible or exchangeable into
Shares, purchase rights for Shares and Awards valued by reference to the book value of Shares or
the value of securities of or the performance of specified Affiliates. The Committee shall
determine the terms and conditions of such Other Stock-Based Awards, which shall be set forth in
the applicable Award Agreement.
- 13 -
Section 16. Tax Withholding
16.1
Tax Withholding
. The Company and its Affiliates shall have the authority and
the right to deduct or withhold, or require a Participant to remit to the Company or an Affiliate,
an amount sufficient to satisfy any federal, state, local or other taxes of any kind, domestic or
foreign, required by any applicable law, rule or regulation to be withheld with respect to any
grant, exercise, lapse of restriction, vesting, distribution, payment or other taxable event
involving an Award or the Plan, and take such other action as the Committee may deem necessary,
appropriate or advisable to enable the Company or an Affiliate to satisfy obligations for the
payment of withholding taxes and other tax obligations relating to any Award. With respect to
withholding required upon any taxable event under the Plan, the Committee may, at the time the
Award is granted or thereafter, require or permit that any such withholding requirement be
satisfied, in whole or in part, by delivery of, or withholding from the Award, Shares having a Fair
Market Value on the date of withholding equal to the minimum amount (and not any greater amount)
required to be withheld for tax purposes, all in accordance with such procedures as the Committee
establishes. All such elections shall be subject to any restrictions or limitations that the
Committee, in its sole discretion, deems appropriate.
16.2
Company Not Liable
. Neither the Company, any Affiliate, the Board of
Directors, nor the Committee shall be liable to any Participant or any other person as to any tax
consequences expected, but not realized, by any Participant or other person due to the grant,
exercise, lapse of restriction, vesting, distribution, payment or other taxable event involving any
Award. Although the Company and its Affiliates may endeavor to (a) qualify an Award for favorable
tax treatment in a jurisdiction or (b) avoid adverse tax treatment for an Award, the Company makes
no representation to that effect and expressly disavows any covenant to maintain favorable or avoid
unfavorable tax treatment.
Section 17. Compliance with Laws
17.1
Compliance with Laws
. The Plan, all Awards (including the grant, exercise,
payment and settlement thereof), and the issuance of Shares hereunder shall be subject to all
applicable laws, rules and regulations, domestic or foreign, and to such approvals by any
governmental agencies or securities exchange or similar entity as may be required. Notwithstanding
any other provision of the Plan or the provisions of any Award Agreement, the Company shall have no
obligation to issue or deliver any Shares under the Plan or make any other payment or distribution
of benefits under the Plan unless such issuance, delivery, payment or distribution would comply
with all applicable laws, rules and regulations (including the Securities Act and the laws of any
state or foreign jurisdiction) and the applicable requirements of any securities exchange or
similar entity. The Company may require any Participant to make such representations and
warranties, furnish such information, take such action and comply with and be subject to such
conditions as may be necessary, appropriate or advisable to comply with the foregoing.
17.2
No Obligation to Register Shares
. The Company shall be under no obligation to
register for offering or resale or to qualify for exemption under the Securities Act, or to
register or qualify under the laws of any state or foreign jurisdiction, any Shares, security or
interest in a security payable, issuable or deliverable under, or created by, the Plan, or to
continue in effect any such registrations or qualifications if made.
17.3
Stock Trading Restrictions
. All Shares issuable under the Plan are subject to
any stop-transfer orders and other restrictions as the Committee deems necessary or advisable to
comply with federal, state or foreign securities laws, rules and regulations and the rules of any
securities exchange or similar entity. The Committee may place legends on any certificate
evidencing Shares or issue instructions to the transfer agent to reference restrictions applicable
to the Shares.
Section 18. Rights After Termination of Service; Acceleration For Other Reasons
18.1
Death
. Unless otherwise determined by the Committee and set forth in the
applicable Award Agreement, if a Participants Service terminates by reason of his or her death:
(a) All of that Participants outstanding Stock Options and Stock Appreciation Rights
that are not Performance Awards shall become fully exercisable and may thereafter be exercised
in full by the legal representative of the Participants estate or by the beneficiary, if any,
designated by the Participant pursuant to the provisions of Section 7.5(b), for a period of
twelve months from the date of the Participants death or until the expiration of the stated
period of the Stock Option or SAR, whichever period is shorter (to the extent that the
provisions of this Section 18.1(a) cause Incentive Stock Options to fail to comply with the
provisions of Code Section 422, such Stock Options shall be deemed to be Non-Qualified Stock
Options); and
- 14 -
(b) All vesting restrictions and conditions on that Participants outstanding
Restricted Shares that are not Performance Awards or Qualified Performance-Based Awards shall
immediately lapse and such Restricted Shares shall be fully vested.
The applicable Award Agreement shall set forth the treatment of a Participants outstanding
Restricted Stock Units, Performance Awards, Qualified Performance-Based Awards (other than Stock
Options and SARs) and Other Stock-Based Awards upon a Participants termination of Service by
reason of his or her death.
18.2
Disability
. Unless otherwise determined by the Committee and set forth in the
applicable Award Agreement, if a Participants Service terminates by reason of his or her
Disability:
(a) All of that Participants outstanding Stock Options and Stock Appreciation Rights
that are not Performance Awards shall become fully exercisable and may thereafter be exercised
in full for a period of twenty-four months from the date of such termination of Service or the
stated period of the Stock Option or SAR, whichever period is the shorter;
provided
,
however
, that if the Participant dies within a period of twenty-four months after such
termination of Service, any outstanding Stock Option or SAR may thereafter be exercised by the
legal representative of the Participants estate or by the beneficiary, if any, designated by
the Participant pursuant to the provisions of Section 7.5(b), for a period of twelve months
from the date of the Participants death or until the expiration of the stated period of the
Stock Option or SAR, whichever period is the shorter (to the extent that the provisions of
this Section 18.2(a) cause Incentive Stock Options to fail to comply with the provisions of
Code Section 422, such Stock Options shall be deemed to be Non-Qualified Stock Options); and
(b) All vesting restrictions and conditions on that Participants outstanding
Restricted Shares that are not Performance Awards or Qualified Performance-Based Awards shall
immediately lapse and such Restricted Shares shall be fully vested.
Any rights of a Participant following his or her termination of Service by reason of
Disability with respect to his or her outstanding Restricted Stock Units, Performance Awards,
Qualified Performance-Based Awards (other than Stock Options and SARs) and Other Stock-Based Awards
shall be set forth in the applicable Award Agreement.
18.3
Retirement
. Unless otherwise determined by the Committee and set forth in the
applicable Award Agreement, if a Participants Service terminates by reason of his or her
Retirement:
(a) The Participants outstanding Stock Options and Stock Appreciation Rights that are
not Performance Awards will cease vesting but, solely to the extent exercisable at the time of
the Participants Retirement, may thereafter be exercised until the expiration of the stated
period of the Stock Option or SAR;
provided
,
however
, that if the Participant
dies after such termination of Service, any unexercised Stock Option or SAR may thereafter be
exercised by the legal representative of the Participants estate or by the beneficiary, if
any, designated by the Participant pursuant to the provisions of Section 7.5(b), for a period
of twelve months from the date of the Participants death or until the expiration of the
stated period of the Stock Option or SAR, whichever period is the shorter (to the extent that
the provisions of this Section 18.3(a) cause Incentive Stock Options to fail to comply with
the provisions of Code Section 422, such Stock Options shall be deemed to be Non-Qualified
Stock Options);
(b) If the Participant has attained the age of 60 at the time of his or her
Retirement, all vesting restrictions and conditions on that Participants outstanding
Restricted Shares that are not Performance
Awards or Qualified Performance-Based Awards shall immediately lapse and such Restricted
Shares shall be fully vested; and
(c) If the Participant has not yet attained the age of 60 at the time of his or her
Retirement, that Participants outstanding Restricted Shares that are not Performance Awards
or Qualified Performance-Based Awards shall not be forfeited, but all time-based vesting
conditions and restrictions on such Restricted Shares shall continue in accordance with their
terms, or until the Participants death or Disability, in which case the provisions of Section
18.1 or Section 18.2, as applicable, shall apply.
- 15 -
Any rights of a Participant following his or her Retirement with respect to outstanding
Restricted Stock Units, Performance Awards, Qualified Performance-Based Awards (other than Stock
Options and SARs) and Other Stock-Based Awards shall be set forth in the applicable Award
Agreement.
18.4
Other
. Unless otherwise determined by the Committee and set forth in the
applicable Award Agreement, if a Participants Service terminates for any reason other than death,
Disability or Retirement, the Participants Awards shall thereupon terminate and be forfeited.
18.5
Transfer; Leave of Absence
.
(a)
Transfer
. For purposes of the Plan, a transfer of an employee Participant from
the Company to an Affiliate, or vice versa, or from one Affiliate to another shall not be
deemed a termination of Service by the Participant.
(b)
Leave of Absence
. Unless otherwise determined by the Committee, a leave of
absence by an employee Participant, duly authorized in writing by the Company or an Affiliate,
shall not be deemed a termination of Service by the Participant for purposes of the Plan.
18.6
Acceleration For Any Other Reason
. Regardless of whether an event has
occurred as described in Sections 18.1, 18.2 and 18.3 above, and subject to the provisions of
Section 13 with respect to Qualified Performance-Based Awards, the Committee may in its sole
discretion at any time determine that all or a portion of a Participants Stock Options, Stock
Appreciation Rights and other Awards in the nature of rights that may be exercised shall become
fully or partially exercisable, that all or a part of any time-based or Service-based vesting
conditions on all or a portion of any outstanding Awards shall lapse, or that any performance-based
conditions with respect to any Awards shall be deemed to be wholly or partially satisfied, in each
case, as of such date as the Committee may, in its sole discretion, determine. The Committee may
discriminate among Participants and among Awards granted to a Participant in exercising its
discretion pursuant to this Section 18.6. Notwithstanding any other provision of the Plan,
including this Section 18.6, the Committee may not accelerate the payment of any Award if such
acceleration would fail to comply with Code Section 409A(a)(3).
Section 19. Adjustments for Changes in Capitalization
19.1
Mandatory Adjustments
. In the event of an equity restructuring (as such
term is defined in Financial Accounting Standards Board Accounting Standards Codification Topic
718, Compensation Stock Compensation), including any stock dividend, stock split, spin-off,
rights offering, or large nonrecurring cash dividend, the authorization limits under Sections 5.1,
5.2 and 5.6 shall be adjusted proportionately, and the Committee shall make such adjustments to the
Plan and outstanding Awards as it deems necessary or appropriate, in its sole discretion, to
prevent dilution or enlargement of benefits or potential benefits intended to be made available
under the Plan, including: (a) adjustment of the number and kind of shares or securities that may
be issued under the Plan; (b) adjustment of the number and kind of shares or securities subject to
outstanding Awards; (c) adjustment of the Exercise Price of outstanding Stock Options and Stock
Appreciation Rights or the measure to be used to determine the amount of the benefit payable on an
Award; (d) adjustment to market price-based performance goals or performance goals set on a
per-Share basis; and (e) any other adjustments that the Committee determines to be equitable.
Notwithstanding the foregoing, the Committee shall not make any adjustments to outstanding Stock
Options or SARs to the extent that it causes such Stock Options or SARs to provide for a deferral
of compensation subject to Code Section 409A. Without limiting the foregoing, in the event of a
subdivision of the outstanding Common Stock (a stock split), a dividend payable in Shares, or a
combination or consolidation of the outstanding Common Stock into a lesser number of Shares, the
authorization limits under Sections 5.1, 5.2 and 5.6 shall automatically be adjusted
proportionately, and the Shares then subject to each outstanding Award shall
automatically, without the necessity for any additional action by the Committee, be adjusted
proportionately without any change in the aggregate Exercise Price therefor.
19.2
Discretionary Adjustments
. Upon the occurrence or in anticipation of any
share combination, exchange or reclassification, recapitalization, merger, consolidation or other
corporate reorganization affecting the Common Stock, or any transaction described in Section 19.1,
in addition to any of the actions described in Section 19.1, the Committee may, in its sole
discretion, provide: (a) that Awards will be settled in cash rather than Shares; (b) that Awards
will become immediately vested and exercisable and will expire after a designated period of time to
the extent not then exercised; (c) that Awards will be equitably converted, adjusted or substituted
in connection with such transaction; (d) that outstanding Awards may be settled by payment in cash
or cash equivalents equal to the excess of the Fair Market Value of the underlying Shares as of a
specified date associated with the transaction, over the Exercise Price of the Award; (e) that
performance targets and Performance Periods for Performance Awards and Qualified Performance-Based
Awards will be modified, consistent with Code Section 162(m) where applicable; or (f) any
combination of the foregoing. The Committees determination need not be uniform and may be
different for different Participants whether or not such Participants are similarly situated.
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19.3
No Fractional Shares, etc
. After giving effect to any adjustment pursuant to
the provisions of this Section 19, the number of Shares subject to any Award denominated in whole
Shares shall always be a whole number, unless otherwise determined by the Committee. Any
discretionary adjustments made pursuant to the provisions of this Section 19 shall be subject to
the provisions of Section 22. To the extent any adjustments made pursuant to this Section 19 cause
Incentive Stock Options to cease to qualify as Incentive Stock Options, such Stock Options shall be
deemed to be Non-Qualified Stock Options.
Section 20. Change of Control
20.1
Definition
. For purposes of the Plan, the term Change of Control means the
occurrence of any of the following on or after the Effective Date:
(a) Any person (as such term is used in Sections 13(d) and 14 of the Exchange Act),
other than (1) the Company, (2) any subsidiary of the Company, (3) any employee benefit plan
(or a trust forming a part thereof) maintained by the Company or any subsidiary of the
Company, (4) any underwriter temporarily holding securities of the Company pursuant to an
offering of such securities or (5) any person in connection with a transaction described in
clauses (1), (2) and (3) of Section 20.1(b) below, becomes the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of the Company representing 30% or
more of the total voting power of the Companys then outstanding voting securities, unless
such securities (or, if applicable, securities that are being converted into voting
securities) are acquired directly from the Company in a transaction approved by a majority of
the Incumbent Board (as defined in Section 20.1(d) below).
(b) The consummation of a merger, consolidation or reorganization with or into the
Company or in which securities of the Company are issued, or the sale or other disposition, in
one transaction or a series of transactions, of all or substantially all of the assets of the
Company (a Corporate Transaction), unless:
(1) the stockholders of the Company immediately before such Corporate Transaction
will own, directly or indirectly, immediately following such Corporate Transaction, at
least 60% of the total voting power of the outstanding voting securities of the
corporation or other entity resulting from such Corporate Transaction (including a
corporation or other entity that acquires all or substantially all of the Companys
assets, the Surviving Company) or the ultimate parent company thereof in substantially
the same proportion as their ownership of the voting securities of the Company
immediately before such Corporate Transaction;
(2) the individuals who were members of the Board of Directors immediately prior
to the execution of the agreement providing for such Corporate Transaction constitute a
majority of the members of the board of directors or equivalent governing body of the
Surviving Company or the ultimate parent company thereof; and
(3) no person, other than (A) the Company, (B) any subsidiary of the Company, (C)
any employee benefit plan (or a trust forming a part thereof) maintained by the Company
or any subsidiary of the Company, (D) the Surviving Company, (E) any subsidiary or parent
company of the Surviving Company, or (F) any person who, immediately prior to such
Corporate Transaction, was the beneficial
owner of securities of the Company representing 30% or more of the total voting
power of the Companys then outstanding voting securities, is the beneficial owner of 30%
or more of the total voting power of the then outstanding voting securities of the
Surviving Company or the ultimate parent company thereof.
(c) The stockholders of the Company approve a complete liquidation or dissolution of
the Company.
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(d) Directors who, as of the Effective Date, constitute the Board of Directors (the
Incumbent Board), cease to constitute at least a majority of the Board of Directors (or, in
the event of any merger, consolidation or reorganization the principal purpose of which is to
change the Companys state of incorporation, form a holding company or effect a similar
reorganization as to form, the board of directors of such surviving company or its ultimate
parent company);
provided
,
however
, that any individual becoming a member of
the Board of Directors subsequent to the Effective Date whose election, or nomination for
election by the Companys stockholders, was approved by a vote of 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 occurs as a result of either an actual or threatened proxy
contest relating to the election of directors.
Notwithstanding the foregoing, a Change of Control will not be deemed to occur solely because
any person (a Subject Person) becomes the beneficial owner of more than the permitted amount of
the outstanding voting securities of the Company as a result of the acquisition of voting
securities by the Company which, by reducing the number of voting securities outstanding, increases
the proportional number of voting securities beneficially owned by the Subject Person,
provided
, that if a Change of Control would occur (but for the operation of this sentence)
as a result of the acquisition of voting securities by the Company, and after such acquisition by
the Company, the Subject Person becomes the beneficial owner of any additional voting securities
that increases the percentage of the then outstanding voting securities beneficially owned by the
Subject Person to 30% or more of the total voting power, then a Change of Control will have
occurred.
20.2
Effect of Change of Control
. Notwithstanding any other provision of the Plan,
unless otherwise determined by the Committee and set forth in the applicable Award Agreement, the
provisions of this Section 20.2 shall apply to the types of Awards specified in subsections (a) and
(b) below in the event of a Change of Control.
(a)
Stock Options and SARs
. In the event of a Change of Control, all outstanding
Stock Options and Stock Appreciation Rights that are not Performance Awards shall become fully
vested and immediately exercisable. To the extent that the provisions of this Section 20.2(a)
cause Incentive Stock Options to exceed the dollar limitation set forth in Code Section
422(d), the excess Stock Options shall be deemed to be Non-Qualified Stock Options.
(b)
Restricted Shares
. In the event of a Change of Control as described in Section
20.1(b), as shall be determined by the Committee: (1) any outstanding and unvested Restricted
Shares that are not Performance Awards or Qualified Performance-Based Awards shall be canceled
and the Company shall make a cash payment to those Participants in an amount equal to the
highest price per Share received by the holders of Common Stock in connection with such Change
of Control multiplied by the number of such unvested Restricted Shares then held by such
Participant, with any non-cash consideration to be valued in good faith by the Committee; or
(2) all vesting restrictions and conditions with respect to all outstanding Restricted Shares
that are not Performance Awards or Qualified Performance-Based Awards shall immediately lapse
and such Restricted Shares shall be fully vested. In the event of a Change of Control as
described in Section 20.1(a), (c) or (d), all vesting restrictions and conditions with respect
to all outstanding Restricted Shares that are not Performance Awards or Qualified
Performance-Based Awards shall immediately lapse and such Restricted Shares shall be fully
vested.
(c)
Other Awards
. Any rights of a Participant in connection with a Change of Control
with respect to Restricted Stock Units, Performance Awards, Qualified Performance-Based Awards
(other than Stock Options and Stock Appreciation Rights) and Other Stock-Based Awards shall be
set forth in the applicable Award Agreement.
20.3
Excise Taxes
. In the event that any acceleration of vesting pursuant to an
Award and any other payment or benefit received or to be received by a Participant under the Plan
in connection with a Change of Control would subject a Participant to any excise tax pursuant to
Code Section 4999 (which excise tax would be the
Participants obligation) due to the characterization of such acceleration of vesting, payment
or benefit as an excess parachute payment under Code Section 280G, the Participant may elect, in
his or her sole discretion, to reduce the amount of any acceleration of vesting, payment or benefit
called for under an Award in order to avoid such characterization.
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Section 21. Repricing Prohibited
Except as contemplated by the provisions of Section 19, outstanding Stock Options and Stock
Appreciation Rights will not be repriced for any reason without the prior approval of the
Companys stockholders. For purposes of the Plan, a repricing means lowering the Exercise Price
of an outstanding Stock Option or SAR or any other action that has the same effect or is treated as
a repricing under generally accepted accounting principles, and includes a tandem cancellation of a
Stock Option or SAR at a time when its Exercise Price exceeds the fair market value of the
underlying Common Stock and exchange for another Stock Option, SAR, other Award, other equity
security or a cash payment.
Section 22. Amendment and Termination
22.1
Amendment or Termination of the Plan
. The Board of Directors or the Committee
may amend, modify, suspend, discontinue or terminate the Plan or any portion of the Plan at any
time;
provided
,
however
, any amendment or modification that (a) increases the total
number of Shares available for issuance pursuant to Awards granted under the Plan (except as
contemplated by the provisions of Section 19), (b) deletes or limits the provision of Section 21
(repricing prohibition), or (c) requires the approval of the Companys stockholders pursuant to any
applicable law, regulation or securities exchange rule or listing requirement, shall be subject to
approval by the Companys stockholders. Subject to the provisions of Section 22.3, no amendment,
modification, suspension, discontinuance or termination of the Plan shall impair the rights of any
Participant under any Award previously granted under the Plan without such Participants consent,
provided
that such consent shall not be required with respect to any Plan amendment,
modification or other such action if the Committee determines in its sole discretion that such
amendment, modification or other such action is not reasonably likely to significantly reduce or
diminish the benefits provided to the Participant under such Award.
22.2
Awards Previously Granted
. The Committee may waive any conditions or
restrictions under, amend or modify the terms and conditions of, or cancel or terminate any
outstanding Award at any time and from time to time;
provided
,
however
, subject to
the provisions of Section 22.3 and the provisions of the applicable Award Agreement, no such
amendment, modification, cancellation or termination shall impair the rights of a Participant under
an Award without such Participants consent,
provided
that such consent shall not be
required with respect to any amendment, modification or other such action if the Committee
determines in its sole discretion that such amendment, modification or other such action is not
reasonably likely to significantly reduce or diminish the benefits provided to the Participant
under such Award.
22.3
Compliance Amendments
. Notwithstanding any other provision of the Plan or any
Award Agreement to the contrary, the Committee may, in its sole discretion and without the consent
of any Participant, amend the Plan or any Award Agreement, to take effect retroactively or
otherwise, as it deems necessary or advisable in order for the Company, the Plan, an Award or an
Award Agreement to satisfy or conform to any applicable present or future law, regulation or rule
or to meet the requirements of any accounting standard.
Section 23. Foreign Jurisdictions
Awards granted to Participants who are foreign nationals or who are employed by the Company or
an Affiliate outside of the United States may have such terms and conditions different from those
specified in the Plan and such additional terms and conditions as the Committee, in its sole
discretion, determines to be necessary, appropriate or advisable to foster and promote achievement
of the material purposes of the Plan and to fairly accommodate for differences in local law, tax
policy or custom or to facilitate administration of the Plan. The Committee may approve such
sub-plans, appendices or supplements to, or amendments, restatements or alternative versions of,
the Plan as it may consider necessary, appropriate or advisable, without thereby affecting the
terms of the Plan as in effect for any other purpose. The special terms and any appendices,
supplements, amendments, restatements or alternative versions, however, shall not include any
provisions that are inconsistent with the terms of the Plan as then in effect, unless the Plan
could have been amended to eliminate such inconsistency without further approval by the Companys
stockholders.
Section 24. General
24.1
No Limit on Other Compensation Arrangements
. Nothing contained in the Plan
shall preclude or limit the Company or any Affiliate from adopting or continuing in effect other or
additional compensation arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
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24.2
Treatment for Other Compensation Purposes
. The amount of any compensation
received or deemed to be received by a Participant pursuant to an Award shall not be deemed part of
a Participants regular, recurring compensation for purposes of any termination, indemnity or
severance pay laws, and shall not be included in or have any effect on the determination of
benefits under any other compensation or benefit plan, program or arrangement of the Company or an
Affiliate, including any pension or severance benefits plan, unless expressly provided by the terms
of any such plan, program or arrangement.
24.3
No Trust or Fund
. The Plan is intended to constitute an unfunded plan.
Nothing contained herein or in any Award Agreement shall (a) require the Company to segregate any
monies, other property or Shares, create any trusts, or to make any special deposits for any
amounts payable to any Participant or other person, or (b) be construed as creating in respect of
any Participant or any other person any equity or other interest of any kind in any assets of the
Company or an Affiliate or creating a trust of any kind or a fiduciary relationship of any kind
between the Company or any Affiliate and a Participant or any other person. Prior to the payment or
settlement of any Award, nothing contained herein or in any Award Agreement shall give any
Participant or any other person any rights that are greater than those of a general unsecured
creditor of the Company or an Affiliate.
24.4
Use of Proceeds
. All proceeds received by the Company pursuant to Awards
granted under the Plan shall be used for general corporate purposes.
24.5
No Limitations on Corporate Action
. Neither the Plan, the grant of any Award
nor any Award Agreement shall limit, impair or otherwise affect the right or power of the Company
or any of its Affiliates to make adjustments, reclassifications, reorganizations or changes in its
capital or business structure or to merge, consolidate, dissolve, liquidate, sell or transfer all
or any part of its business or assets.
24.6
No Stockholder Rights
. Subject to the provisions of the Plan and the
applicable Award Agreement, no Participant shall have any rights as a stockholder with respect to
any Shares to be issued under the Plan prior to the issuance thereof.
24.7
Prohibition on Loans
. The Company shall not loan funds to any Participant for
the purpose of paying the Exercise Price associated with any Stock Option or Stock Appreciation
Right or for the purpose of paying any taxes associated with the grant, exercise, lapse of
restriction, vesting, distribution, payment or other taxable event involving an Award or the Plan.
24.8
No Obligation to Exercise Awards; No Right to Notice of Expiration Date
. An
Award of a Stock Option or a Stock Appreciation Right imposes no obligation upon the Participant to
exercise the Award. The Company, its Affiliates and the Committee have no obligation to inform a
Participant of the date on which a Stock Option or SAR is no longer exercisable except in the Award
Agreement.
24.9
Compliance with Section 16(b)
. With respect to Participants who are Reporting
Persons, all transactions under the Plan are intended to comply with all applicable conditions of
Rule 16b-3. All transactions under the Plan involving Reporting Persons are subject to such
conditions, regardless of whether the conditions are expressly set forth in the Plan. Any provision
of the Plan that is contrary to a condition of Rule 16b-3 shall not apply to such Reporting
Persons.
24.10
Code Section 409A Compliance
. Notwithstanding anything contained in the Plan
or in any Award Agreement to the contrary, the Plan and all Awards hereunder are intended to
satisfy the requirements of Code Section 409A so as to avoid the imposition of any additional taxes
or penalties thereunder, and all terms, conditions and provisions of the Plan and an Award
Agreement shall be interpreted and applied in a manner consistent with this intent. If the
Committee determines that an Award, Award Agreement, payment, distribution, transaction, or any
other action or arrangement contemplated by the provisions of the Plan or an Award Agreement would,
if undertaken, cause a Participant to become subject to any additional taxes or penalties under
Code Section 409A, such Award, Award Agreement, payment, distribution, transaction or other action
or arrangement shall not be given
effect to the extent it causes such result and the related provisions of the Plan or Award
Agreement will be deemed modified or, if necessary, suspended in order to comply with the
requirements of Code Section 409A to the extent determined appropriate by the Committee in its sole
discretion, in each case without the consent of or notice to the Participant.
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24.11
Governing Law
. Except as to matters governed by United States federal law or
the Delaware General Corporation Law, the Plan, all Award Agreements and all determinations made
and actions taken under the Plan and any Award Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee without giving effect to its conflicts of law
principles.
24.12
Plan Controls
. In the event of any conflict or inconsistency between the
Plan and any Award Agreement, the provisions of the Plan shall govern and the Award Agreement shall
be interpreted to minimize or eliminate any such conflict or inconsistency.
24.13
Severability
. If any provision of the Plan or any Award is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction, or as to person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, person
or Award, and the remainder of the Plan and any such Award shall remain in full force and effect.
24.14
Successors
. The Plan shall be binding upon the Company and its successors
and assigns, and the Participant and the Participants legal representatives and beneficiaries.
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