Exhibit 10.1
COMMERCIAL
VEHICLE GROUP, INC.
FOURTH
AMENDED AND RESTATED
EQUITY
INCENTIVE PLAN
This plan shall be known as the Commercial Vehicle Group, Inc.
Fourth Amended and Restated Equity Incentive Plan (the
Plan). The purpose of the Plan shall be to promote
the long-term growth and profitability of Commercial Vehicle
Group, Inc. (the Company) and its Subsidiaries by
(i) providing certain directors, officers and employees of,
and certain other individuals who perform services for, or to
whom an offer of employment has been extended by, the Company
and its Subsidiaries with incentives to maximize stockholder
value and otherwise contribute to the success of the Company and
(ii) enabling the Company to attract, retain and reward the
best available persons for positions of responsibility. Grants
of incentive or non-qualified stock options, stock appreciation
rights (SARs), restricted stock units, restricted
stock, performance awards or any combination of the foregoing
may be made under the Plan.
(a) Board of Directors and Board
mean the board of directors of the Company.
(b) Cause shall, with respect to any
participant, have the equivalent meaning as the term
cause or for cause in any employment,
consulting, or independent contractors agreement between
the participant and the Company or any Subsidiary, or in the
absence of such an agreement that contains such a defined term,
shall mean the occurrence of one or more of the following events:
(i) Conviction of any felony or any crime or offense lesser
than a felony involving the property of the Company or a
Subsidiary; or
(ii) Deliberate or reckless conduct that has caused
demonstrable and serious injury to the Company or a Subsidiary,
monetary or otherwise, or any other serious misconduct of such a
nature that the participants continued relationship with
the Company or a Subsidiary may reasonably be expected to
adversely affect the business or properties of the Company or
any Subsidiary; or
(iii) Willful refusal to perform or reckless disregard of
duties properly assigned, as determined by the Company; or
(iv) Breach of duty of loyalty to the Company or a
Subsidiary or other act of fraud or dishonesty with respect to
the Company or a Subsidiary.
For purposes of this Section 2(b), any good faith
determination of Cause made by the Committee shall
be binding and conclusive on all interested parties.
(c) Change in Control means the occurrence of
one of the following events:
(i) if any person or group as those
terms are used in Sections 13(d) and 14(d) of the Exchange
Act or any successors thereto, other than an Exempt Person, is
or becomes the beneficial owner (as defined in
Rule 13d-3
under the Exchange Act or any successor thereto), directly or
indirectly, of securities of the Company representing more than
50% of either the then outstanding shares or the combined voting
power of the then outstanding securities of the Company; or
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the
Board and any new directors whose election by the Board or
nomination for election by the Companys stockholders was
approved by at least two-thirds of the directors then still in
office who either were directors at the beginning of the period
or whose election was previously so approved, cease for any
reason to constitute a majority thereof; or
(iii) the consummation of a merger or consolidation of the
Company with any other corporation or other entity, other than a
merger or consolidation which would result in all or a portion
of the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of
the voting securities of the Company or such surviving entity
outstanding immediately after such merger or
consolidation; or
(iv) the consummation of a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Companys assets,
other than a sale to an Exempt Person.
(d) Code means the Internal Revenue Code of
1986, as amended.
(e) Committee means the Compensation Committee
of the Board, which shall consist solely of two or more members
of the Board, and each member of the Committee shall be
(i) a non-employee director within the meaning
of
Rule 16b-3
under the Exchange Act, unless administration of the Plan by
non-employee directors is not then required in order
for exemptions under
Rule 16b-3
to apply to transactions under the Plan, (ii) an
outside director within the meaning of
Section 162(m) of the Code, unless administration of the
Plan by outside directors is not then required in
order to qualify for tax deductibility under Section 162(m)
of the Code, and (iii) independent, as defined by the rules
of the Nasdaq Stock Market or any national securities exchange
on which any securities of the Company are listed for trading,
and if not listed for trading, by the rules of the Nasdaq Stock
Market.
(f) Common Stock means the Common Stock, par
value $.01 per share, of the Company, and any other shares into
which such stock may be changed by reason of a recapitalization,
reorganization, merger, consolidation or any other change in the
corporate structure or capital stock of the Company.
(g) Competition is deemed to occur if a person
whose employment with the Company or its Subsidiaries has
terminated obtains a position as a full-time or part-time
employee of, as a member of the board of directors of, or as a
consultant or advisor with or to, or acquires an ownership
interest in excess of 2% of, a corporation, partnership, firm or
other entity that engages, in any state in which the Company or
any Subsidiary is doing business at the time of such
persons termination of employment, in any business which
competes with any product or service of the Company or any
Subsidiary.
(h) Disability means a disability that would
entitle an eligible participant to payment of monthly disability
payments under any Company disability plan or any agreement
between the eligible participant and the Company as otherwise
determined by the Committee.
(i) Exchange Act means the Securities Exchange
Act of 1934, as amended.
(j) Exempt Person means (i) Onex
Corporation, (ii) any person, entity or group controlled by
or under common control with any party included in clause (i),
or (iii) any employee benefit plan of the Company or any
Subsidiary, or a trustee or other administrator or fiduciary
holding securities under an employee benefit plan of the Company
or any Subsidiary.
(k) Family Member has the meaning given to such
term in General Instructions A.1(a)(5) to
Form S-8
under the Securities Act of 1933, as amended, and any successor
thereto.
(l) Fair Market Value of a share of Common
Stock of the Company means, as of the date in question, the
officially-quoted closing selling price of the stock (or if no
selling price is quoted, the bid price) on the principal
securities exchange on which the Common Stock is then listed for
trading (including for this purpose the Nasdaq Stock Market)
(the Market) for the applicable trading day or, if
the Common Stock is not then listed or quoted in the Market, the
Fair Market Value shall be the fair value of the Common Stock
determined in good faith by the Board; provided, however, that
when shares received upon exercise of an option are immediately
sold in the open market, the net sale price received may be used
to determine the Fair Market Value of any shares used to pay the
exercise price or applicable withholding taxes and to compute
the withholding taxes.
(m) Good Reason shall, with respect to any
participant, have the equivalent meaning as the term good
reason or for good reason in any employment,
consulting, or independent contractors agreement between
the
participant and the Company or any Subsidiary, or in the absence
of such an agreement that contains such a defined term, shall
mean (i) the assignment to the participant of any duties
materially inconsistent with the participants duties or
responsibilities as assigned by the Company (or a Subsidiary),
or any other action by the Company (or a Subsidiary) which
results in a material diminution in such duties or
responsibilities, excluding for this purpose any isolated,
insubstantial and inadvertent actions not taken in bad faith and
which are remedied by the Company (or a Subsidiary) promptly
after receipt of notice thereof given by the participant;
(ii) any material failure by the Company (or a Subsidiary)
to make any payment of compensation or pay any benefits to the
participant that have been agreed upon between the Company (or a
Subsidiary) and the participant in writing, other than an
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company (or a Subsidiary)
promptly after receipt of notice thereof given by the
participant; or (iii) the Companys (or
Subsidiarys) requiring the participant to be based at any
office or location outside of fifty miles from the location of
employment or service as of the date of award, except for travel
reasonably required in the performance of the participants
responsibilities.
(n) Incentive Stock Option means an option
conforming to the requirements of Section 422 of the Code
and any successor thereto.
(o) Non-Employee Director has the meaning given
to such term in
Rule 16b-3
under the Exchange Act and any successor thereto.
(p) Non-qualified Stock Option means any stock
option other than an Incentive Stock Option.
(q) Other Company Securities mean securities of
the Company other than Common Stock, which may include, without
limitation, unbundled stock units or components thereof,
debentures, preferred stock, warrants and securities convertible
into or exchangeable for Common Stock or other property.
(r) Performance Award means a right, granted to
a participant under Section 12 hereof, to receive awards
based upon performance criteria specified by the Committee.
(s) Retirement means retirement as defined
under any Company pension plan or retirement program or
termination of ones employment on retirement with the
approval of the Committee.
(t) Share means a share of Common Stock that
may be issued pursuant to the Plan.
(u) Subsidiary means a corporation or other
entity of which outstanding shares or ownership interests
representing 50% or more of the combined voting power of such
corporation or other entity entitled to elect the management
thereof, or such lesser percentage as may be approved by the
Committee, are owned directly or indirectly by the Company.
The Plan shall be administered by the Committee; provided that
the Board may, in its discretion, at any time and from time to
time, resolve to administer the Plan, in which case the term
Committee shall be deemed to mean the Board for all
purposes herein. Subject to the provisions of the Plan, the
Committee shall be authorized to (i) select persons to
participate in the Plan, (ii) determine the form and
substance of grants made under the Plan to each participant, and
the conditions and restrictions, if any, subject to which such
grants will be made, (iii) certify that the conditions and
restrictions applicable to any grant have been met,
(iv) modify the terms of grants made under the Plan,
(v) interpret the Plan and grants made thereunder,
(vi) make any adjustments necessary or desirable in
connection with grants made under the Plan to eligible
participants located outside the United States and
(vii) adopt, amend, or rescind such rules and regulations,
and make such other determinations, for carrying out the Plan as
it may deem appropriate. Decisions of the Committee on all
matters relating to the Plan shall be in the Committees
sole discretion and shall be conclusive and binding on all
parties. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan shall be
determined in accordance with applicable federal and state laws
and rules and regulations promulgated pursuant thereto. No
member of the Committee and no officer of the Company shall be
liable for any action taken or omitted to be taken by such
member, by any other member of the Committee or by any officer
of the Company in connection with the performance of duties
under the Plan, except for such persons own willful
misconduct or as expressly provided by statute.
The expenses of the Plan shall be borne by the Company. The Plan
shall not be required to establish any special or separate fund
or make any other segregation of assets to assume the payment of
any award under the Plan, and rights to the payment of such
awards shall be no greater than the rights of the Companys
general creditors.
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4.
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Shares Available
for the Plan; Limit on
Awards
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Subject to adjustments as provided in Section 19, the
number of Shares that may be issued pursuant to the Plan as
awards shall not exceed 4,600,000 in the aggregate. Such Shares
may be in whole or in part authorized and unissued or held by
the Company as treasury shares. If any grant under the Plan
expires or terminates unexercised, becomes unexercisable or is
forfeited as to any Shares, or is tendered or withheld as to any
Shares in payment of the exercise price of the grant or the
taxes payable with respect to the exercise, then such
unpurchased, forfeited, tendered or withheld Shares shall
thereafter be available for further grants under the Plan.
Without limiting the generality of the foregoing provisions of
this Section 4 or the generality of the provisions of
Sections 3, 6 or 21 or any other section of this Plan, the
Committee may, at any time or from time to time, and on such
terms and conditions (that are consistent with and not in
contravention of the other provisions of this Plan) as the
Committee may, in its sole discretion, determine, enter into
agreements (or take other actions with respect to the options)
for new options containing terms (including exercise prices)
more (or less) favorable than the outstanding options.
In any one calendar year, the Committee shall not grant to any
one participant awards to purchase or acquire a number of Shares
in excess of twenty percent (20%) of the total number of Shares
authorized under the Plan pursuant to this Section 4.
Participation in the Plan shall be limited to those directors
(including Non-Employee Directors), officers (including
non-employee officers) and employees of, and other individuals
performing services for, or to whom an offer of employment has
been extended by, the Company and its Subsidiaries selected by
the Committee (including participants located outside the United
States). Nothing in the Plan or in any grant thereunder shall
confer any right on a participant to continue in the employ as a
director or officer of or in the performance of services for the
Company or shall interfere in any way with the right of the
Company to terminate the employment or performance of services
or to reduce the compensation or responsibilities of a
participant at any time. By accepting any award under the Plan,
each participant and each person claiming under or through him
or her shall be conclusively deemed to have indicated his or her
acceptance and ratification of, and consent to, any action taken
under the Plan by the Company, the Board or the Committee.
Incentive Stock Options or Non-qualified Stock Options, SARs,
restricted stock units, restricted stock awards, performance
awards, or any combination thereof, may be granted to such
persons and for such number of Shares as the Committee shall
determine (such individuals to whom grants are made being
sometimes herein called optionees or
grantees, as the case may be). Determinations made
by the Committee under the Plan need not be uniform and may be
made selectively among eligible individuals under the Plan,
whether or not such individuals are similarly situated. A grant
of any type made hereunder in any one year to an eligible
participant shall neither guarantee nor preclude a further grant
of that or any other type to such participant in that year or
subsequent years.
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6.
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Incentive
and Non-qualified Options and
SARs
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The Committee may from time to time grant to eligible
participants Incentive Stock Options, Non-qualified Stock
Options, or any combination thereof; provided that the Committee
may grant Incentive Stock Options only to eligible employees of
the Company or its subsidiaries (as defined for this purpose in
Section 424(f) of the Code or any successor thereto). The
options granted shall take such form as the Committee shall
determine, subject to the following terms and conditions.
It is the Companys intent that Non-qualified Stock Options
granted under the Plan not be classified as Incentive Stock
Options, that Incentive Stock Options be consistent with and
contain or be deemed to contain all
provisions required under Section 422 of the Code and any
successor thereto, and that any ambiguities in construction be
interpreted in order to effectuate such intent. If an Incentive
Stock Option granted under the Plan does not qualify as such for
any reason, then to the extent of such non-qualification, the
stock option represented thereby shall be regarded as a
Non-qualified Stock Option duly granted under the Plan, provided
that such stock option otherwise meets the Plans
requirements for Non-qualified Stock Options.
(a)
Price
. The price per Share
deliverable upon the exercise of each option (exercise
price) shall be established by the Committee, except that
the exercise price may not be less than 100% of the Fair Market
Value of a share of Common Stock as of the date of grant of the
option, and in the case of the grant of any Incentive Stock
Option to an employee who, at the time of the grant, owns more
than 10% of the total combined voting power of all classes of
stock of the Company or any of its Subsidiaries, the exercise
price may not be less than 110% of the Fair Market Value of a
share of Common Stock as of the date of grant of the option, in
each case unless otherwise permitted by Section 422 of the
Code or any successor thereto.
(b)
Payment
. Options may be exercised, in
whole or in part, upon payment of the exercise price of the
Shares to be acquired. Unless otherwise determined by the
Committee, payment shall be made (i) in cash (including
check, bank draft, money order or wire transfer of immediately
available funds), (ii) by delivery of outstanding shares of
Common Stock with a Fair Market Value on the date of exercise
equal to the aggregate exercise price payable with respect to
the options exercise, (iii) by simultaneous sale
through a broker reasonably acceptable to the Committee of
Shares acquired on exercise, as permitted under
Regulation T of the Federal Reserve Board, (iv), if the
Shares are traded on an established securities market at the
time of exercise, by authorizing the Company to withhold from
issuance a number of Shares issuable upon exercise of the
options which, when multiplied by the Fair Market Value of a
share of Common Stock on the date of exercise, is equal to the
aggregate exercise price payable with respect to the options so
exercised, or (v) by any combination of the foregoing.
In the event a grantee elects to pay the exercise price payable
with respect to an option pursuant to clause (ii) above,
(A) only a whole number of share(s) of Common Stock (and
not fractional shares of Common Stock) may be tendered in
payment, (B) such grantee must present evidence acceptable
to the Company that he or she has owned any such shares of
Common Stock tendered in payment of the exercise price (and that
such tendered shares of Common Stock have not been subject to
any substantial risk of forfeiture) for at least six months
prior to the date of exercise, and (C) Common Stock must be
delivered to the Company. Delivery for this purpose may, at the
election of the grantee, be made either by (A) physical
delivery of the certificate(s) for all such shares of Common
Stock tendered in payment of the price, accompanied by duly
executed instruments of transfer in a form acceptable to the
Company, or (B) direction to the grantees broker to
transfer, by book entry, such shares of Common Stock from a
brokerage account of the grantee to a brokerage account
specified by the Company. When payment of the exercise price is
made by delivery of Common Stock, the difference, if any,
between the aggregate exercise price payable with respect to the
option being exercised and the Fair Market Value of the shares
of Common Stock tendered in payment (plus any applicable taxes)
shall be paid in cash. No grantee may tender shares of Common
Stock having a Fair Market Value exceeding the aggregate
exercise price payable with respect to the option being
exercised (plus any applicable taxes).
In the event a grantee elects to pay the exercise price payable
with respect to an option pursuant to clause (iv) above,
(A) only a whole number of Share(s) (and not fractional
Shares) may be withheld in payment and (B) such grantee
must present evidence acceptable to the Company that he or she
has owned a number of shares of Common Stock at least equal to
the number of Shares to be withheld in payment of the exercise
price (and that such owned shares of Common Stock have not been
subject to any substantial risk of forfeiture) for at least six
months prior to the date of exercise. When payment of the
exercise price is made by withholding of Shares, the difference,
if any, between the aggregate exercise price payable with
respect to the option being exercised and the Fair Market Value
of the Shares withheld in payment (plus any applicable taxes)
shall be paid in cash. No grantee may authorize the withholding
of Shares having a Fair Market Value exceeding the aggregate
exercise price payable with respect to the option being
exercised (plus any applicable taxes). Any withheld Shares shall
no longer be issuable under such option.
(c)
Terms of Options
. The term during
which each option may be exercised shall be determined by the
Committee, but if required by the Code and except as otherwise
provided herein, no option shall be exercisable in
whole or in part more than ten years from the date it is
granted, and no Incentive Stock Option granted to an employee
who at the time of the grant owns more than 10% of the total
combined voting power of all classes of stock of the Company or
any of its Subsidiaries shall be exercisable more than five
years from the date it is granted. All rights to purchase Shares
pursuant to an option shall, unless sooner terminated, expire at
the date designated by the Committee. The Committee shall
determine the date on which each option shall become exercisable
and may provide that an option shall become exercisable in
installments. The Shares constituting each installment may be
purchased in whole or in part at any time after such installment
becomes exercisable, subject to such minimum exercise
requirements as may be designated by the Committee. Prior to the
exercise of an option and delivery of the Shares represented
thereby, the optionee shall have no rights as a stockholder with
respect to any Shares covered by such outstanding option
(including any dividend or voting rights).
(d)
Limitations on Grants
. If required by
the Code, the aggregate Fair Market Value (determined as of the
grant date) of Shares for which an Incentive Stock Option is
exercisable for the first time during any calendar year under
all equity incentive plans of the Company and its Subsidiaries
(as defined in Section 422 of the Code or any successor
thereto) may not exceed $100,000.
(e)
Termination
.
(i)
Death or Disability
. Except as
otherwise determined by the Committee, if a participant ceases
to be a director, officer or employee of, or to perform other
services for, the Company and any Subsidiary due to death or
Disability, all of the participants options and SARs that
were exercisable on the date of such cessation shall remain so
for a period of 180 days from the date of such death or
Disability, but in no event after the expiration date of the
options or SARs; provided that the participant does not engage
in Competition during such
180-day
period unless he or she received written consent to do so from
the Board or the Committee. Notwithstanding the foregoing, if
the Disability giving rise to the termination of employment is
not within the meaning of Section 22(e)(3) of the Code or
any successor thereto, Incentive Stock Options not exercised by
such participant within 90 days after the date of
termination of employment will cease to qualify as Incentive
Stock Options and will be treated as Non-qualified Stock Options
under the Plan if required to be so treated under the Code.
(ii)
Retirement
. Except as otherwise
determined by the Committee, if a participant ceases to be a
director, officer or employee of, or to perform other services
for, the Company or any Subsidiary upon the occurrence of his or
her Retirement, (A) all of the participants options
and SARs that were exercisable on the date of Retirement shall
remain exercisable for, and shall otherwise terminate at the end
of, a period of 90 days after the date of Retirement, but
in no event after the expiration date of the options or SARs;
provided that the participant does not engage in Competition
during such
90-day
period unless he or she receives written consent to do so from
the Board or the Committee, and (B) all of the
participants options and SARs that were not exercisable on
the date of Retirement shall be forfeited immediately upon such
Retirement; provided, however, that such options and SARs may
become fully vested and exercisable in the discretion of the
Committee. Notwithstanding the foregoing, Incentive Stock
Options not exercised by such participant within 90 days
after Retirement will cease to qualify as Incentive Stock
Options and will be treated as Non-qualified Stock Options under
the Plan if required to be so treated under the Code.
(iii)
Discharge for Cause
. Except as
otherwise determined by the Committee, if a participant ceases
to be a director, officer or employee of, or to perform other
services for, the Company or a Subsidiary due to Cause, or if a
participant does not become a director, officer or employee of,
or does not begin performing other services for, the Company or
a Subsidiary for any reason, all of the participants
options and SARs shall expire and be forfeited immediately upon
such cessation or non-commencement, whether or not then
exercisable.
(iv)
Other Termination
. Except as
otherwise determined by the Committee, if a participant ceases
to be a director, officer or employee of, or to otherwise
perform services for, the Company or a Subsidiary for any reason
other than death, Disability, Retirement or Cause, (A) all
of the participants options and SARs that were exercisable
on the date of such cessation shall remain exercisable for, and
shall otherwise terminate at the end of, a period of
90 days after the date of such cessation, but in no event
after the expiration date of the options or SARs; provided that
the participant does not engage in Competition during such
90-day
period unless he or she receives written consent to do so from
the Board or the Committee, and (B) all of the
participants options and SARs that were not exercisable on
the date of such cessation shall be forfeited immediately upon
such cessation.
(f)
Options Exercisable for Restricted
Stock
. The Committee shall have the discretion to
grant options which are exercisable for Shares of restricted
stock. Should the participant cease to be a director, officer or
employee of, or to perform other services for, the Company or
any Subsidiary while holding such Shares of restricted stock,
the Company shall have the right to repurchase, at the exercise
price paid per share, any or all of those Shares of restricted
stock. The terms upon which such repurchase right shall be
exercisable (including the period and procedure for exercise and
the appropriate vesting schedule for the purchased shares) shall
be established by the Committee and set forth in the document
evidencing such repurchase right.
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7.
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Stock
Appreciation
Rights
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The Committee shall have the authority to grant SARs under this
Plan. SARs shall be subject to such terms and conditions as the
Committee may specify; provided that the exercise price of an
SAR may never be less than the fair market value of the Shares
subject to the SAR on the date the SAR is granted.
Prior to the exercise of the SAR and delivery of the cash
and/or
Shares represented thereby, the participant shall have no rights
as a stockholder with respect to Shares covered by such
outstanding SAR (including any dividend or voting rights).
Upon the exercise of an SAR, the participant shall be entitled
to a distribution in an amount equal to (A) the difference
between the Fair Market Value of a share of Common Stock on the
date of exercise and the exercise price of the SAR multiplied by
(B) the number of Shares as to which the SAR is exercised.
The Committee shall decide whether such distribution shall be in
cash or in Shares having a Fair Market Value equal to such
amount. Upon distribution, the full number of Shares covered by
the SAR, rather than the actual number of Shares distributed,
will be counted as issued under the Plan for purposes of the
limit on awards set forth in Section 4 above.
All SARs will be exercised automatically on the last day prior
to the expiration date of the SAR so long as the Fair Market
Value of a share of Common Stock on that date exceeds the
exercise price of the SAR.
The Committee may at any time and from time to time grant Shares
of restricted stock under the Plan to such participants and in
such amounts as it determines. Each grant of restricted stock
shall specify the applicable restrictions on such Shares, the
duration of such restrictions (which shall be at least six
months except as otherwise determined by the Committee or
provided in the third paragraph of this Section 8), and the
time or times at which such restrictions shall lapse with
respect to all or a specified number of Shares that are part of
the grant.
The participant will be required to pay the Company the
aggregate par value of any Shares of restricted stock (or such
larger amount as the Board may determine to constitute capital
under Section 154 of the Delaware General Corporation Law,
as amended, or any successor thereto) within ten days of the
date of grant, unless such Shares of restricted stock are
treasury shares. The par value (or such larger amount) must be
paid in cash or other legal consideration permitted by the
Delaware General Corporation Law. Unless otherwise determined by
the Committee, certificates representing Shares of restricted
stock granted under the Plan will be held in escrow by the
Company on the participants behalf during any period of
restriction thereon and will bear an appropriate legend
specifying the applicable restrictions thereon, and the
participant will be required to execute a blank stock power
therefor. Except as otherwise provided by the Committee, during
such period of restriction the participant shall have all of the
rights of a holder of Common Stock, including but not limited to
the rights to receive dividends and to vote, and any stock or
other securities received as a distribution with respect to such
participants restricted stock shall be subject to the same
restrictions as then in effect for the restricted stock.
At such time as a participant ceases to be a director, officer,
or employee of, or to otherwise perform services for, the
Company and its Subsidiaries due to death, Disability or
Retirement during any period of restriction, all restrictions on
Shares granted to such participant shall lapse. At such time as
a participant ceases to be, or in the event a participant does
not become, a director, officer or employee of, or otherwise
performing services for, the
Company or its Subsidiaries for any other reason, all Shares of
restricted stock granted to such participant on which the
restrictions have not lapsed shall be immediately forfeited to
the Company.
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9.
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Restricted
Stock Units; Deferred Stock
Units
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The Committee may at any time and from time to time grant
restricted stock units under the Plan to such participants and
in such amounts as it determines. Each grant of restricted stock
units shall specify the applicable restrictions on such units,
the duration of such restrictions (which shall be at least six
months except as otherwise determined by the Committee or
provided in the third paragraph of this Section 9), and the
time or times at which such restrictions shall lapse with
respect to all or a specified number of units that are part of
the grant.
Each restricted stock unit shall be equivalent in value to one
share of Common Stock and shall entitle the participant to
receive one Share from the Company at the end of the vesting
period (the Vesting Period) of the applicable
restricted stock unit, unless the participant elects in a timely
fashion, as provided below, to defer the receipt of such Shares
with respect to the restricted stock units. The Committee may
require the payment by the participant of a specified purchase
price in connection with any restricted stock unit award.
Except as otherwise provided by the Committee, during the
Vesting Period the participant shall not have any rights as a
shareholder of the Company; provided that the participant shall
have the right to receive accumulated dividends or distributions
with respect to the corresponding number of shares of Common
Stock underlying each restricted stock unit at the end of the
Vesting Period, unless the participant elects in a timely
fashion, as provided below, to defer the receipt of the Shares
with respect to the restricted stock units, in which case such
accumulated dividends or distributions shall be paid by the
Company to the participant at such time as the payment of the
Shares with respect to the deferred stock units.
Except as otherwise provided by the Committee, immediately prior
to a Change in Control or at such time as a participant ceases
to be a director, officer or employee of, or to otherwise
perform services for, the Company and any of its Subsidiaries
due to death, Disability or Retirement during any Vesting
Period, all restrictions on restricted stock units granted to
such participant shall lapse and the participant shall be then
entitled to receive payment in Shares with respect to the
applicable restricted stock units. At such time as a participant
ceases to be a director, officer or employee of, or otherwise
performing services for, the Company and any of its Subsidiaries
for any other reason, all restricted stock units granted to such
participant on which the restrictions have not lapsed shall be
immediately forfeited to the Company.
A participant may elect by written notice to the Company, which
notice must be made before the later of (i) the close of
the tax year preceding the year in which the restricted stock
units are granted or (ii) 30 days of first becoming
eligible to participate in the Plan (or, if earlier, the last
day of the tax year in which the participant first becomes
eligible to participate in the plan) and on or prior to the date
the restricted stock units are granted, to defer the receipt of
all or a portion of the Shares due with respect to the vesting
of such restricted stock units; provided that the Committee may
impose such additional restrictions with respect to the time at
which a participant may elect to defer receipt of Shares subject
to the deferral election, and any other terms with respect to a
grant of restricted stock units to the extent the Committee
deems necessary to enable the participant to defer recognition
of income with respect to such units until the Shares underlying
such units are issued or distributed to the participant. Upon
such deferral, the restricted stock units so deferred shall be
converted into deferred stock units. Except as provided below,
delivery of Shares with respect to deferred stock units shall be
made at the end of the deferral period set forth in the
participants deferral election notice (the Deferral
Period). Deferral Periods shall be no less than one year
after the vesting date of the applicable restricted stock units.
Except as otherwise provided by the Committee, during such
Deferral Period the participant shall not have any rights as a
shareholder of the Company; provided that, the participant shall
have the right to receive accumulated dividends or distributions
with respect to the corresponding number of shares of Common
Stock underlying each deferred stock unit at the end of the
Deferral Period.
Except as otherwise provided by the Committee, if a participant
ceases to be a director, officer or employee of, or to otherwise
perform services for, the Company or any Subsidiary due to his
or her death prior to the end of the Deferral Period, the
participant shall receive payment in Shares in respect of such
participants deferred stock units
which would have matured or been earned at the end of such
Deferral Period as if the applicable Deferral Period had ended
as of the date of such participants death.
Except as otherwise provided by the Committee, if a participant
ceases to be a director, officer or employee of, or to otherwise
perform services for, the Company or any Subsidiary upon
becoming disabled (as defined under Section 409A(a)(2)(C)
of the Code) or Retirement or for any other reason except
termination for Cause prior to the end of the Deferral Period,
the participant shall receive payment in Shares in respect of
such participants deferred stock units at the end of the
applicable Deferral Period or on such accelerated basis as the
Committee may determine, to the extent permitted by regulations
issued under Section 409A(a)(3) of the Code.
Except as otherwise provided by the Committee, if a participant
ceases to be a director, officer or employee of, or to otherwise
perform services for, the Company or any Subsidiary due to
termination for Cause such participant shall immediately forfeit
any deferred stock units which would have matured or been earned
at the end of the applicable Deferral Period.
Except as otherwise provided by the Committee, in the event of a
Change in Control that also constitutes a change in the
ownership or effective control of the Company, or a
change in the ownership of a substantial portion of the
assets of the Company (in each case as determined under
IRS Notice
2005-1,
as
amended or supplemented from time to time, or regulations issued
pursuant to Section 409A(a)(2)(A)(v) of the Code), a
participant shall receive payment in Shares in respect of such
participants deferred stock units which would have matured
or been earned at the end of the applicable Deferral Period as
if such Deferral Period had ended immediately prior to the
Change in Control; provided, however, that if an event that
constitutes a Change in Control hereunder does not constitute a
change in control under Section 409A of the
Code (or the regulations promulgated thereunder), no payments
with respect to the deferred stock units shall be made under
this paragraph to the extent such payments would constitute an
impermissible acceleration under Section 409A of the Code.
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10.
|
Dividend
Equivalents
.
|
The Committee is authorized to grant dividend equivalents to a
participant entitling the participant to receive cash, Shares,
other awards, or other property equal in value to dividends paid
with respect to a specified number of shares of Common Stock of
the Company, or other periodic payments. Dividend equivalents
may be awarded on a free-standing basis or in connection with
another award. The Committee may provide that dividend
equivalents shall be paid or distributed when accrued or shall
be deemed to have been reinvested in additional shares of Common
Stock of the Company, awards, or other investment vehicles, and
subject to such restrictions on transferability and risks of
forfeiture, as the Committee may specify.
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11.
|
Other
Stock-Based
Awards
.
|
The Committee is authorized, subject to limitations under
applicable law, to grant to participants such other awards that
may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, shares of
Common Stock of the Company, as deemed by the Committee to be
consistent with the purposes of the Plan, including, without
limitation, convertible or exchangeable debt securities, other
rights convertible or exchangeable into Shares, purchase rights
for Shares, awards with value and payment contingent upon
performance of the Company or any other factors designated by
the Committee, and awards valued by reference to the book value
of Shares or the value of securities of or the performance of
specified Subsidiaries. The Committee shall determine the terms
and conditions of such awards. Shares delivered pursuant to an
award in the nature of a purchase right granted under this
Section 11 shall be purchased for such consideration
(including without limitation loans from the Company or a
Subsidiary to the extent permissible under the Sarbanes Oxley
Act of 2002 and other applicable law), paid for at such times,
by such methods, and in such forms, including, without
limitation, cash, Shares, other awards or other property, as the
Committee shall determine. Cash awards, as an element of or
supplement to any other award under the Plan, may also be
granted pursuant to this Section 11.
The Committee is authorized to make Performance Awards payable
in cash, Shares, or other awards, on terms and conditions
established by the Committee, subject to the provisions of this
Section 12.
The performance goals for such Performance Awards shall consist
of one or more business criteria and a targeted level or levels
of performance with respect to each of such criteria, or such
other personal or business goals and objectives, as the
Committee shall determine. The Committee may determine that such
Performance Awards shall be granted, exercised
and/or
settled upon achievement of any one performance goal or that two
or more of the performance goals must be achieved as a condition
to grant, exercise
and/or
settlement of such Performance Awards. Performance goals may
differ for Performance Awards granted to any one participant or
to different participants.
Achievement of performance goals in respect of such Performance
Awards shall be measured over any performance period determined
by the Committee. During the performance period, the Committee
shall have the authority to adjust the performance goals and
objectives for such performance period for such reasons as it
deems equitable. A performance award shall be paid no later than
two and one-half months after the last day of the tax year in
which a performance period is completed.
The Committee may establish a Performance Award pool, which
shall be an unfunded pool, for purposes of measuring Company
performance in connection with Performance Awards. The amount of
such Performance Award pool shall be based upon the achievement
of a performance goal or goals during the given performance
period, as specified by the Committee. The Committee may specify
the amount of the Performance Award pool as a percentage of any
of such business criteria, a percentage thereof in excess of a
threshold amount, or as another amount which need not bear a
strictly mathematical relationship to such business criteria.
Settlement of Performance Awards shall be in cash, Shares, other
awards or other property, in the discretion of the Committee.
The Committee may, in its discretion, reduce the amount of a
settlement otherwise to be made in connection with such
Performance Awards. The Committee shall specify the
circumstances in which such Performance Awards shall be paid or
forfeited in the event of termination of the participants
employment or service prior to the end of a performance period
or settlement of Performance Awards.
Unless otherwise determined by the Committee, if there is a
Change in Control of the Company and a participants
employment or service as a director, officer, or employee of the
Company or a Subsidiary, is terminated (1) by the Company
without Cause, (2) by reason of the participants
death, Disability, or Retirement, or (3) by the participant
for Good Reason, within twelve months after such Change in
Control:
(i) any award carrying a right to exercise that was not
previously vested and exercisable as of the time of the Change
in Control, shall become immediately vested and exercisable, and
shall remain so for up to 180 days after the date of
termination (but in no event after the expiration date of the
award), subject to applicable restrictions;
(ii) any restrictions, deferral of settlement, and
forfeiture conditions applicable to any other award granted
under the Plan shall lapse and such awards shall be deemed fully
vested as of the time of the Change in Control, except to the
extent of any waiver by the participant, and subject to
applicable restrictions; and
(iii) with respect to any outstanding Performance Award,
the Committee may, within its discretion, deem the performance
goals and other conditions relating to the Performance Award as
having been met as of the date of the Change in Control. Such
performance award shall be paid no later than two and one-half
months after the last day of the tax year in which such Change
of Control occurred (or in the event that such Change in Control
causes the tax year to end, no later than two and one-half
months after the closing of such Change in Control).
Notwithstanding the foregoing, or any other provision of this
Plan to the contrary, in connection with any transaction of the
type specified by clause (iii) of the definition of a
Change in Control in Section 2(c), the Committee may, in
its discretion, (i) cancel any or all outstanding options
under the Plan in consideration for payment to the holders
thereof of an amount equal to the portion of the consideration
that would have been payable to such holders pursuant to such
transaction if their options had been fully exercised
immediately prior to such transaction, less the aggregate
exercise price that would have been payable therefor, or
(ii) if the amount that would have been payable to the
option holders pursuant to such transaction if their options had
been fully exercised
immediately prior thereto would be equal to or less than the
aggregate exercise price that would have been payable therefor,
cancel any or all such options for no consideration or payment
of any kind. Payment of any amount payable pursuant to the
preceding sentence may be made in cash or, in the event that the
consideration to be received in such transaction includes
securities or other property, in cash
and/or
securities or other property in the Committees discretion.
(a)
Participant Election
. Unless
otherwise determined by the Committee, a participant may elect
to deliver shares of Common Stock (or have the Company withhold
shares acquired upon exercise of an option or SAR or deliverable
upon grant or vesting of restricted stock, as the case may be)
to satisfy, in whole or in part, the amount the Company is
required to withhold for taxes in connection with the exercise
of an option or SAR or the delivery of restricted stock upon
grant or vesting, as the case may be. Such election must be made
on or before the date the amount of tax to be withheld is
determined. Once made, the election shall be irrevocable. The
fair market value of the shares to be withheld or delivered will
be the Fair Market Value as of the date the amount of tax to be
withheld is determined. In the event a participant elects to
deliver or have the Company withhold shares of Common Stock
pursuant to this Section 14(a), such delivery or
withholding must be made subject to the conditions and pursuant
to the procedures set forth in Section 6(b) with respect to
the delivery or withholding of Common Stock in payment of the
exercise price of options.
(b)
Company Requirement
. The Company may
require, as a condition to any grant or exercise under the Plan
or to the delivery of certificates for Shares issued hereunder,
that the grantee make provision for the payment to the Company,
either pursuant to Section 14(a) or this
Section 14(b), of federal, state or local taxes of any kind
required by law to be withheld with respect to any grant or
delivery of Shares. The Company, to the extent permitted or
required by law, shall have the right to deduct from any payment
of any kind (including salary or bonus) otherwise due to a
grantee, an amount equal to any federal, state or local taxes of
any kind required by law to be withheld with respect to any
grant or delivery of Shares under the Plan.
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15.
|
Written
Agreement;
Vesting
.
|
Each employee to whom a grant is made under the Plan shall enter
into a written agreement with the Company that shall contain
such provisions, including without limitation vesting
requirements, consistent with the provisions of the Plan, as may
be approved by the Committee. Unless the Committee determines
otherwise and except as otherwise provided in Sections 6,
7, and 8 in connection with a Change in Control or certain
occurrences of termination, no grant under this Plan may be
exercised, and no restrictions relating thereto may lapse,
within six months of the date such grant is made.
Unless the Committee determines otherwise, no award granted
under the Plan shall be transferable by a participant other than
by will or the laws of descent and distribution or to a
participants Family Member by gift or a qualified domestic
relations order as defined by the Code. No award granted under
the Plan shall be transferable by a participant for
consideration. Unless the Committee determines otherwise, an
option, SAR or performance award may be exercised only by the
optionee or grantee thereof; by his or her Family Member if such
person has acquired the option, SAR or performance award by gift
or qualified domestic relations order; by the executor or
administrator of the estate of any of the foregoing or any
person to whom the Option is transferred by will or the laws of
descent and distribution; or by the guardian or legal
representative of any of the foregoing; provided that Incentive
Stock Options may be exercised by any Family Member, guardian or
legal representative only if permitted by the Code and any
regulations thereunder. All provisions of this Plan shall in any
event continue to apply to any option, SAR, performance award or
restricted stock granted under the Plan and transferred as
permitted by this Section 16, and any transferee of any
such option, SAR, performance award or restricted stock shall be
bound by all provisions of this Plan as and to the same extent
as the applicable original grantee.
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17.
|
Listing,
Registration and
Qualification
.
|
If the Committee determines that the listing, registration or
qualification upon any securities exchange or under any law of
Shares subject to any option, SAR, performance award, restricted
stock unit, or restricted stock grant is necessary or desirable
as a condition of, or in connection with, the granting of same
or the issue or purchase of Shares thereunder, no such option or
SAR may be exercised in whole or in part, no such performance
award may be paid out, and no Shares may be issued, unless such
listing, registration or qualification is effected free of any
conditions not acceptable to the Committee.
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18.
|
Transfers
Between Company and
Subsidiaries
.
|
The transfer of an employee, consultant or independent
contractor from the Company to a Subsidiary, from a Subsidiary
to the Company, or from one Subsidiary to another shall not be
considered a termination of employment or services; nor shall it
be considered a termination of employment if an employee is
placed on military or sick leave or such other leave of absence
which is considered by the Committee as continuing intact the
employment relationship.
In the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation,
distribution of assets, or any other change in the corporate
structure or shares of the Company, the Committee shall make
such adjustment as it deems appropriate in the number and kind
of Shares or other property available for issuance under the
Plan (including, without limitation, the total number of Shares
available for issuance under the Plan pursuant to
Section 4), in the number and kind of options, SARs, Shares
or other property covered by grants previously made under the
Plan, and in the exercise price of outstanding options and SARs;
provided, however, that the Committee shall not be required to
make any adjustment that would (i) require the inclusion of
any compensation deferred pursuant to provisions of the Plan (or
an award thereunder) in a participants gross income
pursuant to Section 409A of the Code and the regulations
issued thereunder from time to time
and/or
(ii) cause any award made pursuant to the Plan to be
treated as providing for the deferral of compensation pursuant
to such Code section and regulations. Any such adjustment shall
be final, conclusive and binding for all purposes of the Plan.
In the event of any merger, consolidation or other
reorganization in which the Company is not the surviving or
continuing corporation or in which a Change in Control is to
occur, all of the Companys obligations regarding awards
that were granted hereunder and that are outstanding on the date
of such event shall, on such terms as may be approved by the
Committee prior to such event, be (a) canceled in exchange
for payment of cash or other property determined by the
Committee to be equal to the intrinsic value of such awards at
the time of the Change in Control (but, with respect to deferred
stock units, only if such merger, consolidation, other
reorganization, or Change in Control constitutes a change
in ownership or control of the Company or a change
in the ownership of a substantial portion of the assets of
the Company, as determined pursuant to regulations issued under
Section 409A(a)(2)(A)(v) of the Code) or (b) assumed
by the surviving or continuing corporation.
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20.
|
Amendment
and Termination of the
Plan
.
|
The Board of Directors or the Committee, without approval of the
stockholders, may amend or terminate the Plan, except that no
amendment shall become effective without prior approval of the
stockholders of the Company if stockholder approval would be
required by applicable law or regulations, including if required
for continued compliance with the performance-based compensation
exception of Section 162(m) of the Code or any successor
thereto, under the provisions of Section 422 of the Code or
any successor thereto, or by any listing requirement of the
principal stock exchange on which the Common Stock is then
listed.
Notwithstanding any other provisions of the Plan, and in
addition to the powers of amendment set forth in this
Section 20 and Section 21 hereof or otherwise, the
provisions hereof and the provisions of any award made hereunder
may be amended unilaterally by the Committee from time to time
to the extent necessary (and only to the extent necessary) to
prevent the implementation, application or existence (as the
case may be) of any such provision from (i) requiring the
inclusion of any compensation deferred pursuant to the
provisions of the Plan (or an award thereunder) in a
participants gross income pursuant to Section 409A of
the Code, and the regulations issued
thereunder from time to time
and/or
(ii) inadvertently causing any award hereunder to be
treated as providing for the deferral of compensation pursuant
to such Code section and regulations.
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21.
|
Amendment
of Awards under the
Plan
.
|
The terms of any outstanding award under the Plan may be amended
from time to time by the Committee in its discretion in any
manner that it deems appropriate, including, but not limited to,
any acceleration of the date of exercise of any award
and/or
payments (but, with respect to deferred stock units, only to the
extent permitted by regulations issued under
Section 409A(a)(3) of the Code) thereunder or of the date
of lapse of restrictions on Shares; provided that, except as
otherwise provided in Section 16, no such amendment shall
adversely affect in a material manner any right of a participant
under the award without his or her written consent. Neither the
Board nor the Committee may amend the Plan or the terms of any
outstanding options or SARs awarded under the Plan to reduce the
exercise price of outstanding options or SARs without prior
stockholder approval.
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22.
|
Commencement
Date; Termination
Date
.
|
The date of commencement of the Plan shall be the date of the
closing of the Companys initial public offering of its
Common Stock. If required by the Code, the Plan will also be
subject to reapproval by the shareholders of the Company prior
to the fifth anniversary of such commencement date.
Unless previously terminated upon the adoption of a resolution
of the Board terminating the Plan, the Plan shall terminate at
the close of business on the tenth anniversary of the date of
commencement. No termination of the Plan shall materially and
adversely affect any of the rights or obligations of any person,
without his or her written consent, under any grant of options
or other incentives theretofore granted under the Plan.
Whenever possible, each provision of the Plan shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of the Plan is held to be
prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of the Plan.
The Plan shall be governed by the corporate laws of the State of
Delaware, without giving effect to any choice of law provisions
that might otherwise refer construction or interpretation of the
Plan to the substantive law of another jurisdiction.