Exhibit
10.1
CIENA CORPORATION
2008 OMNIBUS INCENTIVE PLAN
TABLE OF
CONTENTS
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Page
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1.
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PURPOSE
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1
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2.
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DEFINITIONS
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1
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3.
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ADMINISTRATION OF THE PLAN
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4
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3.1.
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Board
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4
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3.2.
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Committee
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4
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3.3.
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Terms of Awards
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5
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3.4.
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No Repricing
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6
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3.5.
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Deferral Arrangement
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6
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3.6.
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No Liability
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6
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3.7.
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Share Issuance/Book-Entry
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6
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4.
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STOCK SUBJECT TO THE PLAN
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6
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4.1.
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Number of Shares Available for Awards
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6
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4.2.
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Adjustments in Authorized Shares
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6
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4.3.
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Share Usage
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6
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5.
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EFFECTIVE DATE, DURATION AND AMENDMENTS
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7
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5.1.
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Effective Date
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7
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5.2.
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Term
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7
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5.3.
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Amendment and Termination of the Plan
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7
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6.
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AWARD ELIGIBILITY AND LIMITATIONS
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7
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6.1.
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Service Providers and Other Persons
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7
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6.2.
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Successive Awards and Substitute Awards
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7
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6.3.
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Limitation on Shares of Stock Subject to Awards and Cash Awards
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8
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7.
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AWARD AGREEMENT
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8
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8.
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TERMS AND CONDITIONS OF OPTIONS
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8
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8.1.
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Option Price
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8
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8.2.
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Vesting
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8
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8.3.
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Term
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8
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8.4.
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Termination of Service
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8
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8.5.
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Limitations on Exercise of Option
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9
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8.6.
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Method of Exercise
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9
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8.7.
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Rights of Holders of Options
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9
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8.8.
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Delivery of Stock Certificates
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9
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8.9.
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Transferability of Options
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9
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8.10.
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Family Transfers
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9
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8.11.
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Limitations on Incentive Stock Options
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9
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8.12.
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Notice of Disqualifying Disposition
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10
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9.
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TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS
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10
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9.1.
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Right to Payment and Grant Price
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10
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9.2.
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Other Terms
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10
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9.3.
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Term
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10
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9.4.
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Transferability of SARS
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10
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9.5.
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Family Transfers
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10
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10.
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TERMS AND CONDITIONS OF RESTRICTED STOCK AND RESTRICTED STOCK
UNITS
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11
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10.1.
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Grant of Restricted Stock or Restricted Stock Units
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11
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10.2.
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Restrictions
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11
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10.3.
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Restricted Stock Certificates
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11
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10.4.
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Rights of Holders of Restricted Stock
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11
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10.5.
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Rights of Holders of Restricted Stock Units
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11
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10.5.1.
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Voting and Dividend Rights
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11
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i
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Page
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10.5.2.
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Creditors Rights
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12
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10.6.
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Termination of Service
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12
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10.7.
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Purchase of Restricted Stock and Shares Subject to Restricted
Stock Units
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12
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10.8.
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Delivery of Stock
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12
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10.9.
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Unrestricted Pool
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12
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11.
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TERMS AND CONDITIONS OF UNRESTRICTED STOCK AWARDS
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12
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12.
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FORM OF PAYMENT FOR OPTIONS AND RESTRICTED STOCK
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13
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12.1.
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General Rule
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13
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12.2.
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Surrender of Stock
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13
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12.3.
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Cashless Exercise
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13
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12.4.
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Other Forms of Payment
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13
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13.
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RESERVED
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13
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14.
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TERMS AND CONDITIONS OF PERFORMANCE SHARES, PERFORMANCE SHARE
UNITS, PERFORMANCE AWARDS AND ANNUAL INCENTIVE AWARDS
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13
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14.1.
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Grant of Performance Share Units/Performance Shares
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13
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14.2.
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Value of Performance Share Units/Performance Shares
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13
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14.3.
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Earning of Performance Share Units/Performance Shares
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13
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14.4.
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Form and Timing of Payment of Performance Share
Units/Performance Shares
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14
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14.5.
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Performance Conditions
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14
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14.6.
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Performance Awards or Annual Incentive Awards Granted to
Designated Covered Employees
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14
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14.6.1.
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Performance Goals Generally
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14
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14.6.2.
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Timing For Establishing Performance Goals
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14
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14.6.3.
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Settlement of Awards; Other Terms
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14
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14.6.4.
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Performance Measures
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14
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14.6.5.
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Evaluation of Performance
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15
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14.6.6.
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Adjustment of Performance-Based Compensation
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16
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14.6.7.
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Board Discretion
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16
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14.7.
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Status of Section Awards Under Code Section 162(m)
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16
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15.
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PARACHUTE LIMITATIONS
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16
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16.
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REQUIREMENTS OF LAW
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17
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16.1.
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General
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17
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16.2.
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Rule 16b-3
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17
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17.
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EFFECT OF CHANGES IN CAPITALIZATION
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17
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17.1.
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Changes in Stock
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17
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17.2.
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Reorganization in Which the Company Is the Surviving Entity
Which does not Constitute a Corporate Transaction
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18
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17.3.
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Corporate Transaction in which Awards are not Assumed
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18
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17.4.
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Corporate Transaction in which Awards are Assumed
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19
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17.5.
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Adjustments
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19
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17.6.
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No Limitations on Company
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19
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18.
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GENERAL PROVISIONS
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19
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18.1.
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Disclaimer of Rights
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19
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18.2.
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Nonexclusivity of the Plan
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19
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18.3.
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Withholding Taxes
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20
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18.4.
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Captions
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20
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18.5.
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Other Provisions
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20
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18.6.
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Number and Gender
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20
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18.7.
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Severability
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20
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18.8.
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Governing Law
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20
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18.9.
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Section 409A of the Code
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21
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ii
CIENA
CORPORATION
2008 OMNIBUS INCENTIVE PLAN
Ciena Corporation., a Delaware corporation (the
Company), sets forth herein the terms of its 2008
Omnibus Incentive Plan (the Plan), as follows:
The Plan is intended to enhance the Companys and its
Affiliates (as defined herein) ability to attract and
retain highly qualified officers, directors, key employees, and
other persons, and to motivate such persons to serve the Company
and its Affiliates and to expend maximum effort to improve the
business results and earnings of the Company, by providing to
such persons an opportunity to acquire or increase a direct
proprietary interest in the operations and future success of the
Company. To this end, the Plan provides for the grant of stock
options, stock appreciation rights, restricted stock, restricted
stock units (including deferred stock units), unrestricted
stock, and cash awards. Any of these awards may, but need not,
be made as performance incentives to reward attainment of annual
or long-term performance goals in accordance with the terms
hereof. Stock options granted under the Plan may be
non-qualified stock options or incentive stock options, as
provided herein, except that stock options granted to outside
directors and any consultants or advisers providing services to
the Company or an Affiliate shall in all cases be non-qualified
stock options.
For purposes of interpreting the Plan and related documents
(including Award Agreements), the following definitions shall
apply:
2.1
Affiliate
means, with respect to the
Company, any company or other trade or business that controls,
is controlled by or is under common control with the Company
within the meaning of Rule 405 of Regulation C under
the Securities Act, including, without limitation, any
Subsidiary. For purposes of granting stock options or stock
appreciation rights, an entity may not be considered an
Affiliate unless the Company holds a controlling
interest in such entity, where the term controlling
interest has the same meaning as provided in Treasury
Regulation 1.414(c)-2(b)(2)(i),
provided that the language at least 50 percent
is used instead of at least 80 percent and,
provided further, that where granting of stock options or stock
appreciation rights is based upon a legitimate business
criteria, the language at least 20 percent is
used instead of at least 80 percent each place
it appears in Treasury
Regulation 1.414(c)-2(b)(2)(i).
2.2
Annual Incentive Award
means an
Award made subject to attainment of performance goals (as
described in
Section 14
) generally over a one-year
Performance Period (the Companys fiscal year, unless
otherwise specified by the Committee).
2.3
Award
means a grant of an Option,
Stock Appreciation Right, Restricted Stock, Unrestricted Stock,
Restricted Stock Unit, Performance Share, Performance Share Unit
or cash award under the Plan.
2.4
Award Agreement
means the agreement
between the Company and a Grantee that evidences and sets out
the terms and conditions of an Award.
2.5
Benefit Arrangement
shall have the
meaning set forth in
Section 15
hereof.
2.6
Board
means the Board of Directors
of the Company.
2.7
Cause
means, as determined by the
Board and unless otherwise provided in an applicable agreement
with the Company or an Affiliate, (i) gross negligence or
willful misconduct in connection with the performance of duties;
(ii) plea of a felony or conviction of a criminal offense
(other than minor traffic offenses); or (iii) material
breach of any term of any employment, consulting or other
services, confidentiality, intellectual property or
non-competition agreements, if any, between the Service Provider
and the Company or an Affiliate.
2.8
Code
means the Internal Revenue Code
of 1986, as now in effect or as hereafter amended.
1
2.9
Committee
means a committee of, and
designated from time to time by resolution of, the Board, which
shall be constituted as provided in
Section 3.2
.
2.10
Company
means Ciena Corporation.
2.11
Corporate Transaction
means
(i) any person or group of persons (as defined in
Section 13(d) and 14(d) of the Exchange Act) together with
its affiliates, excluding employee benefit plans of the Company,
is or becomes, directly or indirectly, the beneficial
owner (as defined in
Rule 13d-3
of the Exchange Act) of securities of the Company representing
50% or more of the combined voting power of the Companys
then outstanding securities; (ii) the dissolution or
liquidation of the Company or a merger, consolidation, or
reorganization of the Company with one or more other entities in
which the Company is not the surviving entity, (iii) a sale
of substantially all of the assets of the Company to another
person or entity, or (iii) any transaction (including
without limitation a merger or reorganization in which the
Company is the surviving entity) which results in any person or
entity owning 50% or more of the combined voting power of all
classes of stock of the Company.
2.12
Covered Employee
means a Grantee
who is a covered employee within the meaning of
Section 162(m)(3) of the Code.
2.13
Disability
means the Grantee is
unable to perform each of the essential duties of such
Grantees position by reason of a medically determinable
physical or mental impairment which is potentially permanent in
character or which can be expected to last for a continuous
period of not less than 12 months; provided, however, that,
with respect to rules regarding expiration of an Incentive Stock
Option following termination of the Grantees Service,
Disability shall mean the Grantee is unable to engage in any
substantial gainful activity by reason of a medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.
2.14
Reserved
.
2.15
Effective Date
means March 26,
2008, the date the Plan was approved by the Companys
stockholders.
2.16
Exchange Act
means the Securities
Exchange Act of 1934, as now in effect or as hereafter amended.
2.17
Fair Market Value
means the value
of a share of Stock, determined as follows: if on the Grant Date
or other determination date the Stock is listed on an
established national or regional stock exchange, or is publicly
traded on an established securities market, the Fair Market
Value of a share of Stock shall be the closing price of the
Stock on such exchange or in such market (if there is more than
one such exchange or market the Board shall determine the
appropriate exchange or market) on the Grant Date or such other
determination date (or if there is no such reported closing
price, the Fair Market Value shall be the mean between the
highest bid and lowest asked prices or between the high and low
sale prices on such trading day) or, if no sale of Stock is
reported for such trading day, on the next preceding day on
which any sale shall have been reported. If the Stock is not
listed on such an exchange or traded on such a market, Fair
Market Value shall be the value of the Stock as determined by
the Board by the reasonable application of a reasonable
valuation method, in a manner consistent with Code
Section 409A.
2.18
Family Member
means a person who is
a spouse, former spouse, child, stepchild, grandchild, parent,
stepparent, grandparent, niece, nephew,
mother-in-law,
father-in-law,
son-in-law,
daughter-in-law,
brother, sister,
brother-in-law,
or
sister-in-law,
including adoptive relationships, of the Grantee, any person
sharing the Grantees household (other than a tenant or
employee), a trust in which any one or more of these persons
have more than fifty percent of the beneficial interest, a
foundation in which any one or more of these persons (or the
Grantee) control the management of assets, and any other entity
in which one or more of these persons (or the Grantee) own more
than fifty percent of the voting interests.
2.19
Grant Date
means, as determined by
the Board, the latest to occur of (i) the date as of which
the Board approves an Award, (ii) the date on which the
recipient of an Award first becomes eligible to receive an Award
under
Section 6
hereof, or (iii) such other
date as may be specified by the Board.
2
2.20
Grantee
means a person who receives
or holds an Award under the Plan.
2.21
Incentive Stock Option
means an
incentive stock option within the meaning of
Section 422 of the Code, or the corresponding provision of
any subsequently enacted tax statute, as amended from time to
time.
2.22
Non-qualified Stock Option
means an
Option that is not an Incentive Stock Option.
2.23
Option
means an option to purchase
one or more shares of Stock pursuant to the Plan.
2.24
Option Price
means the exercise
price for each share of Stock subject to an Option.
2.25
Other Agreement
shall have the
meaning set forth in
Section 15
hereof.
2.26
Outside Director
means a member of
the Board who is not an officer or employee of the Company.
2.27
Performance Award
means an Award
made subject to the attainment of performance goals (as
described in
Section 14
) over a Performance Period
of up to ten years.
2.28
Performance-Based Compensation
means compensation under an Award that is intended to
satisfy the requirements of Code Section 162(m) for certain
performance-based compensation paid to Covered Employees.
Notwithstanding the foregoing, nothing in this Plan shall be
construed to mean that an Award which does not satisfy the
requirements for performance-based compensation under Code
Section 162(m) does not constitute performance-based
compensation for other purposes, including Code
Section 409A.
2.29
Performance Measures
means measures
as described in
Section 14
on which the performance
goals are based and which are approved by the Companys
stockholders pursuant to this Plan in order to qualify Awards as
Performance-Based Compensation.
2.30
Performance Period
means the period
of time during which the performance goals must be met in order
to determine the degree of payout
and/or
vesting with respect to an Award.
2.31
Performance Share
means an Award
under
Section 14
herein and subject to the terms of
this Plan, denominated in shares of Stock, the value of which at
the time it is payable is determined as a function of the extent
to which corresponding performance criteria have been achieved.
2.32
Performance Share Unit
means an
Award under
Section 14
herein and subject to the
terms of this Plan, denominated in units, the value of which at
the time it is payable is determined as a function of the extent
to which corresponding performance criteria have been achieved.
2.33
Plan
means this Ciena Corporation
2008 Omnibus Incentive Plan.
2.34
Prior Plans
means the 2000 Equity
Incentive Compensation Plan, 1994 Third Amended and Restated
Stock Option Plan, 1996 Outside Directors Stock Option Plan, ONI
Systems Corp. 1999 Equity Incentive Plan, ONI Systems Corp. 1998
Equity Incentive Plan, ONI Systems Corp. 1997 Stock Option Plan,
1999 Non-Officer Stock Option Plan, Cyras Systems, Inc. 1998
Stock Plan, Omnia Communications, Inc. 1997 Stock Plan, Lightera
Networks, Inc. 1998 Stock Plan, WaveSmith Networks, Inc. 2000
Stock Option and Incentive Plan, Internet Photonics, Inc. 2000
Corporate Stock Option Plan and Catena Networks, Inc. 1998
Equity Incentive Plan.
2.35
Purchase Price
means the purchase
price for each share of Stock pursuant to a grant of Restricted
Stock or Unrestricted Stock.
2.36
Reporting Person
means a person who
is required to file reports under Section 16(a) of the
Exchange Act.
2.37
Restricted Stock
means shares of
Stock, awarded to a Grantee pursuant to
Section 10
hereof.
2.38
Restricted Stock Unit
means a
bookkeeping entry representing the equivalent of one share of
Stock awarded to a Grantee pursuant to
Section 10
hereof.
3
2.39
SAR Exercise Price
means the per
share exercise price of a SAR granted to a Grantee under
Section 9
hereof.
2.40
Securities Act
means the Securities
Act of 1933, as now in effect or as hereafter amended.
2.41
Service
means service as a Service
Provider to the Company or an Affiliate. Unless otherwise stated
in the applicable Award Agreement, a Grantees change in
position or duties shall not result in interrupted or terminated
Service, so long as such Grantee continues to be a Service
Provider to the Company or an Affiliate. Subject to the
preceding sentence, whether a termination of Service shall have
occurred for purposes of the Plan shall be determined by the
Board, which determination shall be final, binding and
conclusive.
2.42
Service Provider
means an employee,
officer or director of the Company or an Affiliate, or a
consultant or adviser (who is a natural person) currently
providing services to the Company or an Affiliate.
2.43
Stock
means the common stock, par
value $0.01 per share, of the Company.
2.44
Stock Appreciation Right
or
SAR
means a right granted to a Grantee under
Section 9
hereof.
2.45
Subsidiary
means any
subsidiary corporation of the Company within the
meaning of Section 424(f) of the Code.
2.46
Substitute Awards
means Awards
granted upon assumption of, or in substitution for, outstanding
Awards previously granted by a company or other entity acquired
by the Company or any Affiliate or with which the Company or any
Affiliate combines.
2.47
Ten Percent Stockholder
means
an individual who owns more than ten percent of the total
combined voting power of all classes of outstanding stock of the
Company, its parent or any of its Subsidiaries. In determining
stock ownership, the attribution rules of Section 424(d) of
the Code shall be applied.
2.48
Unrestricted Stock
means an Award
pursuant to
Section 11
hereof.
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3.
|
ADMINISTRATION
OF THE PLAN
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3.1.
Board.
The Board shall have such powers and authorities related to the
administration of the Plan as are consistent with the
Companys certificate of incorporation and by-laws and
applicable law. The Board shall have full power and authority to
take all actions and to make all determinations required or
provided for under the Plan, any Award or any Award Agreement,
and shall have full power and authority to take all such other
actions and make all such other determinations not inconsistent
with the specific terms and provisions of the Plan that the
Board deems to be necessary or appropriate to the administration
of the Plan, any Award or any Award Agreement. All such actions
and determinations shall be by the affirmative vote of a
majority of the members of the Board present at a meeting or by
unanimous consent of the Board executed in writing in accordance
with the Companys certificate of incorporation and by-laws
and applicable law. The interpretation and construction by the
Board of any provision of the Plan, any Award or any Award
Agreement shall be final, binding and conclusive.
3.2.
Committee.
The Board from time to time may delegate to the Committee such
powers and authorities related to the administration and
implementation of the Plan, as set forth in
Section 3.1
above and other applicable provisions, as the Board shall
determine, consistent with the certificate of incorporation and
by-laws of the Company and applicable law.
(i) Except as provided in Subsection (ii) and except
as the Board may otherwise determine, the Committee, if any,
appointed by the Board to administer the Plan shall consist of
two or more Outside Directors of the Company who:
(a) qualify as outside directors within the
meaning of Section 162(m) of the Code and who (b) meet
such other requirements as may be established from time to time
by the Securities and Exchange Commission for plans intended to
qualify for exemption under
Rule 16b-3
(or its successor) under the Exchange Act and who
(c) comply with the independence requirements of the stock
exchange on which the
4
Common Stock is listed. Discretionary Awards to Outside
Directors shall be administered only by the Committee and may
not be subject to discretion of or determination by the
Companys management.
(ii) The Board may also appoint one or more separate
Committees of the Board, each composed of one or more directors
of the Company who need not be Outside Directors, who may
administer the Plan with respect to employees or other Service
Providers who are not executive officers (as defined under
Rule 3b-7
or the Exchange Act) or directors of the Company, may grant
Awards under the Plan to such employees or other Service
Providers, and may determine all terms of such Awards.
In the event that the Plan, any Award or any Award Agreement
entered into hereunder provides for any action to be taken by or
determination to be made by the Board, such action may be taken
or such determination may be made by the Committee if the power
and authority to do so has been delegated to the Committee by
the Board as provided for in this Section. Unless otherwise
expressly determined by the Board, any such action or
determination by the Committee shall be final, binding and
conclusive. To the extent permitted by law, the Committee may
delegate its authority under the Plan to a member of the Board
or such other person.
3.3.
Terms of Awards.
Subject to the other terms and conditions of the Plan, the Board
shall have full and final authority to:
(i) designate Grantees,
(ii) determine the type or types of Awards to be made to a
Grantee,
(iii) determine the number of shares of Stock to be subject
to an Award,
(iv) establish the terms and conditions of each Award
(including, but not limited to, the exercise price of any
Option, the nature and duration of any restriction or condition
(or provision for lapse thereof) relating to the vesting,
exercise, transfer, or forfeiture of an Award or the shares of
Stock subject thereto, the treatment of an Award in the event of
a change of control, and any terms or conditions that may be
necessary to qualify Options as Incentive Stock Options),
(v) prescribe the form of each Award Agreement evidencing
an Award, and
(vi) amend, modify, or supplement the terms of any
outstanding Award. Such authority specifically includes the
authority, in order to effectuate the purposes of the Plan but
without amending the Plan, to make or modify Awards to eligible
individuals who are foreign nationals or are individuals who are
employed outside the United States to recognize differences in
local law, tax policy, or custom. Notwithstanding the foregoing,
no amendment, modification or supplement of any Award shall,
without the consent of the Grantee, impair the Grantees
rights under such Award.
The Company may retain the right in an Award Agreement to cause
a forfeiture of the gain realized by a Grantee on account of
actions taken by the Grantee in violation or breach of or in
conflict with any employment agreement, non-competition
agreement, any agreement prohibiting solicitation of employees
or clients of the Company or any Affiliate thereof or any
confidentiality obligation with respect to the Company or any
Affiliate thereof or otherwise in competition with the Company
or any Affiliate thereof, to the extent specified in such Award
Agreement applicable to the Grantee. In addition, the Company
may terminate and cause the forfeiture of an Award if the
Grantee is an employee of the Company or an Affiliate thereof
and is terminated for Cause as defined in the applicable Award
Agreement or the Plan, as applicable.
Furthermore, if the Company is required to prepare an accounting
restatement due to the material noncompliance of the Company, as
a result of misconduct, with any financial reporting requirement
under the securities laws, the individuals subject to automatic
forfeiture under Section 304 of the Sarbanes-Oxley Act of
2002 and any Grantee who knowingly engaged in the misconduct,
was grossly negligent in engaging in the misconduct, knowingly
failed to prevent the misconduct or was grossly negligent in
failing to prevent the misconduct, shall reimburse the Company
the amount of any payment in settlement of an Award earned or
accrued during the
12-month
period following the first public issuance or filing with the
United States Securities and Exchange Commission (whichever
first occurred) of the financial document that contained such
material noncompliance.
5
3.4.
No Repricing.
Notwithstanding anything in this Plan to the contrary, no
amendment or modification may be made to an outstanding Option
or SAR, including, without limitation, by replacement, exchange
or cancellation of Options or SARs for cash or another Award or
award type, that would be treated as a repricing under the rules
of the stock exchange on which the Stock is listed, in each
case, without the approval of the stockholders of the Company,
provided, that, appropriate adjustments may be made to
outstanding Options and SARs pursuant to
Section 17
or
Section 5.3
and may be made to make changes
to achieve compliance with applicable law, including Code
Section 409A.
3.5.
Deferral Arrangement.
The Board may permit or require the deferral of any Award
payment into a deferred compensation arrangement, subject to
such rules and procedures as it may establish, which may include
provisions for the payment or crediting of interest or dividend
equivalents, including converting such credits into deferred
Stock equivalents. Any such deferrals shall be made in a manner
that complies with Code Section 409A.
3.6.
No Liability.
No member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to the
Plan or any Award or Award Agreement.
3.7.
Share Issuance/Book-Entry.
Notwithstanding any provision of this Plan to the contrary, the
issuance of the Stock under the Plan may be evidenced in such a
manner as the Board, in its discretion, deems appropriate,
including, without limitation, book-entry registration or
issuance of one or more Stock certificates.
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4.
|
STOCK
SUBJECT TO THE PLAN
|
4.1.
Number of Shares Available for Awards.
Subject to adjustment as provided in
Section 17
hereof, the number of shares of Stock available for issuance
under the Plan shall be eight million, all of which may be
granted as Incentive Stock Options, increased by shares of Stock
covered by awards granted under a Prior Plan that are not
purchased or are forfeited or expire, or otherwise terminate
without delivery of any Stock subject thereto, to the extent
such shares would again be available for issuance under such
Prior Plan. Stock issued or to be issued under the Plan shall be
authorized but unissued shares; or, to the extent permitted by
applicable law, issued shares that have been reacquired by the
Company.
4.2.
Adjustments in Authorized Shares.
The Board shall have the right to substitute or assume Awards in
connection with mergers, reorganizations, separations, or other
transactions to which Section 424(a) of the Code applies.
The number of shares of Stock reserved pursuant to
Section 4
shall be increased by the corresponding
number of Awards assumed and, in the case of a substitution, by
the net increase in the number of shares of Stock subject to
Awards before and after the substitution.
4.3.
Share Usage.
Shares covered by an Award shall be counted as used as of the
Grant Date. Any shares of Stock that are subject to Awards of
Options shall be counted against the limit set forth in
Section 4.1 as one share for every one share subject to an
Award of Options. With respect to SARs, the number of shares
subject to an award of SARs will be counted against the
aggregate number of shares available for issuance under the Plan
regardless of the number of shares actually issued to settle the
SAR upon exercise. Any shares that are subject to Awards other
than Options or Stock Appreciation Rights shall be counted
against the limit set forth in
Section 4.1
as
1.6 shares for every one share granted. If any shares
covered by an Award granted under the Plan are not purchased or
are forfeited or expire, or if an Award otherwise terminates
without delivery of any Stock subject thereto or is settled in
cash in lieu of shares, then the number of shares of Stock
counted against the aggregate number of shares available under
the Plan with respect to such Award shall, to the extent of any
such forfeiture, termination or expiration, again be available
for
6
making Awards under the Plan in the same amount as such shares
were counted against the limit set forth in
Section 4.1
, provided that any shares covered by an
Award granted under a Prior Plan will again be available for
making Awards under the Plan in the same amount as such shares
were counted against the limits set forth in the applicable
Prior Plan. The number of shares of Stock available for issuance
under the Plan shall not be increased by (i) any shares of
Stock tendered or withheld or Award surrendered in connection
with the purchase of shares of Stock upon exercise of an Option
as described in
Section 12.2
, or (ii) any
shares of Stock deducted or delivered from an Award payment in
connection with the Companys tax withholding obligations
as described in
Section 18.3
.
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5.
|
EFFECTIVE
DATE, DURATION AND AMENDMENTS
|
5.1.
Effective Date.
The Plan shall be effective as of the Effective Date, subject to
approval of the Plan by the Companys stockholders within
one year of the Effective Date. Upon approval of the Plan by the
stockholders of the Company as set forth above, all Awards made
under the Plan on or after the Effective Date shall be fully
effective as if the stockholders of the Company had approved the
Plan on the Effective Date. If the stockholders fail to approve
the Plan within one year of the Effective Date, any Awards made
hereunder shall be null and void and of no effect. Following the
Effective Date no awards will be made under the Prior Plans.
5.2.
Term.
The Plan shall terminate automatically ten years after the
Effective Date and may be terminated on any earlier date as
provided in
Section 5.3
.
5.3.
Amendment and Termination of the Plan
The Board may, at any time and from time to time, amend,
suspend, or terminate the Plan as to any shares of Stock as to
which Awards have not been made. An amendment shall be
contingent on approval of the Companys stockholders to the
extent stated by the Board, required by applicable law or
required by applicable stock exchange listing requirements. In
addition, an amendment will be contingent on approval of the
Companys stockholders if the amendment would:
(i) materially increase the benefits accruing to
participants under the Plan, (ii) materially increase the
aggregate number of shares of Stock that may be issued under the
Plan, or (iii) materially modify the requirements as to
eligibility for participation in the Plan. No Awards shall be
made after termination of the Plan. No amendment, suspension, or
termination of the Plan shall, without the consent of the
Grantee, impair rights or obligations under any Award
theretofore awarded under the Plan.
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6.
|
AWARD
ELIGIBILITY AND LIMITATIONS
|
6.1.
Service Providers and Other Persons.
Subject to this
Section 6
, Awards may be made under
the Plan to: (i) any Service Provider to the Company or of
any Affiliate, including any Service Provider who is an officer
or director of the Company, or of any Affiliate, as the Board
shall determine and designate from time to time and
(ii) any other individual whose participation in the Plan
is determined to be in the best interests of the Company by the
Board.
6.2.
Successive Awards and Substitute Awards.
An eligible person may receive more than one Award, subject to
such restrictions as are provided herein. Notwithstanding
Sections 8.1
and
9.1
, the Option Price of an
Option or the grant price of a SAR that is a Substitute Award
(as defined in Section 2.46) may be less than 100% of the
Fair Market Value of a share of Common Stock on the original
date of grant; provided, that, the Option Price or grant price
is determined in accordance with the principles of Code
Section 424 and the regulations thereunder.
7
6.3.
Limitation on Shares of Stock Subject to Awards and
Cash Awards.
During any time when the Company has a class of equity security
registered under Section 12 of the Exchange Act:
(i) the maximum number of shares of Stock subject to
Options or SARs that can be awarded under the Plan to any person
eligible for an Award under
Section 6
hereof is one
million per 12 month period;
(ii) the maximum number of shares that can be awarded under
the Plan, other than pursuant to an Option or SARs, to any
person eligible for an Award under
Section 6
hereof
is one million per 12 month period; and
(iii) the maximum amount that may be earned as an Annual
Incentive Award or other cash Award in any 12 month period
by any person eligible for an Award shall be $5,000,000 and the
maximum amount that may be earned as a Performance Award or
other cash Award in respect of a Performance Period by any
person eligible for an Award shall be $25,000,000.
The preceding limitations in this
Section 6.3
are
subject to adjustment as provided in
Section 17
hereof.
Each Award granted pursuant to the Plan shall be evidenced by an
Award Agreement, in such form or forms as the Board shall from
time to time determine. Award Agreements granted from time to
time or at the same time need not contain similar provisions but
shall be consistent with the terms of the Plan. Each Award
Agreement evidencing an Award of Options shall specify whether
such Options are intended to be Non-qualified Stock Options or
Incentive Stock Options, and in the absence of such
specification such Options shall be deemed Non-qualified Stock
Options.
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8.
|
TERMS AND
CONDITIONS OF OPTIONS
|
8.1.
Option Price
The Option Price of each Option shall be fixed by the Board and
stated in the Award Agreement evidencing such Option. Except in
the case of Substitute Awards, the Option Price of each Option
shall be at least the Fair Market Value on the Grant Date of a
share of Stock;
provided
,
however
, that in the
event that a Grantee is a Ten Percent Stockholder, the
Option Price of an Option granted to such Grantee that is
intended to be an Incentive Stock Option shall be not less than
110 percent of the Fair Market Value of a share of Stock on
the Grant Date. In no case shall the Option Price of any Option
be less than the par value of a share of Stock.
8.2.
Vesting.
Subject to
Sections 8.3 and 17.3
hereof, each Option
granted under the Plan shall become exercisable at such times
and under such conditions as shall be determined by the Board
and stated in the Award Agreement. For purposes of this
Section 8.2
, fractional numbers of shares of Stock
subject to an Option shall be rounded down to the next nearest
whole number.
8.3.
Term.
Each Option granted under the Plan shall terminate, and all
rights to purchase shares of Stock thereunder shall cease, upon
the expiration of ten years from the date such Option is
granted, or under such circumstances and on such date prior
thereto as is set forth in the Plan or as may be fixed by the
Board and stated in the Award Agreement relating to such Option;
provided
,
however
, that in the event that the
Grantee is a Ten Percent Stockholder, an Option granted to
such Grantee that is intended to be an Incentive Stock Option
shall not be exercisable after the expiration of five years from
its Grant Date.
8.4.
Termination of Service.
Each Award Agreement shall set forth the extent to which the
Grantee shall have the right to exercise the Option following
termination of the Grantees Service. Such provisions shall
be determined in the sole discretion of the Board, need not be
uniform among all Options issued pursuant to the Plan, and may
reflect distinctions based on the reasons for termination of
Service.
8
8.5.
Limitations on Exercise of Option.
Notwithstanding any other provision of the Plan, in no event may
any Option be exercised, in whole or in part, prior to the date
the Plan is approved by the stockholders of the Company as
provided herein or after the occurrence of an event referred to
in
Section 17
hereof which results in termination of
the Option.
8.6.
Method of Exercise.
Subject to the terms of
Article 12
and
Section 18.3
, an Option that is exercisable may be
exercised by the Grantees delivery to the Company of
notice of exercise on any business day, at the Companys
principal office, on the form specified by the Company. Such
notice shall specify the number of shares of Stock with respect
to which the Option is being exercised and shall be accompanied
by payment in full of the Option Price of the shares for which
the Option is being exercised plus the amount (if any) of
federal
and/or
other
taxes which the Company may, in its judgment, be required to
withhold with respect to an Award.
8.7.
Rights of Holders of Options.
Unless otherwise stated in the applicable Award Agreement, an
individual holding or exercising an Option shall have none of
the rights of a stockholder (for example, the right to receive
cash or dividend payments or distributions attributable to the
subject shares of Stock or to direct the voting of the subject
shares of Stock) until the shares of Stock covered thereby are
fully paid and issued to him. Except as provided in
Section 17
hereof, no adjustment shall be made for
dividends, distributions or other rights for which the record
date is prior to the date of such issuance.
8.8.
Delivery of Stock Certificates.
Promptly after the exercise of an Option by a Grantee and the
payment in full of the Option Price, such Grantee shall be
entitled to the issuance of a stock certificate or certificates
evidencing his or her ownership of the shares of Stock subject
to the Option.
8.9.
Transferability of Options.
Except as provided in
Section 8.10
, during the
lifetime of a Grantee, only the Grantee (or, in the event of
legal incapacity or incompetency, the Grantees guardian or
legal representative) may exercise an Option. Except as provided
in
Section 8.10
, no Option shall be assignable or
transferable by the Grantee to whom it is granted, other than by
will or the laws of descent and distribution.
8.10.
Family Transfers.
If authorized in the applicable Award Agreement, a Grantee may
transfer, not for value, all or part of an Option which is not
an Incentive Stock Option to any Family Member. For the purpose
of this
Section 8.10
, a not for value
transfer is a transfer which is (i) a gift, (ii) a
transfer under a domestic relations order in settlement of
marital property rights; or (iii) a transfer to an entity
in which more than fifty percent of the voting interests are
owned by Family Members (or the Grantee) in exchange for an
interest in that entity. Following a transfer under this
Section 8.10
, any such Option shall continue to be
subject to the same terms and conditions as were applicable
immediately prior to transfer. Subsequent transfers of
transferred Options are prohibited except to Family Members of
the original Grantee in accordance with this
Section 8.10
or by will or the laws of descent and
distribution. The events of termination of Service of
Section 8.4
hereof shall continue to be applied with
respect to the original Grantee, following which the Option
shall be exercisable by the transferee only to the extent, and
for the periods specified, in
Section 8.4
.
8.11.
Limitations on Incentive Stock Options.
An Option shall constitute an Incentive Stock Option only
(i) if the Grantee of such Option is an employee of the
Company or any Subsidiary of the Company; (ii) to the
extent specifically provided in the related Award Agreement; and
(iii) to the extent that the aggregate Fair Market Value
(determined at the time the Option is granted) of the shares of
Stock with respect to which all Incentive Stock Options held by
such Grantee become exercisable for the first time during any
calendar year (under the Plan and all other plans of the
Grantees employer
9
and its Affiliates) does not exceed $100,000. This limitation
shall be applied by taking Options into account in the order in
which they were granted.
8.12.
Notice of Disqualifying Disposition.
If any Grantee shall make any disposition of shares of Stock
issued pursuant to the exercise of an Incentive Stock Option
under the circumstances described in Code Section 421(b)
(relating to certain disqualifying dispositions), such Grantee
shall notify the Company of such disposition within ten days
thereof.
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9.
|
TERMS AND
CONDITIONS OF STOCK APPRECIATION RIGHTS
|
9.1.
Right to Payment and Grant Price.
A SAR shall confer on the Grantee to whom it is granted a right
to receive, upon exercise thereof, the excess of (A) the
Fair Market Value of one share of Stock on the date of exercise
over (B) the grant price of the SAR as determined by the
Board. The Award Agreement for a SAR shall specify the grant
price of the SAR, which shall be at least the Fair Market Value
of a share of Stock on the date of grant. SARs may be granted in
conjunction with all or part of an Option granted under the Plan
or at any subsequent time during the term of such Option, in
conjunction with all or part of any other Award or without
regard to any Option or other Award; provided that a SAR that is
granted subsequent to the Grant Date of a related Option must
have a SAR Price that is no less than the Fair Market Value of
one share of Stock on the SAR Grant Date.
9.2.
Other Terms.
The Board shall determine at the date of grant or thereafter,
the time or times at which and the circumstances under which a
SAR may be exercised in whole or in part (including based on
achievement of performance goals
and/or
future service requirements), the time or times at which SARs
shall cease to be or become exercisable following termination of
Service or upon other conditions, the method of exercise, method
of settlement, form of consideration payable in settlement,
method by or forms in which Stock will be delivered or deemed to
be delivered to Grantees, whether or not a SAR shall be in
tandem or in combination with any other Award, and any other
terms and conditions of any SAR.
9.3.
Term.
Each SAR granted under the Plan shall terminate, and all rights
thereunder shall cease, upon the expiration of ten years from
the date such SAR is granted, or under such circumstances and on
such date prior thereto as is set forth in the Plan or as may be
fixed by the Board and stated in the Award Agreement relating to
such SAR.
9.4.
Transferability of SARS.
Except as provided in
Section 9.5
, during the
lifetime of a Grantee, only the Grantee (or, in the event of
legal incapacity or incompetency, the Grantees guardian or
legal representative) may exercise a SAR. Except as provided in
Section 9.5
, no SAR shall be assignable or
transferable by the Grantee to whom it is granted, other than by
will or the laws of descent and distribution.
9.5.
Family Transfers.
If authorized in the applicable Award Agreement, a Grantee may
transfer, not for value, all or part of a SAR to any Family
Member. For the purpose of this
Section 9.5
, a
not for value transfer is a transfer which is
(i) a gift, (ii) a transfer under a domestic relations
order in settlement of marital property rights; or (iii) a
transfer to an entity in which more than fifty percent of the
voting interests are owned by Family Members (or the Grantee) in
exchange for an interest in that entity. Following a transfer
under this
Section 9.5
, any such SAR shall continue
to be subject to the same terms and conditions as were
applicable immediately prior to transfer. Subsequent transfers
of transferred SARs are prohibited except to Family Members of
the original Grantee in accordance with this
Section 9.5
or by will or the laws of descent and distribution.
10
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10.
|
TERMS AND
CONDITIONS OF RESTRICTED STOCK AND RESTRICTED STOCK
UNITS
|
10.1.
Grant of Restricted Stock or Restricted Stock
Units.
Awards of Restricted Stock or Restricted Stock Units may be made
for no consideration (other than par value of the shares which
is deemed paid by Services already rendered).
10.2.
Restrictions.
(a) At the time a grant of Restricted Stock or Restricted
Stock Units is made, the Board may, in its sole discretion,
establish a period of time (a restricted period)
applicable to such Restricted Stock or Restricted Stock Units.
Each Award of Restricted Stock or Restricted Stock Units may be
subject to a different restricted period. The Board may in its
sole discretion, at the time a grant of Restricted Stock or
Restricted Stock Units is made, prescribe restrictions in
addition to or other than the expiration of the restricted
period, including the satisfaction of corporate or individual
performance objectives, which may be applicable to all or any
portion of the Restricted Stock or Restricted Stock Units as
described in
Article 14
. Neither Restricted Stock
nor Restricted Stock Units may be sold, transferred, assigned,
pledged or otherwise encumbered or disposed of during the
restricted period or prior to the satisfaction of any other
restrictions prescribed by the Board with respect to such
Restricted Stock or Restricted Stock Units.
(b) Notwithstanding the terms of Section 10.2(a), and
subject to Section 10.9 below, (i) Restricted Stock
and Restricted Stock Units that vest solely by the passage of
time shall not vest in full in less than three years from the
Grant Date; and (ii) Restricted Stock and Restricted Stock
Units that vest, or are subject to acceleration of vesting, upon
the achievement of performance targets shall not vest in full in
less than one year from the Grant Date. The foregoing
restriction shall not apply to Restricted Stock or Restricted
Stock Unit Awards assumed in connection with mergers,
reorganizations, separations, or other transactions to which
Section 424(a) of the Code applies.
10.3.
Restricted Stock Certificates.
The Company shall issue, in the name of each Grantee to whom
Restricted Stock has been granted, stock certificates
representing the total number of shares of Restricted Stock
granted to the Grantee, as soon as reasonably practicable after
the Grant Date. The Board may provide in an Award Agreement that
either (i) the Secretary of the Company shall hold such
certificates for the Grantees benefit until such time as
the Restricted Stock is forfeited to the Company or the
restrictions lapse, or (ii) such certificates shall be
delivered to the Grantee,
provided
,
however
, that
such certificates shall bear a legend or legends that comply
with the applicable securities laws and regulations and makes
appropriate reference to the restrictions imposed under the Plan
and the Award Agreement.
10.4.
Rights of Holders of Restricted Stock.
Unless the Board otherwise provides in an Award Agreement,
holders of Restricted Stock shall have the right to vote such
Stock and the right to receive any dividends declared or paid
with respect to such Stock. The Board may provide that any
dividends paid on Restricted Stock must be reinvested in shares
of Stock, which may or may not be subject to the same vesting
conditions and restrictions applicable to such Restricted Stock.
All distributions, if any, received by a Grantee with respect to
Restricted Stock as a result of any stock split, stock dividend,
combination of shares, or other similar transaction shall be
subject to the restrictions applicable to the original Grant.
10.5.
Rights of Holders of Restricted Stock Units.
10.5.1.
Voting and Dividend Rights.
Holders of Restricted Stock Units shall have no rights as
stockholders of the Company. The Board may provide in an Award
Agreement evidencing a grant of Restricted Stock Units that the
holder of such Restricted Stock Units shall be entitled to
receive, upon the Companys payment of a cash dividend on
its outstanding Stock, a cash payment for each Restricted Stock
Unit held equal to the per-share dividend paid on the Stock.
Such Award Agreement may also provide that such cash payment
will be deemed reinvested in additional Restricted Stock Units
at a price per unit equal to the Fair Market Value of a share of
Stock on the date that such dividend is paid.
11
10.5.2.
Creditors Rights.
A holder of Restricted Stock Units shall have no rights other
than those of a general creditor of the Company. Restricted
Stock Units represent an unfunded and unsecured obligation of
the Company, subject to the terms and conditions of the
applicable Award Agreement.
10.6.
Termination of Service.
(a) Unless the Board otherwise provides in an Award
Agreement or in writing after the Award Agreement is issued,
upon the termination of a Grantees Service, any Restricted
Stock or Restricted Stock Units held by such Grantee that have
not vested, or with respect to which all applicable restrictions
and conditions have not lapsed, shall immediately be deemed
forfeited. Upon forfeiture of Restricted Stock or Restricted
Stock Units, the Grantee shall have no further rights with
respect to such Award, including but not limited to any right to
vote Restricted Stock or any right to receive dividends with
respect to shares of Restricted Stock or Restricted Stock Units.
(b) Notwithstanding the terms of
Section 10.6(a)
, and subject to
Section 10.9
below, the Board may not (i) grant Restricted Stock or
Restricted Stock Units that provide for acceleration of vesting,
except in the case of a Grantees death, disability or
retirement, or upon or in connection with a Corporate
Transaction, or upon the satisfaction of performance-based
vesting conditions as provided in Section 10.2(b)(ii); or
(ii) waive vesting restrictions or conditions applicable to
Restricted Stock or Restricted Stock Units, except in the case
of a Grantees death, disability or retirement or upon or
in connection with a Corporation Transaction. The foregoing
restriction shall not apply to Restricted Stock or Restricted
Stock Unit Awards assumed in connection with mergers,
reorganizations, separations, or other transactions to which
Section 424(a) of the Code applies.
10.7.
Purchase of Restricted Stock and Shares Subject to
Restricted Stock Units.
The Grantee shall be required, to the extent required by
applicable law, to purchase the Restricted Stock or shares of
Stock subject to vested Restricted Stock Units from the Company
at a Purchase Price equal to the greater of (i) the
aggregate par value of the shares of Stock represented by such
Restricted Stock or Restricted Stock Units (ii) the
Purchase Price, if any, specified in the Award Agreement
relating to such Restricted Stock or Restricted Stock Units. The
Purchase Price shall be payable in a form described in
Section 12
or, in the discretion of the Board, in
consideration for past or future Services rendered to the
Company or an Affiliate.
10.8.
Delivery of Stock.
Upon the expiration or termination of any restricted period and
the satisfaction of any other conditions prescribed by the
Board, the restrictions applicable to shares of Restricted Stock
or Restricted Stock Units settled in Stock shall lapse, and,
unless otherwise provided in the Award Agreement, a stock
certificate for such shares shall be delivered, free of all such
restrictions, to the Grantee or the Grantees beneficiary
or estate, as the case may be. Neither the Grantee, nor the
Grantees beneficiary or estate, shall have any further
rights with regard to a Restricted Stock Unit once the share of
Stock represented by the Restricted Stock Unit has been
delivered.
10.9.
Unrestricted Pool.
Notwithstanding anything to the contrary in this Plan,
Restricted Stock and Restricted Stock Unit Awards may be
(i) granted with vesting terms that do not comply with the
requirements of
Section 10.2(b)
; (ii) granted
with terms providing for the acceleration of vesting that do not
comply with
Section 10.6(b)(i)
,
and/or
(iii) subsequent to the date of grant, modified to provide
acceleration of vesting terms that do not comply with
Section 10.6(b)(ii)
, provided that, in no event,
shall the aggregate number of shares underlying Restricted Stock
and Restricted Stock Unit Awards granted or modified as
contemplated in this
Section 10.9
exceed five
percent of the shares authorized for issuance in
Section 4.1
hereof. In calculating compliance with
this limitation, the share usage rules set forth in
Section 4.3
shall apply.
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11.
|
TERMS AND
CONDITIONS OF UNRESTRICTED STOCK AWARDS
|
The Board may, in its sole discretion, grant (or sell at par
value or such other higher Purchase Price determined by the
Board) an Unrestricted Stock Award to any Grantee pursuant to
which such Grantee may receive shares of Stock free of any
restrictions (Unrestricted Stock) under the Plan,
which Awards shall be deducted from the five
12
percent limitation set forth in
Section 10.9.
Unrestricted Stock Awards may be granted or sold as described in
the preceding sentence in respect of past services and other
valid consideration, or in lieu of, or in addition to, any cash
compensation due to such Grantee.
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12.
|
FORM OF
PAYMENT FOR OPTIONS AND RESTRICTED STOCK
|
12.1.
General Rule.
Payment of the Option Price for the shares purchased pursuant to
the exercise of an Option or the Purchase Price for Restricted
Stock shall be made in cash or in cash equivalents acceptable to
the Company.
12.2.
Surrender of Stock.
To the extent the Award Agreement so provides, payment of the
Option Price for shares purchased pursuant to the exercise of an
Option or the Purchase Price for Restricted Stock may be made
all or in part through the tender or attestation to the Company
of shares of Stock, which shall be valued, for purposes of
determining the extent to which the Option Price or Purchase
Price has been paid thereby, at their Fair Market Value on the
date of exercise or surrender.
12.3.
Cashless Exercise.
With respect to an Option only (and not with respect to
Restricted Stock), to the extent permitted by law and to the
extent the Award Agreement so provides, payment of the Option
Price for shares purchased pursuant to the exercise of an Option
may be made all or in part by delivery (on a form acceptable to
the Board) of an irrevocable direction to a licensed securities
broker acceptable to the Company to sell shares of Stock and to
deliver all or part of the sales proceeds to the Company in
payment of the Option Price and any withholding taxes described
in
Section 18.3
.
12.4.
Other Forms of Payment.
To the extent the Award Agreement so provides, payment of the
Option Price for shares purchased pursuant to exercise of an
Option or the Purchase Price for Restricted Stock may be made in
any other form that is consistent with applicable laws,
regulations and rules, including, without limitation, Service.
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14.
|
TERMS AND
CONDITIONS OF PERFORMANCE SHARES, PERFORMANCE SHARE UNITS,
PERFORMANCE AWARDS AND ANNUAL INCENTIVE AWARDS
|
14.1.
Grant of Performance Share Units/Performance
Shares.
Subject to the terms and provisions of this Plan, the Board, at
any time and from time to time, may grant Performance Share
Units
and/or
Performance Shares to Participants in such amounts and upon such
terms as the Committee shall determine.
14.2.
Value of Performance Share Units/Performance
Shares.
Each Performance Share Unit shall have an initial value that is
established by the Board at the time of grant. The Board shall
set performance goals in its discretion which, depending on the
extent to which they are met, will determine the value
and/or
number of Performance Share Units/Performance Shares that will
be paid out to the Participant.
14.3.
Earning of Performance Share Units/Performance
Shares.
Subject to the terms of this Plan, after the applicable
Performance Period has ended, the holder of Performance Share
Units/Performance Shares shall be entitled to receive payout on
the value and number of Performance Share Units/Performance
Shares earned by the Participant over the Performance Period, to
be determined as a function of the extent to which the
corresponding performance goals have been achieved.
13
14.4.
Form and Timing of Payment of Performance Share
Units/Performance Shares.
Payment of earned Performance Share Units/Performance Shares
shall be as determined by the Board and as evidenced in the
Award Agreement. Subject to the terms of this Plan, the Board,
in its sole discretion, may pay earned Performance Share
Units/Performance Shares in the form of cash or in shares (or in
a combination thereof) equal to the value of the earned
Performance Share Units/Performance Shares at the close of the
applicable Performance Period, or as soon as practicable after
the end of the Performance Period. Performance Share
Units/Performance Shares may be granted subject to any
restrictions deemed appropriate by the Committee. The
determination of the Committee with respect to the form of
payout of such Awards shall be set forth in the Award Agreement
pertaining to the grant of the Award.
14.5.
Performance Conditions.
The right of a Grantee to exercise or receive a grant or
settlement of any Award, and the timing thereof, may be subject
to such performance conditions as may be specified by the Board.
The Board may use such business criteria and other measures of
performance as it may deem appropriate in establishing any
performance conditions. If and to the extent required under Code
Section 162(m), any power or authority relating to an Award
intended to qualify under Code Section 162(m), shall be
exercised by the Committee and not the Board.
14.6.
Performance Awards or Annual Incentive Awards
Granted to Designated Covered Employees.
Subject to the terms and provisions of this Plan, the Board, at
any time and from time to time, may grant Performance Awards,
Annual Incentive Awards or other cash awards. If and to the
extent that the Board determines that any Award to be granted to
a Grantee who is designated by the Board as likely to be a
Covered Employee should qualify as performance-based
compensation for purposes of Code Section 162(m), the
grant, exercise
and/or
settlement of such Award shall be contingent upon achievement of
pre-established performance goals and other terms set forth in
this
Section 14.6
.
14.6.1.
Performance Goals Generally.
The performance goals for such Awards shall consist of one or
more business criteria and a targeted level or levels of
performance with respect to each of such criteria, as specified
by the Committee consistent with this
Section 14.6
.
Performance goals shall be objective and shall otherwise meet
the requirements of Code Section 162(m) and regulations
thereunder including the requirement that the level or levels of
performance targeted by the Committee result in the achievement
of performance goals being substantially uncertain.
The Committee may determine that such 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 Awards. Performance goals may differ for
Awards granted to any one Grantee or to different Grantees.
14.6.2.
Timing For Establishing Performance Goals.
Performance goals shall be established not later than the
earlier of (i) 90 days after the beginning of any
Performance Period applicable to such Awards and (ii) the
day on which 25% of any Performance Period applicable to such
Awards has expired, or at such other date as may be required or
permitted for performance-based compensation under
Code Section 162(m).
14.6.3.
Settlement of Awards; Other Terms.
Settlement of such Awards shall be in cash, Stock, 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 Awards.
The Committee shall specify the circumstances in which such
Performance Award or Annual Incentive Awards shall be paid or
forfeited in the event of termination of Service by the Grantee
prior to the end of a Performance Period or settlement of Awards.
14.6.4.
Performance Measures.
The performance goals upon which the payment or vesting of an
Award to a Covered Employee that is intended to qualify as
Performance-Based Compensation shall be limited to the following
Performance Measures:
a. net earnings or net income;
b. operating earnings;
14
c. pretax earnings;
d. earnings (or loss) per share;
e. share price, including growth measures and total
stockholder return; and appreciation in
and/or
maintenance of the price of the shares of Stock or any publicly
traded securities of the Company;
f. earnings (or losses), including earnings or losses
before taxes, earnings (or losses) before interest and taxes,
earnings (or losses) before interest, taxes and depreciation,
earnings (or losses) before interest, taxes, depreciation and
amortization, or earnings (or losses) before interest, taxes,
depreciation, amortization and stock-based compensation, and
other similar adjustments to earnings (or losses);
g. bookings, orders, sales or revenue, or growth in these
measures, whether in general, by type of product or product
line, by service, or by customer or type of customer;
h. net income (or loss) before or after taxes and before or
after allocation of corporate overhead and bonus;
i. gross or operating margins;
j. gross profit;
k. return measures, including return on assets, capital,
investment, equity, sales or revenue;
l. cash flow, including operating cash flow, free cash
flow, cash flow return on equity and cash flow return on
investment and cash flow per share;
m. productivity ratios;
n. expense targets or improvement in or attainment of
expense levels or cost reductions;
o. market share;
p. financial ratios as provided in credit agreements of the
Company and its subsidiaries;
q. working capital targets;
r. cash or equivalents at the end of the fiscal year or
fiscal quarter;
s. implementation, completion or attainment of measurable
objectives with respect to research, development, products or
projects, recruiting and maintaining personnel, and strategic or
operational objectives;
t. completion of acquisitions of business or companies;
u. completion of divestitures and asset sales; and
v. any combination of any of the foregoing business
criteria.
Any Performance Measure(s) may be used to measure the
performance of the Company, Subsidiary,
and/or
Affiliate as a whole or any business unit of the Company,
Subsidiary,
and/or
Affiliate or any combination thereof, as the Committee may deem
appropriate, or any of the above Performance Measures as
compared to the performance of a group of comparator companies,
or published or special index that the Committee, in its sole
discretion, deems appropriate, or the Company may select
Performance Measure (f) above as compared to various stock
market indices. The Committee also has the authority to provide
for accelerated vesting of any Award based on the achievement of
performance goals pursuant to the Performance Measures specified
in this
Section 14
.
14.6.5.
Evaluation of Performance.
The Committee may provide in any such Award that any evaluation
of performance may include or exclude any of the following
events that occur during a Performance Period: (a) asset
write-downs; (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) any reorganization and restructuring
programs; (e) extraordinary nonrecurring items as described
in Accounting Principles Board Opinion No. 30, in
managements discussion and analysis of financial condition
and results of operations appearing in the Companys annual
or quarterly report filed with the SEC, or in
15
the Companys press release announcing its annual or
quarterly results of operations filed with the SEC on
Form 8-K;
(f) acquisitions or divestitures; and (g) foreign
exchange gains and losses. 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.
14.6.6.
Adjustment of Performance-Based Compensation.
Awards that are intended to qualify as Performance-Based
Compensation may not be adjusted upward. The Board shall retain
the discretion to adjust such Awards downward, either on a
formula or discretionary basis, or any combination as the
Committee determines.
14.6.7.
Board Discretion.
In the event that applicable tax
and/or
securities laws change to permit Board discretion to alter the
governing Performance Measures without obtaining stockholder
approval of such changes, the Board shall have sole discretion
to make such changes without obtaining stockholder approval
provided the exercise of such discretion does not violate Code
Section 409A. In addition, in the event that the Committee
determines that it is advisable to grant Awards that shall not
qualify as Performance-Based Compensation, the Committee may
make such grants without satisfying the requirements of Code
Section 162(m) and base vesting on Performance Measures
other than those set forth in
Section 14.6.4
.
14.7.
Status of Section Awards Under Code
Section 162(m).
It is the intent of the Company that Awards under
Section 14.6
hereof granted to persons who are
designated by the Committee as likely to be Covered Employees
within the meaning of Code Section 162(m) and regulations
thereunder shall, if so designated by the Committee, constitute
qualified performance-based compensation within the
meaning of Code Section 162(m) and regulations thereunder.
Accordingly, the terms of
Section 14.6
, including
the definitions of Covered Employee and other terms used
therein, shall be interpreted in a manner consistent with Code
Section 162(m) and regulations thereunder. The foregoing
notwithstanding, because the Committee cannot determine with
certainty whether a given Grantee will be a Covered Employee
with respect to a fiscal year that has not yet been completed,
the term Covered Employee as used herein shall mean only a
person designated by the Committee, at the time of grant of an
Award, as likely to be a Covered Employee with respect to that
fiscal year. If any provision of the Plan or any agreement
relating to such Awards does not comply or is inconsistent with
the requirements of Code Section 162(m) or regulations
thereunder, such provision shall be construed or deemed amended
to the extent necessary to conform to such requirements.
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15.
|
PARACHUTE
LIMITATIONS
|
Notwithstanding any other provision of this Plan or of any other
agreement, contract, or understanding heretofore or hereafter
entered into by a Grantee with the Company or any Affiliate,
except an agreement, contract, or understanding that expressly
addresses Section 280G or Section 4999 of the Code (an
Other Agreement), and notwithstanding any formal or
informal plan or other arrangement for the direct or indirect
provision of compensation to the Grantee (including groups or
classes of Grantees or beneficiaries of which the Grantee is a
member), whether or not such compensation is deferred, is in
cash, or is in the form of a benefit to or for the Grantee (a
Benefit Arrangement), if the Grantee is a
disqualified individual, as defined in
Section 280G(c) of the Code, any Option, Restricted Stock,
Restricted Stock Unit, Performance Share or Performance Share
Unit held by that Grantee and any right to receive any payment
or other benefit under this Plan shall not become exercisable or
vested (i) to the extent that such right to exercise,
vesting, payment, or benefit, taking into account all other
rights, payments, or benefits to or for the Grantee under this
Plan, all Other Agreements, and all Benefit Arrangements, would
cause any payment or benefit to the Grantee under this Plan to
be considered a parachute payment within the meaning
of Section 280G(b)(2) of the Code as then in effect (a
Parachute Payment)
and
(ii) if, as a
result of receiving a Parachute Payment, the aggregate after-tax
amounts received by the Grantee from the Company under this
Plan, all Other Agreements, and all Benefit Arrangements would
be less than the maximum after-tax amount that could be received
by the Grantee without causing any such payment or benefit to be
considered a Parachute Payment. In the event that the receipt of
any such right to exercise, vesting, payment, or benefit under
this Plan, in conjunction with all other rights, payments, or
benefits to or for the Grantee under any Other Agreement or any
16
Benefit Arrangement would cause the Grantee to be considered to
have received a Parachute Payment under this Plan that would
have the effect of decreasing the after-tax amount received by
the Grantee as described in clause (ii) of the preceding
sentence, then the Grantee shall have the right, in the
Grantees sole discretion, to designate those rights,
payments, or benefits under this Plan, any Other Agreements, and
any Benefit Arrangements that should be reduced or eliminated so
as to avoid having the payment or benefit to the Grantee under
this Plan be deemed to be a Parachute Payment.
16.1.
General.
The Company shall not be required to sell or issue any shares of
Stock under any Award if the sale or issuance of such shares
would constitute a violation by the Grantee, any other
individual exercising an Option, or the Company of any provision
of any law or regulation of any governmental authority,
including without limitation any federal or state securities
laws or regulations. If at any time the Company shall determine,
in its discretion, that the listing, registration or
qualification of any shares subject to an Award upon any
securities exchange or under any governmental regulatory body is
necessary or desirable as a condition of, or in connection with,
the issuance or purchase of shares hereunder, no shares of Stock
may be issued or sold to the Grantee or any other individual
exercising an Option pursuant to such Award unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to
the Company, and any delay caused thereby shall in no way affect
the date of termination of the Award. Without limiting the
generality of the foregoing, in connection with the Securities
Act, upon the exercise of any Option or any SAR that may be
settled in shares of Stock or the delivery of any shares of
Stock underlying an Award, unless a registration statement under
such Act is in effect with respect to the shares of Stock
covered by such Award, the Company shall not be required to sell
or issue such shares unless the Board has received evidence
satisfactory to it that the Grantee or any other individual
exercising an Option may acquire such shares pursuant to an
exemption from registration under the Securities Act. Any
determination in this connection by the Board shall be final,
binding, and conclusive. The Company may, but shall in no event
be obligated to, register any securities covered hereby pursuant
to the Securities Act. The Company shall not be obligated to
take any affirmative action in order to cause the exercise of an
Option or a SAR or the issuance of shares of Stock pursuant to
the Plan to comply with any law or regulation of any
governmental authority. As to any jurisdiction that expressly
imposes the requirement that an Option (or SAR that may be
settled in shares of Stock) shall not be exercisable until the
shares of Stock covered by such Option (or SAR) are registered
or are exempt from registration, the exercise of such Option (or
SAR) under circumstances in which the laws of such jurisdiction
apply shall be deemed conditioned upon the effectiveness of such
registration or the availability of such an exemption.
16.2.
Rule 16b-3.
During any time when the Company has a class of equity security
registered under Section 12 of the Exchange Act, it is the
intent of the Company that Awards pursuant to the Plan and the
exercise of Options and SARs granted hereunder will qualify for
the exemption provided by
Rule 16b-3
under the Exchange Act. To the extent that any provision of the
Plan or action by the Board does not comply with the
requirements of
Rule 16b-3,
it shall be deemed inoperative to the extent permitted by law
and deemed advisable by the Board, and shall not affect the
validity of the Plan. In the event that
Rule 16b-3
is revised or replaced, the Board may exercise its discretion to
modify this Plan in any respect necessary to satisfy the
requirements of, or to take advantage of any features of, the
revised exemption or its replacement.
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17.
|
EFFECT OF
CHANGES IN CAPITALIZATION
|
17.1.
Changes in Stock.
If the number of outstanding shares of Stock is increased or
decreased or the shares of Stock are changed into or exchanged
for a different number or kind of shares or other securities of
the Company on account of any recapitalization,
reclassification, stock split, reverse split, combination of
shares, exchange of shares, stock dividend or other distribution
payable in capital stock, or other increase or decrease in such
shares effected without receipt of consideration by the Company
occurring after the Effective Date, the number and kinds of
shares
17
for which grants of Options and other Awards may be made under
the Plan, including, without limitation, the limits set forth in
Section 6.3
, shall be adjusted proportionately and
accordingly by the Company. In addition, the number and kind of
shares for which Awards are outstanding shall be adjusted
proportionately and accordingly so that the proportionate
interest of the Grantee immediately following such event shall,
to the extent practicable, be the same as immediately before
such event. Any such adjustment in outstanding Options or SARs
shall not change the aggregate Option Price or SAR Exercise
Price payable with respect to shares that are subject to the
unexercised portion of an outstanding Option or SAR, as
applicable, but shall include a corresponding proportionate
adjustment in the Option Price or SAR Exercise Price per share.
The conversion of any convertible securities of the Company
shall not be treated as an increase in shares effected without
receipt of consideration. Notwithstanding the foregoing, in the
event of any distribution to the Companys stockholders of
securities of any other entity or other assets (including an
extraordinary dividend but excluding a non-extraordinary
dividend of the Company) without receipt of consideration by the
Company, the Company shall, in such manner as the Company deems
appropriate, adjust (i) the number and kind of shares
subject to outstanding Awards
and/or
(ii) the exercise price of outstanding Options and Stock
Appreciation Rights to reflect such distribution.
17.2.
Reorganization in Which the Company Is the
Surviving Entity Which does not Constitute a Corporate
Transaction.
Subject to
Section 17.3
hereof, if the Company shall
be the surviving entity in any reorganization, merger, or
consolidation of the Company with one or more other entities
which does not constitute a Corporate Transaction, any Option or
SAR theretofore granted pursuant to the Plan shall pertain to
and apply to the securities to which a holder of the number of
shares of Stock subject to such Option or SAR would have been
entitled immediately following such reorganization, merger, or
consolidation, with a corresponding proportionate adjustment of
the Option Price or SAR Exercise Price per share so that the
aggregate Option Price or SAR Exercise Price thereafter shall be
the same as the aggregate Option Price or SAR Exercise Price of
the shares remaining subject to the Option or SAR immediately
prior to such reorganization, merger, or consolidation. Subject
to any contrary language in an Award Agreement evidencing an
Award, any restrictions applicable to such Award shall apply as
well to any replacement shares received by the Grantee as a
result of the reorganization, merger or consolidation. In the
event of a transaction described in this Section 17.2,
Restricted Stock Units shall be adjusted so as to apply to the
securities that a holder of the number of shares of Stock
subject to the Restricted Stock Units would have been entitled
to receive immediately following such transaction.
17.3.
Corporate Transaction in which Awards are not
Assumed.
Upon the occurrence of a Corporate Transaction in which
outstanding Options, SARs, Restricted Stock Units and Restricted
Stock are not being assumed, substituted or continued
:
(i) all outstanding shares of Restricted Stock shall be
deemed to have vested, and all Restricted Stock Units shall be
deemed to have vested and the shares of Stock subject thereto
shall be delivered, immediately prior to the occurrence of such
Corporate Transaction, and
(ii) either of the following two actions shall be taken:
(A) fifteen days prior to the scheduled consummation of a
Corporate Transaction, all Options and SARs outstanding
hereunder shall become immediately exercisable and shall remain
exercisable for a period of fifteen days, or
(B) the Board may elect, in its sole discretion, to cancel
any outstanding Awards of Options, Restricted Stock, Restricted
Stock Units,
and/or
SARs
and pay or deliver, or cause to be paid or delivered, to the
holder thereof an amount in cash or securities having a value
(as determined by the Board acting in good faith), in the case
of Restricted Stock or Restricted Stock Units, equal to the
formula or fixed price per share paid to holders of shares of
Stock and, in the case of Options or SARs, equal to the product
of the number of shares of Stock subject to the Option or SAR
(the Award Shares) multiplied by the amount, if any,
by which (I) the formula or fixed price per share paid to
holders of shares of Stock pursuant to such transaction exceeds
(II) the Option Price or SAR Exercise Price applicable to
such Award Shares.
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With respect to the Companys establishment of an exercise
window, (i) any exercise of an Option or SAR during such
fifteen-day
period shall be conditioned upon the consummation of the event
and shall be effective only immediately before the consummation
of the event, and (ii) upon consummation of any Corporate
Transaction, the Plan and all outstanding but unexercised
Options and SARs shall terminate. The Board shall send notice of
an event that will result in such a termination to all
individuals who hold Options and SARs not later than the time at
which the Company gives notice thereof to its stockholders.
17.4.
Corporate Transaction in which Awards are
Assumed.
The Plan, Options, SARs, Restricted Stock Units and Restricted
Stock theretofore granted shall continue in the manner and under
the terms so provided in the event of any Corporate Transaction
to the extent that provision is made in writing in connection
with such Corporate Transaction for the assumption or
continuation of the Options, SARs, Restricted Stock Units and
Restricted Stock theretofore granted, or for the substitution
for such Options, SARs, Restricted Stock Units and Restricted
Stock for new common stock options and stock appreciation rights
and new common stock units and restricted stock relating to the
stock of a successor entity, or a parent or subsidiary thereof,
with appropriate adjustments as to the number of shares
(disregarding any consideration that is not common stock) and
option and stock appreciation right exercise prices.
17.5.
Adjustments.
Adjustments under this
Section 17
related to shares
of Stock or securities of the Company shall be made by the
Board, whose determination in that respect shall be final,
binding and conclusive. No fractional shares or other securities
shall be issued pursuant to any such adjustment, and any
fractions resulting from any such adjustment shall be eliminated
in each case by rounding downward to the nearest whole share.
The Board shall determine the effect of a Corporate Transaction
upon Awards other than Options, SARs, Restricted Stock Units and
Restricted Stock, and such effect shall be set forth in the
appropriate Award Agreement. The Board may provide in the Award
Agreements at the time of grant, or any time thereafter with the
consent of the Grantee, for different provisions to apply to an
Award in place of those described in
Sections 17.1,
17.2, 17.3
and
17.4
. This
Section 17
does
not limit the Companys ability to provide for alternative
treatment of Awards outstanding under the Plan in the event of
change of control events that are not Corporate Transactions.
17.6.
No Limitations on Company.
The making of Awards pursuant to the Plan shall not affect or
limit in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations, or changes of
its capital or business structure or to merge, consolidate,
dissolve, or liquidate, or to sell or transfer all or any part
of its business or assets.
18.1.
Disclaimer of Rights.
No provision in the Plan or in any Award or Award Agreement
shall be construed to confer upon any individual the right to
remain in the employ or service of the Company or any Affiliate,
or to interfere in any way with any contractual or other right
or authority of the Company either to increase or decrease the
compensation or other payments to any individual at any time, or
to terminate any employment or other relationship between any
individual and the Company. In addition, notwithstanding
anything contained in the Plan to the contrary, unless otherwise
stated in the applicable Award Agreement, no Award granted under
the Plan shall be affected by any change of duties or position
of the Grantee, so long as such Grantee continues to be a
director, officer, consultant or employee of the Company or an
Affiliate. The obligation of the Company to pay any benefits
pursuant to this Plan shall be interpreted as a contractual
obligation to pay only those amounts described herein, in the
manner and under the conditions prescribed herein. The Plan
shall in no way be interpreted to require the Company to
transfer any amounts to a third party trustee or otherwise hold
any amounts in trust or escrow for payment to any Grantee or
beneficiary under the terms of the Plan.
18.2.
Nonexclusivity of the Plan.
Neither the adoption of the Plan nor the submission of the Plan
to the stockholders of the Company for approval shall be
construed as creating any limitations upon the right and
authority of the Board to adopt such other incentive
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compensation arrangements (which arrangements may be applicable
either generally to a class or classes of individuals or
specifically to a particular individual or particular
individuals) as the Board in its discretion determines
desirable, including, without limitation, the granting of stock
options otherwise than under the Plan.
18.3.
Withholding Taxes
The Company or an Affiliate, as the case may be, shall have the
right to deduct from payments of any kind otherwise due to a
Grantee any federal, state, or local taxes of any kind required
by law to be withheld with respect to the vesting of or other
lapse of restrictions applicable to an Award or upon the
issuance of any shares of Stock upon the exercise of an Option
or otherwise pursuant to any Award. In furtherance of the
foregoing, the Company may provide in an Award Agreement that
the Grantee shall, as a condition of accepting the Award, direct
a bank or broker, upon vesting, exercise or otherwise, to sell a
portion of the Shares underlying such Award that represent the
amount, reasonably determined by the Company it its discretion,
necessary to cover the Companys withholding obligation
related to the Award and remit the appropriate cash amount to
the Company. If not otherwise provided in an Award Agreement, at
the time of such vesting, lapse, or exercise, the Grantee shall
pay to the Company or the Affiliate, as the case may be, any
amount that the Company or the Affiliate may reasonably
determine to be necessary to satisfy such withholding
obligation. Subject to the prior approval of the Company or the
Affiliate, which may be withheld by the Company or the
Affiliate, as the case may be, in its sole discretion, the
Grantee may elect to satisfy such obligations, in whole or in
part, (i) by causing the Company or the Affiliate to
withhold shares of Stock otherwise issuable to the Grantee or
(ii) by delivering to the Company or the Affiliate shares
of Stock already owned by the Grantee. The shares of Stock so
delivered or withheld shall have an aggregate Fair Market Value
equal to such withholding obligations. The Fair Market Value of
the shares of Stock used to satisfy such withholding obligation
shall be determined by the Company or the Affiliate as of the
date that the amount of tax to be withheld is to be determined.
A Grantee who has made an election pursuant to this
Section 18.3
may satisfy his or her withholding
obligation only with shares of Stock that are not subject to any
repurchase, forfeiture, unfulfilled vesting, or other similar
requirements. The maximum number of shares of Stock that may be
withheld from any Award to satisfy any federal, state or local
tax withholding requirements upon the exercise, vesting, lapse
of restrictions applicable to such Award or payment of shares
pursuant to such Award, as applicable, cannot exceed such number
of shares having a Fair Market Value equal to the minimum
statutory amount required by the Company to be withheld and paid
to any such federal, state or local taxing authority with
respect to such exercise, vesting, lapse of restrictions or
payment of shares.
18.4.
Captions.
The use of captions in this Plan or any Award Agreement is for
the convenience of reference only and shall not affect the
meaning of any provision of the Plan or such Award Agreement.
18.5.
Other Provisions.
Each Award granted under the Plan may contain such other terms
and conditions not inconsistent with the Plan as may be
determined by the Board, in its sole discretion.
18.6.
Number and Gender.
With respect to words used in this Plan, the singular form shall
include the plural form, the masculine gender shall include the
feminine gender, etc., as the context requires.
18.7.
Severability.
If any provision of the Plan or any Award Agreement shall be
determined to be illegal or unenforceable by any court of law in
any jurisdiction, the remaining provisions hereof and thereof
shall be severable and enforceable in accordance with their
terms, and all provisions shall remain enforceable in any other
jurisdiction.
18.8.
Governing Law.
The validity and construction of this Plan and the instruments
evidencing the Awards hereunder shall be governed by the laws of
the State of Delaware, other than any conflicts or choice of law
rule or principle that might otherwise refer construction or
interpretation of this Plan and the instruments evidencing the
Awards granted hereunder to the substantive laws of any other
jurisdiction.
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18.9.
Section 409A of the Code.
The Board intends to comply with Section 409A of the Code
(Section 409A), or an exemption to
Section 409A, with regard to Awards hereunder that
constitute nonqualified deferred compensation within the meaning
of Section 409A. To the extent that the Board determines
that a Grantee would be subject to the additional 20% tax
imposed on certain nonqualified deferred compensation plans
pursuant to Section 409A as a result of any provision of
any Award granted under this Plan, such provision shall be
deemed amended to the minimum extent necessary to avoid
application of such additional tax. The nature of any such
amendment shall be determined by the Board.
* * *
To record adoption of the Plan by the Board as of
December 12, 2007, and approval of the Plan by the
stockholders
on March 26, 2008, the Company has caused its authorized officer to execute
the Plan.
CIENA CORPORATION
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By:
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/s/ Russell B.
Stevenson, Jr.
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Title:
Date:
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Sr. Vice President & General Counsel
March 26, 2008
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