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Texas
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001-08604
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74-1765729
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 — CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 — CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the — Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the — Exchange Act (17 CFR
240.13e-4(c))
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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Item
9.01
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Financial
Statements and Exhibits
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10.1
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Team,
Inc. 2006 Stock Incentive Plan (As Amended and Restated August 1,
2009).
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10.2
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Team,
Inc. Restated Non-Employee Directors’ Stock Plan (As Amended and Restated
August 1, 2009).
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| TEAM, INC. | |||
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By:
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/s/ André C. Bouchard | |
| André C. Bouchard | |||
| Senior Vice President – Administration, General Counsel and Secretary | |||
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Exhibit
no.
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Description
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10.1
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Team,
Inc. 2006 Stock Incentive Plan (As Amended and Restated August 1,
2009)
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10.2
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Team,
Inc. Restated Non-Employee Directors’ Stock Plan (As Amended and Restated
August 1, 2009)
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1.
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History and Purpose
.
The Plan is an amendment and complete restatement of the Company’s 2006
Stock Incentive Plan. The Plan is intended to advance the interests of the
Company, its shareholders, and its subsidiaries by encouraging and
enabling selected key employees of the Company, directors, consultants and
advisors upon whose judgment, initiative and effort the Company is largely
dependent for the successful conduct of its business, to acquire and/or
increase and retain a proprietary interest in the Company by ownership of
its stock.
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2.
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Definitions
.
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(i)
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Options;
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(ii)
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Restricted
Stock;
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(iii)
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Stock
Appreciation Rights;
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(iv)
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Stock
Units and Performance Share Awards;
and
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(v)
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Performance-Based
Awards.
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3.
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Administration of Plan
.
The Plan shall be administered by a Committee of two or more members. The
Committee shall report all action taken by it to the Board. Except when
the Board determines otherwise, the Committee shall consist of the members
of the Compensation Committee of the Board of Directors. All members of
the Committee shall qualify as both “non-employee directors,” as defined
in Rule 16b-3(b)(3) promulgated under the Act and “outside directors”
within the meaning of Section 162(m) of the Code. The Committee shall
have full and final authority in its discretion, subject to the provisions
of the Plan, to determine the Participants to whom and the time or times
at which Awards shall be granted and the number of shares of Common Stock
covered by each Award; to construe and interpret the Plan; to determine
and interpret the terms and provisions of the respective Award agreements,
which need not be identical as between Participants, including, but
without limitation, terms covering the payment of the Option price; and to
make all other determinations and take all other actions deemed necessary
or advisable for the proper administration of the Plan. All such actions
and determinations shall be conclusively binding for all purposes and upon
all persons.
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4.
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Common Stock Subject to the
Plan
. The aggregate number of shares of Common Stock which may be
issued pursuant to Awards under the Plan shall not exceed 5,400,000,
subject to adjustment under the provisions of Part VII. The shares of
Common Stock to be issued under the Plan may be authorized but unissued
shares, shares issued and reacquired by the Company or shares bought on
the market for the purposes of the Plan. In the event any Award shall, for
any reason, terminate or expire or be surrendered without having been
exercised in full, the shares subject to such Award but not issued shall
again be available for award under the Plan. The maximum number of shares
of Common Stock for which Options, Stock Appreciation Rights, shares of
Restricted Stock, Stock Units, Performance Share Awards or
Performance-Based Awards that may be awarded during any fiscal year of the
Company to any employee shall be 500,000 (the “Maximum Award Limit”). The
maximum amount of compensation that may be paid under all
Performance-Based Awards denominated in cash (including the Fair Market
Value of any shares of Common Stock paid in satisfaction of such
Performance-Based Awards) granted to any one individual during any
calendar year may not exceed $500,000, and any payment due with respect to
a Performance-Based Award shall be paid no later than ten (10) years
after the date of grant of such Performance-Based
Award.
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5.
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Limitations on Certain “Full
Value” Grants Awarded under the Plan
. Notwithstanding the
provisions of paragraph 4 above, with respect to 95% of the shares of
Common Stock awarded under the Plan, or 5,130,000 shares (subject to
adjustment under the provisions of Part VII), the minimum period over
which tenure-based awards of Restricted Stock or Stock Units may vest
shall be three (3) years (except in the case of the Participant’s
death, Disability or a Change of Control), and the minimum performance
period over which Awards of Restricted Stock, Stock Units or Performance
Share Awards shall vest shall be one (1) year (except in the case of
the Participant’s death, Disability or a Change of
Control).
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6.
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Award Agreements
. Any
Award granted under this Plan shall be evidenced by an agreement (“Award
Agreement”) which shall be approved in form and substance by the
Committee. Such Award Agreements may, in the discretion of the Committee,
contain (i) forfeiture provisions applicable if a Participant’s
employment or service terminates for Cause; and/or (ii) non-compete
covenants applicable to a Participant who accepts such Award. Each Award
Agreement shall be executed by an officer of the Company and the
Participant.
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7.
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Eligibility
. Subject to
the terms of the Plan, all employees, directors, consultants and advisors
to the Company shall be eligible to receive awards under the
Plan.
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1.
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Option Price
. The
Option price per share with respect to each Option shall be the Exercise
Price.
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2.
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Period of Option
. The
expiration date of each Option shall be fixed by the Committee at the Date
of Grant, but in no event shall the expiration date be later than ten
years from the Date of Grant.
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3.
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Holding Period
. No
Common Stock issued pursuant to exercise of an Option granted pursuant to
this Plan may, unless the Committee determines otherwise, be sold,
transferred, assigned or otherwise disposed of within six months following
the Date of Grant of the Option.
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4.
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Shareholder Rights
.
Neither an Optionee nor his Successor shall have any of the rights of a
shareholder of the Company by reason of holding an Option, and such
shareholder rights will not exist until the certificates evidencing the
shares of Common Stock purchased under the Option are properly delivered
to such Optionee or his Successor.
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5.
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Exercise of Option
.
Each Option shall be exercisable from time to time over a period
commencing on the Date of Grant and ending upon the expiration or
termination of the Option; provided, however, the Committee may, by the
provisions of any Option Agreement, postpone in whole or in part the
vesting or exercisability of the Option and limit the number of shares
purchasable thereunder in any period or periods of time during which the
Option is exercisable. Payment of the Exercise Price for shares of Stock
purchased under this Plan shall be made in full and in cash or by
certified or cashier’s check made payable to the Company or a combination
thereof. In addition, if permitted by the Committee or the terms of the
Option Agreement, Participants may elect to pay the Exercise Price by
tendering, either through actual delivery of shares of Common Stock or
though attestation, shares of Common Stock (valued at Fair Market Value)
owned by the Participant, or any combination thereof, equivalent to the
Exercise Price. The Committee may permit a Participant to pay the Exercise
Price by irrevocably authorizing a third party to sell shares of Common
Stock (or a sufficient portion of the shares) acquired upon exercise of
the Option and remit to the Company a sufficient portion of the sale
proceeds to pay the Exercise Price and any tax withholding resulting from
such exercise. Exercise of an Option shall not be effective until the
Company has received written notice of exercise. Such notice must specify
the number of whole shares to be purchased and be accompanied by payment
in full of the aggregate Exercise Price for the number of shares
purchased. The Company shall not in any case be required to sell, issue,
or deliver a fractional share with respect to any
Option.
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6.
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Nontransferability of
Option
. Incentive Stock Options awarded under the Plan are not
transferable except as designated by the Participant by will or by the
laws of descent and distribution. Incentive Stock Options may be exercised
during the lifetime of the Participant only by the Participant or his
guardian or legal representative. If expressly permitted by the terms of
the Option agreement, Non-Qualified Options may be transferred by a
Participant to Permitted Transferees, provided that there is not any
consideration for the transfer. No Option shall be pledged or hypothecated
in any way and no Option shall be subject to execution, attachment, or
similar process.
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7.
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Termination of Employment or
Service
. Except as provided herein, upon an Optionee’s Termination
of Employment or Service his Option privileges shall be limited to the
shares which were immediately purchasable by him at the date of such
termination, and such Option privileges shall be exercisable by such
Optionee for three months after the date of such termination, but not any
later than the expiration date of the Option, at which time such Option
shall expire. The Committee may, by the terms of the Option Agreement,
provide for a longer or shorter period during which the Option may be
exercised following Termination of Employment or Service. The granting of
an Option to an eligible person does not alter in any way the Company’s
existing rights to terminate such person’s employment or service at any
time for any reason, nor does it confer upon such person any rights or
privileges except as specifically provided for in the
Plan.
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8.
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Death of Optionee
. If
an Optionee dies while in the employment or service of the Company, such
Optionee’s Option shall remain exercisable by the Optionee’s Successor
until the close of the business day on or immediately preceding the first
annual anniversary date of the Optionee’s death, or the expiration date,
if earlier, at which time such Option shall
expire.
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9.
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Additional Limitations for
Incentive Stock Options
. Options granted under the Plan may qualify
as “incentive stock options” as defined in Section 422 of the Code.
Incentive Stock Options shall be awarded only to employees. No Incentive
Stock Options shall be granted to any employee if, immediately before the
Date of Grant, such employee owns more than 10% of the total combined
voting power of all classes of stock of the Company or its Affiliates (as
determined in accordance with the stock attribution rules contained in
Section 424(d) of the Code). Provided, the preceding sentence shall
not apply if at the time the Option is granted, the Option Price is
increased to an amount equal to 110 percent of the Fair Market Value and
such Option by its terms is not exercisable after the expiration of five
years from the date such Option is granted. The aggregate Fair Market
Value (determined as of the time the Option is granted) of the Stock with
respect to which Incentive Stock Options are exercisable for the first
time by any employee during any calendar year (under all incentive stock
option plans qualified under Section 422 of the Code sponsored by the
Company or any Affiliate) shall not exceed $100,000. If any Options are
awarded in excess of this limit, the excess options shall be Non-Qualified
Stock Options.
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1.
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Definition
. A Stock
Appreciation Right is an Award that may be granted and entitles the holder
to receive an amount equal to the difference between the Fair Market Value
of the shares of Stock at the time of exercise of the Stock Appreciation
Right and the Fair Market Value of Stock on the date of grant, subject to
the applicable terms and conditions of the Award Agreement and the
following provisions of this Part
III.
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2.
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Eligibility
. The
Committee may, in its discretion, award Stock Appreciation Rights to any
Participant.
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3.
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Exercise
. A Stock
Appreciation Right may be exercised under the applicable terms and
conditions of the Award Agreement. A Stock Appreciation Right shall
entitle the holder to receive, upon exercise of the Stock Appreciation
Right, shares of Stock (valued at their Fair Market Value at the time of
exercise), cash or a combination thereof, in the discretion of the
Committee, in an amount equal in value to the excess of the Fair Market
Value of the shares of Stock subject to the Stock Appreciation Right as of
the date of such exercise over the Fair Market Value on the date of
grant.
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4.
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Expiration Date
. The
“Expiration Date” with respect to a Stock Appreciation Right shall be
determined by the Committee, and shall be not later than ten years from
the date of grant. If the right is not exercised before the end of the day
on which the right ceases to be exercisable, such right shall be deemed
exercised as of such date and payment shall be made to the holder in
accordance with the Award
Agreement.
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5.
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Rights of Participants
.
No Participant shall have any rights as a shareholder with respect to any
shares covered by a Stock Appreciation Right until the date of issuance of
a stock certificate for such Common
Stock.
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1.
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Definition
. Restricted
Stock awards are grants of Stock to Participants, the vesting of which is
subject to a required period of employment, or period of service as a
director or consultant, and any other conditions established by the
Committee.
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2.
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Eligibility
. The
Committee shall designate the Participants to whom Restricted Stock is to
be awarded and the number of shares of Stock that are subject to the
award.
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3.
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Terms and Conditions of
Awards
. All shares of Restricted Stock awarded to Participants
under the Plan shall be subject to the following terms and conditions and
to such other terms and conditions, not inconsistent with the Plan, as
shall be prescribed by the Committee in its sole discretion and as shall
be contained in the Award
Agreement.
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4.
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Substitution of Cash
.
The Committee may, in its discretion, substitute cash equal to the Fair
Market Value (determined as of the date of distribution) of Stock
otherwise required to be distributed to a
Participant.
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1.
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Definition
. A “Stock
Unit” Award is the grant of a right to receive shares of Stock or cash in
the future. A “Performance Share” Award is a grant of a right to receive
shares of Stock or Stock Units which is contingent on the achievement of
performance or other objectives during a specified period. The number of
Performance Shares earned, and the value received for them, will be
contingent on the degree to which the performance measures established at
the time of the initial award are met. The minimum vesting or performance
period for Awards of Stock Units and Performance Shares shall be subject
to the provisions of Part I, paragraph
5.
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2.
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Eligibility
. The
Committee shall designate the Participants to whom Stock Units or
Performance Share Awards are to be awarded, and the number of units or
shares to be the subject of such
awards.
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3.
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Terms and Conditions of
Awards
. For each Participant, the Committee will determine the
timing of awards; the number of Stock Units or Performance Shares awarded;
the value of Stock Units and Performance Shares, which may be stated
either in cash or in shares of Stock; the performance measures used for
determining whether the Performance Shares are earned; the performance
period during which the performance measures will apply (which shall be
subject to the provisions of Part I, paragraph 5); the relationship
between the level of achievement of the performance measures and the
degree to which Performance Shares are earned; whether, during or after
the performance period, any revision to the performance measures or
performance period should be made to reflect significant events or changes
that occur during the performance period (subject to the provisions of
Part I, paragraph 5); the number of earned Performance Shares that will be
paid in cash and/or shares of Stock; and whether dividend equivalents will
be paid on Stock Units, either currently or on a deferred basis. For any
award of Performance Shares that is intended to be a Performance-Based
Award, adjustments made by the Committee under the preceding sentence
shall be limited as provided in Section VI.3 below. All Awards of Stock
Units and Performance Shares shall be made in accordance with the limits
set forth in Part I, paragraph 5
hereof.
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4.
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Payment
. The Committee
will compare the actual performance to the performance measures
established for the performance period and determine the number of units
to be paid and their value. Payment for Stock Units or Performance Shares
earned shall be wholly in cash, wholly in Stock or in a combination of the
two, in a lump sum or installments, and subject to vesting requirements
and such other conditions as the Committee shall provide. The Committee
will determine the number of earned Stock Units or Performance Shares to
be paid in cash and the number to be paid in Stock. For Stock Units or
Performance Shares payable in shares of Stock, one share of Stock will be
paid for each share earned, or cash will be paid for each share earned
equal to either (a) the Fair Market Value of a share of Stock at the
delivery date or the end of the performance period, as applicable, or
(b) the Fair Market Value of the Stock averaged for a number of days
determined by the Committee. For Stock Units or Performance Shares awarded
in cash, the value of each share earned will be paid in its initial cash
value, or shares of Stock will be distributed based on the cash value of
the shares earned divided by (a) the Fair Market Value of a share of
Stock at the delivery date or end of the performance period, as
applicable, or (b) the Fair Market Value of a share of Stock averaged
for a number of days determined by the
Committee.
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5.
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Death or Termination of
Employment or Service
. A Participant whose employment or service
with the Company and Affiliates terminates because of death either
(i) during a performance period, or (ii) prior to the delivery
date for Stock Units, shall be entitled to the prorated value of earned
Performance Shares or Stock Units, at the conclusion of the performance
period (or the deferred delivery date) based on the ratio of the months
the Participant was employed (or during which he rendered services as a
director or consultant) during the period to the total months of the
performance period (or from the date of the award of the Stock Units until
the deferred delivery date). If the Participant’s employment or service
with the Company and Affiliates terminates for any reason other than death
(i) during a performance period, or (ii) prior to the delivery
date for deferred Stock Units, the Performance Shares or Stock Units will
be forfeited on the date his employment or service with the Company and
Affiliates terminates. Notwithstanding the foregoing provisions, but
subject to the limitations contained in Part I, paragraph 5 herein, the
Committee may determine that the Participant will be entitled to receive
all or any portion of the Performance Shares or Stock Units that he would
otherwise receive, and may accelerate the determination and payment of the
shares or units or make such other adjustments as the Committee, in its
sole discretion, deems desirable.
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6.
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Rights of Participants
.
No Participant shall have any rights as a shareholder with respect to any
shares covered by Stock Units or Performance Shares until the date of
issuance of a stock certificate for such Common
Stock.
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1.
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Performance-Based
Awards
. The Committee may grant to officers and other key employees
of the Company the prospective contingent right to receive payments of
stock, cash or any combination thereof as may be designated or established
by the Committee (“Performance-Based Awards”), which may be documented in
any form of Award provided under the Plan or through a separate form of
Award Agreement as described in paragraph 2 below. Performance-Based
Awards shall be earned by Participants only if specified Performance Goals
are satisfied in the applicable Performance Cycle. The Committee shall, in
its sole discretion, determine the officers and other key employees
eligible to receive Performance-Based Awards. At the time each grant of a
Performance-Based Award is made, the Committee shall establish the
applicable Performance Cycle, the Performance Measure and Performance
Goals in respect of such Performance-Based Award. The number of shares of
stock and/or the amount of cash earned and payable in settlement of a
Performance-Based Award shall be determined by the Committee at the end of
the Performance Cycle. Notwithstanding anything else in the Plan to the
contrary, prior to any payment of remuneration under a Performance-Based
Award, the Committee shall, in a timely manner, certify that the
Performance Goals and any other material terms have in fact been
satisfied.
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2.
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Award Agreement
. The
Award Agreement for each Performance-Based Award shall provide that, in
order for a Participant to earn all or a portion of the stock or cash
subject to such Performance-Based Award, the Company must achieve certain
Performance Goals over a designated Performance Cycle having a minimum
duration of one year. The Performance Goals and Performance Cycle shall be
established by the Committee in its sole discretion. The Committee shall
establish a Performance Measure for each Performance Cycle for determining
the portion of the Performance-Based Award, which will be earned or
forfeited, based on the extent to which the Performance Goals are achieved
or exceeded. Performance Goals may include minimum, maximum and target
levels of performance, with the size of the Performance-Based Award based
on the level attained. Once established by the Committee and specified in
the Award Agreement, and except as provided below, the Performance Goals
and the Performance Measure in respect of any Performance-Based Award
shall not be changed. The Committee may, in its discretion, eliminate or
reduce (but not increase) the amount of any Performance-Based Award that
otherwise would be payable to a Participant upon attainment of the
Performance Goal(s) unless the Participant has a vested right under
applicable employment law to receive the full Performance-Based Award. In
addition, the Performance Goals and Performance Measures shall be subject
to adjustment for changes in accounting standards required by the
Financial Accounting Standards Board after the goal is established, and,
to the extent provided for in the Award Agreement, shall be subject to
adjustment for specified significant extraordinary items or events.
Performance goals based on stock price shall be proportionately adjusted
for any changes in the price due to a stock
split.
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3.
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Determination of Terms of
Awards
. Performance-Based Awards may be made on such terms and
conditions not inconsistent with the Plan, and in such form or forms, as
the Committee may from time to time approve. Performance-Based Awards may
be made alone, in addition to, in tandem with, or independent of other
grants and awards under the Plan. Subject to the terms of the Plan, the
Committee shall, in its discretion, determine the number of shares of
Stock subject to each Performance-Based Award made to a Participant and
the Committee may impose different terms and conditions on any particular
Performance–Based Award made to any Participant. The Performance Goals,
the Performance Cycle and the Performance Measure applicable to a
Performance-Based Award shall be set forth in the relevant Award
Agreement. The Award Agreement may provide that the Performance-Based
Award will vest in connection with a Participant’s death or Disability, or
a Change of Control, but may not accelerate vesting upon a Participant’s
retirement or termination without cause or for good
reason.
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4.
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Payments of Awards
.
Each Participant shall be entitled to receive payment in Stock or cash of
the Performance-Based Awards earned in respect of a Performance Cycle,
subject to the Committee’s discretion to eliminate or reduce the amount
that would otherwise be payable to a Participant. Payment in settlement of
a Performance-Based Award may be made in Stock, in cash, or in any
combination of Stock and cash, and at such time or times, as the
Committee, in its discretion, shall
determine.
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1.
|
Adjustments
. In the
event that the outstanding shares of Common Stock of the Company are
hereafter increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or
of another corporation, by reason of a recapitalization, reclassification,
stock split-up, combination of shares, or dividend or other distribution
payable in capital stock, appropriate adjustment shall be made by the
Committee in the number and kind of shares authorized or outstanding under
the Plan, and the Maximum Award Limit. The Committee shall also make
adjustments in the event of any distribution of assets to shareholders
other than a normal cash dividend. In addition, the Committee shall make
appropriate adjustment in the number and kind of shares as to which
outstanding Awards, or portions thereof then unexercised, shall be
exercisable, to the end that the proportionate interest of the holder of
the Participant shall, to the extent practicable, be maintained as before
the occurrence of such event. Such adjustment in outstanding Options shall
be made without change in the total price applicable to the unexercised
portion of the Option but with a corresponding adjustment in the Option
price per share. The Company shall not in any case be required to sell,
issue, or deliver a fractional share with respect to any
Award.
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(a)
|
In
the event that the Board shall adopt resolutions recommending the
dissolution or liquidation of the Company, any Option or Stock
Appreciation Right Awards granted under the Plan shall terminate as of a
date to be fixed by the Committee, provided that not less than thirty
(30) days’ written notice of the date so fixed shall be given to each
Participant and each such Participant shall have the right during such
period to exercise his Option or Right as to all or any part of the shares
covered thereby, including shares as to which such Option or Right would
not otherwise be exercisable by reason of an insufficient lapse of
time.
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(b)
|
Upon
a Change in Control, each outstanding Award shall become 100% vested as of
the date of the Change in Control, provided that the Participant’s
employment or service has not terminated prior to such
date.
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(i)
|
If
there is no plan or agreement respecting the Reorganization
(“Reorganization Agreement”) or if the Reorganization Agreement does not
specifically provide for the change, conversion or exchange of the shares
under outstanding and unexercised stock options for securities of another
corporation, then any Option granted under the Plan shall terminate as of
a date to be fixed by the Committee, provided that not less than thirty
(30) days’ written notice of the date so fixed shall be given to each
Optionee and each such Optionee shall have the right during such period to
exercise his Option as to all or any part of the shares covered thereby,
including shares as to which such Option would not otherwise be
exercisable by reason of an insufficient lapse of
time.
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(ii)
|
If
there is a Reorganization Agreement and if the Reorganization Agreement
specifically provides for the change, conversion, or exchange of the
shares under outstanding and unexercised stock options and rights for
securities of another corporation, then the Committee shall adjust the
shares under such outstanding and unexercised stock options and rights
(and shall adjust the shares remaining under the Plan which are then
available to be optioned under the Plan, if the Reorganization Agreement
makes specific provision therefor) in a manner not inconsistent with the
provisions of the Reorganization Agreement for the adjustment, change,
conversion, or exchange of such stock and such Options and
rights.
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(c)
|
The
term “Reorganization” as used herein shall mean any statutory merger,
statutory consolidation, sale of all or substantially all of the assets of
the Company, or sale, pursuant to an agreement with the Company, of
securities of the Company pursuant to which the Company is or becomes a
wholly owned subsidiary of another company after the effective date of the
Reorganization. The provisions hereof shall comply with
Section 424(a) of the Code except to the extent the Committee
determines otherwise.
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(d)
|
Adjustments
and determinations hereunder shall be made by the Committee, whose
decisions shall be final, binding, and
conclusive.
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(e)
|
Section 409A
.
Notwithstanding the foregoing: (i) any adjustments made pursuant to
this Section 1 to Awards that are considered “deferred compensation”
within the meaning of Code Section 409A shall be made in compliance
with the requirements of Code Section 409A unless the Participant
consents otherwise; (ii) any adjustments made pursuant to this
Section 1 to Awards that are not considered “deferred compensation”
subject to Code Section 409A shall be made in such a manner as to
ensure that after such adjustment, the Awards either continue not to be
subject to Code Section 409A or comply with the requirements of Code
Section 409A unless the Participant consents otherwise; and
(iii) the Committee shall not have the authority to make any
adjustments pursuant to this Section 1 of Part VII to the extent that
the existence of such authority would cause an Award that is not intended
to be subject to Code Section 409A to be subject
thereto.
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2.
|
Restrictions on Issuing
Shares
. The issuance of Shares under the Plan shall be subject to
the condition that if at any time the Company shall determine in its
discretion that the listing, registration, or qualification of any shares
otherwise deliverable upon such exercise upon any securities exchange or
under any state or federal law, or that the consent or approval of any
regulatory body, is necessary or desirable as a condition of, or in
connection with, such exercise or the delivery or purchase of shares
pursuant thereto, then in any such event, such exercise shall not be
effective unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company. Without limiting the foregoing, the Company
will not be obligated to sell any Shares hereunder unless the Shares are
at the time effectively registered or exempt from registration under the
Securities Act of 1933, as amended, and applicable state securities laws.
The Participant shall make such investment representations to the Company
and shall consent to the imposition of such legends on the stock
certificates as are necessary, in the opinion of the Company’s counsel, to
secure to the Company an appropriate exemption from applicable securities
laws.
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3.
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Rights to Employment
.
Nothing contained in this Plan or in any Award Agreement confers on any
person any right to continue in the employ or service of the Company or an
Affiliate, or interferes in any way with the right of the Company or an
Affiliate to terminate a Participant’s
services.
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4.
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Withholding of Taxes
.
All Awards and payments under the Plan are subject to withholding of all
applicable taxes, which withholding obligations may be satisfied, with the
consent of the Committee, through the surrender of shares of Common Stock
which the Participant already owns, or to which a Participant is otherwise
entitled under the Plan. The Company shall have the right to deduct from
all amounts paid in cash in consequence of the exercise of an Option or
Stock Appreciation Right or in connection with an award of Restricted
Stock or Stock Units and Performance Share Awards under the Plan any taxes
required by law to be withheld with respect to such cash payments. Where a
Participant is entitled to receive shares of Common Stock pursuant to the
exercise of an Option or a Stock Appreciation Right or with respect to an
award of Stock Units and Performance Share Awards pursuant to the Plan,
the Company shall have the right to require the Participant to pay to the
Company the amount of any taxes that the Company is required to withhold
with respect to such shares, or, in lieu thereof, to retain, or sell
without notice, a sufficient number of such shares to cover the amount
required to be withheld. Upon the disposition (within the meaning of Code
Section 424(c)) of shares of Common Stock acquired pursuant to the
exercise of an Incentive Stock Option prior to the expiration of the
holding period requirements of Code Section 422(a)(1), the employee
shall be required to give notice to the Company of such disposition and
the Company shall have the right to require the employee to pay to the
Company the amount of any taxes that are required by law to be withheld
with respect to such disposition. Upon termination of the Restricted
Period with respect to an award of Restricted Stock (or such earlier time,
if any, as an election is made by the Participant under Code
Section 83(b), or any successor provisions thereto, to include the
value of such shares in taxable income), the Company shall have the right
to require the Participant to pay to the Company the amount of taxes that
the Company is required to withhold with respect to such shares of Common
Stock or, in lieu thereof, to retain or sell without notice a sufficient
number of shares of Common Stock held by it to cover the amount required
to be withheld. The Company shall have the right to deduct from all
dividends paid with respect to Restricted Stock the amount of taxes that
the Company is required to withhold with respect to such dividend
payments.
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5.
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Use of Proceeds
. The
proceeds received by the Company from the sale of Common Stock pursuant to
the exercise of Options granted under the Plan shall be added to the
Company’s general funds and used for general corporate
purposes.
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6.
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Amendment, Suspension, and
Termination of Plan
.
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(a)
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The
Board shall have complete discretionary authority and power to amend,
suspend or terminate the Plan at any time, subject to the following
provisions:
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(i)
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Any
material amendment, including but not limited to an amendment increasing
the number of shares of Common Stock provided in Part I, amending the
limitations set forth in Part I, paragraph 5, increasing the Maximum Award
Limit, or increasing the dollar limit designated in Part I, paragraph 4,
may not be made without shareholder
approval.
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(ii)
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The
Board may not, without the Participant’s written consent, modify the terms
and conditions of an Award in a manner that impairs any right or
obligation previously granted.
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(iii)
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No
amendment, suspension or termination of the Plan shall, without the
Participant’s written consent, alter, terminate or impair any right or
obligation under any Award previously granted under the
Plan.
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(b)
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Unless
previously terminated, the Plan shall terminate with respect to the
issuance of any new Awards, and no more Awards may be granted after
July 31, 2016. The Plan shall continue in effect with respect to
Awards granted before termination of the Plan until such Awards have been
settled, terminated, or forfeited.
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7.
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Section 409A
. It
is the intention of the Company that no Award shall be “deferred
compensation” subject to Code Section 409A, unless and to the extent
that the Committee specifically determines otherwise, and the Plan and the
terms and conditions of all Awards shall be interpreted accordingly. The
terms and conditions governing any Awards that the Committee determines
will be subject to Code Section 409A, including any rules for
elective or mandatory deferral of the delivery of cash or shares pursuant
thereto, shall be set forth in the applicable Award Agreement, and shall
comply in all respects with Code
Section 409A.
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