Exhibit
10.1
WYNDHAM
WORLDWIDE CORPORATION
2006
EQUITY AND INCENTIVE PLAN
(AMENDED
AND RESTATED AS OF MAY 12, 2009)
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1.
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Purpose;
Types of Awards; Construction.
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The
purposes of the Wyndham Worldwide Corporation 2006 Equity and
Incentive Plan (Amended and Restated as of May 12, 2009),
subject to stockholder approval at the 2009 annual meeting of
stockholders on May 12, 2009 (the “Plan”) are to
afford an incentive to non-employee directors, selected officers
and other employees, advisors and consultants of Wyndham Worldwide
Corporation (the “Company”) and its Affiliates that now
exist or hereafter are organized or acquired, to continue as
non-employee directors, officers, employees, advisors or
consultants, as the case may be, to increase their efforts on
behalf of the Company and its Affiliates and to promote the success
of the Company’s business. The Plan provides for the grant of
Options (including “incentive stock options” and
“nonqualified stock options”), stock appreciation
rights, restricted stock, restricted stock units and other stock-
or cash-based awards. The Plan is designed so that Awards granted
hereunder intended to comply with the requirements for
“performance-based compensation” under
Section 162(m) of the Code comply with such requirements, and
the Plan and Awards shall be interpreted in a manner consistent
with such requirements.
For
purposes of the Plan, the following terms shall be defined as set
forth below:
(a) “Affiliate”
shall mean other than the Company, (i) any Subsidiary;
(ii) any Parent; (iii) any corporation, trade or business
(including, without limitation, a partnership or limited liability
company) which is directly or indirectly controlled 50% or more
(whether by ownership of stock, assets or an equivalent ownership
interest or voting interest) by the Company; (iv) any
corporation, trade or business (including, without limitation, a
partnership or limited liability company) that directly or
indirectly controls 50% or more (whether by ownership of stock,
assets or an equivalent ownership interest or voting interest) of
the Company; or (v) any other entity, approved by the
Committee as an Affiliate under the Plan, in which the Company or
any of its Affiliates has a material equity interest and which is
designated as an “Affiliate” by resolution of the
Committee; provided that the Stock subject to any Award constitutes
“service recipient stock” for purposes of Code
Section 409A or otherwise does not subject the Award to Code
Section 409A.
(b) “Annual
Incentive Program” means the program described in
Section 6(c) hereof.
(c) “Award”
means any Option, SAR, Restricted Stock, Restricted Stock Unit or
Other Stock-Based Award or Other Cash-Based Award granted under the
Plan.
(d) “Award
Agreement” means any written agreement, contract, or other
instrument or document evidencing an Award.
(e) “Board”
means the Board of Directors of the Company.
(f) “Cendant”
means Cendant Corporation, a Delaware corporation.
(g) “Cendant
Award” shall have the meaning set forth in Section
6(b)(v).
(h) “Change
in Control” means, following the Effective Date and excluding
the separation transaction pursuant to which the Company becomes a
separate public corporation for the first time, a change in control
of the Company, which will have occurred if:
(i) any
“person,” as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than (A) the Company,
(B) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, and (C) any corporation
owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of Stock),
is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined
voting power of the Company’s then outstanding voting
securities (excluding any person who becomes such a beneficial
owner in connection with a transaction immediately following which
the individuals who comprise the Board immediately prior thereto
constitute at least a majority of the Board of the entity surviving
such transaction or, if the Company or the entity surviving the
transaction is then a subsidiary, the ultimate parent
thereof);
(ii) the
following individuals cease for any reason to constitute a majority
of the number of directors then serving: individuals who, on the
Effective Date, constitute the Board and any new director (other
than a director whose initial assumption of office is in connection
with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of
directors of the Company) whose appointment or election by the
Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors on the Effective Date or whose appointment, election
or nomination for election was previously so approved or
recommended;
(iii) there
is consummated a merger or consolidation of the Company or any
direct or indirect subsidiary of the Company with any other
corporation, other than a merger or consolidation immediately
following which the individuals who comprise the Board immediately
prior thereto constitute at least a majority of the Board, the
entity surviving such merger or consolidation or, if the Company or
the entity surviving such merger is then a subsidiary, the ultimate
parent thereof; or
(iv) the
stockholders of the Company approve a plan of complete liquidation
of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets (or any transaction having a similar
effect), other than a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity,
immediately following which the individuals who comprise the Board
immediately prior thereto constitute at least a majority of the
board of directors of the entity to which such assets are sold or
disposed of or, if such entity is a subsidiary, the ultimate parent
thereof.
Notwithstanding
the foregoing, a Change in Control shall not be deemed to have
occurred by virtue of (x) a Public Offering or (y) the
consummation of any transaction or series of integrated
transactions immediately following which individuals who comprise
the Board immediately prior thereto constitute at least a majority
of the board of directors of an entity which owns all or
substantially all of the assets of the Company immediately
following such transaction or series of transactions.
Notwithstanding any other provision of the Plan to the contrary, to
the extent that Awards under the Plan subject to Code
Section 409A are payable upon a Change in Control, an event
shall not be considered to be a Change in Control under the Plan
with respect to such Award unless such event is also a
“change in ownership,” a “change in effective
control” or a “change in the ownership of a substantial
portion of the assets” of the Company within the meaning of
Code Section 409A.
(i) “Code”
means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated
thereunder.
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(j) “Code
Section 409A” means Section 409A of the Code and
the Department of Treasury regulations and other interpretive
guidance issued thereunder, including without limitation any such
regulations or other guidance that may be issued after the
Effective Date of the Plan.
(k) “Committee”
means the committee established by the Board to administer the
Plan, the composition of which shall at all times satisfy the
provisions of Rule 16b-3, Section 162(m) of the Code and
applicable stock exchange rules. If for any reason the appointed
Committee does not meet the requirements of Rule 16b-3 or
Section 162(m) of the Code, such noncompliance with the
requirements of Rule 16b-3 or Section 162(m) of the Code
shall not affect the validity of the Awards, grants,
interpretations or other actions of the Committee.
(l) “Company”
means Wyndham Worldwide Corporation, a corporation organized under
the laws of the State of Delaware, or any successor
corporation.
(m) “Conversion
Option” means an NQSO granted under Section
6(b)(v).
(n) “Conversion
Stock” means an Award of Stock granted under
Section 6(b)(v).
(o) “Covered
Employee” shall have the meaning set forth in Section
162(m)(3) of the Code.
(p) “Effective
Date” means the date of stockholder approval of the amended
and restated Plan at the Company’s 2009 annual meeting of
stockholders ( i.e. , May 12, 2009), subject to
Sections 8(d)(i) and 8(e).
(q) “Exchange
Act” means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated
thereunder.
(r) “Fair
Market Value” of a share of Stock shall be determined for
purposes of the Plan, including, without limitation, with respect
to the granting of any Award by using the closing price of Stock as
of the date such Award is granted, unless otherwise determined by
the Committee or required by applicable law. Notwithstanding the
foregoing, if at the time of grant or other applicable event, the
Stock is not then listed on a national securities exchange,
“Fair Market Value” shall mean, (i) if the shares
of Stock are then traded in an over-the-counter market, the average
of the bid and ask price for shares of Stock in such
over-the-counter market (determined at the same time as
contemplated in clauses (A) and (B) above with respect to
the applicable action), and (ii) if the shares of Stock are
not then listed on a national securities exchange or traded in an
over-the-counter market, or the value of such shares is not
otherwise determinable, such value as determined by the Committee
in its sole discretion.
(s) “Grantee”
means a person who, as a non-employee director, officer or other
employee, advisor or consultant of the Company or its Affiliate,
has been granted an Award under the Plan.
(t) “ISO”
means any Option intended to be and designated as an incentive
stock option within the meaning of Section 422 of the
Code.
(u) “Long
Term Incentive Program” means the program described in
Section 6(b) hereof.
(v) “Non-Employee
Director” means any director of the Company who is not also
employed by the Company or any of its Affiliates.
(w) “NQSO”
means any Option that is not designated as an ISO.
(x) “Option”
means a right, granted to a Grantee under Section 6(b)(i) or
6(b)(v), to purchase shares of Stock. An Option may be either an
ISO or an NQSO, provided that ISOs may be granted only to employees
of the Company or a Parent or Subsidiary of the Company.
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(y) “Other
Cash-Based Award” means cash awarded under the Annual
Incentive Program or the Long Term Incentive Program, including
cash awarded as a bonus or upon the attainment of Performance Goals
or otherwise as permitted under the Plan.
(z) “Other
Stock-Based Award” means a right or other interest granted to
a Grantee under the Annual Incentive Program or the Long Term
Incentive Program that may be denominated or payable in, valued in
whole or in part by reference to, or otherwise based on, or related
to, Stock, including but not limited to (i) unrestricted Stock
awarded as a bonus or upon the attainment of Performance Goals or
otherwise as permitted under the Plan, and (ii) a right
granted to a Grantee to acquire Stock from the Company containing
terms and conditions prescribed by the Committee.
(aa) “Parent”
means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(bb) “Performance
Goals” means performance goals based on one or more of the
following criteria, determined in accordance with generally
accepted accounting principles where applicable: (i) pre-tax
income or after-tax income; (ii) pre-tax or after-tax profits;
(iii) income or earnings including operating income, earnings
before or after taxes, earnings before interest, taxes,
depreciation and amortization, earnings before or after interest,
depreciation, amortization, or extraordinary or special items, or a
combination of any or all of the foregoing; (iv) net income
excluding amortization of intangible assets, depreciation and
impairment of goodwill and intangible assets and/or excluding
charges attributable to the adoption of new accounting
pronouncements; (v) earnings or book value per share (basic or
diluted); (vi) return on assets (gross or net), return on
investment, return on capital, return on invested capital or return
on equity; (vii) return on revenues; (viii) cash flow,
free cash flow, cash flow return on investment (discounted or
otherwise), net cash provided by operations, or cash flow in excess
of cost of capital; (ix) economic value created;
(x) operating margin or profit margin (gross or net);
(xi) stock price or total stockholder return;
(xii) income or earnings from continuing operations;
(xiii) after-tax or pre-tax return on stockholders’
equity; (xiv) growth in the value of an investment in the
Company’s common stock assuming the reinvestment of
dividends; (xv) operating profits or net operating profits;
(xvi) working capital; (xvii) gross or net sales, revenue
and growth of sales revenue (either before or after cost of goods,
selling and general administrative expenses, and any other expenses
or interest); (xviii) cost targets, reductions and savings
(including, without limitation, the achievement of a certain level
of, reduction of, or other specified objectives with regard to
limiting the level of increase in, all or a portion of, the
Company’s bank debt or other long-term or short-term public
or private debt or other similar financial obligations of the
Company, which may be calculated net of such cash balances and/or
other offsets and adjustments as may be established by the
Committee), expense management, productivity and efficiencies;
(xix) strategic business criteria, consisting of one or more
objectives based on meeting specified market penetration or market
share, geographic business expansion, customer satisfaction,
employee satisfaction, human resources management, supervision of
litigation, information technology, and goals relating to
divestitures, joint ventures and similar transactions; and
(xx) any combination of the foregoing. Where applicable, the
Performance Goals may be expressed in terms of attaining a
specified level of the particular criterion or the attainment of a
percentage increase or decrease in the particular criterion, and
may be applied to one or more of the Company or its Affiliates, or
a division or strategic business unit of the Company, all as
determined by the Committee. The Performance Goals may include a
threshold level of performance below which no payment will be made
(or no vesting will occur), levels of performance at which
specified payments will be paid (or specified vesting will occur),
and a maximum level of performance above which no additional
payment will be made (or at which full vesting will occur). Each of
the foregoing Performance Goals shall be evaluated in accordance
with generally accepted accounting principles, where applicable,
and shall be subject to certification by the Committee. The
Committee shall have the authority to make equitable adjustments to
the Performance Goals in recognition of unusual or non-recurring
events affecting the Company or its Affiliates or the financial
statements of the Company or its Affiliates, in response to changes
in applicable laws or regulations, or to account for items of gain,
loss or
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expense
determined to be extraordinary or unusual in nature or infrequent
in occurrence or related to a corporate transaction (including,
without limitation, a disposition or acquisition) or related to a
change in accounting principles, all as determined in accordance
with standards established by Opinion No. 30 of the Accounting
Principles Board.
(cc) “Performance
Period” shall mean the one or more periods of time, as the
Committee may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a
Grantee’s right to and the payment of an Award.
(dd) “Plan”
means this Wyndham Worldwide Corporation 2006 Equity and Incentive
Plan (Amended and Restated as of May 12, 2009), as amended
from time to time.
(ee) “Plan
Year” means a calendar year.
(ff) “Public
Offering” means an offering of securities of the Company that
is registered with the Securities and Exchange
Commission.
(gg) “Restricted
Stock” means an Award of shares of Stock to a Grantee under
Section 6(b)(iii) that may be subject to certain restrictions
and to a risk of forfeiture.
(hh) “Restricted
Stock Unit” or “RSU” means a right granted to a
Grantee under Section 6(b)(iv) or 6(b)(v) to receive Stock or
cash at the end of a specified period, which right may be
conditioned on the satisfaction of specified performance or other
criteria.
(ii) “Rule 16b-3”
means Rule 16b-3, as from time to time in effect promulgated
by the Securities and Exchange Commission under Section 16 of
the Exchange Act, including any successor to such Rule.
(jj) “Securities
Act” means the Securities Act of 1933, as amended from time
to time, and the rules and regulations promulgated
thereunder.
(kk) “Stock”
means shares of the common stock, par value $0.01 per share, of the
Company.
(ll) “Stock
Appreciation Right” or “SAR” means the right,
granted to a Grantee under Section 6(b)(ii), to be paid an
amount measured by the appreciation in the Fair Market Value of
Stock from the date of grant to the date of exercise of the
right.
(mm) “Subsidiary”
means a “subsidiary corporation,” whether now or
hereafter existing, as defined in Section 424(f) of the
Code.
(nn) “Ten
Percent Stockholder” shall mean a person owning stock of
the Company possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company, its
Parent or any Subsidiary.
The
Plan shall be administered by the Board or by such Committee that
the Board may appoint for this purpose. If a Committee is appointed
to administer the Plan, all references herein to the
“Committee” shall be references to such Committee. If
no Committee is appointed by the Board to administer the Plan, all
references herein to the “Committee” shall be
references to the Board. The Committee shall have the authority in
its discretion, subject to and not inconsistent with the express
provisions of the Plan, to administer the Plan and to exercise all
the powers and authorities either specifically granted to it under
the Plan or necessary or advisable in the administration of the
Plan, including, without limitation, the authority to grant Awards;
to determine the persons to whom and the time or times at which
Awards shall be granted; to determine the type and number of Awards
to be granted, the number of shares of Stock to which an Award may
relate and the terms, conditions,
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restrictions
and performance criteria relating to any Award; to determine
Performance Goals no later than such time as required to ensure
that an underlying Award which is intended to comply with the
requirements of Section 162(m) of the Code so complies; and to
determine whether, to what extent, and under what circumstances an
Award may be settled, cancelled, forfeited, exchanged, or
surrendered; to make adjustments in the terms and conditions of,
and the Performance Goals (if any) included in, Awards; to construe
and interpret the Plan and any Award; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine
the terms and provisions of the Award Agreements (which need not be
identical for each Grantee); and to make all other determinations
deemed necessary or advisable for the administration of the Plan.
The Committee may adopt special guidelines and provisions for
persons who are residing in, or subject to, the taxes of, countries
other than the United States to comply with applicable tax and
securities laws and may impose any limitations and restrictions
that they deem necessary to comply with the applicable tax and
securities laws of such countries other than the
United States. Except in connection with a corporate
transaction involving the Company (including, without limitation,
any stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, or exchange of shares), the terms of
outstanding Awards may not be amended to reduce the exercise price
of outstanding Options or SARs, and provided further, outstanding
Options or SARs may not be replaced or cancelled in exchange for
cash, other Awards or Options or SARs with an exercise price that
is less than the exercise price of the original Options or SARs
without stockholder approval. To the extent applicable, the Plan is
intended to comply with the applicable requirements of
Rule 16b-3 and the exception for performance-based
compensation under Section 162(m) of the Code with regard to
Options, Stock Appreciation Rights, certain awards of Other Stock-
or Cash-Based Awards and in certain cases, all other Awards under
the Plan, and shall be limited, construed and interpreted in a
manner so as to comply therewith.
The
Committee may delegate to one or more of its members or to one or
more agents such administrative duties as it may deem advisable,
and the Committee or any person to whom it has delegated duties as
aforesaid may employ one or more persons to render advice with
respect to any responsibility the Committee or such person may have
under the Plan. All decisions, determinations and interpretations
of the Committee shall be final and binding on all persons,
including but not limited to the Compa
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