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Page
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10.
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TERMS AND
CONDITIONS OF RESTRICTED STOCK AND STOCK UNITS
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10
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|
|
10.1 Grant of Restricted
Stock or Stock Units
|
10
|
|
|
10.2 Restrictions
|
11
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|
|
10.3 Restricted Stock
Certificates
|
11
|
|
|
10.4 Rights of Holders of
Restricted Stock
|
11
|
|
|
10.5 Rights of Holders of
Stock Units
|
11
|
|
|
10.5.1 Voting and Dividend Rights
|
11
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|
10.5.2 Creditor’s Rights
|
11
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|
|
10.6 Termination of
Service
|
11
|
|
|
10.7 Purchase of
Restricted Stock and Shares Subject to Stock Units
|
12
|
|
|
10.8 Delivery of
Stock
|
12
|
|
11.
|
TERMS AND
CONDITIONS OF UNRESTRICTED STOCK AWARDS
|
12
|
|
12.
|
FORM OF PAYMENT
FOR OPTIONS AND RESTRICTED STOCK
|
12
|
|
|
12.1 General
Rule
|
12
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|
|
12.2 Surrender of
Stock
|
12
|
|
|
12.3 Cashless
Exercise
|
12
|
|
|
12.4 Other Forms of
Payment
|
13
|
|
13.
|
TERMS AND
CONDITIONS OF DIVIDEND EQUIVALENT RIGHTS
|
13
|
|
|
13.1 Dividend Equivalent
Rights
|
13
|
|
|
13.2 Termination of
Service
|
13
|
|
14.
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TERMS AND
CONDITIONS OF PERFORMANCE AND ANNUAL INCENTIVE AWARDS
|
13
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|
14.1 Performance
Conditions
|
13
|
|
|
14.2 Performance Awards
or Annual Incentive Awards Granted to Designated Covered
Employees
|
13
|
|
|
14.2.1 Performance Goals
Generally
|
13
|
|
|
14.2.2 Business Criteria
|
14
|
|
|
14.2.3 Timing For Establishing Performance
Goals
|
14
|
|
|
14.2.4 Settlement of Awards; Other
Terms
|
14
|
|
|
14.2.5 Evaluation of Performance
|
14
|
|
|
14.3 Written
Determinations
|
15
|
|
|
14.4 Status of Section
14.2 Awards Under Code Section 162(m)
|
15
|
|
15.
|
PARACHUTE
LIMITATIONS
|
15
|
|
16.
|
REQUIREMENTS OF
LAW
|
16
|
|
|
16.1 General
|
16
|
|
|
16.2 Rule
16b-3
|
16
|
|
17.
|
EFFECT OF
CHANGES IN CAPITALIZATION
|
16
|
|
|
17.1 Changes in
Stock
|
16
|
|
|
17.2 Reorganization in
Which the Company is the Surviving Entity Which does not Constitute
a Corporate Transaction
|
17
|
|
|
17.3 Corporate
Transaction
|
17
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|
|
17.4 Adjustments
|
18
|
|
|
17.5 No Limitations on
Company
|
18
|
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|
Page
|
|
18.
|
GENERAL
PROVISIONS
|
18
|
|
|
18.1 Disclaimer of
Rights
|
18
|
|
|
18.2 Nonexclusivity of
the Plan
|
18
|
|
|
18.3 Withholding
Taxes
|
18
|
|
|
18.4 Captions
|
19
|
|
|
18.5 Other
Provisions
|
19
|
|
|
18.6 Number and
Gender
|
19
|
|
|
18.7 Severability
|
19
|
|
|
18.8 Governing
Law
|
19
|
|
|
18.9 Section 409A of the
Code
|
19
|
DOUBLE-TAKE
SOFTWARE
2006 OMNIBUS INCENTIVE
PLAN
Double-Take
Software, Inc., a Delaware corporation (the “Company”),
sets forth herein the terms of its 2006 Omnibus Incentive Plan, as
amended and restated effective April 1, 2009 (the
“Plan”), as follows:
The Plan is
intended to enhance the Company’s 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, stock units, unrestricted
stock, dividend equivalent rights 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
) over a performance period of up to one year (the
Company’s fiscal year, unless otherwise specified by the
Committee).
2.3
“Award”
means a grant of an Option, Stock
Appreciation Right, Restricted Stock, Unrestricted Stock, Stock
Unit, Dividend Equivalent Rights, or cash award under
the Plan.
2.4
“Award
Agreement” means
the written 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.
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 Double-Take Software,
Inc.
2.11
“Corporate
Transaction” means
(i) 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,
(ii) 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
(other than persons who are stockholders or Affiliates immediately
prior to the transaction) owning 80% 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 Grantee's 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 Grantee's
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
“Dividend Equivalent
Right” means a
right, granted to a Grantee under Section 13 hereof, to
receive cash, Stock, other Awards or other property equal in value
to dividends paid with respect to a specified number of shares of
Stock, or other periodic payments.
2.15
“Effective
Date” means
September 14, 2006, the date the Plan was originally approved
by the Board.
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
Grantee’s 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.
2.20
“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 (10) years.
2.28
“Plan”
means this Double-Take Software
2006 Omnibus Incentive Plan, as amended and restated effective
April 1, 2009.
2.29
“Purchase
Price” means the
purchase price for each share of Stock pursuant to a grant of
Restricted Stock, Unrestricted Stock or Stock Unit.
2.30
“Reporting
Person” means a
person who is required to file reports under Section 16(a) of
the Exchange Act.
2.31
“Restricted
Stock” means shares
of Stock, awarded to a Grantee pursuant to Section 10
hereof.
2.32
“SAR Exercise
Price” means the
per share exercise price of an SAR granted to a Grantee under
Section 9 hereof.
2.33
“Securities
Act” means the
Securities Act of 1933, as now in effect or as hereafter
amended.
2.34
“Service”
means service as a Service Provider
to the Company or an Affiliate. Unless otherwise stated
in the applicable Award Agreement, a Grantee's 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.
2.35
“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.
2.36
“Stock”
means the common stock, par value
$0.001 per share, of the Company.
2.37
“Stock Appreciation
Right” or
“SAR” means a right granted to a Grantee under
Section 9 hereof.
2.38
“Stock
Unit” means a
bookkeeping entry representing the equivalent of one share of Stock
awarded to a Grantee pursuant to Section 10
hereof.
2.39
“Subsidiary” means any “subsidiary corporation”
of the Company within the meaning of Section 424(f) of the
Code.
2.40
“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.
2.41
“Ten Percent
Stockholder” means
an individual who owns more than ten percent (10%) 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.
2.42
“Unrestricted
Stock” means an
Award pursuant to Section 11 hereof.
|
|
ADMINISTRATION OF THE PLAN
|
The Board shall
have such powers and authorities related to the administration of
the Plan as are consistent with the Company’s 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 Company’s
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.
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;
(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 (c) comply with the independence requirements
of the stock exchange on which the Common Stock is
listed.
(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
officers 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.
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
Grantee’s 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. Furthermore, 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.
Notwithstanding any other provision of this Plan
or any provision of any Award Agreement, if the Company is required
to prepare an accounting restatement, then Grantees shall forfeit
any cash or Stock received in connection with an Award with a Grant
Date on or after May 14 , 2009 (or an amount equal to
the fair market value of such Stock on the date of delivery if the
Grantee no longer holds the shares of Stock) if pursuant to the
terms of the Award Agreement for such Award, the amount of the
Award earned or the vesting in the Award was explicitly based on
the achievement of pre-established performance goals set forth in
the Award Agreement (including earnings, gains, or other criteria)
that are later determined, as a result of the accounting
restatement, not to have been achieved.
Other than pursuant to Section 17 and
except in connection with a Corporate Transaction involving the
Company and/or any stock dividend, stock split, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidation,
split-up, spin-off, combination, or exchange of shares,
notwithstanding any other provision in the Plan to the contrary,
the terms of outstanding Options or SARs may not be amended without
stockholder approval to (i) reduce their Option Price or SAR
Exercise Price, as applicable or (ii) cancel, exchange, substitute,
buyout or surrender such outstanding Options or SARs in exchange
for cash, other Awards or Options or SARs with an Option Price or
SAR Exercise Price, as applicable, that is less than the Option
Price or SAR Exercise Price, as applicable, of the original Options
or SARs.
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.
No member of
the Board or of 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.
|
|
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
4,553,061; provided however, that such number shall be increased by
a number of shares of Stock equal to the number of Shares of Stock
subject to option awards that were previously granted pursuant to
the Company’s 2003 Employee Stock Option Plan that after the
effectiveness of the Company’s initial public offering are
either forfeited or not purchased pursuant to the terms of the
applicable option award agreement. Notwithstanding the
preceding sentence and also subject to adjustment as provided in
Section 17 hereof, the aggregate number of shares of
Stock that may be issued as Incentive Stock Options shall not
exceed 4,553,061. 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.
Shares of Stock
covered by an Award shall be counted as used as of the Grant
Date. Any shares of Stock that are subject to Awards as
of the Amendment and Restatement Date shall be counted against the
limit set forth in Section 4.1 as one share of Stock for
every one share of Stock subject to the Award. Any
shares of Stock that are subject to Awards of Options made on or
after the Amendment and Restatement Date shall be counted against
the limit set forth in Section 4.1 as one share of Stock for
every one share of Stock subject to an award of
Options. With respect to SARs, the number of shares of
Stock subject to an award of SARs will be counted against the
aggregate number of shares of Stock available for issuance under
the Plan regardless of the number of shares of Stock actually
issued to settle the SAR upon exercise. Any shares of
Stock that are subject to Awards other than Options or SARs made
after the Amendment and Restatement Date shall be counted against
the limit set forth in Section 4.1 as 1.29 shares of Stock
for every one share of Stock granted. If any shares
covered by an Award 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 making Awards under the Plan in the same
amount as such shares of Stock were counted against the limit set
forth in Section 4.1 , provided that any shares of Stock
covered by an Award granted under the Company’s 2003 Employee
Stock Option Plan will again be available for making Awards under
the Plan in the same amount as such shares of Stock were counted
against the limits set forth in such 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, or (ii) any shares of Stock deducted or
delivered from an Award payment in connection with the
Company’s tax withholding obligations.
|
|
EFFECTIVE
DATE, DURATION AND AMENDMENTS
|
The Plan was
originally effective as of the Effective Date and was approved by
the Company’s stockholders on November 2, 2006. The Plan as
herein amended and restated shall be effective as of April 1, 2009
(the “Amendment and Restatement Date”), subject to
approval of the Plan by the Company’s stockholders within one
year of that 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 Amendment and Restatement Date shall
be fully effective as if the stockholders of the Company had
approved the Plan on the Amendment and Restatement
Date. If the stockholders fail to approve the
Plan within one
year of the Amendment and Restatement Date, any Awards made
hereunder in excess of the number of shares available for Awards
under the Plan prior to its amendment and restatement shall be null
and void and of no effect, and the applicable terms of the Plan
shall be the terms in effect immediately prior to the Amendment and
Restatement Date.
The Plan shall
terminate automatically ten (10) years after May 14, 2009, the
date the stockholders of the Company have approved the amendment
and restatement of the plan, and may be terminated on any earlier
date as provided in Section 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 Company’s 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 Company’s 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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AWARD
ELIGIBILITY AND LIMITATIONS
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Service
Providers and Other Persons.
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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.
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Successive
Awards and Substitute Awards.
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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 SAR Exercise Price of a SAR that is a Substitute Award 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 SAR Exercise Price is determined in accordance with the
principles of Code Section 424 and the regulations
thereunder.
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Limitation
on Shares of Stock Subject to Awards and Cash
Awards.
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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 1,061,224 per calendar
year;
(ii) the maximum number of shares
that can be awarded under the Plan, other than pursuant to an
Option or SAR, to any person eligible for an Award under Section
6 hereof is 1,061,224 per calendar year; and
(iii) the maximum amount that may be
earned as an Annual Incentive Award or other cash Award in any
calendar year by any one Grantee shall be $3 million and the
maximum amount that may be earned as a Performance Award or other
cash Award in respect of a performance period greater than one year
by any one Grantee shall be $6 million.
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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TERMS AND
CONDITIONS OF OPTIONS
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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
