EXHIBIT 10.1
ST. MARY LAND &
EXPLORATION COMPANY
EQUITY INCENTIVE COMPENSATION
PLAN
As Amended and Restated as of
March 26, 2009
ARTICLE I
ESTABLISHMENT, PURPOSE AND
DURATION
1.1 Establishment.
St. Mary Land & Exploration Company, a
Delaware corporation (the “Company”), has established
an equity incentive compensation plan formerly known as the 2006
Equity Incentive Compensation Plan (the “Plan”). The
Plan is hereby renamed and shall be known henceforth as the Equity
Incentive Compensation Plan. The Plan permits the grant of
Restricted Stock, Restricted Stock Units, Nonqualified Stock
Options, Incentive Stock Options, Stock Appreciation Rights,
Performance Shares, Performance Units and Stock Based Awards. The
Plan became effective upon its approval by the Company’s
stockholders on May 17, 2006 (the “Effective
Date”) and shall remain in effect as provided in
Section 1.3 hereof.
1.2 Purpose. The
purpose of the Plan is to promote the success and enhance the value
of the Company by linking the personal interests of the
Participants to those of the Company’s stockholders, and by
providing Participants with an incentive for outstanding
performance. The Plan is further intended to provide flexibility to
the Company in its ability to attract, motivate, and retain the
services of Participants upon whose judgment, interest, and special
effort the success of the Company is substantially
dependent.
1.3 Duration. The
Plan commenced as of the Effective Date, as set forth in
Section 1.1 hereof, and shall remain in effect, subject to the
right of the Committee or the Board to amend or terminate the Plan
at any time pursuant to Article XIV hereof, until the earlier
of (i) the tenth anniversary of the Effective Date, or
(ii) when all Shares subject to the Plan have been purchased
or acquired according to the Plan’s provisions. Any
previously granted Awards under this Plan which remain outstanding
as of the date of expiration or other termination of the Plan shall
not be affected by such expiration or other termination and shall
continue in effect in accordance with their respective
terms.
1.4 Successor Plan.
This Plan shall serve as the successor to the
St. Mary Land & Exploration Company Stock Option
Plan, the St. Mary Land & Exploration Company
Incentive Stock Option Plan, the St. Mary Land &
Exploration Company Restricted Stock Plan, and the St. Mary
Land & Exploration Company Non-Employee Director Stock
Compensation Plan (collectively, the “Predecessor
Plans”), and no further grants or awards shall be made under
the Predecessor Plans from and after the Effective Date of this
Plan. Each outstanding grant or award under a Predecessor Plan
immediately prior to the Effective Date of this Plan shall continue
to be governed solely by the terms and conditions of the applicable
Predecessor Plan and the instruments evidencing such grant or
award, and, except as otherwise expressly provided herein or by the
Committee, no provision of this Plan shall affect or otherwise
modify the rights or obligations of holders of such outstanding
grants or awards under the Predecessor Plans. Any Shares reserved
for issuance under the Predecessor Plans in excess of the number of
Shares as to which grants or awards have been made thereunder shall
be transferred into this Plan upon the Effective Date and shall
become available for Awards under this Plan. Any Shares related to
grants or awards made under the Predecessor Plans that after the
Effective Date may lapse, expire, terminate, or are cancelled, are
settled in cash in lieu of common stock, are tendered (either by
actual delivery or attestation) to pay the option price, or are
used to satisfy any tax withholding requirements shall be deemed to
be available for issuance or reissuance under Section 4.1 of
this Plan; provided, however, that any Shares that from and after
May 21, 2008 are tendered (either by actual delivery or
attestation) to pay the option price or are used to satisfy any tax
withholding requirements shall not be deemed available for issuance
or reissuance under Section 4.1 of this Plan.
ARTICLE II
DEFINITIONS AND
CONSTRUCTION
2.1 Definitions.
Whenever used herein, the following terms shall have
the respective meanings set forth below, unless the context clearly
requires otherwise, and when such meaning is intended the term
shall be capitalized.
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(a) “
Affiliate ” shall have the meaning given to such term
in Rule 12b-2 under the Exchange Act, with reference to the
Company, and shall also include any corporation, partnership, joint
venture, limited liability company or other entity in which the
Company owns, directly or indirectly, at least 50 percent of
the total combined voting power of such corporation or of the
capital interest or profits interest of such partnership or other
entity.
(b) “
Award ” means, individually or collectively, a grant
or award under this Plan of Restricted Stock, Restricted Stock
Units, NQSOs, ISOs, SARs, Performance Shares, Performance Units or
Stock Based Awards, in each case subject to the terms of this
Plan.
(c) “
Award Agreement ” means either (i) a written
agreement entered into by the Company and a Participant setting
forth the terms and provisions applicable to Awards granted under
this Plan; or (ii) a written statement issued by the Company
to a Participant describing the terms and provisions of such Award.
All Award Agreements shall be deemed to incorporate the provisions
of the Plan. An Award Agreement need not be identical to other
Award Agreements either in form or substance.
(d) “
Board ” or “ Board of Directors ”
means the Board of Directors of the Company.
(e) “
Change of Control ” shall mean any of the following
events:
(i) (A)
The acquisition by any individual or entity (a
“Person”) or Persons acting as a group of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of more than 50 percent of either
(1) the then value of the outstanding shares of common stock
of the Company, or (2) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors.
(B) For
purposes of paragraph (A), Persons will not be considered to
be acting as a group solely because they purchase or own stock of
the same corporation at the same time, or as a result of the same
public offering. However, Persons will be considered to be acting
as a group if they are owners of a corporation that enters into a
merger, consolidation, purchase or acquisition of stock, or similar
business transaction with the Company. If a Person, including an
entity, owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar
transaction, such shareholder is considered to be acting as a group
with other shareholders in a corporation prior to the transaction
giving rise to the change and not with respect to the ownership
interest in the other corporation. For purposes of determining
stock ownership, see (e)(iv) below.
(ii) A
majority of members of the Board is replaced during any
12 month period by Directors whose appointment or election is
not endorsed by a majority of the members of the Board prior to the
date of the appointment or election; or
(iii) (A)
Any one Person, or more than one Person acting as a group (as
determined in (e)(iii)(C) below), acquires (or has acquired during
the 12 month period ending on the date of the most recent
acquisition by such Person or Persons) assets from the Company that
have a total gross fair market value equal to or more than
50 percent of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means the
value of the assets of the Company, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets.
(B) A
transfer of assets by the Company is not treated as a change in the
ownership of such assets if the assets are transferred
to—
(1) A
stockholder of the Company (immediately before the asset transfer)
in exchange for or with respect to its stock;
(2) An
entity, 50 percent or more of the total value or voting power
of which is owned, directly or indirectly, by the
Company;
(3) A
Person, or more than one Person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value
or voting power of all the outstanding stock of the Company;
or
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(4) An
entity, at least 50 percent of the total value or voting power
of which is owned, directly or indirectly, by a Person described in
(e)(iii)(B)(3). For purposes of this paragraph (e)(iii)(B) and
except as otherwise provided, a Person’s status is determined
immediately after the transfer of the assets. For example, a
transfer to a corporation in which the Company has no ownership
interest before the transaction, but which is a majority owned
subsidiary of the Company after the transaction, is not treated as
a change in the ownership of the assets of the Company.
(C) Persons
will not be considered to be acting as a group for purposes of this
paragraph (e)(iii) solely because they purchase assets of the
Company at the same time. However, Persons will be considered to be
acting as a group if they are owners of a corporation that enters
into a merger, consolidation, purchase or acquisition of assets, or
similar business transaction with the Company. If a Person,
including an entity shareholder, owns stock in both corporations
that enter into a merger, consolidation, purchase or acquisition of
stock or similar transaction, such shareholder is considered to be
acting as a group with other shareholders in a corporation only to
the extent of the ownership in that corporation prior to the
transaction giving rise to the change and not with respect to the
ownership interest in the other corporation.
(D) For
purposes of determining stock ownership, see (e)(iv)
below.
(iv) For
purposes of determining whether there has been a Change of Control,
Section 318(a) of the Code applies to determine stock
ownership. Stock underlying a vested option is considered owned by
the individual who holds the vested option (and the stock
underlying an unvested option is not considered owned by the
individual who holds the unvested option). For purposes of the
preceding sentence, however, if a vested option is exercisable for
stock that is not substantially vested (as defined by
§§1.83-3(b) and (j) of the income tax regulations
promulgated by the Internal Revenue Service), the stock underlying
the option is not treated as owned by the individual who holds the
option.
(f) “
Change of Control Price ” means the highest per share
price for Shares offered in conjunction with any transaction
resulting in a Change of Control (as determined in good faith by
the Committee if any part of the offered price is payable other
than in cash) or, in the case of a Change of Control occurring
solely by reason of a change in the composition of the Board, the
highest Fair Market Value of the Shares on any of the 30 trading
days immediately preceding the date on which a Change of Control
occurs.
(g) “
Change of Control Termination ” has the meaning set
forth in Section 13.2 hereof.
(h) “
Code ” means the Internal Revenue Code of 1986, as
amended.
(i) “
Committee ” means the Compensation Committee of the
Board of Directors, or any other duly authorized committee of the
Board appointed by the Board to administer the Plan. The Committee
shall be comprised of two or more directors, and each member of the
Committee shall be a Non-Employee Director, an “outside
director” within the meaning of the regulations under
Section 162(m) of the Code, and an “independent
director” for purposes of the rules and regulations of the
New York Stock Exchange (“NYSE”) (or such other
principal securities market on which the Shares are
traded).
(j) “
Company ” means St. Mary Land &
Exploration Company, a Delaware corporation, and any successor
thereto as provided in Article XVII hereof.
(k) “
Covered Employee ” means an Employee who is, or who
the Committee expects to become, a “covered employee”
within the meaning of Section 162(m) of the Code.
(l) “
Director ” means any individual who is a member of the
Board of Directors of the Company.
(m) “
Dividend Equivalent ” means a right with respect to an
Award to receive cash, Shares or other property equal in value and
form to dividends declared by the Board and paid with respect to
outstanding Shares. Dividend Equivalents shall not apply to Options
or Stock Appreciation Rights, and shall not apply to any other type
of Award unless specifically provided for in the Award Agreement,
and if specifically provided for in the Award Agreement shall be
subject to such terms and conditions set forth in the Award
Agreement as the Committee shall determine.
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(n) “
Employee ” means any employee of the Company or an
Affiliate. Directors who are not otherwise employed by the Company
or an Affiliate shall not be considered Employees under this
Plan.
(o) “
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
(p) “
Fair Market Value ” or “ FMV ”
means a value or price that is based on the opening, closing,
actual, high, low or average selling prices per Share on the NYSE
or other established stock exchange (or exchanges) on the
applicable date, the preceding trading day, the next succeeding
trading day, or an average of trading days, as determined by the
Committee in its discretion. Such definition(s) of FMV may differ
depending on whether FMV is in reference to the grant, exercise,
vesting, settlement or payout of an Award. If Shares are not traded
on an established stock exchange, FMV shall be determined by the
Committee based on objective criteria.
(q) “
Fiscal Year ” means the year commencing on
January 1 and ending on December 31, or such other fiscal
year period as approved by the Board.
(r) “
Freestanding SAR ” means a SAR that is not a Tandem
SAR, as described in Article VIII herein.
(s) “
Grant Price ” means the price against which the amount
payable is determined upon exercise of a SAR.
(t) “
Incentive Stock Option ” or “ ISO ”
means an Option to purchase Shares granted under Article VII
herein and that is designated as an Incentive Stock Option and is
intended to meet the requirements of Section 422 of the Code,
or any successor provision.
(u) “
Non-Employee Director ” means a Director who meets the
definition of a “Non-Employee Director” set forth in
Rule 16b-3(b)(3) under the Exchange Act, or any successor
definition adopted by the Securities and Exchange
Commission.
(v) “
Nonqualified Stock Option ” or “ NQSO
” means an Option to purchase Shares granted under
Article VII herein, which is not intended to be an Incentive
Stock Option or which otherwise does not meet the requirements for
an ISO.
(w) “
Option ” means the conditional right to purchase
Shares at a stated Option Price for a specified period of time in
the form of an Incentive Stock Option or a Nonqualified Stock
Option subject to the terms of this Plan.
(x) “
Option Price ” means the price at which a Share may be
purchased by a Participant pursuant to an Option, as determined by
the Committee.
(y) “
Participant ” means a participant holding an
outstanding Award granted under the Plan.
(z) “
Performance Based Compensation ” means compensation
under an Award that is granted in order to provide remuneration
solely on account of the attainment of one or more Performance
Goals under circumstances that satisfy the requirements of
Section 162(m) of the Code.
(aa) “
Performance Goal ” means a performance criterion
selected by the Committee for a particular Award for purposes of
Article XI based on one or more Performance
Measures.
(bb) “
Performance Measures ” mean measures as described in
Article XI, the attainment of one or more of which shall, as
determined by the Committee, determine the vesting, monetization,
or value of an Award to a Covered Employee that is designated to
qualify as Performance Based Compensation.
(cc) “
Performance Period ” means the period of time, which
shall not be shorter than 12 months, during which the assigned
performance criteria must be met in order to determine the degree
of payout and/or vesting with respect to an Award of Performance
Shares or Performance Units.
(dd) “
Performance Share ” means an Award granted under
Article IX herein, denominated in Shares, the value of which
at the time it is payable is determined as a function of the extent
to which corresponding performance criteria have been
achieved.
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(ee) “
Performance Unit ” means an Award granted under
Article IX herein, denominated in units, which may be valued
by reference to a designated amount of property other than Shares,
the value of which at the time it is payable is determined as a
function of the extent to which corresponding performance criteria
have been achieved.
(ff) “
Plan ” means this Equity Incentive Compensation Plan,
as it may be amended from time to time.
(gg) “
Restricted Stock ” means an Award under
Article VI of Shares that may be subject to certain
restrictions and to a risk of forfeiture as set forth in the Award
Agreement.
(hh) “
Restricted Stock Unit ” means an Award under
Article VI that is valued by reference to a Share, which value
may be paid by delivery of Shares or cash or a combination thereof
upon settlement of the Award, subject to the specific terms and
conditions of the Award as set forth in the Award
Agreement.
(ii) “
Securities Act ” means the Securities Act of 1933, as
amended.
(jj) “
Shares ” means shares of common stock of the Company,
$0.01 par value per share.
(kk) “
Stock Appreciation Right ” or “ SAR
” means the conditional right to receive the difference
between the FMV of a Share on the date of exercise over the Grant
Price, pursuant to the terms of Article VIII
herein.
(ll) “
Stock Based Award ” means an equity based or equity
related Award granted pursuant to the terms of Article X
herein.
(mm) “
Tandem SAR ” means a SAR that the Committee specifies
pursuant to Article VIII herein is granted in connection with
a related Option, the exercise of which SAR shall require
forfeiture of the right to purchase a Share under the related
Option (and when a Share is purchased under the Option, the Tandem
SAR shall similarly be cancelled), or a SAR that is granted in
tandem with an Option but the exercise of such Option does not
cancel the SAR, but rather results in the exercise of the related
SAR. Regardless of whether an Option is granted coincident with a
SAR, a SAR is not a Tandem SAR unless so specified by the Committee
at the time of grant.
2.2 Construction.
Captions and titles contained herein are for
convenience of reference only and shall not affect the meaning or
interpretation of any provision of the Plan. Except when otherwise
indicated by the context, any definition of any term herein in the
singular also shall include the plural.
ARTICLE III
ADMINISTRATION
3.1 General. The
Committee shall be responsible for administering the Plan. The
Committee may employ attorneys, consultants, accountants, agents,
and other individuals, any of whom may be an Employee, and the
Committee, the Company, and the Company’s officers and
Directors shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee shall be
final, conclusive, and binding upon the Participants, the Company,
and all other interested parties. No member of the Committee shall
be liable for any action or determination made in good faith with
respect to the Plan or any Award granted under the Plan.
3.2 Authority of the
Committee. The Committee shall have full and
exclusive discretionary power to (i) interpret the terms and
the intent of the Plan, any Award and any Award Agreement or other
agreement ancillary to or in connection with the Plan,
(ii) determine eligibility for Awards and select those who
will become Participants in the Plan, (iii) adopt such rules,
regulations, and guidelines for administering the Plan as the
Committee may deem necessary or proper, (iv) provide for
conditions and assurances deemed necessary or advisable to protect
the interests of the Company with respect to the Plan and
(v) make all other determinations necessary or advisable for
the administration of the Plan. Such authority shall include, but
not be limited to, selecting Award recipients, establishing all
Award terms and conditions and, subject to Article XIV,
adopting modifications, amendments or subplans to the Plan or any
Award Agreement. Subject to the terms and provisions of the Plan,
the Committee shall have complete discretion in determining the
nature, terms, conditions and amount of each Award. In making such
determinations, the Committee may take into account the nature of
services rendered by the recipient of the Award, such
person’s present and potential contributions to the Company
and such other factors as the Committee in its discretion shall
deem relevant.
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3.3 Delegation.
The Committee may delegate to one or more of its
members any of the Committee’s administrative duties or
powers as it may deem advisable; provided, however, that any such
delegation shall not be inconsistent with the provisions of
Rule 16b-3 under the Exchange Act or Section 162(m) of
the Code as to actions to be taken by the Committee in connection
therewith.
ARTICLE IV
SHARES SUBJECT TO THE PLAN AND
MAXIMUM AWARDS
4.1 Total Number of Shares
Available for Awards. Subject to adjustment as
provided in Section 4.2 herein, the total number of Shares
hereby made available and reserved for issuance to Participants
pursuant to Awards granted under the Plan shall be 6,000,000, plus
any remaining Shares available for issuance under the Predecessor
Plans as set forth in Section 1.4 (with such total number of
Shares, including such adjustment and remaining Shares, to be
referred to as the “Total Share Authorization”). Any
Shares issued in connection with an Option or SAR shall be counted
against the Total Share Authorization limit as one Share for every
one Share issued. Any Shares issued pursuant to Awards granted on
or before May 20, 2009 in connection with an Award other than
an Option or SAR shall be counted against the Total Share
Authorization limit as two Shares for every one Share issued. Any
Shares issued pursuant to Awards granted after May 20, 2009 in
connection with an Award other than an Option or SAR shall be
counted against the Total Share Authorization limit as 1.43 Shares
for every one Share issued. The maximum aggregate number of Shares
that may be issued through Nonqualified Stock Options shall be
equal to the Total Share Authorization. The maximum aggregate
number of Shares that may be issued through Incentive Stock Options
shall be 6,000,000.
Any Awards that are not settled in Shares shall
not be counted against the Total Share Authorization limit. Any
Shares related to Awards (or after the Effective Date, awards
granted or issued under the Predecessor Plans) which
(i) terminate by expiration, forfeiture, cancellation or
otherwise without the issuance of such Shares, (ii) are
settled in cash either in lieu of Shares or otherwise, or
(iii) are exchanged with the Committee’s approval for
Awards not involving Shares, shall be available again for issuance
under the Plan. In addition, if the Option Price of any Option
granted under the Plan or the tax withholding requirement with
respect to any Award granted under the Plan is satisfied by
tendering Shares to the Company (by either actual delivery or by
attestation), or if a SAR is exercised, only the number of Shares
issued, net of the Shares tendered, if any, will be deemed
delivered for purposes of determining the maximum number of Shares
available for issuance under the Plan; provided, however, that from
and after May 21, 2008, Shares tendered as full or partial
payment to the Company of the Option Price upon exercise of Options
granted under this Plan, Shares reserved for issuance upon grant of
SARs, to the extent the number of reserved Shares exceeds the
number of Shares actually issued upon exercise of the SARs, and
Shares withheld by, or otherwise remitted to, the Company to
satisfy a Participant’s tax withholding obligations with
respect to any Award granted under this Plan, shall not become
available again for issuance under this Plan. The maximum number of
Shares available for issuance under the Plan shall be reduced to
reflect any dividends or Dividend Equivalents that are reinvested
into additional Shares under this Plan or credited as additional
Restricted Stock, Restricted Stock Units, Performance Shares,
Performance Units or Stock Based Awards. The Shares available for
issuance under the Plan may be authorized and unissued Shares or
treasury Shares. Unless and until the Committee determines that an
Award to a Covered Employee shall not be designed to qualify as
Performance Based Compensation, the following limits (“Award
Limits”) shall apply to grants of Awards to Covered Employees
under the Plan:
(a) Restricted Stock/Restricted
Units. The maximum aggregate number of Shares that
may be granted in the form of Restricted Stock/Restricted Stock
Units in any one Fiscal Year to any one Participant shall be
100,000.
(b) Options and SARS.
The maximum aggregate number of Shares that may be
granted in the form of Options or SARs in any one Fiscal Year to
any one Participant shall be 200,000.
(c) Performance
Shares/Performance Units. The maximum aggregate
Award of Performance Shares or Performance Units that a Participant
may receive in any one Fiscal Year shall be 200,000 Shares, and the
maximum value of Performance Units that a Participant may receive
with respect to Awards in any one Fiscal Year shall be a value of
$5,000,000 determined as of the date of vesting or payout, as
applicable.
(d) Stock Based Awards.
The maximum aggregate grant with respect to Stock Based
Awards in any one Fiscal Year to any one Participant shall be
200,000.
4.2 Adjustments in Authorized
Shares. In the event of any corporate event or
transaction (including, but not limited to, a change in the Shares
of the Company or the capitalization of the Company) such as a
merger, consolidation, reorganization, recapitalization,
separation, stock dividend, extraordinary or special dividend,
stock split, reverse stock split, split up, spin off, other
distribution of stock or property of the Company, combination of
securities, exchange of securities,
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dividend in
kind, or other like change in capital structure or distribution
(other than normal cash dividends) to the stockholders of the
Company, or any similar corporate event or transaction, the
Committee, in order to prevent dilution or enlargement of
Participants’ rights under the Plan, shall make or provide
for appropriate proportionate substitutions or adjustments, as
applicable, to the number and kind of Shares that may be issued
under the Plan, the number and kind of Shares subject to
outstanding Awards, the Option Price or Grant Price applicable to
outstanding Awards, the application and computation of any Dividend
Equivalents that may be provided for in Award Agreements, the Award
Limits, the limit on issuing Awards other than Options granted with
an Option Price equal to at least the FMV of a Share on the date of
grant or Stock Appreciation Rights with a Grant Price equal to at
least the FMV of a Share on the date of grant, and any other value
determinations applicable to outstanding Awards or to this Plan.
Such adjustments shall be made automatically, without the necessity
of Committee action, on the customary and appropriate arithmetical
basis, in the case of any stock split, including a stock split
effected by means of a stock dividend, and in the case of any other
dividend paid in Shares, and shall be made in the discretion of the
Committee with respect to other corporate events or transactions.
The Committee, in its sole discretion, may also make other
appropriate adjustments in the terms of any Awards under the Plan
to reflect, or related to, such changes or distributions and may
modify any other terms of outstanding Awards, including
modifications of performance criteria and changes in the length of
Performance Periods, as are equitably necessary to prevent dilution
or enlargement of Participant’s rights under the Plan that
otherwise would result from such corporate event or transaction.
The determination of the Committee as to the foregoing adjustments,
if any, shall be conclusive and binding on Participants under the
Plan. Subject to the provisions of Article XIII and any
applicable law or regulatory requirement, without affecting the
number of Shares reserved or available hereunder, the Committee may
authorize the issuance, assumption, substitution or conversion of
Awards under this Plan in connection with any such corporate event
or transaction upon such terms and conditions as it may deem
appropriate. In addition, the Committee may amend the Plan, or
adopt supplements to the Plan, in such manner as it deems
appropriate to provide for such issuance, assumption, substitution
or conversion as provided in the previous sentence.
ARTICLE V
ELIGIBILITY AND
PARTICIPATION
5.1 Eligibility.
All Employees, consultants who are natural persons, and
members of the Board of the Company and of any Affiliate of the
Company shall be eligible to participate in the Plan and be granted
Awards under the Plan.
5.2 Actual Participation.
Subject to the provisions of the Plan, the Committee
may from time to time, in its sole discretion, select from among
persons eligible to participate in the Plan those to whom Awards
shall be granted under the Plan, and shall determine in its
discretion the nature, terms, conditions, and amount of each
Award.
ARTICLE VI
RESTRICTED STOCK AND RESTRICTED
STOCK UNITS
6.1 Grant of Restricted Stock or
Restricted Stock Units. Subject to the terms and
conditions of the Plan, the Committee, at any time and from time to
time, in its discretion may grant Shares of Restricted Stock and/or
Restricted Stock Units to Participants in such amounts and upon
such terms as the Committee shall determine.
(i) Nature of
Restricted Stock. Restricted Stock may be issued for
services rendered with any or no additional purchase price as shall
be determined by the Committee in its discretion, and may be
subject to certain restrictions and to a risk of forfeiture as set
forth in the Award Agreement. A Participant to whom Shares of
Restricted Stock are issued shall have all of the rights of
ownership with respect to the Shares subject to such Restricted
Stock Award, including the right to vote the same and receive any
dividends paid thereon; subject, however, to the terms, conditions
and restrictions contained in this Plan and in the applicable Award
Agreement.
(ii) Forfeiture and
Vesting. A Restricted Stock Award Agreement may provide
for forfeiture of the Restricted Stock upon termination of the
Participant’s employment or other relationship with the
Company or nonperformance of specified performance goals or
measures established by the Committee. A Restricted Stock Award
Agreement may also provide for (i) vesting periods which
require the passage of time and/or the occurrence of events in
order for the Restricted Stock to vest and become no longer subject
to forfeiture and (ii) holding periods during which the
Restricted Stock may not be sold or otherwise
transferred.
(iii) Certificates and
Settlement. Upon an Award of Restricted Stock, the
Company shall deliver to the Participant a certificate evidencing
the Shares subject to the Award, and such certificate shall be
imprinted
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with an
appropriate legend referring to or setting forth the applicable
restrictions to which such Shares are subject. After the Shares are
no longer subject to such restrictions, the Company shall, in
accordance with the terms and conditions of the Award Agreement and
upon the request of the Participant and the surrender by the
Participant of the original certificate, settle the completed
Restricted Stock Award by providing the Participant with a new
certificate for the Shares with such legend removed.
(b) Restricted Stock
Units.
(i) Nature of Restricted Stock Units;
Accounts. Each Restricted Stock Unit awarded shall
represent a right for one Share to be delivered upon settlement of
the Award, which right shall be subject to a risk of forfeiture and
cancellation and to the other terms and conditions set forth in the
Plan and the Award Agreement. The Company shall establish and
maintain a Participant account to record Restricted Stock Units and
transactions and events affecting such units. Restricted Stock
Units and other items reflected in the account will represent only
bookkeeping entries by the Company to evidence unfunded obligations
of the Company.
(ii) Deferral Period and
Settlement Date. Restricted Stock Units (if not
previously cancelled or forfeited) shall be settled on the date or
dates set forth in the Award Agreement. In addition, unless
otherwise determined by the Committee, if the Committee reasonably
determines that any settlement of Restricted Stock Units would
result in payment of compensation to a Participant which is not
deductible by the Company under Section 162(m) of the Code,
such settlement shall be deferred, subject to compliance with
Section 409A of the Code as referred to in Article XX
herein, to the extent necessary to avoid payment of such
nondeductible compensation, with such deferral continuing only
until such date as settlement can be effected without loss of
deductibility by the Company under Section 162(m) of the
Code.
(iii) Cancellation and
Vesting. A Restricted Stock Unit Award Agreement may
provide for cancellation of the Restricted Stock Units upon
termination of the Participant’s employment or other
relationship with the Company or nonperformance of
specifi
