EXIDE
TECHNOLOGIES
2009 Stock Incentive
Plan
1. Purpose. The purpose
of the 2009 Stock Incentive Plan is to attract and retain
non-employee directors, officers, key employees and certain
consultants of Exide Technologies, a Delaware corporation, and its
Subsidiaries and to provide to such persons incentives and rewards
for superior performance.
2. Definitions. As used
in this Plan,
(a) “ Appreciation
Right ” means a right granted pursuant to Section 5
or Section 9 of this Plan, and will include both Tandem
Appreciation Rights and Free-Standing Appreciation Rights.
(b) “ Base Price
” means the price to be used as the basis for determining the
Spread upon the exercise of a Free-Standing Appreciation Right or a
Tandem Appreciation Right.
(c) “ Board
” means the Board of Directors of the Company and, to the
extent of any delegation by the Board to a committee (or
subcommittee thereof) pursuant to Section 14 of this Plan,
such committee (or subcommittee).
(d) “ Cash Award
” means a bonus opportunity awarded under Section 11 of
the Plan pursuant to which a Participant may become entitled to
receive an amount based on the satisfaction of such performance
criteria as are specified in the agreement or, if no agreement is
entered into with respect to the Cash Award, other documents
evidencing the award (the “ Cash Award Agreement
”).
(e) “ Change in
Control ” has the meaning set forth in Section 15 of
this Plan.
(f) “ Code ”
means the Internal Revenue Code of 1986, as amended from time to
time.
(g) “ Common Stock
” means the shares of common stock, par value $0.01 per
share, of the Company or any security into which such shares of
Common Stock may be changed by reason of any transaction or event
of the type referred to in Section 13 of this Plan.
(h) “ Company
” means Exide Technologies, a Delaware corporation.
(i) “ Continuous
Service ” refers to the absence of any interruption or
termination of service as an employee, Director or consultant.
Continuous Service shall not be considered interrupted in the case
of (i) sick leave; (ii) military leave; (iii) any
other leave of absence approved by the Board, provided that such
leave is for a period of not more than 90 days, unless
reemployment upon the expiration of such leave is guaranteed by
contract or applicable law, or unless provided otherwise pursuant
to Company policy, as adopted from time to time; or (iv) in
the case of transfer between locations of the Company or between
the Company, its Subsidiaries or their respective successors.
Changes in status between service as an employee, a Director and a
consultant will not constitute an interruption of Continuous
Service.
(j) “ Covered
Employee ” means a Participant who is, or is determined
by the Board to be likely to become, a “covered
employee” within the meaning of Section 162(m) of the Code
(or any successor provision).
(k) “ Date of
Grant ” means the date specified by the Board on which a
grant of Option Rights, Appreciation Rights, Performance Shares,
Performance Units, a grant or sale of Restricted Stock, Restricted
Stock Units, or other awards contemplated by Section 10 of
this Plan will become effective (which date will not be earlier
than the date on which the Board takes action with respect
thereto).
(l) “ Detrimental
Activity ” means, unless otherwise defined by the
Board:
(i) Engaging in any activity,
as an employee, principal, agent, or consultant for another entity
that competes with the Company in any actual, researched, or
prospective product, service, system, or business activity for
which the Participant has had any direct responsibility during the
last two years of his or her employment with the Company or a
Subsidiary, in any territory in which the Company or a Subsidiary
manufactures, sells, markets, services, installs or utilizes such
product, service, or system, or engages in such business
activity.
(ii) Soliciting any employee of
the Company or a Subsidiary to terminate his or her employment with
the Company or a Subsidiary.
(iii) The disclosure (unless
required by applicable law) to anyone outside the Company or a
Subsidiary, or the use in other than the Company’s or a
Subsidiary’s business, without prior written authorization
from the Company, of any confidential, proprietary or trade secret
information or material relating to the business of the Company and
its Subsidiaries, acquired by the Participant during his or her
employment with the Company or its Subsidiaries or while acting as
a director of or consultant for the Company or its Subsidiaries
thereafter.
(iv) The failure or refusal to
disclose promptly and to assign to the Company upon request all
right, title and interest in any invention or idea, patentable or
not, made or conceived by the Participant during employment by the
Company and any Subsidiary, relating in any manner to the actual or
anticipated business, research or development work of the Company
or any Subsidiary or the failure or refusal to do anything
reasonably necessary to enable the Company or any Subsidiary to
secure a patent where appropriate in the United States and in other
countries.
(v) Activity that results in
Termination for Cause. For the purposes of this Section, “
Termination for Cause ” shall mean a termination:
(A) due to the
Participant’s willful and continuous failure to substantially
perform the duties for which he or she is employed,
(B) due to the
Participant’s willful violation of a material Company
policy,
(C) due to the
Participant’s commission of any material act or acts of
fraud, embezzlement, dishonesty or other willful misconduct,
(D) due to the
Participant’s willful and material breach of any of his or
her obligations under any written agreement or covenant with the
Company, or
(E) due to an act of dishonesty
on the part of the Participant resulting or intended to result,
directly or indirectly, in his or her gain for personal enrichment
at the expense of the Company or a Subsidiary.
The Committee may in its discretion
determine whether a Participant’s termination is a
Termination for Cause. The Committee’s determination shall be
final and binding upon the Participant, the Company and all other
affected persons. The definition herein of “Termination for
Cause” shall not in any way limit the Company’s ability
to terminate a Participant’s employment at any time.
(vi) Any other conduct or act
determined to be injurious, detrimental or prejudicial to any
significant interest of the Company or any Subsidiary unless the
Participant acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests
of the Company.
(m) “ Director
” means a member of the Board of Directors of the
Company.
(n) “ Effective
Date ” means the date that this Plan is approved by the
stockholders of the Company.
(o) “ Evidence of
Award ” means an agreement, certificate, resolution or
other type or form of writing or other evidence approved by the
Board that sets forth the terms and conditions of the awards
granted. An Evidence of Award may be in an electronic medium, may
be limited to notation on the books and records of the Company and,
unless otherwise determined by the Board, need not be signed by a
representative of the Company or a Participant.
(p) “ Exchange Act
” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder, as such law, rules and
regulations may be amended from time to time.
(q) “ Existing
Plans ” means the Exide Technologies 2004 Stock Incentive
Plan and the Exide Technologies 2004 Stock Incentive Plan as
amended and restated effective August 22, 2007.
(r) “ Free-Standing
Appreciation Right ” means an Appreciation Right granted
pursuant to Section 5 or Section 9 of this Plan that is
not granted in tandem with an Option Right.
(s) “ Incentive Stock
Options ” means Option Rights that are intended to
qualify as “incentive stock options” under
Section 422 of the Code or any successor provision.
(t) “ Management
Objectives ” means one or more of the following selected
by the Board to measure Company, affiliate, and/or business unit
performance for a Performance Period, whether in absolute or
relative terms (including, without limitation, terms relative to a
peer group or index): basic, diluted, or adjusted earnings per
share; free cash flow; operating cash flow; sales or revenue;
earnings before interest, taxes, and other adjustments (in total or
on a per share basis); basic or adjusted net income; returns on
equity, assets, capital, revenue or similar measure; economic value
added; working capital; total shareholder return; and product
development, product market share, research, licensing, litigation,
human resources, information services, mergers, acquisitions, sales
of assets of affiliates or business units. Each such measure shall
be to the extent applicable, determined in accordance with
generally accepted accounting principles as consistently applied by
the Company (or such other standard applied by the Committee) and,
if so determined by the Board, and in the case of a Qualified
Performance-Based Award, to the extent permitted under Section
162(m) of the Code, adjusted to omit the effects of extraordinary
items, gain or loss on the disposal of a business segment, unusual
or infrequently occurring events and transactions and cumulative
effects of changes in accounting principles. Management Objectives
may vary from Performance Period to Performance Period and from
Participant to Participant, and may be established on a stand-alone
basis, in tandem or in the alternative.
(u) “ Market Value per
Share ” means as of any particular date (the
“Determination Date”), the following:
(i) Prior to May 5, 2011,
(a) the average closing price of the Common Stock for the ten
consecutive trading days immediately preceding, but not including,
the Determination Date as reported on the Nasdaq Stock Market; or
(b) if such shares of Common Stock are not traded on the
Nasdaq Stock Market but are quoted on the New York Stock Exchange
or the American Stock Exchange, or a successor system, the average
closing price of the Common Stock for the ten consecutive trading
days immediate preceding, but not including, the Determination
Date; or (c) if such shares of Common Stock are not traded on
the Nasdaq Stock Market or on any other national securities
exchange, but are otherwise traded in the over-the-counter market,
the average mean between the representative bid and asked prices
for the ten consecutive trading days immediately preceding, but not
including, the Determination Date; or (d) if subsections
(a) through (c) hereof do not apply, the fair market
value established in good faith by the Board. Notwithstanding the
previous sentence, in the event the Market Value per Share, as
calculated under subsections (a) through (d) hereof, is less
than the closing price of the Common Stock on the Date of Grant,
then the Market Value per Share shall be equal to the closing price
of the Common Stock on the Date of Grant.
(ii) Effective May 5,
2011, the closing sale price of the Common Stock as reported on the
Nasdaq Stock Market or, if not listed on such exchange, on any
other national securities exchange on which the Common Stock is
listed. If the Common Stock is not traded as of any given date, the
Market Value per Share means the closing price for the Common Stock
on the principal exchange on which the Common Stock is traded for
the immediately preceding date on which the Common Stock was
traded. If there is no regular public trading market for the Common
Stock, the Market Value per Share of the Common Stock shall be the
fair market value of the Common Stock as determined in good faith
by the Board.
(iii) The Board is authorized
to adopt another fair market value pricing method, including, but
not limited to, the method set forth in subsection (i) hereof,
provided such method is stated in the Evidence of Award, and is in
compliance with the fair market value pricing rules set forth in
Section 409A of the Code.
(v) “ Non-Employee
Director ” means a person who is a “Non-Employee
Director” of the Company within the meaning of
Rule 16b-3 of the Securities and Exchange Commission
promulgated under the Exchange Act.
(w) “ Optionee
” means the optionee named in an Evidence of Award evidencing
an outstanding Option Right.
(x) “ Option Price
” means the purchase price payable on exercise of an Option
Right.
(y) “ Option Right
” means the right to purchase shares of Common Stock upon
exercise of an option granted pursuant to Section 4 or
Section 9 of this Plan.
(z) “ Participant
” means a person who is selected by the Board to receive
benefits under this Plan and who is at the time an officer, key
employee or consultant of the Company or any one or more of its
Subsidiaries, or who has agreed to commence serving in any of such
capacities within 90 days of the Date of Grant, and will also
include each Non-Employee Director who receives or an award of
Option Rights, Appreciation Rights, Restricted Stock, Restricted
Stock Units or other awards under this Plan. The term
“Participant” shall also include any person who
provides services to the Company or a Subsidiary that are
equivalent to those typically provided by an employee.
(aa) “ Performance
Period ” means, in respect of a Performance Share or
Performance Unit, a period of time established pursuant to
Section 8 of this Plan within which the Management Objectives
relating to such Performance Share or Performance Unit are to be
achieved.
(bb) “ Performance
Share ” means a bookkeeping entry that records the
equivalent of one Common Share awarded pursuant to Section 8
of this Plan.
(cc) “ Performance
Unit ” means a bookkeeping entry awarded pursuant to
Section 8 of this Plan that records a unit equivalent to $1.00
or such other value as is determined by the Board.
(dd) “ Plan
” means this Exide Technologies 2009 Stock Incentive
Plan.
(ee) “ Qualified
Performance-Based Award ” means any award or portion of
an award that is intended to satisfy the requirements for
“qualified performance-based compensation” under
Section 162(m) of the Code.
(ff) “ Restricted
Stock ” means shares of Common Stock granted or sold
pursuant to Section 6 or Section 9 of this Plan as to
which neither the substantial risk of forfeiture nor the
prohibition on transfers referred to in such Section 6 or 9
has expired.
(gg) “ Restriction
Period ” means the period of time during which Restricted
Stock Units are subject to restrictions, as provided in
Section 7 or Section 9 of this Plan.
(hh) “ Restricted
Stock Unit ” means an award made pursuant to
Section 7 or Section 9 of this Plan of the right to
receive shares of Common Stock or cash at the end of a specified
period.
(ii) “ Spread
” means the excess of the Market Value per Share on the date
when an Appreciation Right is exercised, or on the date when Option
Rights are surrendered in payment of the Option Price of other
Option Rights, over the Option Price or Base Price provided for in
the related Option Right or Free-Standing Appreciation Right,
respectively.
(jj) “ Subsidiary
” means a corporation, company or other entity (i) more
than 50 percent of whose outstanding shares or securities
(representing the right to vote for the election of directors or
other managing authority) are, or (ii) which does not have
outstanding shares or securities (as may be the case in a
partnership, joint venture or unincorporated association), but more
than 50 percent of whose ownership interest representing the
right generally to make decisions for such other entity is, now or
hereafter, owned or controlled, directly or indirectly, by the
Company except that for purposes of determining whether any person
may be a Participant for purposes of any grant of Incentive Stock
Options, “Subsidiary” means any corporation in which at
the time the Company owns or controls, directly or indirectly, more
than 50 percent of the total combined voting power represented
by all classes of stock issued by such corporation.
(kk) “ Tandem
Appreciation Right ” means an Appreciation Right granted
pursuant to Section 5 or Section 9 of this Plan that is
granted in tandem with an Option Right.
3. Shares Available Under
the Plan.
(a) Maximum Shares
Available Under Plan.
(i) Subject to adjustment as
provided in Section 13 of this Plan, the number of shares of
Common Stock that may be issued or transferred (A) upon the
exercise of Option Rights or Appreciation Rights, (B) in
payment of Restricted Stock and released from substantial risks of
forfeiture thereof, (C) in payment of Restricted Stock Units,
(D) in payment of Performance Shares or Performance Units that
have been earned, (E) as awards to Non-Employee Directors,
(F) as awards contemplated by Section 10 of this Plan, or
(G) in payment of dividend equivalents paid with respect to
awards made under the Plan, will not exceed in the aggregate
4,000,000 shares of Common Stock. Such shares may be shares of
original issuance or treasury shares or a combination of the
foregoing.
(ii) Shares of Common Stock
covered by an award granted under the Plan shall not be counted as
used unless and until they are actually issued and delivered to a
Participant and, therefore, the total number of shares available
under the Plan as of a given date shall not be reduced by any
shares relating to prior awards that have expired or have been
forfeited or cancelled, and upon payment in cash of the benefit
provided by any award granted under the Plan, any shares of Common
Stock that were covered by that award will be available for issue
or transfer hereunder. Notwithstanding anything to the contrary
contained herein: (A) if shares of Common Stock are tendered
or otherwise used in payment of the Option Price of an Option
Right, the total number of shares covered by the Option Right being
exercised shall reduce the aggregate plan limit described above;
(B) shares of Common Stock withheld by the Company to satisfy
the tax withholding obligation shall count against the aggregate
plan limit described above; and (C) the number of shares of
Common Stock covered by an Appreciation Right, to the extent that
it is exercised and settled in shares of Common Stock, and whether
or not shares are actually issued to the Participant upon exercise
of the Appreciation Right, shall be considered issued or
transferred pursuant to the Plan. In the event that the Company
repurchases shares with Option Right proceeds, those shares will
not be added to the aggregate plan limit described above. If, under
this Plan, a Participant has elected to give up the right to
receive compensation in exchange for shares of Common Stock based
on fair market value, such shares of Common Stock will not count
against the aggregate plan limit described above
(b) Life of Plan
Limits. Notwithstanding anything in this Section 3, or
elsewhere in this Plan, to the contrary, and subject to adjustment
as provided in Section 13 of this Plan:
(i) The aggregate number of
shares of Common Stock actually issued or transferred by the
Company upon the exercise of Incentive Stock Options will not
exceed 4,000,000 shares of Common Stock; and
(ii) The number of shares of
Common Stock issued as Restricted Stock, Restricted Stock Units,
Performance Shares and Performance Units and other awards under
Section 10 of this Plan (after taking into account any
forfeitures and cancellations) will not during the life of the Plan
exceed 4,000,000 shares of Common Stock in the aggregate;
(iii) Awards will not be
granted under Section 9 or Section 10 of the Plan to the
extent they would involve the issuance of more than 4,000,000
shares in the aggregate; and
(iv) The aggregate maximum
value as of the Date of Grant of Cash Awards granted under this
Plan during any fiscal year of the Company to any one Participant
on or after the Effective Date shall not exceed U.S. $3,000,000
.
(c) Individual Participant
Limits. Notwithstanding anything in this Section 3, or
elsewhere in this Plan, to the contrary, and subject to adjustment
as provided in Section 13 of this Plan:
(i) No Participant will be
granted Option Rights or Appreciation Rights, in the aggregate, for
more than 1,000,000 shares of Common Stock during any calendar
year;
(ii) No Participant will be
granted Qualified Performance Based Awards of Restricted Stock,
Restricted Stock Units, Performance Shares or other awards under
Section 10 of this Plan, in the aggregate, for more than
800,000 shares of Common Stock during any calendar year; and
(iii) In no event will any
Participant in any calendar year receive a Qualified
Performance-Based Award of Performance Units having an aggregate
maximum value as of their respective Dates of Grant in excess of
$3,000,000.
4. Option Rights. The
Board may, from time to time and upon such terms and conditions as
it may determine, authorize the granting to Participants of options
to purchase shares of Common Stock. Each such grant may utilize any
or all of the authorizations, and will be subject to all of the
requirements contained in the following provisions:
(a) Each grant will specify the
number of shares of Common Stock to which it pertains subject to
the limitations set forth in Section 3 of this Plan.
(b) Each grant will specify an
Option Price per share, which may not be less than the Market Value
per Share on the Date of Grant.
(c) Each grant will specify
whether the Option Price will be payable (i) in cash or by
check acceptable to the Company or by wire transfer of immediately
available funds, (ii) by the actual or constructive transfer
to the Company of shares of Common Stock owned by the Optionee (or
other consideration authorized pursuant to Section 4(d))
having a value at the time of exercise equal to the total Option
Price, (iii) by a combination of such methods of payment, or
(iv) by such other methods as may be approved by the
Board.
(d) To the extent permitted by
law, any grant may provide for deferred payment of the Option Price
from the proceeds of sale through a broker on a date satisfactory
to the Company of some or all of the shares to which such exercise
relates.
(e) Successive grants may be
made to the same Participant whether or not any Option Rights
previously granted to such Participant remain unexercised.
(f) Each grant will specify the
period or periods of Continuous Service by the Optionee with the
Company or any Subsidiary that is necessary before the Option
Rights or installments thereof will become exercisable. A grant of
Option Rights may provide for the earlier exercise of such Option
Rights in the event of the retirement, death or disability of a
Participant, a Change in Control or other sufficient reason
.
(g) Any grant of Option Rights
may specify Management Objectives that must be achieved as a
condition to the exercise of such rights.
(h) Option Rights granted under
this Plan may be (i) options, including, without limitation,
Incentive Stock Options, that are intended to qualify under
particular provisions of the Code, (ii) options that are not
intended so to qualify, or (iii) combinations of the
foregoing. Incentive Stock Options may only be granted to
Participants who meet the definition of “employees”
under Section 3401(c) of the Code.
(i) The exercise of an Option
Right will result in the cancellation on a share- for-share basis
of any Tandem Appreciation Right authorized under Section 5 of
this Plan.
(j) No Option Right will be
exercisable more than 10 years from the Date of Grant.
(k) To the extent permitted by
Section 409A of the Code, the Board reserves the discretion at
or after the Date of Grant to provide for (i) the payment of a
cash bonus at the time of exercise, (ii) the availability of a
loan at exercise, and (iii) the right to tender in
satisfaction of the Option Price nonforfeitable, unrestricted
shares of Common Stock, which are already owned by the Optionee and
have a value at the time of exercise that is equal to the Option
Price.
(l) The Board may substitute,
without receiving Participant permission, Appreciation Rights
payable only in shares of Common Stock (or Appreciation Rights
payable in shares of Common Stock or cash, or a combination of
both, at the Board’s discretion) for outstanding Options;
provided , however , that the terms of the
substituted Appreciation Rights are substantially the same as the
terms for the Options and the difference between the Market Value
Per Share of the underlying shares of Common Stock and the Base
Price of the Appreciation Rights is equivalent to the difference
between the Market Value Per Share of the underlying shares of
Common Stock and the Option Price of the Options. If, in the
opinion of the Company’s auditors, this provision creates
adverse accounting consequences for the Company, it shall be
considered null and void.
(m) Each grant of Option Rights
will be evidenced by an Evidence of Award. Each Evidence of Award
shall be subject to the Plan and shall contain such terms and
provisions as the Board may approve.
5. Appreciation
Rights.
(a) The Board may, from time to
time and upon such terms and conditions as it may determine,
authorize the granting (i) to any Optionee, of Tandem
Appreciation Rights in respect of Option Rights granted hereunder,
and (ii) to any Participant, of Free-Standing Appreciation
Rights. A Tandem Appreciation Right will be a right of the
Optionee, exercisable by surrender of the related Option Right, to
receive from the Company an amount determined by the Board, which
will be expressed as a percentage of the Spread (not exceeding
100 percent) at the time of exercise. Tandem Appreciation
Rights may be granted at any time prior to the exercise or
termination of the related Option Rights; provided ,
however , that a Tandem Appreciation Right awarded in
relation to an Incentive Stock Option must be granted concurrently
with such Incentive Stock Option. A Free-Standing Appreciation
Right will be a right of the Participant to receive from the
Company an amount determined by the Board, which will be expressed
as a percentage of the Spread (not exceeding 100 percent) at
the time of exercise.
(b) Each grant of Appreciation
Rights may utilize any or all of the authorizations, and will be
subject to all of the requirements, contained in the following
provisions:
(i) Any grant may specify that
the amount payable on exercise of an Appreciation Right may be paid
by the Company in cash, in shares of Common Stock or in any
combination thereof and may either grant to the Participant or
retain in the Board the right to elect among those
alternatives.
(ii) Any grant may specify that
the amount payable on exercise of an Appreciation Right may not
exceed a maximum specified by the Board at the Date of Grant.
(iii) Any grant may specify
waiting periods before exercise and permissible exercise dates or
periods.
(iv) Any grant may specify that
such Appreciation Rights may be exercised only in the event of, or
earlier in the event of, the retirement, death or disability of a
Participant, a Change in Control or other sufficient reason.
(v) Any grant may provide for
the payment to the Participant of dividend equivalents thereon in
cash or shares of Common Stock on a current, deferred or contingent
basis.
(vi) Any grant of Appreciation
Rights may specify Management Objectives that must be achieved as a
condition of the exercise of such Appreciation Rights.
(vii) Each grant of
Appreciation Rights will be evidenced by an Evidence of Award,
which Evidence of Award will describe such Appreciation Rights,
identify the related Option Rights (if applicable), and contain
such other terms and provisions, consistent with this Plan, as the
Board may approve.
(c) Any grant of Tandem
Appreciation Rights will provide that such Tandem Appreciation
Rights may be exercised only at a time when the related Option
Right is also exercisable and at a time when the Spread is
positive, and by surrender of the related Option Right for
cancellation.
(d) Regarding Free-Standing
Appreciation Rights only:
(i) Each grant will specify in
respect of each Free-Standing Appreciation Right a Base Price,
which will be equal to or greater than the Market Value per Share
on the Date of Grant;
(ii) Successive grants may be
made to the same Participant regardless of whether any
Free-Standing Appreciation Rights previously granted to the Pa
