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.
(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 sa
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