Exhibit 10.5
FISHER COMMUNICATIONS,
INC.
2008 EQUITY INCENTIVE
PLAN
AS AMENDED AND RESTATED ON MARCH
10, 2009
SECTION 1.
PURPOSE
The purpose of the Fisher
Communications, Inc. 2008 Equity Incentive Plan is to attract,
retain and motivate employees, officers and directors of the
Company and its Related Companies by providing them the opportunity
to acquire a proprietary interest in the Company and to align their
interests and efforts to the long-term interests of the
Company’s shareholders.
SECTION 2.
DEFINITIONS
Certain capitalized terms used in
the Plan have the meanings set forth in Appendix A.
SECTION 3.
ADMINISTRATION
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3.1
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Administration of the Plan
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The Plan shall be administered by
the Board or the Compensation Committee, which shall be composed of
two or more directors, each of whom is a “non-employee
director” within the meaning of Rule 16b-3(b)(3) promulgated
under the Exchange Act, or any successor definition adopted by the
Securities and Exchange Commission and an “outside
director” within the meaning of Section 162(m) of the
Code, or any successor provision thereto.
Notwithstanding the foregoing, the
Board may delegate responsibility for administering the Plan with
respect to designated classes of Eligible Persons to different
committees consisting of two or more members of the Board, subject
to such limitations as the Board deems appropriate, except with
respect to Awards to Participants who are subject to
Section 16 of the Exchange Act or Awards granted pursuant to
Section 16 of the Plan. Members of any committee shall serve
for such term as the Board may determine, subject to removal by the
Board at any time. To the extent consistent with applicable law,
the Board may authorize one or more senior executive officers of
the Company to grant Awards to designated classes of
Eligible Persons, within limits specifically
prescribed by the Board; provided, however, that no such officer
shall have or obtain authority to grant Awards to himself or
herself or to any person subject to Section 16 of the Exchange
Act. All references in the Plan to the “Committee”
shall be, as applicable, to the Compensation Committee or any other
committee or any officer to whom the Board has delegated authority
to administer the Plan.
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3.3
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Administration and Interpretation by
Committee
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(a) Except for the terms and
conditions explicitly set forth in the Plan and to the extent
permitted by applicable law, the Committee shall have full power
and exclusive authority, subject to such orders or resolutions not
inconsistent with the provisions of the Plan as may from time to
time be adopted by the Board or a Committee composed of members of
the Board, to (i) select the Eligible Persons to whom Awards
may from time to time be granted under the Plan;
(ii) determine the type or types of Award to be granted to
each Participant under the Plan; (iii) determine the number of
shares of Common Stock to be covered by each Award granted under
the Plan; (iv) determine the terms and conditions of any Award
granted under the Plan; (v) approve the forms of notice or
agreement for use under the Plan; (vi) determine whether, to
what extent and under what circumstances Awards may be settled in
cash or shares of Common Stock or canceled or suspended;
(vii) determine whether, to what extent and under what
circumstances cash, shares of Common Stock and other amounts
payable with respect to an Award shall be deferred either
automatically or at the election of the Participant;
(viii) interpret and administer the Plan and any instrument
evidencing an Award, notice or agreement executed or entered into
under the Plan; (ix) establish such rules and regulations as
it shall deem appropriate for the proper administration of the
Plan; (x) delegate ministerial duties to such of the
Company’s employees as it so determines; and (xi) make
any other determination and take any other action that the
Committee deems necessary or desirable for administration of the
Plan.
(b) In no event, however, shall the
Committee have the right, without shareholder approval, to
(i) cancel or amend outstanding Options or SARs for the
purpose of repricing, replacing or regranting such Options or SARs
with Options or SARs that have a purchase or grant price that is
less than the purchase or grant price for the original Options or
SARs except in connection with adjustments provided in
Section 15, or (ii) issue an Option or amend an
outstanding Option to provide for the grant or issuance of a new
Option on exercise of the original Option.
(c) The effect on the vesting of an
Award of a Company-approved leave of absence or a
Participant’s working less than full-time shall be determined
by the Company’s chief human resources officer or other
person performing that function or, with respect to directors or
executive officers, by the Compensation Committee, whose
determination shall be final.
(d) Decisions of the Committee shall
be final, conclusive and binding on all persons, including the
Company, any Participant, any shareholder and any Eligible Person.
A majority of the members of the Committee may determine its
actions.
SECTION 4. SHARES SUBJECT TO THE
PLAN
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4.1
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Authorized Number of Shares
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Subject to adjustment from time to
time as provided in Section 15.1, a maximum of 300,000 shares
of Common Stock shall be available for issuance under the Plan.
Shares issued under the Plan shall be drawn from authorized and
unissued shares.
(a) Shares of Common Stock covered
by an Award shall not be counted as used unless and until they are
actually issued and delivered to a Participant. If any Award
lapses, expires, terminates or is canceled prior to the issuance of
shares thereunder or if shares of Common Stock are issued under the
Plan to a Participant and thereafter are forfeited to or otherwise
reacquired by the Company, the shares subject to such Awards and
the forfeited or reacquired shares shall again be available for
issuance under the Plan. Any shares of Common Stock
(i) tendered by a Participant or retained by the Company as
full or partial payment to the Company for the purchase price of an
Award or to satisfy tax withholding obligations in connection with
an Award, or (ii) covered by an Award that is settled in cash,
or in a manner such that some or all of the shares of Common Stock
covered by the Award are not issued, shall be available for Awards
under the Plan. The number of shares of Common Stock available for
issuance under the Plan shall not be reduced to reflect any
dividends or dividend equivalents that are reinvested into
additional shares of Common Stock or credited as additional shares
of Common Stock subject or paid with respect to an
Award.
(b) The Committee shall also,
without limitation, have the authority to grant Awards as an
alternative to or as the form of payment for grants or rights
earned or due under other compensation plans or arrangements of the
Company.
(c) Notwithstanding anything in the
Plan to the contrary, the Committee may grant Substitute Awards
under the Plan. Substitute Awards shall not reduce the number of
shares authorized for issuance under the Plan. In the event that an
Acquired Entity has shares available for awards or grants under one
or more preexisting plans not adopted in contemplation of such
acquisition or combination, then, to the extent determined by the
Board or the Compensation Committee, the shares available for grant
pursuant to the terms of such preexisting plan (as adjusted, to the
extent appropriate, using the exchange ratio or other adjustment or
valuation ratio or formula used in such acquisition or combination
to determine the consideration payable to holders of common stock
of the entities that are parties to such acquisition or
combination) may be used for Awards under the Plan and shall not
reduce the number of shares of Common Stock authorized for issuance
under the Plan; provided, however, that Awards using such available
shares shall not be made after the date awards or grants could have
been made under the terms of such preexisting plans, absent the
acquisition or combination, and shall only be made to individuals
who were not employees or directors of the Company or a Related
Company prior to such acquisition or combination. In the
event
that a written agreement between the Company and
an Acquired Entity pursuant to which a merger, consolidation or
statutory share exchange is completed is approved by the Board and
that agreement sets forth the terms and conditions of the
substitution for or assumption of outstanding awards of the
Acquired Entity, those terms and conditions shall be deemed to be
the action of the Committee without any further action by the
Committee, except as may be required for compliance with
Rule 16b-3 under the Exchange Act, and the persons holding
such awards shall be deemed to be Participants.
(d) notwithstanding the other
provisions in this Section 4.2, the maximum number of shares
that may be issued upon the exercise of Incentive Stock Options
shall equal the aggregate share number stated in Section 4.1,
subject to adjustment as provided in Section 15.1.
SECTION 5.
ELIGIBILITY
An Award may be granted to any
employee, officer or director of the Company or a Related Company
whom the Committee from time to time selects.
SECTION 6.
AWARDS
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6.1
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Form,
Grant and Settlement of Awards
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The Committee shall have the
authority, in its sole discretion, to determine the type or types
of Awards to be granted under the Plan. Such Awards may be granted
either alone or in addition to or in tandem with any other type of
Award. Any Award settlement may be subject to such conditions,
restrictions and contingencies as the Committee shall
determine.
Awards granted under the Plan shall
be evidenced by a written notice or agreement (including an
electronic notice or agreement) that shall contain such terms,
conditions, limitations and restrictions as the Committee shall
deem advisable and that are not inconsistent with the
Plan.
The Committee may permit or require
a Participant to defer receipt of the payment of any Award if and
to the extent set forth in the notice or agreement evidencing the
Award at the time of grant. If any such deferral election is
permitted or required, the Committee, in its sole discretion, shall
establish rules and procedures for such payment deferrals, which
may include the grant of additional Awards or provisions for the
payment or crediting of interest or dividend equivalents, including
converting such credits to deferred stock unit equivalents;
provided, however, that the terms of any deferrals under this
Section 6.3 shall comply with all applicable law, rules and
regulations, including, without limitation, Section 409A of
the Code.
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6.4
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Dividends
and Distributions
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Participants may, if and to the
extent the Committee so determines and sets forth in the notice or
agreement evidencing the Award at the time of grant, be credited
with dividends paid with respect to shares of Common Stock
underlying an Award in a manner determined by the Committee in its
sole discretion. The Committee may apply any restrictions to the
dividends or dividend equivalents that the Committee deems
appropriate. The Committee, in its sole discretion, may determine
the form of payment of dividends or dividend equivalents, including
cash, shares of Common Stock, Restricted Stock or Stock
Units.
SECTION 7.
OPTIONS
The Committee may grant Options
designated as Incentive Stock Options or Nonqualified Stock
Options.
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7.2
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Option
Exercise Price
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The exercise price for shares
purchased under an Option shall be at least 100% of the Fair Market
Value of the Common Stock on the Grant Date (and, with respect to
Incentive Stock Options, shall not be less than the minimum
exercise price required by Section 422 of the Code), except in
the case of Substitute Awards.
Subject to earlier termination in
accordance with the terms of the Plan and the instrument evidencing
the Option, the maximum term of an Option shall be ten years from
the Grant Date.
The Committee shall establish and
set forth in each instrument that evidences an Option the time at
which, or the installments in which, the Option shall vest and
become exercisable, any of which provisions may be waived or
modified by the Committee at any time. To the extent an Option has
vested and become exercisable, the Option may be exercised in whole
or from time to time in part by delivery to or as directed or
approved by the Company of a properly executed stock option
exercise agreement or notice, in a form and in accordance with
procedures established by the Committee, setting forth the number
of shares with respect to which the Option is being exercised, the
restrictions imposed on the shares purchased under such exercise
agreement, if any, and such representations and agreements as may
be required by the Committee, accompanied by payment in full as
described in Sections 7.5 and 13. An Option may be exercised
only for whole shares and may not be exercised for less than a
reasonable number of shares at any one time, as determined by the
Committee.
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7.5
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Payment
of Exercise Price
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The exercise price for shares
purchased under an Option shall be paid in full to the Company by
delivery of consideration equal to the product of the Option
exercise price and the number of shares purchased. Such
consideration must be paid before the Company will issue the shares
being purchased and must be in a form or a combination of forms
acceptable to the Committee for that purchase, which forms may
include:
(a) cash;
(b) check or wire
transfer;
(c) having the Company withhold
shares of Common Stock that would otherwise be issued on exercise
of the Option that have an aggregate Fair Market Value equal to the
aggregate exercise price of the shares being purchased under the
Option;
(d) tendering (either actually or,
so long as the Common Stock is registered under Section 12(b)
or 12(g) of the Exchange Act, by attestation) shares of Common
Stock owned by the Participant that have an aggregate Fair Market
Value equal to the aggregate exercise price of the shares being
purchased under the Option;
(e) so long as the Common Stock is
registered under Section 12(b) or 12(g) of the Exchange Act,
and to the extent permitted by law, delivery of a properly executed
exercise notice, together with irrevocable instructions to a
brokerage firm designated or approved by the Company to deliver
promptly to the Company the aggregate amount of proceeds to pay the
Option exercise price and any withholding tax obligations that may
arise in connection with the exercise, all in accordance with the
regulations of the Federal Reserve Board; or
(f) such other consideration as the
Committee may permit.
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7.6
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Effect of
Termination of Service
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The Committee shall establish and
set forth in each instrument that evidences an Option whether the
Option shall continue to be exercisable, and the terms and
conditions of such exercise, after a Termination of Service, any of
which provisions may be waived or modified by the Committee at any
time. If the exercise of the Option following a Participant’s
Termination of Service, but while the Option is otherwise
exercisable, would be prohibited solely because the issuance of
Common Stock would violate either the registration requirements
under the Securities Act or the Company’s insider trading
policy, then the Option shall remain exercisable until the earlier
of (a) the Option Expiration Date and (b) the expiration
of a period of three months (or such longer period of time as
determined by the Committee in its sole discretion) after the
Participant’s Termination of Service during which the
exercise of the Option would not be in violation of such Securities
Act or insider trading policy requirements.
Notwithstanding the foregoing, in case a
Participant’s Termination of Service occurs for Cause, all
Options granted to the Participant shall automatically expire upon
first notification to the Participant of such termination, unless
the Committee determines otherwise. If a Participant’s
employment or service relationship with the Company is suspended
pending an investigation of whether the Participant shall be
terminated for Cause, all the Participant’s rights under any
Option shall likewise be suspended during the period of
investigation. If any facts that would constitute termination for
Cause are discovered after a Participant’s Termination of
Service, any Option then held by the Participant may be immediately
terminated by the Committee, in its sole discretion.
SECTION 8. INCENTIVE STOCK
OPTION LIMITATIONS
Notwithstanding any other provisions
of the Plan, the terms and conditions of any Incentive Stock
Options shall in addition comply in all respects with
Section 422 of the Code, or any successor provision, and any
applicable regulations thereunder.
SECTION 9. STOCK APPRECIATION
RIGHTS
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9.1
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Grant of
Stock Appreciation Rights
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The Committee may grant Stock
Appreciation Rights to Participants at any time on such terms and
conditions as the Committee shall determine in its sole discretion.
An SAR may be granted in tandem with an Option or alone
(“freestanding”). The grant price of a tandem SAR shall
be equal to the exercise price of the related Option. The grant
price of a freestanding SAR shall be established in accordance with
procedures for Options set forth in Section 7.2. An SAR may be
exercised upon such terms and conditions and for the term as the
Committee determines in its sole discretion; provided, however,
that, subject to earlier termination in accordance with the terms
of the Plan and the instrument evidencing the SAR, the maximum term
of a freestanding SAR shall be ten years, and in the case of a
tandem SAR, (a) the term shall not exceed the term of the
related Option and (b) the tandem SAR may be exercised for all
or part of the shares subject to the related Option upon the
surrender of the right to exercise the equivalent portion of the
related Option, except that the tandem SAR may be exercised only
with respect to the shares for which its related Option is then
exercisable.
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9.2
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Payment
of SAR Amount
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Upon the exercise of an SAR, a
Participant shall be entitled to receive payment in an amount
determined by multiplying: (a) the difference between the Fair
Market Value of the Common Stock on the date of exercise over the
grant price of the SAR by (b) the number of shares with
respect to which the SAR is exercised. At the discretion of the
Committee as set forth in the instrument evidencing the Award, the
payment upon exercise of an SAR may be in cash, in shares, in some
combination thereof or in any other manner approved by the
Committee in its sole discretion.
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9.3
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Waiver of
Restrictions
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Subject to Section 18.5, the
Committee, in its sole discretion, may waive any other terms,
conditions or restrictions on any SAR under such circumstances and
subject to such terms and conditions as the Committee shall deem
appropriate.
SECTION 10. STOCK AWARDS,
RESTRICTED STOCK AND STOCK UNITS
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10.1
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Grant of
Stock Awards, Restricted Stock and Stock Units
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The Committee may grant Stock
Awards, Restricted Stock and Stock Units on such terms and
conditions and subject to such repurchase or forfeiture
restrictions, if any, which may be based on continuous service with
the Company or a Related Company or the achievement of any
performance goals, as the Committee shall determine in its sole
discretion, which terms, conditions and restrictions shall be set
forth in the instrument evidencing the Award.
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10.2
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Vesting
of Restricted Stock and Stock Units
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Upon the satisfaction of any terms,
conditions and restrictions prescribed with respect to Restricted
Stock or Stock Units, or upon a Participant’s release from
any terms, conditions and restrictions of Restricted Stock or Stock
Units, as determined by the Committee, and subject to the
provisions of Section 13, (a) the shares of Restricted
Stock covered by each Award of Restricted Stock shall become freely
transferable by the Participant, and (b) Stock Units shall be
paid in shares of Common Stock or, if set forth in the instrument
evidencing the Awards, in cash or a combination of cash and shares
of Common Stock. Any fractional shares subject to such Awards shall
be paid to the Participant in cash.
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10.3
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Waiver of
Restrictions
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Subject to Section 18.5, the
Committee, in its sole discretion, may waive the repurchase or
forfeiture period and any other terms, conditions or restrictions
on any Restricted Stock or Stock Unit under such circumstances and
subject to such terms and conditions as the Committee shall deem
appropriate.
SECTION 11. PERFORMANCE
AWARDS
The Committee may grant Awards of
Performance Shares, designate the Participants to whom Performance
Shares are to be awarded and determine the number of Performance
Shares and the terms and conditions of each such Award. Performance
Shares shall consist of a unit valued by reference to a designated
number of shares of Common Stock, the value of which may be paid to
the Participant by delivery of shares of Common Stock or, if set
forth in the instrument evidencing the Award, cash, or any
combination thereof, upon the attainment of performance goals, as
established by the Committee, and other terms and conditions
specified by the Committee. Subject to Section 18.5, the
amount to be paid under an Award of Performance Shares may be
adjusted on the basis of such further consideration as the
Committee shall determine in its sole discretion.
The Committee may grant Awards of
Performance Units, designate the Participants to whom Performance
Units are to be awarded and determine the number of Performance
Units and the terms and conditions of each such Award. Performance
Units shall consist of a unit valued by reference to a designated
amount of cash, which value may be paid to the Participant by
delivery of cash, shares of Common Stock, or any combination
thereof, upon the attainment of performance goals, as established
by the Committee, and other terms and conditions specified by the
Committee. Subject to Section 18.5, the amount to be paid
under an Award of Performance Units may be adjusted on the basis of
such further consideration as the Committee shall determine in its
sole discretion.
SECTION 12. OTHER STOCK OR
CASH-BASED AWARDS
Subject to the terms of the Plan and
such other terms and conditions as the Committee deems appropriate,
the Committee may grant other incentives payable in cash or in
shares of Common Stock under the Plan.
SECTION 13.
WITHHOLDING
The Company may require the
Participant to pay to the Company the amount of (a) any taxes
that the Company is required by applicable federal, state, local or
foreign law to withhold with respect to the grant, vesting or
exercise of an Award (“tax withholding obligations”)
and (b) any amounts due from the Participant to the Company or
to any Related Company (“other obligations”). The
Company shall not be required to issue any shares of Common Stock
or otherwise settle an Award under the Plan until such tax
withholding obligations and other obligations are
satisfied.
The Committee may permit or require
a Participant to satisfy all or part of the Participant’s tax
withholding obligations and other obligations by (a) paying
cash to the Company, (b) having the Company withhold an amount
from any cash amounts otherwise due or to become due from the
Company to the Participant, (c) having the Company withhold a
number of shares of Common Stock that would otherwise be issued to
the Participant (or become vested, in the case of Restricted Stock)
having a Fair Market Value equal to the tax withholding obligations
and other obligations, or (d) surrendering a number of shares
of Common Stock the Participant already owns having a value equal
to the tax withholding obligations and other obligations. The value
of the shares so withheld or tendered may not exceed the
employer’s minimum required tax withholding rate.
SECTION 14. ASSIGNABILITY
No Award or interest in an Award may
be sold, assigned, pledged (as collateral for a loan or as security
for the performance of an obligation or for any other purpose) or
transferred by a Participant or made subject to attachment or
similar proceedings otherwise than by will or by the applicable
laws of descent and distribution, except to the extent the
Participant designates one or more beneficiaries on a
Company-approved form who may exercise the Award or receive payment
under the Award after the Participant’s death. During a
Participant’s lifetime, an Award may be exercised only by the
Participant. Notwithstanding the foregoing and to the extent
permitted by Section 422 of the Code, the Committee, in its
sole discretion, may permit a Participant to assign or transfer an
Award subject to such terms and conditions as the Committee shall
specify.
SECTION 15.
ADJUSTMENTS
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15.1
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Adjustment of Shares
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In the event, at any time or from
time to time, a stock dividend, stock split, spin-off, combination
or exchange of shares, recapitalization, merger, consolidation,
statutory share exchange distribution to shareholders other than a
normal cash dividend, or other change in the Company’s
corporate or capital structure results in (a) the outstanding
shares of Common Stock, or any securities exchanged therefor or
received in their place, being exchanged for a different number or
kind of securities of the Company or (b) new, different or
additional securities of the Company or any other company being
received by the holders of shares of Common Stock, then the
Committee shall make proportional adjustments in (i) the
maximum number and kind of securities available for issuance under
the Plan; (ii) the maximum number and kind of securities
issuable as Incentive Stock Options as set forth in
Section 4.2; (iii) the maximum numbers and kind of
securities set forth in Section 16.3; and (iv) the number
and kind of securities that are subject to any outstanding Award
and the per share price of such securities, without any change in
the aggregate price to be paid therefor. The determination by the
Committee, as to the terms of any of the foregoing adjustments
shall be conclusive and binding.
Notwithstanding the foregoing, the
issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash
or property, or for labor or services rendered, either upon direct
sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with
respect to, outstanding Awards. Also notwithstanding the foregoing,
a dissolution or liquidation of the Company or a Company
Transaction shall not be governed by this Section 15.1 but
shall be governed by Sections 15.2 and 15.3,
respectively.
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15.2
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Dissolution or Liquidation
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To the extent not previously
exercised or settled, and unless otherwise determined by the
Committee in its sole discretion, Awards shall terminate
immediately prior to the dissolution or liquidation of the Company.
To the extent a vesting condition, forfeiture provision or
repurchase right applicable to an Award has not been waived by the
Committee, the Award shall be forfeited immediately prior to the
consummation of the