Exhibit 10.15
PRUDENTIAL FINANCIAL,
INC.
OMNIBUS INCENTIVE
PLAN
(Amended and Restated Effective
November 11, 2008)
ARTICLE I
PURPOSE
The purpose of the “Prudential
Financial, Inc. Omnibus Incentive Plan” (the
“Plan”) is to foster and promote the long-term
financial success of Prudential Financial, Inc. (the
“Company”) and materially increase shareholder value by
(a) motivating superior employee performance by means of
performance-related incentives, (b) encouraging and providing
for the acquisition of an ownership interest in the Company by the
Company’s and its Subsidiaries’ (as hereinafter
defined) employees, and (c) enabling the Company to attract
and retain the services of employees upon whose judgment, interest,
and effort the successful conduct of its operations is largely
dependent.
The Company has previously adopted
the Prudential Financial, Inc. Stock Option Plan (the “Stock
Option Plan”), which was intended to provide similar
equity-based compensation incentives through the grant of stock
options and stock appreciation rights. Effective upon the adoption
of the Plan by shareholders of the Company, the Stock Option Plan
will be merged into this Plan, thereby making available for the
grant of awards under this Plan any authorized but unused shares of
Common Stock (as herein defined) not already used for such purpose
under the Stock Option Plan. All outstanding award grants under the
Stock Option Plan shall continue in full force and effect, subject
to their original terms, after the Stock Option Plan is merged into
the Plan under the terms and conditions noted above.
ARTICLE II
DEFINITIONS
Section 2.1 Definitions
. Whenever used herein, the following terms shall have the
respective meanings set forth below:
(a) Adjusted Operating Income
. “Adjusted Operating Income” means the income from
continuing operations before income taxes of the Company’s
Financial Services Businesses, excluding: realized investment
gains, net of losses and related charges and adjustments; sales
practices remedies and costs;
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demutualization costs and expenses;
and the contributions to income/loss of divested businesses that
have been sold or exited by the Company but did not qualify for
“discontinued operations” accounting treatment under
generally accepted accounting principles.
(b) Adjustment Event .
“Adjustment Event” means any stock dividend, stock
split or share combination of, or extraordinary cash dividend on,
the Common Stock or recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, dissolution,
liquidation, exchange of shares, warrants or rights offering to
purchase Common stock at a price substantially below Fair Market
Value, or other similar event affecting the Common Stock of the
Company.
(c) Alternative Awards .
“Alternative Awards” shall have the meaning set forth
in Section 10.3.
(d) Annual Incentive Awards .
“Annual Incentive Awards” means an Award made pursuant
to Article IX of the Plan with a Performance Cycle of one year or
less.
(e) Approved Retirement .
“Approved Retirement” means termination of a
Participant’s employment ( i ) on or after having
met the conditions for normal or early retirement established under
any defined benefit pension plan maintained by the Company or a
Subsidiary and in which the Participant participates or ( ii
) on or after attaining such age not less than 50 and
completing such period of service, as the Committee shall determine
from time to time. Notwithstanding the foregoing, with respect only
to Participants who reside in the United States, the term
“Approved Retirement” shall not apply to any
Participant: (a) who has an Agent Emeritus contract with an
insurance affiliate of the Company (including, but not limited to,
The Prudential Insurance Company of America), whether or not such
individual is deemed to be retirement eligible or is receiving
retirement benefits under any defined benefit pension plan
maintained by the Company or a Subsidiary and in which the
Participant participates; or (b) to any Participant whose
employment with the Company or a Subsidiary has been terminated for
Cause, in either case whether or not such individual is deemed to
be retirement eligible or is receiving retirement benefits under
any defined benefit pension plan maintained by the Company or a
Subsidiary and in which the Participant participates or would
otherwise satisfy the criteria set forth by the Committee as noted
in the preceding sentence.
(f) Award . An
“Award” means the award of an Annual Incentive Award, a
Long-Term Performance Unit Award, an Option, a SAR, a Restricted
Unit, Restricted Stock or Performance Share, including any
associated Dividend
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Equivalents, under the Plan, and
shall also include an award of Restricted Stock or Restricted Units
( including any associated Dividend Equivalents) made in
conjunction with other incentive programs established by the
Company or its Subsidiaries and so designated by the
Committee.
(g) Beneficial Owner.
“Beneficial Owner” means any “person,” as
such term is used in Section 13(d) of the Exchange Act, who,
directly or indirectly, has or shares the right to vote, dispose
of, or otherwise has “beneficial ownership” of such
securities (within the meaning of Rule 13d-3 and Rule 13d-5 under
the Exchange Act), including pursuant to any agreement, arrangement
or understanding (whether or not in writing).
(h) Board .
“Board” means the Board of Directors of the
Company.
(i) Cause .
“Cause” means, with respect to a Participant, any of
the following (as determined by the Committee in its sole
discretion): (i) dishonesty, fraud or misrepresentation;
(ii) inability to obtain or retain appropriate licenses;
(iii) violation of any rule or regulation of any regulatory
agency or self-regulatory agency; (iv) violation of any policy
or rule of the Company or any Subsidiary; (v) commission of a
crime; (vi) breach by a Participant of any written covenant or
agreement with the Company or any Subsidiary not to disclose or
misuse any information pertaining to, or misuse any property of,
the Company or any Subsidiary, or (vii) any act or omission
detrimental to the conduct of the business of the Company or any
Subsidiary in any way.
(j) Change of Control . A
“Change of Control” shall be deemed to have occurred if
any of the following events shall occur:
(i) any Person is or becomes the
Beneficial Owner, either directly or indirectly, of securities of
the Company representing twenty-five percent (25%) or more of
the combined Voting Power of the Company’s securities;
or
(ii) within any twenty-four
(24) month period, the Incumbent Directors shall cease to
constitute at least a majority of the Board or the board of
directors of any successor to the Company; provided ,
however , that any director elected to the Board, or
nominated for election, by a majority of the Incumbent Directors
then still in office shall be deemed to be an Incumbent Director
for purposes of this subclause (ii); or
(iii) upon the consummation of a
Corporate Event, immediately following the consummation of which
the stockholders of the Company immediately prior to such Corporate
Event do not hold, directly or
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indirectly, a majority of the Voting
Power of ( x ) in the case of a merger or
consolidation, the surviving or resulting corporation, ( y
) in the case of a share exchange, the acquiring corporation
or ( z ) in the case of a division or a sale or other
disposition of assets, each surviving, resulting or acquiring
corporation which, immediately following the relevant Corporate
Event, holds more than twenty-five percent (25%) of the
consolidated assets of the Company immediately prior to such
Corporate Event; or
(iv) any other event occurs which
the Board declares to be a Change of Control.
Notwithstanding the foregoing, a
Change of Control shall not be deemed to have occurred merely as a
result of an underwritten offering of the equity securities of the
Company where no Person (including any “group” (within
the meaning of Rule 13d-5(b) under the Exchange Act)) acquires more
than twenty-five percent (25%) of the beneficial ownership
interests in such securities.
(k) Change of Control Price .
“Change of Control Price” means the highest price per
share of Common Stock paid 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 Common Stock on any of the 30
trading days immediately preceding the date on which a Change of
Control occurs; provided that , with respect to any portion
of any Option or SAR, the Change of Control Price shall not exceed
the Fair Market Value of the Common Stock on the date that a Change
of Control occurs.
(l) Code . “Code”
means the Internal Revenue Code of 1986, as amended, including, for
these purposes, any regulations promulgated by the Internal Revenue
Service with respect to the provisions of the Code (“Treasury
Regulations”), and any successor thereto.
(m) Committee .
“Committee” means the Compensation Committee of the
Board or such other committee of the Board as the Board shall
designate from time to time, which committee shall consist of two
or more members, each of whom shall be a “Non-Employee
Director” within the meaning of Rule 16b-3, as promulgated
under the Exchange Act, an “outside director” within
the meaning of section 162(m) of the Code, and an
“independent director” under Section 303A of the
New York Stock Exchange’s Listed Company Manual, or any
successors thereto.
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(n) Common Stock .
“Common Stock” means the common stock of the Company,
par value $0.01 per share.
(o) Company .
“Company” means Prudential Financial, Inc., a New
Jersey corporation, and any successor thereto.
(p) Corporate Event .
“Corporate Event” means a merger, consolidation,
recapitalization or reorganization, share exchange, division, sale,
plan of complete liquidation or dissolution, or other disposition
of all or substantially all of the assets of the Company, which has
been approved by the shareholders of the Company.
(q) Covered Employees .
“Covered Employees” are any Executive Officers or other
Eligible Individuals who are “covered employees” within
the meaning of Code section 162(m).
(r) Disability .
“Disability” means with respect to any Participant,
long-term disability (but not optional long-term disability
coverage) as defined under the welfare benefit plan maintained by
either the Company or a Subsidiary and in which the Participant
participates and from which the Participant is receiving a
long-term disability benefit. In jurisdictions outside of the
United States where long-term disability is covered by a mandatory
or universal program sponsored by the government or an industrial
association, a Participant receiving long-term disability benefits
from such a program is considered to meet the disability definition
of the Plan.
(s) Dividends .
“Dividends” means the regular cash dividends paid by
the Company upon one share of Common Stock from time to
time.
(t) Dividend Equivalents .
“Dividend Equivalents” means an amount equal to the
regular cash dividends paid by the Company upon one share of Common
Stock in connection with the grant of Restricted Units, Performance
Shares, Options, and/or SARs awarded to a Participant in accordance
with Article VIII of the Plan.
(u) Domestic Partner .
“Domestic Partner” means any person qualifying to be
treated as a domestic partner of a Participant under the applicable
policies, if any, of the Company or Subsidiary that employs the
Participant.
(v) Effective Date .
“Effective Date” generally means the first date upon
which the Plan shall become effective, which will be the date the
Plan has been both (a) approved by the Board on March 11,
2003, and (b) approved by a majority of the votes cast at a
duly held stockholders’ meeting (currently
scheduled
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for June 2003) at which the
requisite quorum, as set forth in the Company’s Amended and
Restated Certificate of Incorporation, of outstanding voting stock
of the Company is, either in person or by proxy, present and voting
on the Plan. However, for purposes of any Option grant that is an
ISO, the term “Effective Date” shall mean solely the
adoption of the Plan by the Board.
(w) Eligible Individual . For
purposes of this Plan only, “Eligible Individual” means
any individual who is either an employee (including each officer)
of, or an insurance agent (including, but not limited to, a common
law employee, a statutory employee, or, for purposes of any
non-domestic United States Subsidiary, any individual who is
classified as a Life Planner and/or Sales Manager and has the
status of an “international independent contractor
agent” who is characterized as an independent contractor for
purposes of applicable local law) of, the Company or any such
Subsidiary.
(x) Exchange Act .
“Exchange Act” means the Securities Exchange Act of
1934, as amended.
(y) Executive Officer .
“Executive Officer” means each person who is an officer
of the Company or any Subsidiary and who is subject to the
reporting requirements under Section 16(a) of the Exchange
Act.
(z) Fair Market Value .
“Fair Market Value” means, on any date, the price of
the last trade, regular way, in the Common Stock on such date on
the New York Stock Exchange or, if at the relevant time, the Common
Stock is not listed to trade on the New York Stock Exchange, on
such other recognized quotation system on which the trading prices
of the Common Stock are then quoted (the “Applicable
Exchange”). In the event that ( i ) there are no
Common Stock transactions on the Applicable Exchange on any
relevant date, Fair Market Value for such date shall mean the
closing price on the immediately preceding date on which Common
Stock transactions were so reported and ( ii ) the
Applicable Exchange adopts a trading policy permitting trades after
5 P.M. Eastern Standard Time (“EST”), Fair Market Value
shall mean the last trade, regular way, reported on or before 5
P.M. EST (or such earlier or later time as the Committee may
establish from time to time).
(aa) Family Member .
“Family Member” means, as to a Participant, any (
i ) child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, sister-in-law
(including adoptive relationships), or Domestic Partner of such
Participant, ( ii ) trusts for the exclusive benefit of
one or more such persons and/or the Participant and ( iii
) other entity owned solely by one or more such persons and/or
the Participant.
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(bb) Financial Services
Businesses . “Financial Services Businesses” means
the businesses in the Company’s three operating divisions of
“Insurance,” “Investments” and
“International Insurance and Investments,” as well as
the Company’s “Corporate and Other”
operations.
(cc) Grandfathered Awards .
“Grandfathered Awards” shall have the meaning set forth
in Section 5.5 herein.
(dd) Incumbent Directors .
“Incumbent Directors” means, with respect to any period
of time specified under the Plan for purposes of determining a
Change of Control, the persons who were members of the Board at the
beginning of such period.
(ee) ISO . “ISO”
means an Option that is an “incentive stock option”
within the meaning of Code section 422.
(ff) Long-Term Performance Unit
Award . A “Long-Term Performance Unit Award” means
an Award made pursuant to Article IX of the Plan, which are units
valued by reference to property other than Common Stock (including
cash), the number or value of such units which may be adjusted over
a Performance Cycle based on the satisfaction of Performance
Goals.
(gg) Nonstatutory Stock
Option . “Nonstatutory Stock Option” means an
Option that is not an ISO.
(hh) Option (including ISOs and
Nonstatutory Stock Options) . “Option” means the
right to purchase Common Stock at a stated price for a specified
period of time. For purposes of the Plan, an Option may be either (
i ) an ISO or ( ii ) a Nonstatutory Stock
Option.
(ii) Participant .
“Participant” shall have the meaning set forth in
Article III of the Plan.
(jj) Performance Cycle.
“Performance Cycle” means the period, not to exceed
five (5) years, selected by the Committee during which the
performance of the Company or any Subsidiary or unit thereof or any
individual is measured for the purpose of determining the extent to
which an Award subject to Performance Goals has been
earned.
(kk) Performance Goals .
“Performance Goals” means the objectives for the
Company, any Subsidiary or business unit thereof, or an Eligible
Individual that may be established by the Committee for a
Performance Cycle with respect to any performance-based Awards
contingently granted under the Plan.
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(ll) Performance Shares .
“Performance Shares” means an Award made pursuant to
Article IX of the Plan, which are units denominated in Common
Stock, the number of such units which may be adjusted over a
Performance Cycle based upon the satisfaction of Performance
Goals.
(mm) Person .
“Person” means any person (within the meaning of
Section 3(a)(9) of the Exchange Act), including any group
(within the meaning of Rule 13d-5(b) under the Exchange Act)), but
excluding any of the Company, any Subsidiary or any employee
benefit plan sponsored or maintained by the Company or any
Subsidiary.
(nn) Plan
Year . “Plan Year” means a period of twelve months
commencing on January 1 st and ending on the next
December 31 st .
(oo) Restricted Period .
“Restricted Period” means the period of time during
which Restricted Units or shares of Restricted Stock are subject to
forfeiture or restrictions on transfer (if applicable) pursuant to
Article VIII of the Plan.
(pp) Restricted Stock .
“Restricted Stock” means Common Stock awarded to a
Participant pursuant to the Plan that is subject to forfeiture and
restrictions on transferability in accordance with Article VIII of
the Plan.
(qq) Restricted Unit .
“Restricted Unit” means a Participant’s right to
receive, pursuant to this Plan, one share of Common Stock at the
end of a specified period of time, which right is subject to
forfeiture in accordance with Article VIII of the Plan.
(rr) SAR . “SAR”
means a stock appreciation right granted under Article VII in
respect of one or more shares of Common Stock that entitles the
holder thereof to receive, in cash or Common Stock, at the
discretion of the Committee (which discretion may be exercised at
or after grant, including after exercise of the SAR), an amount per
share of Common Stock equal to the excess, if any, of the Fair
Market Value on the date the SAR is exercised over the Fair Market
Value on the date the SAR is granted.
(ss) Stock Option Plan .
“Stock Option Plan” means the Prudential Financial,
Inc. Stock Option Plan, as amended from time to time.
(tt) Subsidiary .
“Subsidiary” means any corporation or partnership in
which the Company owns, directly or indirectly, more than fifty
percent (50%) of the total combined voting power of all
classes of stock of such corporation or of the capital interest or
profits interest of such partnership.
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(uu) Voting Power . A
specified percentage of “Voting Power” of a company
means such number of the Voting Securities as shall enable the
holders thereof to cast such percentage of all the votes which
could be cast in an annual election of directors.
(vv) Voting Securities .
“Voting Securities” means all securities of a company
entitling the holders thereof to vote in an annual election of
directors.
Section 2.2 Gender and
Number . Except when otherwise indicated by the context, words
in the masculine gender used in the Plan shall include the feminine
gender, the singular shall include the plural, and the plural shall
include the singular.
ARTICLE III
ELIGIBLITY AND
PARTICIPATION
Section 3.1 Participants
. Participants in the Plan shall be those Eligible Individuals
designated by the affirmative action of the Committee (or its
delegate) to participate in the Plan.
Section 3.2 Types of
Awards . The Committee (or its delegate) may grant any or all
of the Awards specified herein to any particular Participant
(subject to the applicable limitations set forth in the Plan). Any
Award may be made for one (1) year or multiple years without
regard to whether any other type of Award is made for the same year
or years.
ARTICLE IV
POWERS OF THE
COMMITTEE
Section 4.1 Power to
Grant . The Committee shall have the authority, subject to the
terms of the Plan, to determine those Eligible Individuals to whom
Awards shall be granted and the terms and conditions of any and all
Awards including, but not limited to:
(a) the number of shares of Common
Stock to be covered by each Award;
(b) the time or times at which
Awards shall be granted;
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(c) the terms and provisions of the
instruments by which Options may be evidenced, including the
designation of Options as ISOs or Nonstatutory Stock
Options;
(d) the determination of the period
of time during which restrictions on Restricted Stock or Restricted
Units shall remain in effect;
(e) the establishment and
administration of any Performance Goals applicable to Awards
granted under the Plan;
(f) the determination of
Participants’ Long Term Performance Unit Awards or
Performance Share Awards, including any Performance Goals and
Performance Cycles; and
(g) the development and
implementation of specific stock-based programs for the Company and
its Subsidiaries that are consistent with the intent and specific
terms of the framework created by this Plan.
Appropriate officers of the Company
or any Subsidiary may suggest to the Committee the Eligible
Individuals who should receive Awards, which the Committee may
accept or reject in its sole discretion. The Committee shall
determine the terms and conditions of each Award at the time of
grant. The Committee may establish different terms and conditions
for different Participants and for the same Participant for each
Award such Participant may receive, whether or not granted at
different times.
Section 4.2
Administration .
(a) Rules, Interpretations and
Determinations . The Committee shall administer the Plan. Any
Award granted by the Committee under the Plan may be subject to
such conditions, not inconsistent with the terms of the Plan, as
the Committee shall determine. The Committee shall have full
authority to interpret and administer the Plan, to establish,
amend, and rescind rules and regulations relating to the Plan, to
provide for conditions deemed necessary or advisable to protect the
interests of the Company, to construe the respective Award
agreements and to make all other determinations necessary or
advisable for the administration and interpretation of the Plan in
order to carry out its provisions and purposes. Determinations,
interpretations, or other actions made or taken by the Committee
shall be final, binding, and conclusive for all purposes and upon
all persons.
The Committee’s determinations
under the Plan (including the determination of the Eligible
Individuals to receive Awards, the form, amount and timing of such
Awards, the terms and provisions of such Awards and the agreements
hereunder) may vary, and need not be uniform, whether or not any
such Eligible Individuals could be deemed to be similarly
situated.
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(b) Agents and Expenses . The
Committee may appoint agents (who may be officers or employees of
the Company) to assist in the administration of the Plan and may
grant authority to such persons to execute agreements or other
documents on its behalf. All expenses incurred in the
administration of the Plan, including, without limitation, for the
engagement of any counsel, consultant or agent, shall be paid by
the Company. The Committee may consult with legal counsel, who may
be counsel to the Company, and shall not incur any liability for
any action taken in good faith in reliance upon the advice of
counsel. Any proceeds received by the Company in connection with
any Award will be used for general corporate purposes.
(c) Delegation of Authority .
Notwithstanding anything else contained in the Plan to the contrary
herein, the Committee may delegate, subject to such terms or
conditions or guidelines as it shall determine, to any employee of
the Company or any group of employees of the Company or its
affiliates any portion of its authority and powers under the Plan
with respect to Participants who are not Executive Officers. Only
the Committee may select, grant, administer, or exercise any other
discretionary authority under the Plan in respect of Awards granted
to such Participants who are Executive Officers.
Section 4.3 409A
Compliance . The Plan is intended to be administered in a
manner consistent with the requirements, where applicable, of
Section 409A of the Code. Where reasonably possible and
practicable, the Plan shall be administered in a manner to avoid
the imposition on Eligible Individuals of immediate tax recognition
and additional taxes pursuant to such Section 409A of the
Code. To that end, and without limiting the generality of the
foregoing, unless otherwise expressly provided herein or in any
Award agreement, any amount payable or shares distributable
hereunder in connection with the vesting of any Award (including
upon the satisfaction of any applicable performance criteria) shall
be paid not later than two and one-half months (or such other time
as is required to cause such amounts not to be treated as deferred
compensation under Section 409A of the Code) following the end
of the taxable year of the Company or the Eligible Individual in
which the Eligible Individual’s rights with respect to the
corresponding Award (or portion thereof) ceased to be subject to a
substantial risk of forfeiture. Notwithstanding the foregoing,
neither the Company nor the Committee shall have any liability to
any person in the event Section 409A of the Code applies to
any Award in a manner that results in adverse tax consequences for
the Eligible Individual or any of his or her beneficiaries or
transferees.
Section 4.4 Participants
Based Outside the United States . Notwithstanding anything to
the contrary herein, the Committee, to conform with provisions of
local laws
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and regulations in foreign countries in which
the Company or its Subsidiaries operate, shall have sole discretion
to (a) modify the terms and conditions of Awards granted to
Participants employed outside the United States, (b) establish
subplans with modified exercise procedures and such other
modifications as may be necessary or advisable under the
circumstances presented by local laws and regulations; and
(c) take any action which it deems advisable to obtain, comply
with or otherwise reflect any necessary governmental regulatory
procedures, exemptions or approvals with respect to the Plan or any
subplan established hereunder.
Section 4.5 Newly Eligible
Participants . The Committee shall be entitled to make such
rules, determinations and adjustments, as it deems appropriate with
respect to any Participant who becomes eligible to receive a
performance-based Award after the commencement of a Performance
Cycle.
Section 4.6 Restrictive
Covenants and Other Conditions . Without limiting the
generality of the foregoing, the Committee may condition the grant
of any Award under the Plan upon the Participant to whom such Award
would be granted agreeing in writing to certain conditions in
addition to the provisions regarding exercisability of the Award
(such as restrictions on the ability to transfer the underlying
shares of Common Stock) or covenants in favor of the Company and/or
one or more Subsidiaries (including, without limitation, covenants
not to compete, not to solicit employees and customers and not to
disclose confidential information) that may have effect during or
following the termination of the Participant’s employment
with the Company and its Subsidiaries and before or after the Award
has been exercised, including, without limitation, the requirement
that the Participant disgorge any profit, gain or other benefit
received in respect of the exercise of the Award prior to any
breach of any such covenant by the Participant).
Section 4.7 Performance
Based Compensation Interpretations; Limitations on Discretion .
Notwithstanding anything contained in the Plan to the contrary, to
the extent the Committee has required upon grant that any Annual
Incentive Award, Long-Term Performance Unit Award, Performance
Share, Restricted Unit or Restricted Stock must qualify as
“other performance based compensation” within the
meaning of Section 162(m)(4)(c) of the Code, the Committee
shall (a) specify and approve the specific terms of any
Performance Goals with respect to such Awards in writing no later
than ninety (90) days from the commencement of the Performance
Cycle to which the Performance Goal or Goals relate, and
(b) not be entitled to exercise any subsequent discretion
otherwise authorized under the Plan (such as the right to authorize
payout at a level above that dictated by the achievement of the
relevant Performance Goals) with respect to such Award if the
ability to exercise discretion (as opposed to the exercise of such
discretion) would cause such Award to fail to qualify as other
performance based compensation.
Section 4.8
Indemnification . No member of the Committee shall be
personally liable for any action, omission or determination
relating to the Plan, and the Company shall
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indemnify and hold harmless each member of the
Committee and each other director or employee of the Company to
whom any duty or power relating to the administration or
interpretation of the Plan has been delegated, against any cost or
expense (including counsel fees) or liability (including any sum
paid in settlement of a claim with the approval of the Committee)
arising out of any action, omission or determination related to the
Plan, if, in either case, such member, director or employee made or
took such action, omission, or determination in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any
criminal action or proceeding, such person had no reasonable cause
to believe his or her conduct was unlawful.
ARTICLE V
COMMON STOCK SUBJECT TO PLAN;
OTHER LIMITATIONS
Section 5.1 Plan Limits
.
(a) Shares Available for
Awards : Subject to the provisions of Section 5.4, the
number of shares of Common Stock issuable under the Plan for Awards
shall be 50,000,000 plus any remaining shares of Common Stock
available for awards under the Stock Option Plan as of the
effective date of the merger of the Stock Option Plan with this
Plan. Any shares issued in connection with Options and SARs shall
be counted against this limit as one (1) share for every one
(1) share issued; for Awards other than Options and SARs, any
shares issued shall be counted against this limit as two
(2) shares for every one (1) share issued.
(b) The shares to be delivered under
the Plan may consist, in whole or in part, of Common Stock
purchased by the Company for such purpose, treasury Common Stock or
authorized but unissued Common Stock, not reserved for any other
purpose.
Section 5.2 Individual Award
Limitations . Subject to the provisions of Section 5.4,
the following individual Award limits apply:
(a) Options/SARs : During any
three (3) year period, the total number of shares of Common
Stock subject to Options and SARs awarded to any Participant may
not exceed 2,500,000.
(b) Individual Performance-Based
Limitations : To the extent that any Annual Incentive,
Long-Term Performance Unit, Restricted Stock, Restricted Unit and
Performance Share Awards to a Participant are intended to satisfy
the
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requirements of Code
section 162(m)(4)(C) as “other performance based
compensation,” the maximum aggregate amount of such Award(s)
paid or otherwise made available to such Participant shall not
exceed six-tenths of one percent (0.6%) of Adjusted Operating
Income for the most recently reported year ending
December 31 st prior to the year such Award or
Awards is or are paid or otherwise made available.
Section 5.3 Cancelled,
Terminated, or Forfeited Awards . Should an Award under this
Plan (including, for these purposes, any award under the Stock
Option Plan made prior to the Effective Date) for any reason expire
without having been exercised, be cancelled, repurchased by the
Company, terminated or forfeited or otherwise settled without the
issuance of any Common Stock (including, but not limited to, shares
tendered to exercise outstanding Options, shares tendered or
withheld for taxes on Awards or shares issued in connection with a
Restricted Stock or Restricted Unit Award that are subsequently
forfeited), any such shares of Common Stock subject to such Award
shall again be available for grants of Awards under the
Plan.
Section 5.4 Adjustment in
Capitalization . In the event of any Adjustment Event,
(a) the aggregate number of shares of Common Stock available
for Awards under Section 5.1, (b) the aggregate
limitations on the number of shares that may be awarded as a
particular type of Award or that may be awarded to any particular
Participant in any particular period under Section 5.2 and
(c) the aggregate number of shares subject to outstanding
Awards and the respective exercise prices or base prices applicable
to outstanding Awards shall be equitably adjusted by the Committee,
in such manner as the Committee shall determine, with respect to
such Adjustment Event, and the Committee’s determination
shall be conclusive. To the extent deemed equitable and appropriate
by the Committee and subject to any required action by shareholders
of the
