REPUBLIC SERVICES, INC.
2006 INCENTIVE STOCK PLAN
(f/n/a ALLIED WASTE INDUSTRIES, INC. 2006 INCENTIVE STOCK
PLAN)
(Originally Adopted on March 8,
1991;
Most Recent Amendment and Restatement Effective October 24,
2007;
This Amendment and Restatement Effective December 5,
2008)
1.
Purpose . The purpose of this Plan is to provide a means
through which the Company and its Subsidiaries may (a) attract
able persons to provide valuable services to Allied Waste
Industries, Inc. as Employees or Consultants, (b) promote the
interests of the Company by providing Employees and Consultants
with a proprietary interest in the Company, thereby strengthening
their concern for the welfare of the Company and their desire to
continue to provide their services to the Company, and
(c) provide such persons with additional incentive and reward
opportunities to enhance the profitable growth of the Company. The
Plan amends and restates the Allied Waste Industries, Inc. 1991
Incentive Stock Plan, as previously amended and restated in 2004,
again in 2006, and again in 2007.
On June 22,
2008, Allied Waste Industries, Inc. entered into an Agreement and
Plan of Merger (the “Merger Agreement”) with and among
Republic Services, Inc., a Delaware corporation
(“Republic”), and RS Merger Wedge, Inc., a Delaware
corporation and wholly owned subsidiary of Republic (the
“Merger Sub”), pursuant to which Merger Sub will merge
with and into Allied Waste Industries, Inc. (the
“Merger”) and, as a result, Allied Waste Industries,
Inc. will become a wholly owned subsidiary of Republic as of the
Effective Time (as defined in the Merger
Agreement”).
Effective on and
after the Effective Time, the Plan is to be referred to as the
“Republic Services, Inc. 2006 Incentive Stock Plan (f/k/a the
Allied Waste Industries, Inc. 2006 Incentive Stock Plan)” and
Republic Services, Inc. is to be the new sponsor of this Plan. In
addition, any references to shares of Common Stock is to shares of
the common stock of Republic Services, Inc. and necessary
adjustments have been made to the number of shares of common stock
available for grant under this Plan, as well as to outstanding
Awards, to reflect the Exchange Ratio (as defined in the Merger
Agreement). This Amendment and Restatement reflects these
changes.
This Amendment and
Restatement is subject to and conditioned upon the Closing (as
defined in the Merger Agreement) of the Merger. In the event that
the Closing does not occur, then this Amendment and Restatement
shall be void and the prior amendment and restatement of the Plan
shall remain in effect.
Capitalized terms
shall have the meanings set forth in Section 2
.
2.
Definitions . As used in the Plan, the following definitions
apply to the terms indicated below.
(a)
“Acquiror” means the surviving, continuing, successor
or purchasing person or entity, as the case may be, in a Change in
Control.
(b)
“Award” means an Option, a share of Restricted Stock,
an RSU, a SAR, a Performance Award, a Dividend Equivalent, a Stock
Bonus, a Cash Award, or other stock-based Awards granted pursuant
to the terms of the Plan.
(c)
“Board” means the Board of Directors of the
Company.
(d)
“Cash Award” means an Award of a bonus payable in cash
pursuant to Section 13 .
(e)
“Cause,” when used in connection with the termination
of a Participant’s Service with the Company, means the
termination of the Participant’s Service by the Company by
reason of (i) the conviction of the Participant by a court of
competent jurisdiction as to which no further appeal can be taken,
or a guilty plea or plea of nolo contendere by the
Participant, with respect to a crime involving moral turpitude;
(ii) the proven commission by the Participant of an act of
fraud upon the Company; (iii) the willful and proven
misappropriation of any material amount of funds or property of the
Company by the Participant; (iv) the willful, continued and
unreasonable failure by the Participant to perform duties assigned
to the Participant and agreed to by the Participant; (v) the
knowing engagement by the Participant in any direct, material
conflict of interest with the Company without compliance with the
Company’s conflict of interest policy, if any, then in
effect; (vi) the knowing engagement by the Participant,
without the written approval of the Board, in any activity that
competes with the business of the Company or that would result in a
material injury to the Company; or (vii) the knowing
engagement in any activity that would constitute a material
violation of the provisions of the Company’s Policies and
Procedures Manual, if any, then in effect.
(f)
“Change in Control” means
(i) a
“change in control” of the Company of a nature that
would be required to be reported (A) in response to Item 6(e) of
Schedule 14A of Regulation 14A under the Exchange Act (or
any successor provisions or reports thereunder), (B) in
response to Item 1.01 or Item 2.01 of Form 8-K as in
effect on the date of this Plan, as promulgated under the Exchange
Act (or any successor provisions or reports thereunder), or
(C) in any other filing by the Company with the Securities and
Exchange Commission; or
(ii) the
occurrence of any of the following events:
(A) a
transaction or series of transactions after the Effective Date in
which any “person” (as such term is used in Section
13(d) and Section 14(d)(2) of the Exchange Act, or any
successor provisions thereunder) is or becomes the
“beneficial owner” (as defined in Rule 13d-3
promulgated under the Exchange Act, or any successor provisions
thereunder), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the
Company’s then-outstanding voting securities; provided,
however, that for purposes of this Section 2(f)(ii)(A) ,
the following acquisitions shall not constitute a Change in
Control: (1) any acquisition directly from the Company;
(2) any acquisition of voting securities by the Company,
including any acquisition that, by reducing the number of
shares
2
outstanding, is
the sole cause for increasing the percentage of shares beneficially
owned by any such Person to more than the percentage set forth
above; (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity
controlled by the Company; (4) any acquisition by any Person
pursuant to a transaction that complies with clauses (1),
(2) and (3) of Section 2(f)(ii)(C) ;
(5) the acquisition of additional voting securities after the
Effective Date by any Person who is, as of the Effective Date, the
beneficial owner, directly or indirectly, of 30% or more of the
combined voting power of the Company’s then-outstanding
securities; or (6) any transaction, acquisition, or other
event that the Board (as constituted immediately prior to such
Person becoming such a beneficial owner) determines, in its sole
discretion, does not constitute a Change in Control in such a
situation; or
(B) individuals
who were the Board’s nominees for election as directors of
the Company immediately prior to a meeting of the Company’s
stockholders involving a contest for the election of directors do
not constitute a majority of the Board following such election;
or
(C) consummation
by the Company of a Business Combination unless, following such
Business Combination, (1) more than 50% of the combined voting
power of the then-outstanding voting securities entitled to vote
generally in the election of directors or managers of the entity
resulting from such Business Combination (including without
limitation, an entity that as a result of such transaction owns the
Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries) is represented
by voting securities of the Company that were outstanding
immediately prior to such Business Combination (or, if applicable,
is represented by voting securities into which such previously
outstanding voting securities of the Company were converted
pursuant to such Business Combination) and such ownership of voting
power among the holders thereof is in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the Company’s voting securities, (2) no
Person (excluding any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more
of the then-outstanding voting securities of the entity resulting
from such Business Combination except to the extent that such
ownership existed prior to the Business Combination, and
(3) at least a majority of the members of the board of
directors or managers of the entity resulting from such Business
Combination were members of the Board at the time of the execution
of the initial agreement, or of the action of the Board, providing
for such Business Combination; or
(D) approval
by the stockholders of the Company of a complete liquidation or
dissolution of the Company; or
(E) the
Board determines in its sole and absolute discretion that there has
been a Change in Control of the Company.
For purposes of
this Section 2(f) , “Business Combination”
means a reorganization, merger or consolidation of the Company with
another Person or sale or other disposition of all or substantially
all of the assets of the Company or the acquisition of assets of
another corporation.
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Notwithstanding
the foregoing, however, with respect to any Section 409A Award
the term “Change in Control” shall mean a change in the
ownership or effective control of the Company or a change in the
ownership of a substantial portion of the assets of the Company, as
defined under Treasury Regulations Section 1.409A-3(i)(5), as
such definition may be modified by subsequent Treasury Regulations
or other guidance.
(g)
“Code” means the Internal Revenue Code of 1986, as
amended from time to time. Reference in the Plan to any Code
section shall be deemed to include any amendments or successor
provisions to such section and any Treasury Regulations promulgated
thereunder.
(h)
“Committee” means, on or after the Effective Time, the
Compensation Committee of the Board or such other committee as the
Board shall appoint from time to time to administer the Plan. Prior
to the Effective Time, “Committee” means the Management
Development/Compensation Committee of the Board or such other
committee as the Board shall appoint from time to time to
administer the Plan.
(i)
“Common Stock” means the Company’s common stock,
par value $.01 per share.
(j)
“Company” means, on or after the Effective Time,
Republic Services, Inc., a Delaware corporation, each of its
Subsidiaries, and its successors. Prior to the Effective Time,
“Company” means Allied Waste Industries, Inc. and each
of its Subsidiaries. With respect to Incentive Stock Options, the
“Company” includes any Parent.
(k)
“Consultant” means any person who is engaged by Allied
Waste Industries, Inc. and its Subsidiaries to render consulting
services and is compensated for such services; provided, however,
that on or after the Effective Time, “Consultant” does
not include any individual who was performing services for Republic
Services, Inc., or its Subsidiaries immediately prior to the
Closing of the Merger.
(l)
“Deferred Compensation Plan” means any nonqualified
deferred compensation plan of the Company that is currently in
effect or subsequently adopted by the Company.
(m)
“Disability” means (i) with respect to Incentive
Stock Options, a Participant’s “permanent and total
disability” within the meaning of Code Section 22(e)(3),
and (ii) with respect to all other Awards, a Participant is
“totally disabled” as determined by the Social Security
Administration.
(n)
“Dividend Equivalents” means an amount of cash equal to
all dividends and other distributions (or the economic equivalent
thereof) that are payable by the Company on one share of Common
Stock to stockholders of record.
(o)
“EBIT” means earnings before interest and
taxes.
(p)
“EBITDA” means earnings before interest, taxes,
depreciation and amortization.
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(q)
“Effective Date” means, in the case of the original
Effective Date of this Plan, the date on which the Company’s
stockholders approved the Plan. The Effective Date of this Amended
and Restated Plan is
, 2008.
(r)
“Employee” means any person who is an employee of
Allied Waste Industries, Inc. and its Subsidiaries within the
meaning of Code Section 3401(c) and the applicable interpretive
authority thereunder; provided, however, that on or after the
Effective Time, “Employee” does not include any
individual who was employed by Republic Services, Inc. or its
Subsidiaries immediately prior to the Closing of the
Merger.
(s)
“Exchange Act” means the Securities Exchange Act of
1934, as amended from time to time.
(t)
“Exercise Date” means the date on which a Participant
exercises an Award.
(u)
“Exercise Price” means the price at which a Participant
may exercise his or her right to receive cash or Common Stock, as
applicable, under the terms of an Award.
(v)
“Fair Market Value” of a share of Common Stock on any
date is (i) the closing sales price on that date (or if that
date is not a business day, on the immediately preceding business
day) of a share of Common Stock as reported on the principal
securities exchange on which shares of Common Stock are then listed
or admitted to trading; (ii) if not so reported, the average
of the closing bid and asked prices for a share of Common Stock on
that date (or if that date is not a business day, on the
immediately preceding business day) as quoted on Nasdaq; or
(iii) if not quoted on Nasdaq, the average of the closing bid
and asked prices for a share of Common Stock as quoted by the
National Quotation Bureau’s “Pink Sheets” or the
National Association of Securities Dealers’ OTC Bulletin
Board System. If the price of a share of Common Stock is not so
reported, the Fair Market Value of a share of Common Stock shall be
determined by the Committee in its absolute discretion; provided,
however, that if the definition of Fair Market Value will impact
whether an Award will be considered a Section 409A Award, the
Committee will use a definition that will not make the Award a
Section 409A Award.
(w)
“Grant Date” means the date an Award is granted to a
Participant pursuant to the Plan as determined by the
Committee.
(x)
“Incentive Stock Option” means an Option that is an
“incentive stock option” within the meaning of Code
Section 422 and that is identified as an Incentive Stock
Option in the agreement by which it is evidenced.
(y)
“Initial Award” means any and all Awards granted to a
Participant in connection with such Participant’s
commencement of Service with the Company.
(z)
“Nasdaq” means the Nasdaq Stock Market, Inc.
(aa)
“Non-Employee Director” means a member of the Board
who, at the time in question (i) is not an officer or Employee
of the Company or any Parent; (ii) does not receive
compensation, either directly or indirectly from the Company or any
Parent, for services
5
rendered as a
consultant or in any capacity other than as a director of the
Company, except for compensation in an amount that does not exceed
the threshold for which disclosure would be required under
Regulation S-K under the Securities Act; (iii) does not
possess an interest in any other transaction with the Company for
which disclosure would be required under Regulation S-K under
the Securities Act; and (iv) is not engaged in a business
relationship with the Company for which disclosure would be
required under Regulation S-K under the Securities
Act.
(bb)
“Non-Qualified Performance Award” means an Award
payable in cash or Common Stock upon achievement of certain
Performance Goals established by the Committee that do not satisfy
the requirements of Section 10(c) .
(cc)
“Non-Qualified Stock Option” means an Option that is
not an Incentive Stock Option and that is identified as a
Non-Qualified Stock Option in the agreement by which it is
evidenced, or an Option identified as an Incentive Stock Option
that fails to satisfy the requirements of Code
Section 422.
(dd)
“Option” means an option to purchase shares of Common
Stock of the Company granted pursuant to Section 7 .
Each Option shall be identified as either an Incentive Stock Option
or a Non-Qualified Stock Option in the agreement by which it is
evidenced.
(ee)
“Parent” means a “parent corporation” of
the Company, whether now or hereafter existing, as defined in Code
Section 424(e).
(ff)
“Participant” means an Employee or Consultant who is
eligible to participate in the Plan and to whom an Award is granted
pursuant to the Plan and, upon his or her death, his or her
successors, heirs, executors and administrators, as the case may
be, to the extent permitted herein.
(gg)
“Performance Award” means either a Qualified
Performance Award or a Non-Qualified Performance Award granted
pursuant to Section 10 , which may be denominated
either in dollars or in a number of shares of Common
Stock.
(hh)
“Performance Goal” means one or more standards
established by the Committee pursuant to Section 10 to
determine, in whole or in part, whether a Performance Award shall
be earned.
(ii)
“Person” means a “person” as such term is
used in Sections 13(d) and 14(d) of the Exchange Act and the rules
and regulations in effect from time to time thereunder.
(jj)
“Plan” means, on or after the Effective Time, the
Republic Services, Inc. 2006 Incentive Stock Plan (f/k/a the Allied
Waste Industries, Inc. 2006 Incentive Stock Plan), as may be
amended from time to time. Prior to the Effective Time, the Plan
means the Allied Waste Industries, Inc. 2006 Incentive Stock Plan,
as amended.
(kk)
“Qualified Domestic Relations Order” means a qualified
domestic relations order as defined in Code Section 414(p),
Section 206(d)(3) of Title I of the Employee Retirement Income
Security Act, or in the rules and regulations as may be in effect
from time to time thereunder.
6
(ll)
“Qualified Performance Award” means an Award payable in
cash or Common Stock upon achievement of certain Performance Goals
established by the Committee that satisfy the requirements of
Section 10(c).
(mm)
“Retirement” means, with respect to Awards granted
prior to May 25, 2006, termination of employment with the
Company by a Participant at a time when the sum of the
Participant’s total whole years (a “whole year”
means 12 calendar months) of employment with the Company (including
whole years of employment with any business which was acquired by
the Company) and the Participant’s age is at least 55. For
Awards granted on or after May 25, 2006,
“Retirement” shall have the meaning set forth in the
respective agreements for such Awards or, if there is no agreement
or no such definition in the agreement for any Award, then the term
“Retirement” shall be inapplicable to such
Award.
(nn)
“Restricted Stock” means a share of Common Stock that
is granted pursuant to the terms of Section 8 and that
is subject to the restrictions established by the Committee with
respect to such share for so long as such restrictions continue to
apply to such share.
(oo)
“Restricted Stock Unit” or “RSU” means the
Company’s unfunded promise to pay one share of Common Stock
or its cash equivalent that is granted pursuant to the terms of
Section 8 and that is subject to the restrictions
established by the Committee with respect to such unit for so long
as such restrictions continue to apply to such unit.
(pp)
“SAR” or “Stock Appreciation Right” means a
right to receive a payment, in cash or Common Stock, equal to the
excess of the Fair Market Value of one share of Common Stock on the
Exercise Date over a specified Exercise Price, in each case as
determined by the Committee subject to Section 9
.
(qq)
“Section 409A Award” has the meaning set forth in
Section 23(c) .
(rr)
“Securities Act” means the Securities Act of 1933, as
amended from time to time.
(ss)
“Service” has the meaning set forth in
Section 18(a) .
(tt)
“Share Limit” has the meaning set forth in
Section 5(a) .
(uu)
“Stock Bonus” means a grant of a bonus payable in
shares of Common Stock pursuant to Section 12 and
subject to the terms and conditions contained therein.
(vv)
“Subsidiary” or “Subsidiaries” mean any and
all corporations or other entities in which, at the pertinent time,
the Company owns, directly or indirectly, equity interests vested
with more than 50% of the total combined voting power of all
classes of stock of such entities within the meaning of Code
Section 424(f).
(ww)
“Substitute Award” means an Award issued or made upon
the assumption, substitution, conversion, adjustment, or
replacement of outstanding awards under a plan or arrangement of an
entity acquired by the Company in a merger or other
acquisition.
7
(xx)
“Vesting Date” means the date established by the
Committee on which an Award may vest.
(a)
In General . The Plan shall be administered by the
Company’s Board. The Board, in its sole discretion, may
delegate all or any portion of its authority and duties under the
Plan to the Committee under such conditions and limitations as the
Board may from time to time establish. The Board and/or any
Committee that has been delegated the authority to administer the
Plan shall be referred to throughout this Plan as the
“Committee.” Except as otherwise explicitly set forth
in the Plan, the Committee shall have the authority, in its
discretion, to determine all matters relating to Awards under the
Plan, including the selection of the individuals to be granted
Awards, the time or times of grant, the type of Awards, the number
of shares of Common Stock subject to an Award, vesting conditions,
and any and all other terms, conditions, restrictions and
limitations, if any, of an Award.
(b)
Committee’s Authority and Discretion with Respect to the
Plan . The Committee shall have full authority and discretion
(i) to administer, interpret, and construe the Plan and the
terms of any Award issued under it, (ii) to establish, amend,
and rescind any rules and regulations relating to the Plan,
(iii) to determine, interpret, and construe the terms and
provisions of any Award agreement made pursuant to the Plan, and
(iv) to make all other determinations that may be necessary or
advisable for the administration of the Plan and any Awards made
under the Plan. In controlling and managing the operation and
administration of the Plan, the Committee shall take action in a
manner that conforms to the Certificate of Incorporation and Bylaws
of the Company, as amended from time to time, and applicable law.
Subject to (A) the limitations with respect to Incentive Stock
Options under Code Section 422 and the Plan and (B)
Section 3(c) , the Committee may, in its absolute
discretion (1) accelerate the date on which any Award becomes
vested, exercisable, or issuable, but only in connection with the
termination of the Participant’s Service with the Company or
upon a Change in Control; (2) extend the date on which any
Award ceases to be exercisable or on which it terminates or
expires; (3) waive, make less restrictive, or eliminate any
restriction on or condition imposed with respect to any Award; and
(4) amend the Plan as set forth in Section 19. In
addition, the Committee may, in its absolute discretion, grant
Awards to Participants on the condition that such Participants
surrender to the Company for cancellation such other awards under
the Plan or another plan of the Company (including, without
limitation, Awards with higher Exercise Prices, but subject to
Section 3(c) ) as the Committee specifies.
Notwithstanding Section 5 , Awards granted on the
condition of surrender of outstanding Awards shall not count
against the limits set forth in Section 5 until such
time as such Awards are surrendered. The Committee may correct any
defect or supply any omission or reconcile any inconsistency in
this Plan or in any Award in the manner and to the extent the
Committee deems necessary or desirable to further the Plan
purposes. All decisions made by the Committee in connection with
the interpretation and administration of the Plan or with respect
to any Awards made under the Plan and related orders and
resolutions shall be final, conclusive, and binding on all persons.
Notwithstanding the foregoing, if an Award is not a
Section 409A Award, the Committee shall not change the Award
in any manner that would make the Award a Section 409A Award
without the express written approval of the Participant.
8
(c)
No Repricing Without Stockholder Approval . Notwithstanding
any other provision of the Plan to the contrary, no Options or SARs
may be repriced without the approval of the stockholders of the
Company. Stockholder approval shall be evidenced by the affirmative
vote of the holders of the majority of the shares of the
Company’s capital stock present in person or by proxy and
voting at the meeting. For purposes of the Plan,
“repricing” shall include (i) amendments or
adjustments to Options or SARs that reduce the Exercise Price of
such Options or SARs, (ii) situations in which new Options or
SARs are issued to a Participant in place of cancelled Options or
SARs with a higher Exercise Price, and (iii) any other
amendment, adjustment, cancellation or replacement grant or other
means of repricing an outstanding Option or SAR, including a buyout
for a payment of cash or cash equivalents.
(d)
Delegation to Officers . Following the authorization of a
pool of cash or shares of Common Stock to be available for Awards,
the Committee may delegate to one or more subcommittees consisting
of one or more officers of the Company any or all of its power and
duties under the Plan pursuant to such conditions or limitations as
the Committee may establish; provided , however, that
the Committee shall not delegate to such officers its authority to
(i) amend or modify the Plan pursuant to
Section 19 , (ii) act on matters affecting any
Participant who is subject to the reporting requirements of Section
16(a) of the Exchange Act or the liability provisions of Section
16(b) of the Exchange Act, or otherwise take any action or fail to
act in a manner that would cause any Award or other transaction
under the Plan to cease to be exempt from Section 16(b) of the
Exchange Act, or (iii) determine the extent to which Awards
will conform to the requirements of Code Section 162(m). The
Committee may authorize any one or more of its members or any
officer of the Company to execute and deliver documents on behalf
of the Committee.
(e)
Other Plans . The Committee also shall have authority to
grant Awards as an alternative to, as a replacement of, or as the
form of payment for grants or rights earned or due under the Plan
or other compensation plans or arrangements of the Company,
including Substitute Awards granted with respect to an equity
compensation plan of any entity acquired by the Company.
Notwithstanding the foregoing, if the grant or right to be
substituted is not a Section 409A Award, the Committee shall
not grant a Substitute Award that would be a Section 409A
Award without the express written consent of the Participant.
Furthermore, if the grant or right to be substituted is a
Section 409A Award, the Committee shall not grant a Substitute
Award if the grant would cause the Section 409A Award or the
Substitute Award to not be in compliance with
Section 409A.
(f)
Limitation of Liability . No member of the Committee or any
person to whom the Committee delegates authority pursuant to
Section 3(b) or 3(d) shall be liable for any
action, omission or determination relating to the Plan, and the
Company shall indemnify and hold harmless each member of the
Committee and each other person to whom any duty or power relating
to the administration or interpretation of the Plan has been
delegated from and against any cost or expense (including
attorneys’ 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 relating to the Plan
unless, in either case, such action, omission or determination was
taken or made by such Committee member or other person in bad faith
and without reasonable belief that it was in the best interests of
the Company.
9
4.
Eligibility . The persons who shall be eligible to receive
Awards pursuant to the Plan shall be (a) those Employees who
are largely responsible for the management, growth, and protection
of the business of the Company (including officers of the Company,
whether or not they are directors of the Company), and (b) any
Consultant, as the Committee, in its absolute discretion, shall
select from time to time; provided, however, that Incentive
Stock Options may only be granted to Employees. An Award may be
granted to a proposed Employee or Consultant prior to the date the
proposed Employee or Consultant first performs services for the
Company, provided that the grant of such Awards shall not become
effective prior to the date the proposed Employee or Consultant
first performs such services. Subject to the foregoing, the
Committee, in its discretion, may grant any Award permitted under
the provisions of the Plan to any eligible person and may grant
more than one Award to any eligible person. Notwithstanding
anything to the contrary herein, only Employees and Consultants of
Allied Waste Industries, Inc. and its Subsidiaries may be eligible
to receive Awards under this Plan on or after the Effective
Time.
5. Shares
Subject to the Plan .
(a)
Number and Source . The shares offered under the Plan shall
be shares of Common Stock and may be unissued shares or shares now
held or subsequently acquired by the Company as treasury shares, as
the Committee from time to time may determine. Subject to
adjustment as provided in Section 20 , the aggregate
number of shares of Common Stock for which Awards, including
Options that are intended to be Incentive Stock Options, may be
granted during the term of the Plan shall not exceed an absolute
maximum of 15,699,107 shares of Common Stock (as adjusted in
accordance with the Exchange Ratio in the Merger Agreement) (the
“Share Limit”).
(b)
Determination of Shares Remaining Available Under the Share
Limit . Any shares of Common Stock that are subject to Awards
of Options or SARs shall be counted against the Share Limit as one
share for every one share granted, regardless of the number of
shares of Common Stock actually issued upon the exercise of an
Option or SAR. Any shares of Common Stock that are subject to
Awards other than Options or SARs (including Performance Awards
denominated in dollars but settled in shares of Common Stock) shall
be counted against the Share Limit as one and one-half shares for
every one share granted or issued.
(i) Any
shares subject to an Award granted under the Plan that are not
delivered because the Award expires unexercised or is forfeited,
terminated, canceled, or exchanged for Awards that do not involve
Common Stock, or any shares of Common Stock that are not delivered
because the Award is settled in cash, shall not be deemed to have
been delivered for purposes of determining the Share Limit.
Instead, such shares shall immediately be added back to the Share
Limit and shall be available for future Awards; provided
that (A) any shares of Common Stock that are subject to Awards
of Options or SARs shall be added back as one share for every one
share granted; and (B) any shares of Common Stock that are
subject to Awards other than Options or SARs (including Performance
Awards denominated in dollars but settled in shares of Common
Stock) shall be added back as one and one-half shares for every one
share granted.
(ii) The
grant of a Cash Award shall not reduce or be counted against the
Share Limit. The payment of cash dividends and Dividend Equivalents
paid in cash in
10
conjunction
with outstanding Awards shall not reduce or be counted against the
Share Limit. Shares of Common Stock delivered under the Plan as a
Substitute Award or in settlement of a Substitute Award shall not
reduce or be counted against the Share Limit to the extent that the
rules and regulations of any stock exchange or other trading market
on which the Common Stock is listed or traded provide an exemption
from stockholder approval for assumption, substitution, conversion,
adjustment, or replacement of outstanding awards in connection with
mergers, acquisitions, or other corporate combinations.
(iii) The
Committee may from time to time adopt and observe such rules and
procedures concerning the counting of shares against the Share
Limit or any sublimit as it may deem appropriate, including rules
more restrictive than those set forth above to the extent necessary
to satisfy the requirements of any national stock exchange or other
trading market on which the Common Stock is listed or traded or any
applicable regulatory requirement.
(a)
Types of Awards . Awards granted under the Plan may include,
but are not limited to, the types of Awards described in
Sections 7 through 14 . Such Awards may be
granted either alone, in addition to, or in tandem with any other
types of Award granted under the Plan.
(b)
Limit on Number of Awards . Notwithstanding any other
provision of this Plan to the contrary, the following limitations
shall apply to the following types of Awards made hereunder, other
than Substitute Awards:
(i) The
aggregate number of shares of Common Stock that may be covered by
Awards granted to any one individual in any year shall not exceed
the following:
(A) 675,000
shares (as adjusted in accordance with the Exchange Ratio in the
Merger Agreement) in the case of Options and SARs; and
(B) 337,500
shares (as adjusted in accordance with the Exchange Ratio in the
Merger Agreement) in the case of Restricted Stock and RSUs
(including Restricted Stock and RSUs granted subject to the terms
and conditions contained in Section 10 ), Performance
Awards denominated in shares of Common Stock, and Stock
Bonuses.
(ii) The
aggregate dollar value of Awards that may be paid to any one
individual in any year shall not exceed the following:
(A) $5,000,000
in the case of Cash Awards; and
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